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Supreme Court Debates Whether 'Three Strikes' Laws Are Too CruelBy Robert B. BlueyCNSNews.com Staff WriterNovember 06, 2002(CNSNews.com) - Lawyers for two California men who were sentenced under the state's "Three Strikes and You're Out" statute told the U.S. Supreme Court Tuesday the law imposes cruel punishments not appropriate for some crimes.The challenges by Gary Albert Ewing and Leandro Andrade represent the first time the nation's highest court has considered whether three-strikes laws violate the Eighth Amendment's ban on "cruel and unusual punishments."The 1994 California law, which supporters credit with a 41 percent drop in crime, imposes some of the strictest punishments on crimes compared to the 26 other states that have some form of three-strikes statutes on the books.At Tuesday's arguments, the justices appeared skeptical about overturning Ewing or Andrade's convictions. Even though they were convicted of relatively minor offenses that counted as the third strike, both had prior criminal convictions - making them the exact type of people the state was hoping to lock up."It seems to me like your client is a prime candidate for the law," Justice Antonin Scalia told Ewing's court-appointed attorney Quin Denvir. "The three-strikes law was designed to take people like him off the streets."In terms of the crimes committed, Ewing's theft of $1,197 worth of golf clubs in March 2000 was considered grand theft, a felony under state law. Andrade, who stole $153.54 in children's movies from Kmart on two occasions in November 1995, had his crime upgraded to a felony by a prosecutor.But it was not their most recent crimes, rather their prior convictions that prompted the long sentences. Ewing was sentenced to 25 years to life in prison for stealing the golf clubs -- his third strike after committing nine misdemeanors and four felonies, including an armed robbery. The stolen videos triggered a 50 years to life sentence for Andrade, who had two prior felony convictions.Denvir told the court Ewing would have spent a few years in prison for taking three $399 golf clubs from a pro shop. But under the three-strikes law he could spend the rest of his life in jail if he is denied parole after 25 years."In this case, his sentence has gone from a maximum of three years to life in prison based on his recidivism," Denvir said. "If he committed a violent crime, the state might have a basis for the sentence. The fact he committed worse crimes in the past does not matter."But that argument did not persuade Justice Anthony Kennedy, who said the three-strikes law had as much to do with a criminal's history as it did with the most recent offense."I'm not sure why the focus has to be only on this sentence," he said. "There's a long history of recidivism here and that's the whole purpose of the California law. Why isn't it reasonable to consider that?"How those past crimes fit into the context of a criminal's most recent offense is a central question before the court. Both Ewing and Andrade invoke the "cruel and unusual punishments" clause, claiming their nonviolent crimes did not warrant the long sentences.The circumstances in Andrade's case are similar to Ewing's argument. Two weeks after shoplifting four videotapes from a Kmart store, Andrade was caught taking another five movies from another store. The videos included "Snow White," "Batman Forever" and "Cinderella."California Deputy Attorney General Douglas P. Danzig said Andrade was not taking the movies as a gesture for a child. He said Andrade planned to sell the videos to support his heroin addiction."The sentence was punishment for his habitual criminal behavior," Danzig said. "The sentence is not grossly disproportionate and it does not violate the Eighth Amendment."The U.S. Court of Appeals for the Ninth Circuit did not agree with the state, however, siding with Andrade and prompting the state's appeal to the Supreme Court."The state has a right to say, 'Enough is enough,'" Danzig said, attempting to justify the three-strikes statute.When Justice Stephen Breyer pressed both Danzig and his colleague, Deputy Attorney General Donald E. DeNicola, who argued against Ewing, for specific numbers to show the punishments were not extraordinary, they came up with little evidence."You haven't shown me any records" that Ewing's sentence is not disproportionate to others convicted for similar crimes, Breyer told DeNicola. "Why shouldn't I say this is way too much?"Breyer, along with Justices Ruth Bader Ginsburg, David Souter and John Paul Stevens, appeared to be the most sympathetic to Ewing and Andrade.Even though most of the justices appeared hesitant to throw out the three-strikes law, Andrade's attorney, Erwin Chemerinsky, told reporters afterward that he was hopeful they would decide in favor of his client.If California's three-strikes statute is struck down, it could impact similar laws in 26 other states. Chemerinsky said 344 criminals are serving sentences of 25 years to life for petty theft charges with prior offenses, similar to Andrade's, even though he was given two consecutive 25-year sentences. Another 650 people were sentenced for possessing a small amount of drugs, he said."No other state has a three-strikes law like California," Chemerinsky said. "In California, the third strike does not have to be a serious or violent felony. In every state with a three-strikes law, the third offense has to be serious or violent felony. That's what makes California's law cruel and unique."