SUPREME COURT TAPS CASES TO DECIDE 3-STRIKES ISSUE

WASHINGTON -- The Supreme Court agreed today to decide whether sentences of
25 years to life in prison imposed under California's three-strikes law are
unconstitutionally cruel when the third strike is a minor property crime.

To decide the issue, the justices granted review in two cases today. One
defendant, Gary A. Ewing, who had previous convictions for robbery and
burglary, received his 25-years-to-life sentence for stealing three clubs
from a golf course pro shop. The other, Leandro Andrade, who had earlier
convictions for burglary, received 50 years to life for stealing videotapes
worth $153.54 from two Kmarts; the two crimes earned him consecutive
25-years-to-life sentences.

An intermediate appellate court in California upheld Mr. Ewing's sentence,
and the state's Supreme Court denied review. Mr. Andrade met the same fate
in the California state courts, but turned to the federal courts with a
petition for a writ of habeas corpus. The United States Court of Appeals
for the Ninth Circuit, in San Francisco, ruled that the sentence was so
disproportionate to the offense as to violate the Eighth Amendment's
prohibition against cruel and unusual punishment.

Although about half the states have a three-strikes law, imposing
extra-long penalties for a third criminal offense, only in California can a
crime that would ordinarily be treated as a misdemeanor count as the third
strike. Prior convictions permit a California judge to treat a misdemeanor
as if it were a felony.

Mr. Andrade's lawyer, Erwin Chemerinsky of the University of Southern
California Law School, argued successfully that the California law
double-counts the prior convictions, using them to convert a misdemeanor
into a felony and thus to make a defendant eligible for sentencing under
the three-strikes law.

Although the Supreme Court's decision to hear the cases may not affect
other states, the outcome could invalidate hundreds or even thousands of
California sentences. The third strike for more than half of the 7,000
inmates sentenced under the 1994 law was a nonviolent crime. Of those, 340
were sentenced, as Mr. Andrade was, for the crime of "petty theft with a
prior."

Without a prior offense, petty theft is punishable under California law by
a jail sentence of six months or less. Mr. Andrade was 37 when he was
sentenced in 1996 and would not be eligible for parole until he turned 87.

The three golf clubs Mr. Ewing stole from the pro shop at the El Segundo
Golf Course in El Segundo, Calif., cost $399 each, leading to a conviction
for grand theft, a crime ordinarily punished in California with up to a
year in jail. He was 38 at the time of his sentencing in 2000 and would be
eligible for parole in 2025.

The Supreme Court's decision to hear the cases, Lockyer v. Andrade, No.
01-1127, and Ewing v. California, No. 01-6978, was not a surprise because
the California three-strikes law had been a concern for the justices for
some years. In Riggs v. California, in 1999, the court considered an appeal
from a defendant whose third strike had been the theft of a bottle of
vitamins from a supermarket.

The court declined to hear the case, an appeal from the California courts.
Justice Stephen G. Breyer dissented, saying that the case raised a "serious
question" that merited review.

Three other justices, John Paul Stevens, David H. Souter, and Ruth Bader
Ginsburg, wrote a separate opinion to say that the denial should not be
mistaken for a lack of interest, but rather reflected the fact that the
federal courts had not yet had a chance to review a three-strikes case.

With the Andrade case coming from federal court, California argued in its
appeal that in granting the writ of habeas corpus, the Ninth Circuit
exceeded its authority under a 1996 federal law that curtailed the federal
courts' authority to review state criminal sentences. State inmates seeking
habeas corpus in federal court must now show that the state court decision
"involved an unreasonable application of clearly established federal law."

The state of federal law regarding recidivist sentencing, and
disproportionate sentencing in general, is in fact quite unclear.

In 1983, the Supreme Court invalidated a life sentence for a man convicted
of passing a bad $100 check, his seventh criminal offense. But in 1991, the
court split sharply and upheld Michigan's imposition of a life sentence
without parole for a first-time offender convicted of possessing two pounds
of cocaine, at the same time suggesting that there were "grossly
disproportionate" sentences that might be unconstitutional.

Because the question of federal court jurisdiction has become so complex,
the Supreme Court may have granted the California state case today along
with the federal case to ensure that it would be able to reach the merits
of the three-strikes question without being stymied by a jurisdictional
barrier.

After its ruling in the Andrade case last November, the Ninth Circuit
issued a decision in another three-strikes case in February, holding that
petty theft cannot serve as a third strike even if the prior offenses had
been violent felonies. Bill Lockyer, the attorney general of California,
has said he will appeal that decision, Brown v. Mayle, as well.

In his appeal in the Andrade case, Mr. Lockyer said the fact that
California's three-strikes law "may be the most harsh amongst the states
does not render it unconstitutional" because "one state has to be the most
severe." As the biggest state, California has "the greatest crime problem,"
he said.

In a separate action today, the court, without explanation, dismissed a
case it heard argued last month on the type of evidence necessary to prove
a violation of the Age Discrimination in Employment Act. That case, Adams
v. Florida Power Corporation, No. 01-584, raised the question of whether
policies that had a disproportionately negative impact on older workers
could violate the law without proof of intentional discrimination.