CRUEL, UNUSUAL, LEGAL

Legislature Should Rewrite State's Sweeping Three-Strikes Law To Make It
More Rational

THE U.S. Supreme Court ruled Wednesday that the harshest features of
California's three-strikes law are constitutional.

What the court didn't say was that those provisions are wise or effective,
because they're not. Sentencing someone to 50 years to life for ripping off
$153 worth of videotapes, or 25 years for stealing $1,200 in golf clubs, is
unreasonable and unconscionable. The law that permits it should be changed.

That's what the Legislature or voters must do, now that the Supreme Court,
by a narrow majority, has all but washed its hands of the Eighth Amendment.
That amendment is supposed to protect Americans from cruel and unusual
punishment, including sentences that are grossly disproportionate to the
crimes.

But Justice Sandra Day O'Connor, writing for the majority, said that
Congress has given the states wide latitude to define what that means.
Based on the court's reasoning, state legislators can impose any sentence
they see fit, short of caning kids. Federal courts, O'Connor said, should
second-guess the states' judgment in ``only the extraordinary case.''

Nine years ago, California voters approved the nation's toughest
three-strikes law in the aftermath of the abduction and murder of
12-year-old Polly Klaas. It was intended to make sure that kidnappers,
rapists and robbers -- violent and career criminals -- are put away a long
time. The law has done that well.

It also went too far. The law doesn't distinguish, for purposes of the
third strike, between thieves and murderers. A petty theft can be treated
as a felony, with a 25-year minimum sentence. Judges and prosecutors have
the discretion to reject third-strike application to non-serious crimes,
but too many don't. That's why the sentences of Leandro Andrade, the Kmart
shoplifter, and Gary Ewing, the golf club thief, landed in the Supreme Court.

Andrade was convicted of home burglaries and drug charges but not a violent
crime. After he was arrested twice within a week for stealing videotapes,
the prosecutor treated each incident as a separate third-strike offense.
His 50-year sentence at age 37 -- essentially life without parole --
doesn't protect the public from a violent criminal, one reason for three
strikes.

Throwing thieves and drug addicts like him in prison for decades squanders
taxpayer money. It's morally offensive.

As Justice David Souter wrote in dissent, if Andrade's sentence is not
grossly disproportionate, "the principle has no meaning.''

The Supreme Court has abdicated its role as guardian of the Eighth
Amendment. The obligation to craft a less sweeping, more rational
three-strikes law now reverts to the Legislature.