WASHINGTON — Gary Ewing was slapped with 25 years-to-life for sneaking out of a pro shop with three golf clubs stuffed down his pants leg. Shoplifting “Free Willy 2” and eight other videotapes worth $153.54 earned Leandro Andrade 50 years behind bars.
Both men are repeat offenders sentenced under California’s tough “three-strikes” law, which mandates long prison terms for those convicted of at least two prior felonies. On Tuesday, the Supreme Court will examine whether these stiff prison terms for relatively minor offenses constitute cruel and unusual punishment.
Other states will be watching the two cases with an eye toward how far they can go in punishing repeat offenders. Such anti-recidivist measures were especially popular in the crime crackdown of the 1990s amid studies showing that a small number of criminals were responsible for a large number of crimes.
The 1993 abduction and murder of 12-year-old Polly Klaas, of Petaluma, Calif., by Richard Allen Davis, a twice-convicted kidnapper out on parole, inspired the California three-strikes law. About half the states followed suit and have some type of three-strikes law.
California’s statute is believed to be the harshest in the nation because the third strike can be a less serious misdemeanor crime, such as petty theft.
Lawyers for Ewing, 40, and
Andrade, 43, said the sentences
are unconstitutional because they are “grossly disproportionate” to the crimes.
Prosecutors argue that the two felons had long rap sheets of serious crimes and would continue to break the law unless they were put back behind bars.
Andrade already had five nonviolent felonies on his record — three for burglary and two for transporting marijuana — when he was arrested for stealing five children’s videotapes from a K-Mart in Ontario, Calif., in November 1995. Out on bond two weeks later, Andrade was caught stealing four more tapes from another K-Mart, in Montclair, Calif.
Because of his record, the petty theft charges were upgraded to felonies under the three-strikes statute, and he received two consecutive 25-years-to-life sentences. Only first-degree murder and small handful of other violent crimes would receive a sentence as harsh, his lawyer Chemerinsky said.
In November 2001, a divided Ninth U.S. Circuit Court of Appeals ruled that the sentence was “grossly disproportionate” and ordered that Andrade either be re-sentenced or released. The state attorney general’s office appealed.
California Attorney General Bill Lockyer argued in his petition to the high court that Andrade’s criminal history makes him “a danger
to society.”