By late August 2002, the Supreme Court had identified slightly more than half of the eighty or so cases it is likely to hear in the 2002 term. The nature of those cases was enough to ensure that there will be no letdown from last term's charged atmosphere.
Among the issues slated for debate and decision after the new term opens October 7 is the constitutionality of a number of "get-tough-on-crime" efforts, including state three-strikes laws and sex offender registries.
Equally high profile is a trio of cases with racial overtones. One case asks whether the Fair Housing Act (FHA) permits owners and officers of corporations to be held liable for violations of the antidiscrimination law even if they were unaware of the particular discriminatory acts that occurred. Another questions whether a Virginia law prohibiting the burning of a cross in public or on someone else's property violates the First Amendment. A third case revisits the standard by which courts should assess the "genuineness" of a prosecutor's race-neutral reason for exercising a peremptory challenge to strike a potential juror.
California's three-strikes law provides for a twenty-five years to life prison term for a "third strike" conviction. The question in the case of Lockyer v. Andrade and Ewing v. California, Nos. 01-1127 and 01-6978, is whether that law violates the Eighth Amendment's prohibition against cruel and unusual punishment when applied to a defendant whose third strike conviction was for a relatively minor offense.
Under the statute, Cal. Penal Code [section] 667(e) (West 1999), when a defendant with one prior conviction for a "serious" or "violent" felony is convicted of any felony, he or she must be sentenced to a term of imprisonment twice as long as he or she otherwise would have received. When a defendant with two prior serious or violent felonies is convicted of another felony of any sort, he or she ordinarily must receive a prison term of twenty-five years to life. The last, "triggering," offense must be a felony, but it doesn't have to be serious or violent.
The triggering offense in the case of Gary Albert Ewing, for example, occurred when he walked out of an El Segundo, California, shop with three golf clubs (worth $399 each) concealed in his trouser leg.
In the case of Leandro Andrade, there were two triggering offenses-a third and a fourth strike. Strike three occurred when Andrade was caught shoplifting $84.70 worth of videotapes (Snow White, Casper, The Fox and the Hound, The Pebble and the Penguin, and Batman Forever) from a K-Mart store in Ontario, California. The fourth strike happened when he was subsequently caught shoplifting $68.84 worth of videotapes (Free Willy 2, Cinderella, Santa Claus, and Little Women) from a different K-Mart store.
While the golf club thefts in Ewing normally would constitute grand theft, and the two shoplifting offenses in the Andrade case would each constitute petty theft, the United States brief explains that
Under California law, certain offenses may be either misdemeanors or felonies. There are two basic types of felony-misdemeanor (or "wobbler") offenses. Some crimes that would otherwise be misdemeanors become "wobblers" because of the defendant's prior criminal record. Petty theft, a misdemeanor, becomes a felony-misdemeanor where the defendant has previously served a term of imprisonment for specified theft-related crimes. Others, such as grand theft, are felony-misdemeanors regardless of the defendant's prior record. Both types of "wobblers" qualify as triggering offenses under the Three-Strikes Law when they are felonies.--United States Brief at 3.
Applying those rules in these cases, the court sentenced Ewing to twenty-five years to life for trying to shoplift three golf clubs. …