WASHINGTON, Nov. 5 (UPI) -- The Supreme Court heard arguments Tuesday in two cases that challenge California's "Three Strikes and You're Out" law.
At issue in both cases is whether the effect of a law can be so Draconian that it violates the Eighth Amendment's ban against "cruel and unusual punishments."
Each of the two cases reads like a study in haplessness.
The first involves Gary Albert Ewing, who stuffed three golf clubs into his pants at a golf shop in Los Angeles County.
According to court records, Ewing told a shop employee he was headed to the driving range. Instead, he headed for his car in the parking lot, exhibiting a rather stiff-legged limp that drew the employee's suspicions. Police were called and found three clubs in Ewing's pants. The clubs were valued at $399 each, enough to constitute felony theft.
Under the state's 1994 three-strikes law, Ewing was sentenced to 25 years to life because of prior convictions -- he had four earlier felony convictions -- a sentence that was upheld by the California appeals courts.
Speaking for Ewing before the Supreme Court Tuesday, Federal Defender Quin Denvir conceded the facts in the case -- his client did stuff those golf clubs down his pants. Denvir also conceded that Ewing had a long history of crime, including felonies as well as misdemeanors.
At that point, the court-appointed attorney had to deal with some skeptical questions from the bench.
"The purpose of the three-strikes law is to take off the streets the tiny percentage of people who commit most of the crimes," Justice Antonin Scalia told Denvir. "... It seems to me your client is a prime candidate for this law."
"It's the process that produces an unconstitutional sentence," Denvir told Scalia and the rest of the court. "Although prior crimes are relevant, the focus should be on this particular case."
Later, Chief Justice William Rehnquist asked Denvir: "Why can't California decide that enough is enough?"
"If that were true," then there is no Eighth Amendment restriction on recidivist laws, Denvir replied.
The argument was not all serious give and take. Scalia said of Ewing that "his score was not improved" by taking the clubs.
Justice John Paul Stevens, a dapper, short 82-year-old who plays golf in Florida every chance he gets, said: "I'm curious about one thing. Was he a very tall man or were these irons?"
Though it did not come up in court, Ewing was accused of taking the much longer drivers rather than the shorter irons.
Speaking for California, state Deputy Attorney General Donald DeNicola said the three-strikes law "reasonably moves toward a policy of incapacitation" -- keeping repeat offenders locked away for life or for a long time.
"For a court to second-guess (the Legislature)," DeNicola said, "that comes perilously close to suggesting there are certain times a court can tell the Legislature there are certain crimes that cannot be declared a felony."
DeNicola was supported by the Bush administration.
Assistant Attorney Michael Chertoff, chief of the Justice Department's Criminal Division, told the justices that Ewing has never completed parole or probation since 1984. "He was always violating parole by committing another crime."
In the second, parallel case before the Supreme Court Tuesday, Leandro Andrade and a female companion entered a Kmart store in Ontario, Calif., on Nov. 4, 1995.
"Andrade looked around, selected some videotapes and stuffed them inside his trousers," the state's petition to the Supreme Court said. "Andrade looked around again, grabbed some more tapes, and stuffed them inside his trousers."
He made it only as far as the sidewalk in front of the store when he was stopped by security personnel and arrested for shoplifting. The value of the merchandise: $84.70.
While that charge was pending, Andrade and two female companions entered a Kmart store in Montclair, Calif., two weeks later.
"Andrade selected a videotape and put it down the waist of his pants," the state's brief said. "Andrade selected two more tapes and went behind a partition."
He was again stopped and detained by store security personnel and charged with shoplifting. The combined value of the merchandise: $68.84.
Andrade was convicted by a state jury in San Bernardino, Calif., of two counts of petty theft. The jury also determined that Andrade had committed "three prior serious or violent felony convictions" under the meaning of California's three-strikes law.
A state judge sentenced him to two consecutive terms of 25 years to life. In effect, he would have to serve 50 years before being considered for parole. The state appeals courts upheld the sentence.
Andrade then took his case to federal court, but a U.S. judge rejected his claim that the California law constituted cruel and unusual punishment. Finally, a federal appeals court reversed, saying his sentence was "grossly disproportionate to his misdemeanor thefts of nine videotapes."
The appeals court pointed out that Andrade's two prior offenses were petty burglaries "enhanced to felonies as allowed under the California Penal Code, and then enhanced again to third and fourth strikes under California's Three Strikes and You're Out Law."
If Andrade's sentence were allowed to stand, the appeals court said, he "would not become eligible for parole until 2046, after serving 50 years, when he would be 87 years old."
California then asked the Supreme Court for review, saying the appeals court ruling conflicts with high court precedent and the standard of review in constitutional cases as prescribed by Congress.
State Deputy Attorney General Douglas Danzig spoke for California Tuesday, arguing that the three-strikes law as it was applied against Andrade was constitutional.
Los Angeles attorney Erwin Chemerinksy spoke for Andrade. Like Denvir, Chemerinksy contended that the law as applied against his client violated the Eight Amendment.
Decisions in both cases should be handed down within the next month or so.
--
(Nos. 01-6978, Ewing vs. California; and 01-1127, Atty Gen Lockyer et al vs. Andrade)
