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Common sense of judges questioned

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent   |   March 7, 2003 at 12:40 PM   |   Comments

WASHINGTON, March 7 (UPI) -- Let us speak of Leandro Andrade and Gary Albert Ewing.

You can find them in the dictionary under the heading "Hapless Losers." The men and their crimes -- both involved stuffing something down their pants -- were the subjects of two Supreme Court cases this week.

Perhaps you caught the headline on the Internet or on television or in your morning newspaper: "Supreme Court affirms California's 'three-strikes' law.'"

If so, you probably said to yourself, "Good for the Supreme Court."

We're all sick of repeat offenders, and about 24 other states besides California have adopted some version of the "Three Strikes and You're Out" law. So has the federal government.

The principle is simple: Commit three violent or serious crimes, and on the third conviction you're either going to be put away for a long time or you're going to be put away for life.

However, unlike the federal government and many of the other states, California can include theft convictions, including shoplifting, in calculating the three strikes.

In Ewing's case it worked something like this. The guy was hanging around at a golf shop in El Segundo in Los Angeles County. He told a store employee he was headed out to the driving range. Instead, he started walking toward his car in the parking lot.

The store employee noticed a hitch in Ewing's giddy-up -- he was limping on a stiff leg he didn't seem to have before -- and stopped him.

It turned out that Ewing had stuffed three golf clubs down his pants. Each was worth just under $400.

Because he had four previous felony convictions, Ewing was sentenced to 25 years to life by a California judge.

Andrade's case was even more interesting.

This desperado and a female companion entered a Kmart store in Ontario, Calif., and stuffed videotapes valued at $84.70 down his trousers. He got as far as the parking lot before the store posse caught up with him.

Andrade appeared to like Kmarts the way Jesse James liked banks.

Two weeks after his Ontario escapade, while that charge was pending, he walked into a Kmart in Montclair, Calif., and once again begun stuffing videotapes down his pants, $68.84 worth.

Andrade was convicted by a San Bernardino state jury of two counts of petty theft. The jury also determined he had committed at least "three prior serious or violent" felonies.

Under the three-strikes law, the state judge sentenced him to two consecutive -- that's consecutive -- terms of 25 years to life.

A federal appeals court, looking at Andrade's state sentence from a constitutional perspective, pointed out that his 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."

Calculating that Andrade would not be eligible for parole until 2046, when he would be 87 years old, the appeals court said 50 years in prison was just too much time for shoplifting.

But when the Supreme Court handed down decisions in the two cases Wednesday, a slim majority upheld Ewing's sentence and restored Andrade's.

Seven of the nine justices agreed with the principle that the Eighth Amendment's ban on cruel and unusual punishments could be violated by prison sentences that are "grossly disproportionate" to the crime. Despite that agreement, the seven split when it came to the judgment.

Three of those seven -- Justice Sandra Day O'Connor, who wrote the prevailing opinion, and Chief Justice William Rehnquist and Justice Anthony Kennedy -- still thought the sentences in the Ewing and Andrade cases were proportionate.

The two others in the five-member court majority, Justices Antonin Scalia and Clarence Thomas, agreed with the judgment against the two defendants, but said the Eighth Amendment ban had nothing to do with unconstitutional sentences being "disproportionate" to the crime. The Founding Fathers were just trying to ban things like torture or, maybe, whipping with the cat o' nine tails.

Four of the justices, the entire liberal wing, dissented.

In the Ewing case, Justice Stephen Breyer said for the dissenters, "Outside of contemporary California, this sentence is truly unusual." In the second case, dissenting Justice David Souter said, "If Andrade's sentence is not grossly disproportionate, the principle has no meaning."

The irony of all this legal maneuvering -- Ewing and Andrade's cases engaged the state and federal courts, the time and skill of court-appointed trial and appellate lawyers and the complete attention of all nine Supreme Court justices -- is that it may lessen the public's appetite for coming down hard on repeat offenders.

During the 1990s, violent crime dropped by surprising percentages almost every year.

Part of the reason was the booming economy back then. But one aide to Attorney General Janet Reno confessed to me privately that the real reason was one no liberal really liked to publicize: The country was building a lot of new prisons, laws had been changed and the most violent criminals were being locked up and not being let out.

Forget rehabilitation. A tiny percentage of the criminals were committing 95 percent of the serious and violent crime. For whatever reason -- abusive childhoods, economic deprivation or whatever -- they weren't going to change their ways.

Lock them up. Don't let them out. The result: less crime and safer neighborhoods.

The trend toward adopting the "three strikes" laws in half the states, and some form of recidivist laws in almost all of the others, is part of the same tough response. It's simply good public policy.

But sentences such as Ewing's, and especially Andrade's, tend to undermine public support for a tough stand on repeat offenders.

For sure they undermine the public confidence in the common sense of judges.

--

Michael Kirkland is UPI's senior legal affairs correspondent. He has been covering the Supreme Court and other parts of the legal community with increasing cynicism since 1993.

© 2003 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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