- The Washington Times - Wednesday, March 5, 2003

WASHINGTON, March 5 (UPI) — The Supreme Court, in two 5-4 votes Wednesday, upheld California's "Three Strikes and You're Out" law, saying it did not violate the Eighth Amendment's ban on cruel and unusual punishment.

The rulings came in cases in which two repeat offenders were sentenced to prison terms of 25 years and longer after stealing golf clubs and videotapes.

The court split along strictly ideological lines, with the four liberals dissenting in each case and moderate conservative Justice Sandra Day O'Connor writing the opinion supporting the judgment for the five-member conservative majorities.

Chief Justice William Rehnquist and Justice Anthony Kennedy signed on to O'Connor's opinion and reasoning. Justices Antonin Scalia and Clarence Thomas agreed with the judgment, but for different reasons.

O'Connor said that the decision to imprison repeat offenders for 25 years to life after three violent or serious offenses was "a deliberate policy choice" of the California Legislature.

"Any criticism of the law should be directed at the Legislature," O'Connor said. " … (one defendant's) sentence is long, but so is his criminal history."

The Eighth Amendment itself does not require the states to choose a particular philosophy of punishment, and the three-strikes law is "a rational legislative judgment."

Speaking for herself, Rehnquist and Kennedy in the first case, O'Connor said the prevailing opinion holds the sentence "is not grossly disproportionate and therefore does not violate the Eighth Amendment's prohibition on cruel and unusual punishments."

In his separate concurring opinion, Scalia said the Eighth Amendment bans only certain kinds of punishment, not lengths of prison terms. Thomas said the Eighth Amendment does not contain a "grossly improportionate" principle.

Speaking for the dissenters, Justice Stephen Breyer said the legal question in one case was indeed whether the sentence was "grossly improportionate" to the offense.

"Outside contemporary California, this sentence is truly unusual," Breyer said.

Also, first-time perpetrators of more serious crimes normally receive less prison time, Breyer said, even in California.

Each of the two cases decided Wednesday reads like a study in how to be a loser.

The first involves Gary Albert Ewing, who stuffed three golf clubs down his pants at a golf shop in Los Angeles County.

According to court records, Ewing told a shop employee he was headed to the driving range. Instead, he went to his car in the parking lot, exhibiting a rather stiff-legged limp that drew the employee's suspicions. Police were called, and found the three clubs in Ewing's pants. The clubs were valued at $399 each, enough collectively to constitute felony theft.

Ewing also was sentenced to 25 years to life because of his prior criminal history — he had four earlier felony convictions — a sentence that was upheld by the California appeals courts.

In the second case, Leandro Andrade and a female companion entered a Kmart store in Ontario, Calif., on Nov. 4, 1995.

"Andrade looked around, selected some videotapes and stuffed them inside his trousers," the state's petition to the Supreme Court said. "Andrade looked around again, grabbed some more tapes, and stuffed them inside his trousers."

He made it only as far as the sidewalk in front of the store when he was stopped by security personnel and arrested for shoplifting. The combined value of the merchandise was $84.70.

However, while that charge was pending, Andrade and two female companions entered a Kmart store in Montclair, Calif., two weeks later.

"Andrade selected a videotape and put it down the waist of his pants," the state's brief said. "Andrade selected two more tapes and went behind a partition."

He was again stopped and detained by store security personnel and charged with shoplifting. The combined value of the merchandise in the second incident was $68.84.

Andrade was convicted by a state jury in San Bernardino, Calif., of two counts of petty theft. The jury also determined that Andrade had committed "three prior serious or violent felony convictions" under the meaning of California's three-strikes law.

A state judge sentenced him to two consecutive terms of 25 years to life. That means he would have to serve 50 years before being considered for parole. The state appeals courts upheld the sentence.

Andrade then took his case to federal court, but a U.S. judge rejected his claim that the California law constituted cruel and unusual punishment. Finally, a federal appeals court reversed, saying his sentence was "grossly disproportionate to his misdemeanor thefts of nine videotapes."

The appeals court pointed out that Andrade's two prior offenses were petty burglaries "enhanced to felonies as allowed under the California Penal Code, and then enhanced again to third and fourth strikes under California's Three Strikes and You're Out Law."

If Andrade's sentence were allowed to stand, the appeals court said, he "would not become eligible for parole until 2046, after serving 50 years, when he would be 87 years old."

Wednesday, narrow majorities of the Supreme Court upheld the lower court in the Ewing case and reversed the lower court in the Andrade case.

(Nos. 01-6978, Ewing vs. California; and 01-1127, Atty Gen Lockyer et al vs. Andrade.)

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