WHEN FOOLISH LAW SHOULD STAND

ON APRIL Fool's Day of this year, the U.S. Supreme Court agreed to hear an
appeal challenging a foolish lower-court decision that, if it stands, would
overturn a foolish California law.

The high court has a duty to reinstate the foolish law by throwing out the
foolish decision.

Got all that?

The case arises out of a conviction under California's notoriously tough
"three strikes" law, which mandates prison sentences of 25-years-to-life
for a conviction for a third felony. In this particular instance, the tough
sentence was meted out for the theft of videotapes worth a total of $153.54.

The Register previously has editorialized in favor of the concept of "three
strikes" laws, but only when they are applied for convictions of violent
crimes. The idea is to keep dangerous repeat-offenders off the streets, not
to swell prison populations with habitual petty thieves.

California's law, approved in a statewide referendum, seems so overly broad
as to be foolish.

But that doesn't make it unconstitutional. The Constitution, of course,
forbids "cruel and unusual punishment." But the original history behind
that clause shows that what was being forbidden was not quantitative, but
qualitative. The idea was to prohibit physical torture and the like, not to
set the length of prison terms.

The 9th U.S. Circuit Court of Appeals, however, ruled that the lengthy
sentence itself was so "grossly disproportionate" to the crime as to
constitute cruel and unusual punishment.

Foolish as the law is, though, the appeals court is wrong to overturn it. A
majority of California voters made an arguably rational decision that the
commission of multiple felonies deserves a lengthy jail term. For a court
to overrule that is for the judges to improperly legislate from the bench.

Former Justice Potter Stewart wrote in a famous dissenting opinion that he
found a law in question to be "uncommonly silly." But, he said, "We are not
asked in this case to say whether we think this law is unwise, or even
asinine. We are asked to hold that it violates the United States
Constitution. And that I cannot do."

Judges in this case should show similar restraint.