Wednesday, April 2, 2008

Three Strikes

Curtis Stamps
American Constitutional Law II
Dr. Smith
December 5, 2002

Three Strikes

In the case Lockyer, CA Attorney General v. Andrade, Leandro/ Ewing, Gary v. California, Andrade and Ewing’s civil rights are being violated under the laws of the state of California. The California Three Strikes law states, “Notwithstanding any other provision of law, if a defendant has been convicted of a felony and hi has been pled and proved that the defendant has one or more prior felony convictions, as defined in subdivision (b), the court shall adhere to the following: if a defendant has one prior felony conviction that has been pled and proved, the determinate term of minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for each current conviction. (2) (A) If a defendant has two or more prior felony convictions, as defined in paragraph (1) of subdivision (b), that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of (I) three times the term otherwise provided as punishment for each current felony conviction subsequent to the tow or more prior felony convictions, or (ii) twenty-five years, or (iii) the term determined by the court.”
It is obvious that my clients committed the crimes of shoplifting and burglary, but is also obvious that the sentence does not fit the crime. Twenty-five years is cruel and unusual punishment for the crimes of shoplifting and burglary. In addition, my client’s Fifth Amendment right, protection against double jeopardy, is being violated.

On November 4, 1995, Leandro Andrade stole five videotapes out of K-Mart. The videotapes he stole were listed as “The Fox and the Hound,” “The Pebble and the Penguin,” “Batman Forever,” “ Casper,” and “Snow White”. All together, these tapes totaled $84.70. Two weeks later, Andrade was again arrested for attempting to steal videotapes. These tapes were listed as “Cinderella,” “Free Willy II,” “Little Women,” and “ The Santa Clause” which totaled $68.84. Before these two convictions, Andrade was an unemployed veteran and a heroine addict. Andrade's criminal record consisted of five felonies with two misdemeanors that spanned over fifteen years. Three of Andrade’s five felonies were federal crimes. Two were for transporting marijuana and one for escaping from prison. These offenses did not consider in Andrade’s Three Strike sentencing. The crimes that did factor in on his fifty-year sentence are two burglary convictions in 1983 and two petty theft convictions in 1982 and 1990. The petty theft convictions in 1982 and 1990 made the shoplifting convictions in 1995 thefts with a prior. Which means each shoplifting charge, if convicted, would receive a sentence of twenty-five years to life. Andrade was convicted and receive the maximum sentence of twenty-five years for each crime, but the decision was overturned by the Ninth Circuit Court of Appeals which stated that Andrade’s sentence violated the Eight Amendment protection from cruel and unusual punishment. Along with Andrade’s case, is the case of Gary Albert Ewing. Ewing is a forty-year-old man who has AIDS and suffers from drug addition and is also going blind. Ewing’s criminal record consists of four robbery convictions and one burglary conviction that all came from one case plus six other convictions. On March 12, 2000, Gary Albert Ewing was arrested for shoplifting. The items Ewing attempted to shoplift were three golf clubs priced at $399 each. Ewing’s final strike could have been prosecuted as either a misdemeanor or felony, which would have only carried a sentence of one year instead of a twenty-five year to life sentence.

Legal Arguments
The Supreme Court cases Lockyer, CA Attorney General v. Andrade, Leandro v. Ewing, Gary v. California concerns two violations of Andrade and Ewing’s civil liberties and also a number of extra- constitutional problems that make the Three Strikes law of California unlawful or unreasonable. The first violation of Ewing and Andrade’s constitutional rights is the violation of cruel and unusual punishment. Under California’s law, any crime that is considered a serious or violent felony can be prosecuted under the state’s Three Strikes law. According to the California’s Three Strikes law, violent felonies and serious crimes include the same crimes. These crimes range from very violent crimes such as murder or voluntary manslaughter to burglary of an inhabited dwelling house. In the case of Andrade and Ewing, the crimes of shoplifting are being considered a serious or violent felony. In the case Solem v. Helm (1983), Solem Warden is contesting his sentence life imprisonment without this possibility of parole. Warden Solem’s was convicted of uttering a “no account’ check for $100. The maximum fine for this crime would have been five years’ imprisonment and a $5000 fine but because of his six (nonviolent) prior felony convictions; Solem sentence was upgraded to life imprisonment without possibility of parole. The Court of Appeals reversed Solem’s sentences holding that the Eighth Amendment prohibits not only barbaric punishment, but also sentences that are disproportionate to the crime committed. The case, Solem v. Helm, also address the principle of proportionality. The Court of Appeals stated that the principle of proportionality is deeply rooted in common- law jurisprudence and that this principle was implicit to the constitution when the framer drafted the bill of Rights. The Court of Appeals also claim the Eighth Amendment should be guided by objective criteria. This point is especially important regarding the cases of Andrade and Ewing who received twenty- five years to fifty years for crimes that were all of the non-violent nature. In deciding this cases, the judges emphasize the principle of proportionality explain their stance that the Eighth Amendment doe not apply only to cases involving barbaric means of punishment but also any unjust punishment.
The problem arises with the definition of a serious or violent felony. The twenty- five to fifty year punishments handed down to my clients is comparable to crimes committed by rapists, murderers, and sometimes terrorists. In addition, in Ewing’s case, his two prior strikes stemmed from one case. The court system works to punish criminals for three purposes: to rehabilitate, to deter, and to take violent offenders off the street. The Three Strikes law is problematic because it states a person has to commit three violent of serious crimes before that criminal is to be taken off the streets. We should hope that if a person commits one violent or serious felony, he or she will be punished so severely that they will either not consider committing another crime or still be incarcerated until they have run out of time to commit another violent or serious crime.
In addition to the violations of the constitution the Three Strikes law commit, there are also a number of extra-constitutional problems with the Three Strikes law. The first are economic problems. It is estimated that 1,200 three-strike felons enter the prison system annually. At this rate, by the year 2006, 30,000 inmates will be serving twenty-five years to life under California’s Three Strikes law. Just under the Three Strikes law, California taxpayers will be dishing out an average of 750 million dollars a year. The money that is going to fund the California state prison system could be used to help prevent crime by providing better books and computers or paying teachers more. Nationally, it costs 23,000 dollars to house, clothe, and feed a young, healthy inmate. Also, 60 percent of federal inmates are drug offenders with half of them being first time, non-violent offenders. The cost to feed, clothe, house, and guard these individuals amount to 4.14 million dollars per day or 1.51 billion dollars annually. The Three Strikes law only adds to the strain of an already crowded prison system.
Another problem the Three Strikes law causes is the age problem or the “graying” of the prison system. The age problem involves two things: the mental, physical, and social health of the inmate and the economic stress of maintaining the health of older prisoners are putting on the prison system. The Three Strikes law is unjust first in its wording. The law was implemented to prevent heinous criminals from committing more heinous crimes, but is has been used to punish non-violent offenders or habitual criminal offenders. A first time offender (violent or non-violent) can receive a light sentence based on a multitude of circumstances. The second time, under the Three Strikes law, the criminal is convicted; his or her time is twice the amount of time he or she would have received without the Three Strikes law. By the time he/she is released, they are older. The average age for a person entering the prison system under the Three Strikes law is between the years of thirty-one and thirty-four. After receiving the mandatory sentence of twenty-five years, the inmate will be at least fifty before being considered for parole. The Three Strikes law ensures that the population of the prison system will be a made up of older men or women who probably are no threat to society. The second part of the graying of the prison systems involves the medicine and equipment it takes to maintain the health of older inmates. Older inmate, because of their age, are more susceptible to being injured or taken advantaged of by younger inmates. Some older inmates are intimidated in to giving up privileges, some are stolen from, and some are even raped. Since they are older and are less able to defend themselves, older inmates usually isolate themselves from the prison population, which can lead, to depression or other detrimental social problems. These social problems translate into health problems. Obviously, older inmates need more health care than younger inmates do. The health care needs of the older inmates are almost impossible to attain and if they are attainable, the prices are too costly. For example, at a Kentucky Reformatory, one fatally ill inmate wanted to end his life but the state cold not let him die. After his death, his total medical bill that was credited to a nearby hospital totaled 500,000 dollars.
Another extra- constitutional problem presented by California’s three strikes law is that the law takes away power of Judicial and the prosecution discretion. One of the main roles of a judge is to use his or her judgement in sentencing. If a mandatory sentence is set, then a judge loses his or her powers of discretion. By imposing mandatory minimum sentences, such as the Three Strikes law, disregards the defendant’s role in the offense, his culpability, likelihood of rehabilitation, or any other mitigating factors. Another problem with mandatory minimum sentences is that they are not effective. Imposed in 1952 the Bogus Act was repealed by 1970 because they were ineffective. The Three Strikes law is another example of a Mandatory minimum sentences bit it is not the ineffectiveness of the law that is problematic, but the unjustness of the law. Judges are not allowed to consider the circumstance of the offense, the history and character of the defendant, the need for the sentence to deter further criminal conduct, the need to protect the public, alternative sentencing options, or the need to avoid sentence disparities with similar defendants.
Opposing Arguments
The petitioner presents a couple of valid arguments. The first is that my clients are habitual crime offenders and that they have received more that enough chances to reform. Although my clients have committed the crime, it is obvious that the punishment of fifty years for shoplifting children’s videotapes and twenty- five years for shoplifting golf clubs is grossly disproportionate to the crime. The three strikes law was passed in 1994 because of the public outrage following the kidnapping and murder of twelve year old Polly Klass by a twice convicted kidnapper on parole. This law was enacted to prevent heinous criminals from receiving the chance to commit another crime of the serious and violent nature. The problem is not this part of the law, but the part that allows non- violent criminals to receive sentences that only a murderer and some rapists would receive. The California Court of Appeals has recognized the principle of proportionality in two recent cases by overturning Andrade’s conviction and the convictions of Brown and Bray, whom were sentenced to twenty- five years to life under California’s Three Strikes law. Another argument the petitioner will incorporate against my clients is that it is the state’s right to decide how they punish their criminals. This argument is problematic because when a United States citizens liberty are being violated, it is not only a problem of the states but also one of the federal government.
Closing Arguments:
In closing, Leandro Andrade and Gary Albert Ewing committed the crimes they were convicted of. They were caught stealing children’s videotapes and three golf clubs. Although my clients are habitual criminal offenders, neither has been convicted of a crime where an individual’s life was threatened or even convicted of a crime where they caused bodily harm to a person. So why punish shoplifters more heavily than we punish people who sexually abuse children. The principle of proportionality, deeply rooted in common- law juries prudence, has been viewed by our country every since the Constitution of the Unites States was drafted. Our Founding Fathers believed the principle of proportionality was implicit in the Eighth Amendment. During the outrage that followed the Three Strikes law, the idea was fresh and presented a solution to the public outcry, but the constitutionality of the law falls short of what our society deems fair and equal punishment. The California Court of Appeals reflects the change in attitude of the public when they overturned the two cases of Lockyer v. Andrade and Brown v. Mayle. Moreover, the heavy economic strain to the prison system caused by the Three Strikes law will eventually cripple California’s economy. The 750 million dollars that is used to fund the prison facilities could be used for other crime prevention methods such as better school systems, more recreational programs, or money to fight drugs. The latter method if applied to drug addiction, might have kept my clients Andrade and Ewing out of the prison system considering they are both drug addicts. Overall, the Three Strikes law is problematic in it wording. Serious and violent offenses include a wide variety of crimes ranging from those of the violent nature to those of the non- violent mature. The Three Strikes law could probably work if the terminology of the law is changed.


1. Colliver, Victoria. Media Awareness Project. June 26, 1998. www.m
2. Pfeffer, Stephanie. One strike against the elderly: growing old in prison. August 2002.
3. Richey, Warren. Is ‘three strikes’ law cruel and unusual?. November 5, 2002.
4. Wood, Daniel. ‘Three strikes’ law: is it too-cruelpunishment?. November8, 2001.
5. U.S.Supreme Court. Solem v. Helm.
6. Cruel and Unusual Punishment.
7. Cruel and Unusual Punishments.
8. Vatz, Mara. Twenty Years in Solitude: Capital Punishment in Cruel and Unusual.
9. Winter, Greg. California Appellate Ruling Aids Foes of 3-Strike Law. The New York Times. December 10, 2001.
10. Wilkie, Dana. ‘3 Strikes no Deterrent to Drug Crimes, Study Shows. Copley News Service- Union/ Tribune. August 11, 2002.
11. The Three “strikes and You’re Out” Law: Serious Felonies within the Meaning of the California Three Strikes Law.

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