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ISSUE V.5 |
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FEATURED ARTICLES |
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Special Report
Criminal Law 1
Criminal Law 2
Civil Procedure
Legal Writing
Employment Law
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FEATURE OF THE MONTH |
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ARCHIVE OF PAST ISSUES |
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TEST YOUR KNOWLEDGE |
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Criminal Law 1 |
3-Strikes Not Cruel and Unusual Punishment: 5 – 4 Majority
Gary Nichols, Supervising Deputy Public Defender, San Diego Public Defender’s Office Writs & Appeals Section
Introduction
On March 5, 2003, a sharply divided US Supreme Court rejected cruel and unusual punishment challenges brought by two inmates sentenced to life terms for theft offenses under California’s 1994 "Three Strikes and You’re Out" law. Justice Sandra Day O'Connor, writing for the 5-4 majority in the two cases, upheld sentences of 25 years to life for the theft of three golf clubs and 50 years to life for the theft of nine video tapes from two K-Mart stores. (Ewing v California, No. 01-6978; Lockyer v Andrade, No. 01-1127.) The rulings dashed the hope of not dying in prison for hundreds of California inmates sentenced to life terms for minor theft and drug offenses.
California has over 7,000 inmates serving three-strike sentences. Nearly half of those are for offenses which are not "serious" or "violent." California is the only state which permits three strikes sentences for non-serious offenses. Nearly 1,000 inmates are serving life sentences for petty theft or minor drug offenses.
Ewing and Andrade – no violation of Eighth Amendment
These two latest pearls in the string of High Court non-capital Eighth Amendment decisions confirm that no sentence, regardless of length, will be deemed cruel and unusual, at least by the conservative majority of the present court. Indeed, in rejecting the Eighth Amendment challenge in Ewing, the majority relied on the rationale espoused by Justice Anthony Kennedy in his concurring opinion in Harmelin v Michigan (1991) 501 US 957. In this case, he upheld a sentence of life without possibility of parole for possession of a substantial amount of cocaine by a first-time offender. Justice Kennedy’s concurrence in Harmelin recognized a "narrow proportionality" component to Eighth Amendment non-capital sentence review. What makes the proportionality review "narrow" is that it requires that the challenged sentence be "grossly disproportionate" to the crime" but does not mandate a comparative analysis of the sentence "within and between jurisdictions." Justices Scalia and Thomas do not believe that the Eighth Amendment has any proportionality requirement in non-capital sentencing. They believe the only restriction is on "modes of punishment," however, they concurred in the judgments that neither Ewing’s or Andrade’s sentences violated the Eighth Amendment.
Application of gross disproportionality
Application of gross disproportionality analysis appears to be not much more than the gut reaction of the individual jurist. The only benchmarks are that life without parole for overtime parking is grossly disproportionate and life with any possibility of parole, no matter how actuarially unlikely or impossible, is not disproportionate for any offense the Legislature deems a felony. At least, as far as Chief Justice Rehnquist and Justices O’Connor, Kennedy, Scalia, and Thomas are concerned. Of course, Justices Stevens, Breyer, Souter, and Ginsburg think that both Ewing’s 25-Life and Andrade’s 50-Life sentences are grossly disproportionate to their offenses. Justice Souter, in his dissent in Andrade, stated: "If Andrade's sentence is not grossly disproportionate, the principle has no meaning."
Decisions ultimately unsatisfying
Regardless of individual penological philosophy, i.e., your gut reaction to the sentences meted out to Ewing and Andrade, the Supreme Court’s decisions on them are uniquely unsatisfying. While legislatures and trial courts now know that almost no "term of years" is likely to run afoul of the Constitution, do we really know why? The majority’s gross deference to the Legislature feels more like abdication of the Court’s obligation to hold the legislative feet to the constitutional fire than mere deference to legislative policy decisions. Justices Scalia and Thomas pointed out the lack of discernible principle in Eighth Amendment application, however, their view that even grossly disproportionate sentences do not violate the Constitution is at least equally disturbing. What do these decisions say about the state of our society when viewed from the perspective that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society?" (Trop v Dulles (1958) 356 US 86, 101).
Legislative reform
Legislative reform is now the last hope of Three Strikes opponents and the Ewing and Andrade decisions have renewed reformers’ resolve to seek change. Public opinion polls seem to give them a glimmer of hope. However, amendment of Three Strikes requires either a two-thirds vote in the Legislature or a successful initiative measure. Even moderate change, such as requiring the triggering offense to be serious, probably has little chance in the short-term. That situation may change when the California state prison system becomes a geriatric ward for thousands of petty thieves and drug users and the cost of housing them doubles or triples over that of the average prison population.