Supreme Court Justices Debate Constitutionality of State's 3-Strikes Law


By David Kravets
Associated Press Writer
WASHINGTON - The Supreme Court is considering whether sentencing shoplifters, petty thieves and other minor criminals to life terms amounts to cruel and unusual punishment banned in the Constitution.
Hearing oral arguments on two cases Tuesday, the justices took up California's three-strikes-you're-out law, the toughest in the nation, which California's voters and the Legislature approved in 1994. It can produce the nation's most severe sentences for repeat offenders convicted of minor crimes.
Videotapes, golf clubs
The cases before the court concerned Leandro Andrade, who got 50 years for stealing nine children's videotapes from Kmart, and Gary Ewing, serving 25-to-life for taking three golf clubs, stuffing them down his pants at a golf course.
Attorneys for the two urged the justices to set aside their sentences and argued that the law unfairly punishes people for past conduct. "It is not just cruel and unusual, it's cruel and unique," said Erwin Chemerinsky, Andrade's attorney.
Justice Antonin Scalia asked: "Why is it cruel? Why is it unreasonable?"
The law, challenged as a violation of the Eighth Amendment's bar to cruel and unusual punishment, was designed to remove repeat offenders from the street, Justice Anthony M. Kennedy said.
"That's the whole purpose of the California law you're asking us to ignore," Kennedy said.
Ewing's attorney, Quin Denvir, said the three-strikes law increased his client's sentence six-fold.
The law, approved by California lawmakers and 72 percent of voters, requires a sentence of 25 years to life for a felony committed by someone already convicted of two felonies such as rape, murder, robbery, burglary and certain other crimes.
The law also requires such convicts to serve their full sentences before becoming eligible for parole, which has swelled the ranks inside California's prisons. More than 7,100 inmates are serving third-strike sentences.
Justice Sandra Day O'Connor suggested the debate should be left to the states.
"We have said we are going to give great latitude to legislatures," she said.
The Supreme Court's big Eighth Amendment rulings generally involve capital punishment. The court this year prohibited states from executing retarded killers but refused to consider a challenge to executing an inmate who was 17 when he committed murder.
The court has supported tough sentences before. In 1991, the justices upheld life without parole for a Michigan man with no prior offenses who possessed a 1½ pounds of cocaine. In 1980, the court upheld a life term with the possibility of parole after 12 years for a repeat offender in Texas convicted of check fraud.
Justice Stephen Breyer asked whether Ewing's sentence for stealing the golf clubs fit the crime.
Grossly disproportionate
"If that isn't grossly disproportionate, why not?" he asked.
Andrade, now 45, had at least three prior felony burglary convictions when he was caught stealing five children's videotapes from a Kmart in 1995. Two weeks later, while out on bail, he was caught stealing four more tapes from another Kmart. He was convicted of petty theft and sentenced to two consecutive terms of 25 years to life.


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