When should three strikes put you out?


Leandro Andrade was spotted stuffing his pants with “Snow White,” “Cinderella” and a few other videos at a local Kmart. He later found himself locked up for 50 years to life.

Gary Ewing managed to slide three golf clubs down his pants and was caught leaving a store with a mysterious new limp. He was sentenced for 25 years to life.

The source of these incongruous punishments is California’s “three strikes” law, a rule that was challenged by a recent Ninth Circuit decision and is slated to be reviewed by the Supreme Court. “Three strikes, you’re out” was the result of a 1994 referendum organized by a seething California electorate hungry for tougher sentencing of recidivist criminals. After the brutal 1993 murder of young Polly Klaas by a repeat-offender on parole, the state enacted Proposition 184, which hands down an automatic 25 year to life sentence for a third felony conviction. The Federal government and 24 other states have similar laws.

The problem with such laws lies in the severity of the punishment relative to the gravity of the third strike that triggers it. While it may be appropriate to mandate tougher punishments for repeat serious and violent offenders, only in California can a person be locked up for life for a petty theft of children’s movies. I believe in tough crime laws for my home state, but “three strikes” has gone too far.

Fifty-seven percent of the 7,000 inmates currently in California jails under this rule committed a nonviolent felony as their third strike. Many of these offenders have been sentenced to multiple consecutive terms of 25 years to life. Six-hundred-forty-four of these last-straw violations involved drug possession. Worse, 340 of these prisoners have been incarcerated for up to life on third-strike convictions for petty theft. This is because California’s law incorporates more than just violent crimes. Its harshness is also due to a peculiar state law that raises misdemeanors to felonies for people with previous property convictions. Thus, somebody like Ewing could spend an inordinate length of time in jail for what would otherwise have been treated as a misdemeanor with a maximum sentence of one year. In essence, he is being punished twice for previous acts – a policy that is supposed to be unconstitutional. Suffering from AIDS and not eligible for parole until 2025 at the age of 63, Ewing looks to be the non-violent victim of a poorly executed effort to reduce violent crime levels. I sincerely doubt that voters supporting Proposition 184 intended such outcomes.

Beyond arguments of equity, there are logical problems with California’s law. Andrade’s third strike, for example, only counted as such because of two earlier burglary convictions that forced his third crime, a misdemeanor, to be counted as a felony. If those two previous convictions were for violent non-property crimes, he would have been spared the iron fist of three strikes. Secondly, Andrade would have avoided the penalty had he committed the video theft first and the burglaries later, since his video theft would not have been boosted to a felony.

An additional effect of the rule has been to incarcerate a much older population of offenders, since they tend to have a longer criminal histories. The cost to incarcerate one such inmate for up for 25 years is approximately half a million dollars. These offenders are usually past the pinnacle of their criminal careers, yet they are left to waste away on the public’s dime while helping to jam jails even more tightly. Comparing the $500,000 cost of incarceration to the $153.54 worth of kid’s flicks that Andrade stole, it is clear that the state can use the money for more constructive purposes.

It is hard to guess what the Supreme Court’s final decision will be. The Court has a history of rebuffing the Ninth Circuit whenever given the chance, but Chief Justice Rehnquist and Justice Scalia have said before that they fail to see a requirement in the Eighth Amendment to seek proportion between the crime committed and the punishment applied. Among the more liberal justices, Souter, Ginsburg, Breyer, and Stevens have indicated before that the three strikes rule could “raise serious Constitutional issues.” It seems that, yet again, this will come down to the middle-of-the-roaders: Justices Kennedy and O’Connor.

The impact of the Court’s decision could be far-reaching. The immediate question is whether the Ninth Circuit was correct in finding that Ewing and Andrade were subjected to cruel and unusual punishment. That ruling will only be based on the particular extent of California’s three strikes law and not that of other states. The argument for three strikes generally is deterrence – that there has been a significant decrease in violent crimes since their enactment.

Thus, anti-crime advocates might be comforted to know that upholding the Ninth Circuit might not invalidate the entire policy, but only smooth the rough edges. Whatever deterrent effects the policy has would still be felt – repeat violent and serious offenders would still be subject to long prison terms. The original spirit of the law would thus be maintained while casting the net less broadly. Yet affirming will mean that people who shoplift and possess drugs will not be thrown behind bars unfairly for decades too long. Sixty-five percent of Californians were recently found to be in favor of amending the policy, so let us hope their wishes are met again.

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