Two cases come before the Supreme Court Tuesday, both addressing the constitutionality of California's "Three Strikes, You're Out" law for repeat offenders. Because the issues in both cases are substantially similar, two hours of oral argument is less like a double-header than watching the same game twice on instant replay. Having the extra hour mostly just allows Justice Stephen Breyer to make his point that these are the most draconian life sentences he's ever seen seven times instead of three. It also lets Chief Justice William Rehnquist make his point about how some of the precedents in this area go one way, while some (amazingly) go the other, four times instead of two. It makes, in other words, for a long morning.
One similarity between the two cases is that both felons, Gary Ewing and Leandro Andrade, committed their third "strike" by stuffing shoplifted items down their pants. (Ewing walked out of a pro shop with three Callaway golf clubs down his pant leg; Andrade took $153.54 worth of videos from Kmart and shoved them down his pants. Both could learn a few things from Winona Ryder, who allegedly shops with scissors, shopping bags, and her own tissue paper). No one on the bench is moved by the pants thing, although Justice John Paul Stevens does stop Ewing's attorney, Quin Denvir (his porn star name?), toward the end of his argument: "I just have one question: Was he really a tall man or were these irons?" Denvir tells Stevens that's he's not sure how Ewing managed it. You can go ahead and insert your own porn-star joke here. I'll wait.
Both Ewing v. Californiaand Lockyer v. Andradeinvolve guys locked up for life (or certainly their respective lifetimes) for committing a nonviolent, not-terribly-serious third strike (more like ninth strike in Ewing's case). About half the states have a three-strikes law, but California was both a pioneer and one of its most zealous promoters. In neither case is the defendant the violent, recidivist murderer first targeted by California's statute. The statute was enacted via referendum in response to Richard Allen Davis' brutal slaying of 12-year-old Polly Klaas in 1993. But at least 340 of the third-strikers being held for 25 years or more in California's prisons are often more pathetic than violent. One homeless guy's in the big house for stealing vitamins. One stole some pizza. Ewing is a 40-year-old drug addict and AIDS patient. His prior strikes are for a robbery conviction and several burglary convictions. Andrade is a veteran and a heroin addict with 15 years of criminal activity behind him, including two burglary and two petty theft convictions. The videos he stole from Kmart include Casper, Cinderella, Free Willy 2, and The Santa Clause. If these guys are Hannibal Lecters, their tastes run to the Disney end of the psycho-spectrum.
The constitutional question in both cases is fairly simple: Did these punishments violate the Eighth Amendment's ban on "cruel and unusual punishment," because they are "grossly disproportionate" to the severity of the crimes committed? One of the difficulties underlying both cases is whether sentences of 25 years (for Ewing, who is dying of AIDS) and 50 years (for Andrade, who's 37) are grossly disproportionate to the acts of stealing golf clubs or tapes, or disproportionate to their lengthy and impressive histories of nonviolent recidivism.
Ewing's attorney Denvir doesn't do so well convincing the court that his client is a nonviolent recidivist. He refers to his client's second strike as a robbery, and Scalia interrupts to ask whether it was armed robbery. Denvir's response seems to be that Ewing was only armed with a knife. Scalia wonders whether the whole point of a three-strikes law is to "take off the streets that small proportion of people who commit the vast proportion of all crimes." He can't recall the numbers but says that about 20 percent of the criminals commit 80 percent of all crimes. "He's obviously going to do it again." (Actually, California argues in its briefs that 6 percent of the criminal population commits 60 percent to 70 percent of all crimes—an even stronger argument for getting them off the streets.)
Justice Anthony Kennedy struggles with the tension highlighted earlier: Is he supposed to focus on all the ugly recidivism when weighing proportionality of punishment or just on the triggering crime? "If the entire focus is to be on a few golf clubs, we're like some judges out of Victor Hugo," he says. Denvir tries to argue for a vague reasonableness test; where, as in Ewing's case, one could only get three years for stealing clubs, a sentence of 25 years is simply "unreasonable."
"Why can't California just decide that enough is enough?" asks Rehnquist. Denvir asks whether they could toss traffic offenders away for life, too.
Justice Ruth Bader Ginsburg adds: "So we're here to decide, how much is too much." Which Denvir answers: "Life in prison for three golf clubs." He doesn't seem to have much in the way of a limiting principle for the court. He simply wants them to take it on faith that this sentence is too extreme for this crime. Justice David Souter wonders how much nonviolent recidivism makes you bad enough to lock up for life: "If he had 100 prior instances of stealing three golf clubs, would that justify this sentence?" he asks. "I think that would show he has a propensity to steal golf clubs," replies Denvir. "I concede that," grants Souter. Scalia twists the hypo: "I posit further that his scores have not improved. ..."
Donald deNicola, a California deputy attorney general, defends the statute and finds a surprise ally in Justice Ginsburg, who is moved by the fact that both judges and prosecutors have lots of discretion to dismiss strikes or downgrade felonies if they believe the three-strikes result would be too harsh. Ginsburg has either been hanging out with her buddy Scalia too long, or she voted Republican this morning, but she is not only undaunted by the severity of these life sentences, she has this funny glint in her eye that suggests she'd like to slap these recidivist bastards herself.
Justice Stevens goes round a few times with deNicola on what kinds of violent felonies are really violent. DeNicola argues that those felonies designated by the California Legislature as violent are the violent ones. Stevens shakes his head.
Michael Chertoff represents the Justice Department for the final few moments in Ewing, and his clear message is that states should be allowed to adopt harsher measures in response to their crime problems.
The second case, Andrade, is complicated by the fact that it arose as a federal habeas corpus petition, triggering the Anti-Terrorism and Effective Death Penalty Act. Under AEDPA, a defendant cannot get federal habeas relief unless the lower court decision is "contrary to or involves an unreasonable application of clearly established Federal law." So Andrade differs from Ewing in that he must not only show that his sentence is unconstitutionally cruel and unusual, but he also has to show that this test for unusual cruelty is "clearly established federal law." Good luck. In fact, if nothing else is clearly established this morning, it's that nothing about the court's disproportionality jurisprudence is clear at all. Of course, some would say this is more the fault of the court than of Messrs Andrade and Ewing.
Douglas Danzig, the California deputy attorney general, gets Justice Sandra Day O'Connor's dander up by refusing to offer a limiting principle for when the state has been disproportionate in punishing offenders. She comes perilously close to wrenching his face off for offering a "lifetime sentence for parking" analysis. Which really is disproportionate. Then Stevens and Danzig do a few rounds on whether the court can decide if a "clearly established rule" was violated without knowing the rule.
Finally, Professor Erwin Chemerinsky of the University of Southern California law school stands up to defend Andrade. It becomes increasingly clear that both the Eighth Amendment law of disproportionality and the test for what it is are not clear, although Chemerinsky struggles to make it sound as though this were an easy, bright-line test and why can't the court just see it.
"You're saying that if the law is going to become unclear, it'll be because of what we say this morning and not what we said before?" asks Justice Souter. Maybe, but it's probably too late for Andrade. He's stuck because there is no clear constitutional rule here to lean on. He's stuck because—to quote his lawyer—his sentence is "not just cruel and unusual; it's cruel and unique." And its very uniqueness makes it hard to evaluate how cruel it is. He's serving a sentence that is longer than the punishment for rape, second-degree murder, or manslaughter, because he stole some kid videos from Kmart to support his heroin habit.
If the studies are right, it costs California taxpayers around $1.5 million to lock up a nonviolent third-striker for 25 years. Those costs rise as defendants become elderly and as prisons become old-age homes without the aqua-aerobics programs. From where I sit, it's a better deal to let these guys take their Cinderella videos. Of course, the government's position in this case is that if the people of California want to lock up recidivist drug addicts for life, they're free to make dumb decisions. One thing that's clear is that being dumb isn't unconstitutional.