The Supreme Court: Are Penalties Required in “Third Strike” Laws Too Cruel?

Are Penalties Required in “Third Strike” Laws Too Cruel?

Not all cruel and unusual punishment cases involve the death penalty. In the 2002 case of Lockyer v. Andrade, the Supreme Court looked at the question of whether two consecutive terms of 25 years to life was cruel and unusual punishment for a crime of petty theft involving the theft of about $150 worth of videotapes.

Leandro Andrade received that long sentence after being caught stealing for the third and fourth times in California. California has a “third strike” law that mandates the stiff penalty.

In November 1995, Andrade attempted to steal five videotapes from a Kmart. He was arrested upon leaving the store. Two weeks later, before trial on the first videotape theft offense, he was arrested outside another Kmart for trying to steal five more tapes. Andrade, who was a long-time heroin addict, had a 15-year criminal history with five felonies and two misdemeanors on his record. All previous crimes were nonviolent.

Based on his record, prosecutors determined that he already had two strikes under the California law when his prosecution started for the petty theft in the Kmart stores. Petty theft is a so-called “wobbler,” which means it can be tried as a misdemeanor or felony depending on circumstances. Andrade, who was 37, was convicted and sentenced to 25 years for each of the videotape petty theft counts (strikes three and four). According to California's three strikes law, these sentences had to be served consecutively (not at the same time), so Andrade would become eligible for parole in 50 years at age 87.

Andrade appealed the case to the California State Court of Appeals, which affirmed the lower court sentence. Next he appealed it to the 9th Circuit Court, which overturned the sentence as being “grossly disproportionate” to the crime committed. The state of California then appealed to the United States Supreme Court. The issue to be decided by the United States Supreme Court was whether the California “three strikes” law violates the Eighth Amendment protection against “cruel and unusual” punishment.

In a closely divided 5 to 4 decision, the United States Supreme Court ruled in favor of the state and overturned the circuit court. Justice Sandra Day O'Connor wrote the decision for the Court and was joined by Chief Justice Rehnquist and Justices Kennedy, Scalia and Thomas. Justice Souter wrote the dissenting opinion and was joined by Justices Breyer, Ginsburg, and Stevens. In writing the opinion for the court, O'Connor ruled that the California court did not err, but instead the 9th Circuit Court erred in overturning the California court on the principle of “gross disproportionality”. O'Connor wrote:

• “The gross disproportionality principle reserves a constitutional violation for only the extraordinary case. In applying this principle … it was not an unreasonable application of our clearly established law for the California Court of Appeal to affirm Andrade's sentence of two consecutive terms of 25 years to life in prison.”

In writing the dissent, Justice Souter disagreed:

• “The State, in other words has not chosen 25 to life because of the inherent moral or social reprehensibility of the triggering offense in isolation; the triggering offense is treated so seriously, rather, because of its confirmation of the defendant's danger to society and the need to counter his threat with incapacitation. As to the length of incapacitation, the State has made a second helpful determination, that the public risk or danger posed by someone with the specified predicate record is generally addressed by incapacitation for 25 years before parole eligibility … The three-strikes law, in sum, responds to a condition of the defendant shown by his prior felony record, his danger to society, and it reflects a judgment that 25 years of incapacitation prior to parole eligibility is appropriate when a defendant exhibiting such a condition commits another felony.
• “Whether or not one accepts the State's choice of penalogical policy as constitutionally sound, that policy cannot reasonably justify the imposition of a consecutive 25-year minimum for a second minor felony committed soon after the first triggering offense. Andrade did not somehow become twice as dangerous to society when he stole the second handful of videotapes; his dangerousness may justify treating one minor felony as serious and warranting long incapacitation, but a second such felony does not disclose greater danger warranting substantially longer incapacitation. Since the defendant's condition has not changed between the two closely related thefts, the incapacitation penalty is not open to the simple arithmetic of multiplying the punishment by two, without resulting in gross disproportion even under the State's chosen benchmark … I know of no jurisdiction that would add 25 years of imprisonment simply to reflect the fact that the two temporally related thefts took place on two separate occasions, and I am not surprised that California has found no such case, not even under its three-strikes law … In sum, the argument that repeating a trivial crime justifies doubling a 25-year minimum incapacitation sentence based on a threat to the public does not raise a seriously debatable point on which judgments might reasonably differ … This is the rare sentence of demonstrable gross disproportionality, as the California Legislature may well have recognized when it specifically provided that a prosecutor may move to dismiss or strike a prior felony conviction 'in the furtherance of justice.'”

At least for now, petty theft can lead to a 50-year sentence given circumstances similar to those that Andrade faced. Whether this ruling will stand for a long time depends on the future makeup of the Court when the next case winds its way to the Supreme Court's doorstep.