Lockyer, CA Attorney General v. Andrade, Leandro / Ewing, Gary v. California

Questions presented: (1) Does California's "three-strikes" law, which provides for a prison term of 25 years to life for a third strike conviction, violate the 8th Amendment's prohibition against cruel and unusual punishment when applied to a defendant whose third strike conviction was for petty theft with prior theft-related convictions? (2) Does a 25-years-to-life prison sentence violate federal constitutional provisions against cruel and unusual punishment because his sentence is grossly disproportionate to the offense of stealing golf clubs? (3) Did the California courts make an "unreasonable application" of federal law within the meaning of the Antiterrorism and Effective Death Penalty Act's habeas corpus provision, 28 U.S.C. @ 2254(d)(1), in its consideration of California's "three strikes" sentencing law?

BY STUART BISSON-FOSTER, MEDILL NEWS SERVICE

On a November night in 1993, 12-year-old Polly Klaas was hosting friends at a slumber party in her home in Petaluma, Calif. Sometime that evening, she was abducted by Richard Allan Davis, a twice-convicted kidnapper who had been out on parole after serving half of a 16-year prison sentence for the second kidnapping.

Davis eventually murdered Polly and dumped her body 50 miles away.

Californians were outraged -- particularly since crime there was already seen as spiraling out of control.

The next year, the California legislature passed the "three strike" law, and the people of California affirmed its passage by overwhelmingly approving "Proposition 184," which called for a similar measure.

The law requires a prison term of 25 years to life for anyone convicted of a third felony after two "strikes" -- previous serious or violent felony convictions.

While Davis sits on California's Death Row, two inmates with less violent criminal backgrounds, who are serving long-term sentences under the three strikes rule, have gotten the courts to take another look at California's law.

The two men, whose final shoplifting felonies were actually misdemeanors turned into felonies, say such upgrades make their punishments "grossly disproportionate" to their crimes and, as such, cruel and unusual.

-- The case of Leandro Andrade --

On Nov. 4, 1995, Leandro Andrade attempted to walk out of a K-Mart store with five videotapes worth $84.70 in his pants. He was stopped. "The Fox and the Hound," "The Pebble and the Penguin," "Batman Forever," "Casper" and "Snow White" were returned to the shelves of K-Mart.

Andrade was arrested, charged and freed on bail.

Two weeks later, he attempted to shoplift $68.84 in videotapes from another K-Mart store. He was stopped. From his pants were retrieved "Cinderella," "Free Willy 2," "Little Women" and "The Santa Clause."

He was again prosecuted.

Andrade was an unemployed veteran and a heroin addict. He had a 15-year criminal history, with a total of five felonies and two misdemeanors.

Three of his felonies were for federal crimes: two for transporting marijuana and one for escaping from prison. They were not a factor in his sentencing under California's three strikes law.

But the other felonies and misdemeanors were: two burglary convictions in 1983 and petty theft convictions in 1982 and 1990.

With petty theft on his record, Andrade's 1995 thefts became theft "with a prior." Each was eligible to be upgraded from a misdemeanor, punishable only by six months in jail and a fine, to his third and fourth felonies each punishable by 25 years in prison to life.

Andrade was convicted and sentenced to 50 years to life. That was a punishment comparable to sentences for first-degree murder; train wrecking or derailing; unlawful explosion causing death, mayhem or great bodily injury; and kidnapping.

In November 2001, a divided 9th Circuit Court of Appeals overturned Andrade's 50-year sentence, agreeing with his claim that it was cruel and unusual punishment in violation of the federal Constitutions 8th Amendment.

According to Andrade's lawyer, Erwin Chemerinsky, no other state would have treated Andrade's misdemeanor as harshly.

The 9th Circuit majority said Andrade's sentence was "grossly disproportionate to his two misdemeanor offenses, even when we consider his history of non-violent offenses."

It did not invalidate California's three strikes law. Rather, it limited its holding "to the unusual circumstances of Andrade's case."

In dissent, Judge Joseph Sneed wrote that "it is the sentence mandated by the citizens of California through the democratic initiative process and, additionally, legislated by their elected representatives."

-- The case of Gary Albert Ewing --

On March 12, 2000, Gary Albert Ewing walked into a golf shop at the Lakes at El Segundo Golf Course in Los Angeles. He bought a bucket of golf balls and asked the cashier where the driving range was located. Shortly after that, he limped, stiff-leggedly, out of the store in the direction of the range.

The cashier called police, who arrived and approached Ewing. It seems Ewing had also chosen his pants for the purpose of shoplifting. He produced three golf clubs, priced at $399 each, from the leg of his pants.

Ewing, 40, suffers from AIDS, a drug addiction and is going blind. He had one violent crime conviction for robbery, though nobody was harmed, and several burglary convictions.

Ewing's final offense is a so-called "wobbler" in California. It can be prosecuted as either a felony or misdemeanor. Prosecutors opted for the felony; the misdemeanor would have been punishable by a maximum of one year.

On April 10, 2000, Ewing was charged with grand theft and burglary in connection with the stolen golf clubs. He was convicted of theft, though not burglary, and sentenced to 25 years to life, under Californias three strikes law.

His prior strikes stemmed from four convictions for robbery and burglary that all came from one case. He was convicted of those in March 1994. He has ten convictions in all, according to reports.

On July 11, 2001, the California Supreme Court denied Ewing's petition.

Both Andrades and Ewing's cases were appealed to the U.S. Supreme Court; Andrade's by the state of California and Ewing's by his attorney.

Karyn Bucur, Ewing's lawyer, wrote in her petition to the Court that Ewing expects to die soon and hopes to spend the remainder of his days advocating on behalf of AIDS patients.

On April 1, 2002, the Court granted certiorari in both cases and indicated that it would hear oral arguments in the cases in tandem.

The New York Times speculated that Ewing's case was taken because of the question of jurisdiction in Andrade's case. If the federal court has no jurisdiction in Andrade, the high court can still decide the three strikes/petty theft issue.

There is the possibility in Andrade that the 9th Circuit, by virtue of the Antiterrorism and Effective Death Penalty Act, exceeded its authority in accepting Andrades writ of habeas corpus. Under the act, state inmates seeking habeas corpus in federal court must show that the state court showed "unreasonable application of clearly established federal law."

In California's petition to the Court, California Attorney General Bill Lockyer argued that given Andrades criminal history, he is a danger to society.

But Chemerinsky, Andrade's attorney, contended that "the [U.S.] constitution limits what the people of California can do."

And, he added, "This is a man who has never committed a violent crime. He might try to steal "'Snow White' again."

Consistent with the 9th Circuit's majority opinion, Chemerinsky noted that he is not challenging the three strikes law in general, but that in Andrade's case, where petty theft led to a sentence of 50 to life, it is cruel and unusual punishment.

About 340 prisoners in California are thought to be in a similar situation. Some 7,000 have been convicted under the 1994 law, and some suggest that up to half of those convictions could be with non-violent third strikes.

The U.S. Supreme Court has previously expressed interest in the issue.

"Four justices of the U.S. Supreme Court have agreed that the 'unique quirk' in Californias Three Strikes law that permits misdemeanor conduct to be punished with severe indeterminate sentences raises a substantial Eighth Amendment question," Judge Richard Paez wrote in the 9th Circuits opinion.

The high courts interest in the "quirk" was taken largely from a denial of certiorari dissent written by Justice John Paul Stevens in Riggs v. California. Riggs received 25 years to life for his third strike of stealing a bottle of vitamins.