APPEAL REVIVES DEBATE OVER CALIF. CRIME LAW

Supreme Court To Review 3-Strikes Penalties

LOS ANGELES -- Leandro Andrade already had spent time in jail for burglary
when he decided to swipe a few children's videos from a Southern California
store seven years ago. His crime, petty theft, ordinarily would have put
him behind bars for only six months, at most. But this time the
consequences were severe.

Andrade had violated the state's three-strikes law. So he was sent to
prison for 50 years.

The unsparing law, the nation's toughest crackdown on repeat offenders,
requires most felons with at least two prior convictions to serve long jail
terms if found guilty of even misdemeanor or nonviolent third offenses.
Thousands of convicts have been sent back to prison for decades or life
under the law's strict terms, many for minor crimes like the one Andrade
committed.

Ever since California enacted the three-strikes law eight years ago, state
and judicial leaders have argued over whether it is too harsh. Every
attempt to revamp or repeal it, however, has floundered.

But the Supreme Court's decision last month to examine whether
three-strikes penalties are unconstitutional is reviving debate over the
law -- and could rewrite the rules of crime and punishment in the nation's
most populous state.

"This is a big moment," said Michael Judge, president of the California
Public Defenders Association. "What the court does will affect hundreds of
people already in prison, and many more coming into the justice system."

Community groups that call the law extreme say the court is their last hope
to have it overturned, or at least scaled back. Defense attorneys are
scouring thick stacks of three-strikes cases that could soon be eligible
for appeal. Some prosecutors are fearful of losing a powerful tool to fight
crime. Others say a favorable court ruling would permanently protect the law.

Specifically, the court will review whether two controversial third-strike
sentences violate the constitutional ban on cruel and unusual punishment.
The primary case involves Andrade, who twice fled a Kmart store six years
ago with a handful of stolen videos, including "Snow White." He is serving
50 years to life for the thefts because he had several prior convictions
for a rash of home burglaries and marijuana possession. The second case
involves a felon named Gary Ewing, who is serving 25 years to life for
stealing three $400 golf clubs. He, too, had been convicted repeatedly for
burglary.

Andrade's lawyer, Erwin Chemerinsky, said the three-strikes law should be
scrapped because it allows prosecutors to treat misdemeanors as seriously
as violent felonies, allows them to link offenses that occurred many years
apart and requires them in most instances to seek nothing less than a
lengthy prison term.

"Shoplifting a very small amount of merchandise seems like an absurd basis
for putting someone in prison for life, especially when a defendant has not
shown any propensity whatsoever to commit a violent crime," Chemerinsky
said. "Could he have received the same prison term for jaywalking or a
speeding ticket? Where is the limiting principle in this law?"

Around California, some prosecutors seek three-strikes penalties mostly for
violent offenses, not misdemeanors, which the law gives them some
discretion to do. But others say cases such as Andrade's are exactly why
the law was written: to sweep the streets of career criminals before they
cause more harm.

"What seems to get lost in this debate is that to fall into the
three-strikes law, a criminal must have been previously convicted of two
serious or violent felonies," said Lawrence Brown, executive director of
the California District Attorneys Association. "This has been highly
effective in targeting the worst of the worst and making California safer."

The state approved the law in 1994, after public outrage over the
kidnapping and murder of 12-year-old Polly Klaas in the Northern California
town of Petaluma by a repeat felon who was on parole. Soon afterward, two
dozen other states adopted similar measures. But most of those laws make
only a few offenses eligible for severe third-strike prison terms and are
seldom used.

Since California's law took effect, about 7,000 criminals have gone to
prison with a third-strike sentence. For more than half of them, the third
strike was a misdemeanor or victimless crime, such as drug possession.
Nearly 350 people are serving long third-strike sentences for petty theft.

Criminals have received long, mandatory jail terms for stealing a bottle of
vitamins, a carton of cigarettes or a pizza. In one case, a homeless man in
Los Angeles who broke into a church to find food received a third-strike
sentence even though he knew the pastor and had not committed a crime in 10
years.

Some state legislators are trying to soften the law, and some community
groups are campaigning to get the issue back on a statewide ballot. So far
those efforts have not succeeded. California voters gave the three-strikes
law overwhelming support eight years ago and hardly sound angry about how
it is being used. The law also has bipartisan support in Sacramento -- it
is hard to lose many political points, after all, by getting tough on
crime. Just like his Republican predecessor, Pete Wilson, California Gov.
Gray Davis (D) has said he believes the law works and has vowed to veto any
attempt to change it.

California Secretary of State Bill Jones, who wrote the three-strikes law
while he was a Republican legislator, credits it for helping reduce crime
around the state over the past decade, at a rate greater than the decline
nationwide. "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.

But opponents of the law say crime began decreasing in California even
before large numbers of third-strike offenders began filling state prisons.
They also complain that the law is applied unevenly around the state.
Prosecutors are more likely to seek a third-strike penalty in conservative
counties than in liberal ones.

California's Supreme Court has curbed the law a bit by giving judges
flexibility to reduce third-strike sentences in some cases. Voters also
indirectly limited its scope by approving Proposition 36 last year, which
requires many drug offenders to be placed in treatment programs, not jails.

But the first real threat to the law came last fall when a federal appeals
court reviewing Andrade's case ruled that his third-strike sentence was
"grossly disproportionate" to his shoplifting.

California Attorney General Bill Lockyer, who supports the law, appealed
that decision to the Supreme Court, saying judges, prosecutors and defense
attorneys need more constitutional clarity on three-strikes penalties. The
court is scheduled to hear arguments on the law later this year. "Only the
U.S. Supreme Court can definitively resolve this issue," Lockyer said.

Without prior convictions, Andrade, who had been a heroin addict, would
have spent hardly any time in jail for stuffing a few movie videos in his
pants and stealing them. He had not been in trouble with the law for years
when he committed the thefts. But during the early 1980s, he racked up six
felony convictions for burglary and spent several years in prison.

That criminal record made it easy for prosecutors to seek a third-strike
penalty. Unless the Supreme Court intercedes, Andrade will not be eligible
for parole until he is 87.

"This wasn't a difficult decision for us," said Grover Merritt, a deputy
district attorney in San Bernardino County, where Andrade was prosecuted.
"Any one of the burglaries he committed could have resulted in a dead
homeowner. We think he's a dangerous kind of guy who hasn't learned his lesson."