Struck out Looking: Continued Confusion in Eighth Amendment Proportionality Review after Ewing V. California
Pater, Joshua R., Harvard Journal of Law & Public Policy
This past Term, California's "three strikes" law withstood two challenges in the Supreme Court. In Ewing v. California, the Court held that a sentence of 25-years-to-life imposed on a recidivist offender convicted of stealing three golf clubs worth approximately $1,200 did not violate the Eighth Amendment's Cruel and Unusual Punishments clause. (1) It made a similar holding in Lockyer v. Andrade, although on different grounds. (2) This note will examine the Court's treatment of California's three strikes law in Ewing, and will argue that the Court missed an opportunity to make a necessary clarification of its Eighth Amendment jurisprudence. Indeed, the Supreme Court made an already lamentable situation worse by applying proportionality review to non-capital sentences given to repeat offenders while neglecting to provide lower courts with any coherent guidelines to employ in conducting that review. In other words, the Court was thrown a perfect pitch on the three strikes question, but it struck out looking.
I. LEGISLATIVE HISTORY
In 1994, California became the second state to pass a recidivist sentencing law under the moniker "Three Strikes and You're Out." (3) Shortly thereafter, twenty-three other states and the federal government did the same. (4) The California law, passed both by the state legislature (5) and by voters through a ballot initiative, (6) gained support after the much-publicized kidnapping and murder of twelve-year-old Polly Klaas by a repeat offender. (7)
California's "three strikes" law actually is a "two strikes" law as well. (8) That is, when a defendant previously convicted of a "serious" or "violent" felony (9) is convicted of another felony, he is sentenced to "twice the term otherwise provided as punishment for the current felony conviction." (10) Additionally, pursuant to the third strike provision, a defendant with two prior serious or violent felony convictions receives "an indeterminate term of life imprisonment" (11) with parole to be determined. (12) A number of features make the California law harsher than those of other states, (13) the most significant of which is perhaps the additional penalty for a second strike, which has had a larger effect than the third strike provision. (14) There also are temporal oddities: courts are not allowed to consider the amount of time separating the offenses, and in fact two strikes may result from a single act. (15) More significant in this context is the existence of "wobblers." These are crimes that may be charged either as misdemeanors or felonies and that trigger the three strikes law only if treated as felonies. (16) One court gave this definition: "An offense which is punishable either by imprisonment in the state prison or by incarceration in the county jail is said to 'wobble' between the two punishments and hence is frequently called a 'wobbler' offense." (17) Examples of wobblers include participation in a criminal street gang, (18) receiving stolen property, (19) and possession of methamphetamine. (20) For some wobblers, the choice between misdemeanor and felony depends on a defendant's record; for example, if a defendant has served time for certain theft--related crimes, a subsequent conviction of petty theft otherwise a misdemeanor--is a felony. (21) Though prosecutors are required to allege all prior felonies, (22) a three strikes sentence still can be avoided: The prosecutor can move to treat the wobbler as a misdemeanor (23) or to vacate a prior strike, (24) and the courts can do the same. (25)
The three strikes law has proven to be exceptionally controversial. Opponents criticize the inclusion of crimes such as petty theft among triggering offenses, (26) the fact that the sentences might well exceed the time at which a career criminal would retire from a life of crime, (27) and the general shift from retribution and rehabilitation to incapacitation as a penological theory, (28) among other things. (29) Yet the law is not without its supporters, who credit it with identifying and isolating intractable delinquents. …