- The Washington Times - Tuesday, March 11, 2003

One of the few things we know about crime is that past predation is a reasonably reliable earmark of prospective criminality; and, that while career criminals are incarcerated countless gruesome crimes are prevented.
From this wisdom was born three-strikes laws that punish incorrigible felons with life imprisonment. Last week, the U.S. Supreme Court held in Ewing vs. California (March 5, 2003) that the Eighth Amendment's prohibition of cruel and unusual punishments is undisturbed by terms of imprisonment that put an end to careers in criminality. What astonishes is not the majority decision, but that four justices dissented and that the case sparked controversy.
The Great Society euphoria of the 1960s brought forth the ill-conceived idea that criminal behavior was more a treatable medical malady than an evil in need of deterrence or incapacitation. Rehabilitation was touted as the North Star of criminal justice.
Moral denunciation of the loathsome was taboo. It mattered not that recidivism remained at frightening levels and that the incidence of crime leaped to unprecedented peaks. The usual suspects were summoned to exonerate rehabilitation's stark failure: too little money for psychological counseling and too much poverty and social injustice.
The wake up call from the nation's rehabilitation folly came on Oct. 1, 1993. Polly Klaas, 12 years old, was kidnapped from her home in Petaluma, Calif., and murdered by recidivist Richard Allen Davis. He had served but half of his most recent sentence (16 years for kidnapping, assault, and burglary), which enabled him to prey on helpless Polly instead of spending time in prison without endangering society.
Her grim death cast light on the horror story of recidivism feeding on criminal justice indulgence. A staggering 60 percent to 75 percent of imprisoned offenders commit new crimes on the heels of release. The Bureau of Justice Statistics in the Justice Department reported last year that approximately 67 percent of former inmates released from state prisons were charged with at least one serious new crime within three years.
And these career criminals characteristically are guilty of scores if not hundreds or thousands of crimes before taken out of commission or superannuated. Our psychological knowledge is too slender, despite benign intentions, to steer recidivists away from predation on the innocent. More in sorrow than in anger, they must be exiled from society as a collective form of self-defense.
Within two years of the Polly Klaas epiphany, 24 states and the federal government had enacted three strikes laws to incapacitate habitual felons. California's was emblematic. A third felony conviction triggers an indeterminate term of life imprisonment with parole eligibility typically after 25 years.
Gary Ewing complained that such stiff punishment did not fit his multiple crimes under the Eighth Amendment. But his protracted degeneracy answers his complaint: theft in 1984; grand theft auto in 1988; petty theft in 1990; battery in 1992; burglary in 1993; possession of drug paraphernalia in 1993; appropriating lost property in 1993; unlawful possession of a firearm and trespass in 1993; three burglaries and a robbery in 1993; and, grand theft of golf clubs in 2000. The last felony occasioned his life sentence. Anything less would have been criminal itself by the State of California. In light of what we know of recidivists matching Ewing's profile, any punishment short of life would have constituted reckless endangerment of the community.
A non-lawyer might reasonably ask how Ewing's constitutional challenge passed the laugh test. A punishment must be both "cruel" and "unusual" to raise Eighth Amendment eyebrows. But it is neither cruel nor unusual to make prison sentences for career criminals commensurate with the havoc and mayhem they have inflicted on the community. Life sentences for such predators might be cruel if we knew how to cure their incorrigibility. But such knowledge remains chimerical, like a search for the philosopher's stone.
The Supreme Court found Ewing a thorny Eighth Amendment case only because of its activist embellishments. It has sermonized that evolving standards of decency and proportionality inform the amendment's limitations, as though nine justices from their remote aerie are better equipped than any legislator or parent to make that discernment. Thus, in Solem vs. Helm (1983), the court balked at a life sentence without possibility of parole for a seventh nonviolent felony.
That bizarre conclusion did not come from constitutional history or specialized legal learning. It was not extracted from the original meaning or purpose of the Amendment. Instead, it pivoted on personal idiosyncrasies about crime and punishment no more worthy of respect than those of legislators, executive officials, scholars, or ordinary citizens. The Solem decree epitomized rule by Platonic guardians.
Shouldn't the court do what Justice Antonin Scalia urged in his Ewing concurrence and renounce the wholly subjective constitutional business of reviewing the length of punishments for decency and proportionality?

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