Nothing petty about it

Posted: Mar 10, 2003 12:00 AM

California got lucky in the two cases used to challenge the state's "three strikes" law before the U.S. Supreme Court. Or maybe luck had less to do with the 5-to-4 ruling upholding the law than the reality that most "three strikes" convicts aren't as hapless as their apologists make them out to be.

While news accounts have portrayed appellant Gary Ewing as a "petty" or "small-time thief" sentenced to 25 years to life for stealing three golf clubs, Ewing is not harmless. He's a career criminal.

He had nine convictions prior to his attempt to shoplift three golf clubs worth $399 each. He committed most of his crimes while on probation or parole. His priors were serious, including unlawfully possession of a firearm, three burglaries -- once, he invaded a woman's apartment while she was asleep on a couch -- and robbing a man at knifepoint.

The other appellant, Leandro Andrade, argued that it was cruel and unusual to sentence him to two consecutive 25 year terms for stealing nine videotapes from two stores. In fact, Andrade's sentence was enhanced because of his many priors -- misdemeanor theft, three counts of first-degree residential burglary, two convictions for transporting marijuana, as well as petty theft and escaping prison.

As Justice Sandra Day O'Connor wrote for the majority, California's "three strikes" law -- which directs judges to sentence twice-convicted felons to 25 years to life for a third felony conviction -- is constitutional. For one thing, states have a "legitimate" interest in "deterring and incapacitating repeat offenders."

It was not the Big Bench's job, O'Connor wrote, to rewrite state criminal statutes. That's what state legislatures are for -- the Supreme Court should stay out, unless there is a rare case of outrageous over-sentencing.

It was a good ruling for state's rights -- but maybe too good, when Justices Clarence Thomas and Antonin Scalia argued that the Supremes had no authority to determine if state sentencing laws are draconian.

Chapman University School of Law Professor John Eastman, who once clerked for Thomas, defended the Draconian Duo on the grounds that they adhered strictly to the Eighth Amendment, which stipulates that "excessive fines," but not excessive prison terms, are unconstitutional.

The majority, however, agreed that rare cases are so egregious that they demand action. Former U.S. Attorney Joseph Russoniello noted: "I kind of go with O'Connor. I think that there are instances in which the punishment is so disproportionate to the crime committed that it shocks and of fends the sensibilities of a civilized nation."

Hear, hear.

For me, Andrade's 50-year longer-than-life sentence qualifies as an outrage. Add all his crimes up, and one 25-year term would suffice. As Justice David Souter wrote, "If Andrade's sentence is not grossly disproportionate, the principle has no meaning."

Now for my confession: Unlike 72 percent of California voters, I voted against three strikes. I would have voted yes if the third felony had to be violent or serious.

Now I'm glad the law passed. California is safer for it.

And I see that many of the small-time criminals aren't petty at all.