Three Strikes and You're In: The Ninth Circuit Loses Again. This Time Because the Supreme Court Says 'Arguably Unfair' Is Not a Synonym for 'Unconstitutional'

By Will, George F. | Newsweek, March 17, 2003 | Go to article overview

Three Strikes and You're In: The Ninth Circuit Loses Again. This Time Because the Supreme Court Says 'Arguably Unfair' Is Not a Synonym for 'Unconstitutional'


Will, George F., Newsweek


Byline: George F. Will

If being dumb were a crime, Gary Ewing and Leandro Andrade would be Al Capone and Don Corleone. And if "possibly misguided" or "arguably unfair" were synonyms for "unconstitutional," perhaps the Supreme Court should have struck down the sentences imposed on Ewing and Andrade under California's "three strikes" law.

But they are not synonyms. So the Supreme Court last week rightly refused, in two 5-4 rulings, to prevent California from punishing Ewing and Andrade with the "three strikes and you're out" law passed in 1994, under which someone convicted for any felony after two previous convictions for "serious" or "violent" felonies can be incarcerated for a long spell.

Someone like Ewing, who in 2000 was on parole from a nine-year prison term when he tried to walk out of the pro shop at a Los Angeles country club with three $399 golf clubs concealed in his pants leg. Or someone like Andrade, a heroin addict stealing to support his habit, who in 1995 was stopped by security personnel at a California Kmart as he tried to steal five videotapes worth $84.70, and who 14 days later was stopped by security personnel as he tried to walk out of another Kmart with four videotapes worth $68.84 tucked in the waistband of his pants.

Ewing has been convicted of battery, thefts, burglaries, and drug-related of- fenses in a series of crimes running back to 1984, when he was 22. Andrade, too, had a series of convictions, including some for residential burglaries, which count as "serious" felonies under the three-strikes law. Ewing's golf-club theft earned him a sentence of 25 years to life. Andrade's two videotape thefts earned him 50 years without possibility of parole.

Twenty-six states have some version of such a law. California acquired its nearly a decade ago. In 1993 the California Legislature considered a three-strikes bill, intended to deter or incapacitate repeat offenders by mandating "an indeterminate term of life imprisonment" for recidivists. When that bill was defeated, public anger fueled a drive to get such a law on the November 1994 ballot.

While petitions to achieve that were circulating, 12-year-old Polly Klaas was kidnapped and murdered by a man with a long criminal record that included two kidnapping convictions. Had he served his full 16-year sentence, rather than just half of it, for his most recent conviction (for kidnapping, assault and burglary), Polly would be alive. The three-strikes proposal qualified for the ballot faster than any initiative in California history. …

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Three Strikes and You're In: The Ninth Circuit Loses Again. This Time Because the Supreme Court Says 'Arguably Unfair' Is Not a Synonym for 'Unconstitutional'
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