'Three-strikes' penalties under review

WASHINGTON -- The Supreme Court said Monday it will review whether some three-strikes-and-out sentencing laws result in unconstitutionally harsh prison terms, such as up to life behind bars for shoplifting videotapes from Kmart.

The court agreed to hear appeals involving two California thieves sentenced to terms ranging from 25 years to life for small-time crimes that might otherwise have meant just a few months in jail.

The Supreme Court will consider whether long sentences were unconstitutionally cruel or unusual punishment for a heroin addict who shoplifted videotapes worth $153 and an AIDS patient who shoved three golf clubs down his pants leg and tried to walk out of a pro shop.

The court's eventual ruling could be limited to the way the law is applied in California, or it could make a more general statement about how far states may go in using similar laws to win very long prison terms for relatively minor crimes.

Twenty-six states and the federal government have some version of a three-strikes law, which typically allow a life prison term or something close to it for a criminal convicted of a third felony.

Critics say the laws are too harsh and inflexible in general, and particularly so in California, which has the nation's strictest three-strikes law. It requires a sentence of 25 years to life in prison for any felony conviction if the criminal was previously convicted of two serious or violent felonies.

'He's dog meat'

"If an individual is charged with growing a single marijuana plant, and he has on his record two qualifying prior convictions, he's dog meat," said Jerome P. Mullins, a San Jose, Calif., criminal defense lawyer who has had several clients prosecuted under the state three-strikes law.

"He's looking at 25-to-life for growing a plant."

Crimes that might otherwise be considered misdemeanors may also be considered felonies, meaning that a shoplifting charge like the one Leandro Andrade faced can trigger the three-strikes provision.

Theft of videotapes

Andrade was convicted of twice stuffing videotapes down his pants at southern California Kmart stores in 1995.

He had previous burglary convictions, making him eligible for extra punishment under California's three-strikes law.

"No other state in the country has such a sentencing scheme where misdemeanor conduct can be the basis for an indeterminate life sentence," said Andrade's lawyer, University of Southern California Law School professor Erwin Chemerinsky.

A state court upheld Andrade's sentence, but the 9th U.S. Circuit Court of Appeals, in a widely noted decision last year, ruled it unconstitutional. The ruling was limited to cases like his, and did not overturn the three-strikes law itself.

A divided three-judge panel of the appeals court found Andrade's sentence "grossly disproportionate" to the theft, and said Supreme Court rulings require a trial judge to examine whether the punishment fits the crime.

The Supreme Court also said it will hear a case that came out the other way. A state court upheld Gary Ewing's sentence of 25 years to life in prison for trying to steal three golf clubs at an El Segundo, Calif., golf course.

Ewing had four prior convictions for robbery and burglary. Although prosecutors could have charged him with a misdemeanor in the golf club case, they chose to charge him with a felony under the state's three-strikes law.

California voters and lawmakers approved the three-strikes law in 1994 amid public furor over the kidnapping and murder of 12-year-old Polly Klaas.

Richard Allen Davis, a repeat offender on parole at the time of the kidnapping, was convicted of the murder and sentenced to death.

Three-strikes laws in other states and the federal government were also passed in the 1990s, when the spread of crack cocaine fed public fears about rising violent crime.

California Secretary of State Bill Jones, an author of the state's 1994 law, credited the law with helping lower crime in the state by 41 percent, more than twice the national average decline in the same period. "We clearly focused the law on that small percentage of the criminal population that commits the vast majority of the crime in our society," Jones said Monday.

The law is getting career criminals off the street and serves as a deterrent for criminals who already have one or two felonies on their record, Jones said.

The cases are Lockyer v. Andrade, 01-1127, and Ewing v. California, 01-6978.

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