HIGH COURT TO REVIEW TOUGH SENTENCING LAWS

WASHINGTON - The Supreme Court said Monday that it will review whether some
three-strikes-and-out sentencing laws result in unconstitutionally harsh
prison terms, such as up to life behind bars for shoplifting videotapes
from Kmart.

The court agreed to hear appeals involving two California thieves sentenced
to terms ranging from 25 years to life for small-time crimes that might
otherwise have meant just a few months in jail.

The Supreme Court will consider whether long sentences were
unconstitutionally cruel or unusual punishment for a heroin addict who
shoplifted videotapes worth $153 and an AIDS patient who shoved three golf
clubs down his pants leg and tried to walk out of a pro shop.

The court's eventual ruling could be limited to the way the law is applied
in California, or it could make a more general statement about how far
states may go in using similar laws to win very long prison terms for
relatively minor crimes.

Twenty-six states and the federal government have some version of a
three-strikes law, which typically allow a life prison term or something
close to it for a criminal convicted of a third felony.

Critics say the laws are too harsh and inflexible in general, and
particularly so in California, which has the nation's strictest
three-strikes law. It requires a sentence of 25 years to life in prison for
any felony conviction if the criminal was previously convicted of two
serious or violent felonies.

"If an individual is charged with growing a single marijuana plant, and he
has on his record two qualifying prior convictions, he's dog meat," said
Jerome Mullins, a San Jose, Calif., criminal defense lawyer who has had
several clients prosecuted under the state three-strikes law.

"He's looking at 25-to-life for growing a plant."

Crimes that might otherwise be considered misdemeanors may also be
considered felonies, meaning that a shoplifting charge such as the one
Leandro Andrade faced can trigger the three-strikes provision.

Andrade was convicted of twice stuffing videotapes down his pants at
Southern California Kmart stores in 1995.

He had previous burglary convictions, making him eligible for extra
punishment under California's three-strikes law.

The Supreme Court also said it will hear a case that came out the other
way. A state court upheld Gary Ewing's sentence of 25 years to life in
prison for trying to steal three golf clubs at an El Segundo, Calif., golf
course.

Ewing had four prior convictions for robbery and burglary. Although
prosecutors could have charged him with a misdemeanor in the golf club
case, they chose to charge him with a felony under the state's
three-strikes law.

"Serving 25 years to life for stealing golf clubs is cruel and unusual
punishment," Ewing's lawyer wrote in asking the Supreme Court to get involved.

Court sidesteps speech case

Also on Monday, the court declined without comment to review a free speech
case. Leaders of a Kentucky community college asked justices to decide if a
college instructor had a constitutional right to use racial slurs in class
as part of a discussion of hurtful communication.

Complaints about the lesson cost the teacher his job, and the court had
been urged to use his dismissal to decide whether the First Amendment
applies to all on-the-job speech.

An appeals court said Kenneth Hardy, who taught communications classes at a
two-year college in Louisville, Ky., could sue the college president and
dean claiming that they retaliated against him for his comments.

Hardy had asked students in his interpersonal communication class to
examine how language is used to hurt classes of people. He sought examples
from students and they discussed derogatory terms for blacks, homosexuals
and women.

His superiors' lawyer said that Hardy was speaking as a college employee
and cannot claim his constitutional rights were violated. Had he made
comments away from work, it's clear he had a right to do so. Courts have
reached various conclusions in employee speech cases.

"The argument that teachers have no First Amendment rights when teaching,
or that the government can censor teacher speech without restriction, is
totally unpersuasive," the 6th U.S. Circuit Court of Appeals said last year
in siding with Hardy.

The college president's lawyer, John Roberts, said the appeals court
"sharply reduced the flexibility enjoyed by public employers to regulate
those who speak on their behalf."

Hardy taught from 1995-98 at Jefferson Community College, the largest
two-year college in with about 9,500 students and multiple campuses. Court
records show that he was popular with students.

A black student, however, complained about the 1998 lesson. The student
contacted a civil rights activist, who met with the president and demanded
Hardy's dismissal, according to Hardy's lawyer.

Hardy contends that his use of controversial words prompted the college to
end his teaching duties.