U.S. Supreme Court to review three strokes law

The Color Line

California's version of the three strikes law allows misdemeanors to be counted as a third felony.

This fall, lawyer Erwin Chemerinsky will appear beofre the U.S. Supreme Court to challenge California's infamous "three strikes" law arguing that it constitutes cruel and unusal punishment, violating the Eighth Amendment. Chemerinsky says he is "cautiously optimistic" about his November appearance beofer the high court.

Chemerinsky, the Sydney M. Irmas professor of public interest law, legal ethics and political science at the University of Southern California School of Law, maintains a cautious outlook because he is aware the case will probably be heard and decided by the conservative Rehnquist court.

Led by Chief Justice William Rehnquist, and his idological allies, Antonin Scalia and Clarence Thomas, this court has had great difficulty deeming anything law-and-order related as cruel and unusual punishment as it applies to the convicted.

But this time, it might be convinved that stealing $150 worth of videos is hardly worth 50 years to life in prison. Such is what happened to Leandro Andrade, 43, a heroin addict with a number if felony convictions, including first-degree burglary. Then in 1995, he was caught stealing videos from Kmart stores in Ontario and Montclair, Calif.

In most instances, such a crime probably wouldn't even get an offender any time at all. Even a career criminal wouldn't get 50 years to life. Not so for Andrade, who is Latino. Because he already had several convictions, the state of the California gave Andrade a sentence of 50 years to life under its three strikes statute. Unlike many of this country's three strikes laws, California's version specifically allows misdemeanors to be counted as a third felony.

Gary Ewing, 40, a drug addict who supported his habit by theft, is the subject of a companion case the high court has accepted. Ewing, who is Black, received 25 years to life for stealing three golf clubs worth about $400 each. In the Andrade case, a federal appeals court ruled that the law is unconstitutional, but in the Ewing case, the law was upheld by a state appeals court. So it is left to the U.S. Supreme Court to sort out the legal morass.

Chemerinsky says case law is well established in this area and that such sentences should be considered "grossly disproportionate" to their crimes.

Like many bad laws, California's three strikes law can be traced to a reactionary legislative moment, a moment when lawmakers, fearful of being labeled soft on crime by political opponents, voted to pass a law that is, on its face, draconian and replete with possible problems. In this case, it was 12-year-old Polly Klaas' murder that led to California's law. The sentiment and concern was genuine, but the result was astoundingly retrograde.

In October 1993, Polly Klaas was kidnapped and murdered by a repeat felon out on parole in the Northern California town of Petaluma. Public outrage mounted. Klass' father, Marc, though he initially supported the three strikes law, eventually withdrew his support for the California statute in favor of a law that is geared toward violent offenders.

Still, the law was passed in California, and in the aftermath, more than 20 states - including Colorado, Connecticut, Maryland, North Carolina, Virginia and Wisconsin - and the federal government also enacted versions of the law.

Soon afterward, Chemerinsky, in an effort to bring the issue before the country's highest court, began representing convicted felons in California who had been sentenced under the law.

"I start with the client," Chemerinsky says when asked about his goals in continuing to bring caes before the U.S. Supreme Court challenging the law, "and then I hope for something that will help 328 people in California doing 25 to life whose third strike is shoplifting."

Chemerinsky adds that under the law there are many more in prison with long sentences for minor crimes and that he has hopes to assist them as well. It will be difficult, and he knows it; he has already been turned down once for review by the court.

But there are larger reasons why California's flawed law must be attacked.

It has been used disproportionately by prosecutors when the accused is Black. Vanita Gupta, assistant counsel at the NAACP Legal Defense and Educational Fund in New York, says the racial disparities in the application of the law are striking. While Blacks make up only 7 percent of California's population and account for 20 percent of all felony arrests, Gupta says, they comprise 44 percent of those affected by the three strikes law. Whites, on the other hand, are 53 percent of California's population yet represent only 25 percent of those affected by the law.

Considering that the decision to use the statute rests entirely with the prosecutor in a given area, it raises the question of selective use of the statute based upon race. There is also, according to Gupta, the larger issue of sentencing reform that the two cases invoke.

"Although we are not directly involved in a three strikes case, we are looking closely at this case because it could be a landmark case in sentencing," Gupta says.

There is a growing awareness among people about sentencing issues and a growing dissatisfaction among judges who must adhere to the three strikes laws because they have no discretion in giving out sentences.

"Prosecutors have all the discretion," Gupta says.

This, of course, has been one of the crowning achievements of the conservative era: a shifting of power away from judges, who are supposed to objectively review all the factors when handing down sentences, to prosecutors, who may see their jobs as opportunities to score political points by locking everyone up on their way up the ladder of American politics.

Gupta still sees some momentum in this conservative movement, despite all the flawed laws passed over the last 20 to 25 years.

"Some states are beginning to review their own sentencing laws, and even New York is taking a look at the Rockefeller statutes," she says.

In early June, New York Gov. George Pataki introduced a bill that would drastically reform the 1973 Rockefeller laws, the first laws to impose severe mandatory sentencing in drug possession cases.

This began the process in the country that now has state and federal prisons crowded largely with Black men convicted for possession and sale of small amounts of illegal narcotics.

In the long run, overall sentencing reform is more important than these two Supreme Court cases. Repealing or reforming a California statute that is, on its face, cruel and unusual punishment is not a major victory for the public, but it is a welcome start.

A meaningful victory against these kinds of laws will be realized when more of the public is outraged and insists that its elected officials make a concerted effort to address crime in a responsible, nonreactionary way. This is especially important because more and more laws continue to impact the African American community disproportionately. And as in this case, the racial impact of the law is too glaring to ignore.

Brian Gilmore is a Washington, D.C. public interest lawyer, poet and author of jungle nights and soda fountain rags: poem for Duke Ellington (Karibu Books, 2000).

Copyright Crisis Publishing Company, Incorporated Jul/Aug 2002
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