THREE STRIKES SHOULD BE AN OUT

In 1996 a California jury found Leandro Andrade guilty of shoplifting. On
that charge he was sentenced to life in prison.

If that summation sounds like something out of Les Miserables, listen more
closely. Andrade is a drug addict who launched his criminal career with
petty theft in 1982. In 1983 he pled guilty to three counts of residential
burglary. He was barely out of prison for that felony before he was
convicted of transporting marijuana. Sentenced in 1988 to eight years in
prison, he served less than 18 months.

Released on parole, Andrade returned to petty theft in 1990. There followed
another conviction for transporting marijuana. Sentenced to six years in
prison, he served less than 30 months. Then he was out again, but in
November 1995 he stole five videotapes from one Kmart store and four more
from another Kmart. The state chose to treat the Kmart thefts as felonies.
A jury found Andrade guilty, and the trial court threw the book at him25
years to life for each theft, the sentences to be served consecutively.
Three felony strikes, and Andrade was out.

Their laws vary widely, but about half the states have similar statutes for
repeat offenders. California's 1994 law is the toughest of them all. After
two convictions of "serious" felonies, a third conviction for any felony
brings a mandatory minimum term of 25 years. The sentence cannot be reduced
because of prison work or good-time credits. Separate sentences for two
identical crimes, as in the Andrade case, cannot be served concurrently.
Unless the Supreme Court acts in his favor, Andrade will be 87 before he
could apply for parole in 2046.

The Eighth Amendment to the Constitution is a rubber band. It says that
"excessive" bail may not be required, nor "excessive" fines imposed, nor
"cruel and unusual" punishments inflicted. As always in constitutional law,
everything comes down to definitions. Over the past 22 years the high court
has handed down three relevant opinions construing the "cruel and unusual"
clause.

In the Rummel case of 1980, the court upheld a life sentence imposed upon a
three-time loser in Texas, but there were ameliorating circumstances. The
key consideration was that under the state's liberal parole policy, Rummel
would be eligible for parole in only 12 years.

In the Helm case of 1983, the court leaned the other way. The defendant had
a record of six nonviolent felonies before he was convicted of writing a
rubber check for $100. Under South Dakota's recidivist statute, Helm was
sentenced to life imprisonment with no possibility of parole at all. The
Supreme Court reversed: The sentence was both cruel and unusual. It was
"grossly disproportionate" to the gravity of the crime.

In the Harmelin case of 1991, the court split 5-4 in affirming a
life-without-parole sentence imposed upon a big-time drug dealer in
Michigan. There was no majority opinion, but seven justices separately
stuck with the proportionality test established in the Helm case.

Getting back to Leandro Andrade: In finding his life sentence grossly
disproportionate to the theft of nine videotapes, a panel of the 9th
Circuit emphasized that it was not invalidating California's three-strike
law in toto. Its holding was limited to resentencing because of the
"unusual circumstances" of the case.

Circuit Judge Joseph T. Sneed filed a powerful dissenting opinion. He noted
that California's three-strike law was the outgrowth of a referendum
supported by 72 percent of the voters and then implemented by the state
Legislature. Clearly, a policy of "severe, mandatory sentences for
recidivist offenders is the expressed penal philosophy of the citizens of
California." That expressed policy is entitled to "great deference."

When the Supreme Court hears the Andrade case next winter, the justices
also will hear the appeal of Gary Albert Ewing. Two years ago he was
convicted of stealing three golf clubs from the pro shop at a Los Angeles
golf course. Because of four prior convictions for serious offenses, he too
was sentenced to 25 years to life. He too challenges his sentence as
grossly disproportionate to the crime.

Such harsh punishments cannot be termed "unusual," not if half the states
permit them. Are they also "cruel"? You make the call. In the Andrade and
Ewing cases, I would vote to uphold the state's strike three. You can bet
the ranch that Justices Stevens, Souter, Ginsburg and Breyer will vote to
give these losers a base on balls.