Three Strikes and You're Out!

By Slade, David C. | The World and I, January 2003 | Go to article overview

Three Strikes and You're Out!


Slade, David C., The World and I


In 1995, Leandro Andrade was caught shoplifting five children's videotapes worth $84.70 from a store in California. Two weeks later, he was caught again at a different store stealing four more videotapes worth $64.84. Each offense was a misdemeanor with a maximum punishment of six months in jail. Andrade, however, was not sentenced to one year, but rather to life in prison with no chance of parole for 50 years.

Cruel and unusual punishment?

In 1993, 12-year-old Polly Klaas was abducted from her home in California. Her body was found 50 miles away, murdered by a twice- convicted kidnapper out on parole after serving only 8 years of a 16- year prison sentence for the second kidnapping. The people of California were outraged at what looked like out-of-control crime in their state.

The next year, California passed its Three Strikes law aimed at keeping repeat offenders, those who make crime a career, off the street. Upon a third felony, a minimum sentence of 25 years to life imprisonment will be handed down. The law also created a class of crimes known as wobblers--a misdemeanor that, at the discretion of the prosecutor, can be charged as a felony. Three Strikes was initially passed by the state's legislature and then adopted as Proposition 184 by the people of California in 1994.

At Andrade's trial, following the Three Strikes law, the court was required to consider any previous felony convictions on his record. Strike one--a prior petty theft conviction "wobbled up" to a felony. Strike two was a prior residential felony burglary. In light of these two prior felonies, the trial judge wobbled up each of the two shoplifting misdemeanors to felonies. Because there were four felonies on his rap sheet, the Three Strikes law mandated the court to sentence Andrade, for stealing $153.54 worth of children's videos, to life in prison with no chance of parole for 50 years--equal to California's sentence for first-degree murder.

Such a harsh sentence for a nonviolent crime, Andrade's lawyer argued, violates the Constitution's Eighth Amendment prohibition against "cruel and unusual punishment."

To challenge Andrade's life sentence, his lawyer filed a habeas corpus action in federal court to attack the constitutionality of California's Three Strikes law. Under the habeas corpus law, the state-imposed sentence can be reversed only if the state court unreasonably applied "clearly established federal law as determined by the United States Supreme Court."

The cruel (but perhaps not unusual) irony is that the Supreme Court has done anything but clearly enunciate the law of the Eighth Amendment's reference to cruel and unusual punishment. The Court is in fact spinning in a self-created eddy formed by two opposing currents of decisions it has rendered over the last century.

The first, known as the proportionality analysis, asks whether the punishment fits the crime. To answer the question, the Court, in this line of decisions, applies a three-step test. The first step is to compare the gravity of the crime to the harshness of the penalty. Second, the sentence is compared to those for similar crimes in the same state; third, it is compared to similar crimes in other states. If it is then determined that the punishment is grossly disproportionate to the crime, it will be struck down as violating the Eighth Amendment's prohibition against cruel and unusual punishment. …

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