Three-Strikes Laws: Cruel & Unusual?

By DiSpoldo, Nick | Commonweal, June 14, 1996 | Go to article overview

Three-Strikes Laws: Cruel & Unusual?


DiSpoldo, Nick, Commonweal


Many states in the Union now have "three-strikes" laws mandating a twenty-five-year-to-life sentence for anyone convicted of a third serious or violent offense. California, unlike other states, however, also has a "petty with a prior" law which provides that petty theft can be charged as a felony if the defendant has a prior felony conviction. The two laws are now being applied in tandem, with results that call for reflection, given California's frequent role as trend-setter and the dividends for tough-on-crime electioneering in many other states. A few examples:

* A Sacramento man was given a life sentence for stealing two packs of cigarettes.

* In San Bernardino, a man who stole one slice of pizza got life.

* Kevin T. Weber of Santa Ana, who burglarized a restaurant and stole four chocolate chip cookies, was charged and convicted under the three-strikes law. Informed of the sentence Weber faced, the restaurant owner was appalled. "I think he should pay for what he's done--probably clean up the freeway or something. But twenty-five years? I'm surprised. I'm shocked."

So are others, including defense attorneys, judges, and even some prosecutors. When Arthur Daniel DuBois drew a life sentence for stealing an air compressor in Victorville, Deputy Public Defender Michael Kennedy was incensed that the jury returned a guilty verdict knowing it would result in a life sentence for his client. "This," he said, "may signal that the jury isn't the protectionist institution it's supposed to be." And when Los Angeles District Attorney Gil Garcetti sought a third-strike conviction against a homeless man accused of possessing three-tenths of a gram of cocaine, Superior Court Judge David P. Yaffe reacted strongly, telling the jury that the district attorney's office was guilty of a "gross abuse of prosecutorial discretion" in the case. If Garcetti refused to exercise "the discretion that is allowed to him by law and is part of his job," said the judge, "then he is a craven coward who is afraid to do his sworn duty." If Garcetti's purpose was to show that the three-strikes law doesn't work, "then he is an arrogant bureaucrat who is trying to make fools of the 70 percent of Californians who voted for that law."

Another prosecutor, Deputy District Attorney David Bristow of San Bernardino County, took a different course: He resigned his position rather than prosecute nonviolent offenders under the three-strikes law. In his explanation, Bristow said: "It is purely a moral issue between me and the voters of California."

But the question at issue is legal and constitutional as well as moral, involving as it does the time-honored principle of proportionality, a staple of English common law. Three chapters of the Magna Carta (1215) were devoted to the rule that "amercements" (similar to modern fines) must not be excessive. When prison sentences became the common method of punishing criminals, the same standard was applied, as in a statute enacted in 1275: "Imprisonment ought always to be according to the quality of the offense."

That thirteenth-century language was echoed by the U.S. Supreme Court in its 1910 decision, Weems v. United States, in which the prisoner had been sentenced to fifteen years at hard labor for falsifying a public document. Canceling the sentence, the Court noted: "It is a precept of justice that punishment for crime should be graduated and proportioned to the offense."

More recently (1983), the U. S. Supreme Court in a 5-4 decision canceled the sentence--life without possibility of parole--given to Jerry Helm under South Dakota's habitual criminal code for passing a worthless $1 00 check (Solem V. …

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