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http://www.washingtonpost.com/wp-dyn/articles/A46141-2002Apr1.html
Court to Review Three Strikes Sentencing Laws By Anne Gearan The Washington Post Associated Press Writer Monday, April 1, 2002
WASHINGTON -- The Supreme Court said Monday it will use the cases of two petty thieves sentenced to at least 25 years in prison for shoplifting videotapes and stealing golf clubs to decide how far states can go in applying tough three-strikes-and-you're-out sentencing laws.
The court's answer could settle whether states violate the Constitution's ban on cruel or unusual punishment when they use the laws to win long sentences for minor offenses that otherwise might result in just a few months behind bars.
The court agreed to hear two cases from California, which has the country's strictest three-strikes law.
Forty states lengthen sentences of repeat criminals; 26 of the 40 have a three-strikes provision.
Only in California, however, may a judge impose a sentence of 25 years to life for any felony conviction if the criminal was previously convicted of two serious or violent felonies.
Crimes that might otherwise be considered misdemeanors may also be considered felonies under California's law, meaning that shoplifting or other small-time crime can trigger the long sentence.
California voters and lawmakers approved the three-strikes law in 1994 amid public furor over the kidnapping and murder of 12-year-old Polly Klaas. Richard Allen Davis, a repeat offender on parole at the time of the kidnapping, was convicted of the murder and sentenced to death.
Three-strikes laws in other states and the federal government were also passed in the 1990s, when the spread of crack cocaine fed public fears about rising violent crime.
The federal law is not under review before the high court.
The better-known case the court will hear is an appeal from California's attorney general, who claims the state was justified in seeking a prison term of 50 years to life for a man convicted of stuffing videotapes down his pants at two southern California Kmart stores in 1995.
Leandro Andrade had previous burglary convictions, making him eligible for extra punishment under California's three-strikes law.
A state court upheld the sentence, but the 9th U.S. Circuit Court of Appeals, in a widely noted decision last year, ruled that Andrade's sentence was unconstitutional. The ruling was limited to cases like his, and did not overturn the three-strikes law itself.
"I think it is outrageous that someone could be sentenced to 50 years in prison for shoplifting $150 worth of videotapes," said Erwin Chemerinsky, Andrade's lawyer.
A divided three-judge panel of the appeals court found Andrade's sentence "grossly disproportionate" to the theft, and said Supreme Court rulings require a trial judge to examine whether the punishment fits the crime.
The court also said it will hear a case that came out the other way. Courts upheld Gary Ewing's sentence of 25 years to life in prison for trying to walk out of a pro shop with three golf clubs shoved down his pants leg.
Ewing had four prior convictions for robbery and burglary. Although prosecutors could have charged him with a misdemeanor in the golf club case, they chose to charge him with a felony under the state's three-strikes law.
"Serving 25 years to life for stealing golf clubs is cruel and unusual punishment," Ewing's lawyer wrote in asking the Supreme Court to get involved.
The Supreme Court has turned down previous attempts to challenge three-strikes laws as cruel and unusual punishment, but in 1999, three justices made an unusual point of questioning the law's application in California.
The court's ruling could be limited to the California law, or it could make a more general statement about the reach of sentencing schemes for repeat criminals.
In Andrade's case, the prosecutor had a choice of charging Andrade with a misdemeanor or with a felony that would make him subject to the three-strikes law.
Andrade received 25 years to life for each count, with the sentences to run consecutively. He is not eligible for parole until 2046, when he will be 87.
"Nothing in the Constitution requires society to wait for another person to be victimized by another serious or violent crime before isolating (a repeat criminal) for a substantial period of time," California Attorney General Bill Lockyer wrote in asking the Supreme Court to get involved.
Rhode Island, West Virginia, Texas and Louisiana would also allow longer than usual sentences for Andrade's same crime.
The 9th Circuit concluded that only in Louisiana would Andrade have faced a potential sentence as long as the one he received in California.
The government does have the power to punish repeat criminals harshly, Andrade's lawyer argued in court papers, "but this court has never approved such harsh sentences for misdemeanor conduct, even when the offender is a recidivist," Chemerinsky wrote.
The cases are Lockyer v. Andrade, 01-1127, and Ewing v. California, 01-6978. Court Dismisses Free Speech Case
In other court news, leaders of a Kentucky community college lost a free speech case that asked the court if a college instructor had a constitutional right to use racial slurs in class as part of a discussion of hurtful communication.
Complaints about the lesson cost the teacher his job, and the court had been urged to use his dismissal to decide whether the First Amendment applies to all on-the-job speech. Justices declined Monday, without comment, to review an appeal from the teacher's superiors.
The case is Besser v. Hardy, 01-936. Court Rules for Judge in Tobacco Case
Also on Monday, the court ruled that a judge could oversee a tobacco case even though he once headed a trial lawyer group that criticized cigarette companies.
Justices had been asked to use the case to determine when judges are too close - or at least appear to be - to legal subjects being disputed.
The court, without hearing arguments, said it was clear that U.S. District Judge Carl Barbier of Louisiana was wrongly barred from overseeing a case filed against cigarette-makers by a state government in Brazil.
The case is The State of Sao Paulo v. The American Tobacco Co., 01-835.
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