COURT TO REVIEW 'THREE STRIKES'

Justices Agree To Hear Two Cases Under California Sentencing Law

The Supreme Court announced yesterday that it will consider whether a
California law that imposes dramatically tougher prison sentences on repeat
criminal offenders violates the constitutional ban on "cruel and unusual"
punishment.

By agreeing to hear the cases of two men who are serving decades in prison
for theft under California's law requiring a 25-years-to-life sentence for
third felony convictions, the justices have stepped into a mounting
national debate over the fairness and efficiency of criminal justice.

"Three strikes and you're out" laws were popular when enacted in California
and some 25 other states during the mid-1990s; many state law enforcement
officials -- and voters -- continue to credit them for much of the recent
decline in crime, arguing that the laws take career offenders off the streets.

California's three-strikes law is considered the toughest in the country,
as it authorizes possible life sentences for any third felony conviction,
even a nonviolent or relatively minor one, as long as the defendant's two
prior offenses were serious or violent.

As incarceration rates have risen, however, three-strikes laws have come
under fire from civil rights groups, defense lawyers and even some
prosecutors who argue that it is disproportionate to imprison people for
decades for offenses that might have brought a brief jail term under
different circumstances.

For many such offenders, opponents of "three strikes" say, drug treatment
would be a more humane and cost-effective alternative.

"The issue is serious . . . and the stakes are substantial," Justice David
H. Souter wrote in February 2001, dissenting with Justice Stephen G. Breyer
from the court's decision not to review an earlier case about the
California law.

At the time, no lower court had yet voided a California three-strikes
sentence, and two other liberal-leaning justices, John Paul Stevens and
Ruth Bader Ginsburg, were on record as saying the issue was "serious" but
needed more lower-court review. The votes of four of the nine justices are
needed to agree to hear an appeal. The court is led by a five-member
conservative majority.

Then, in November 2001, the San Francisco-based U.S. Court of Appeals for
the 9th Circuit overturned a sentence of two consecutive 25-years-to-life
terms for convicted thief Leandro Andrade.

The 9th Circuit held that the Constitution "does not permit the application
of a law which results in a sentence grossly disproportionate to the crime."

California Attorney General Bill Lockyer asked the justices to reinstate
Andrade's sentence, arguing in his petition for review that "unless
repudiated," the appeals court's "decision will open the floodgates of
litigation on nearly all three-strikes sentences." In agreeing to hear
Lockyer's appeal, the court said yesterday that it would decide the case in
tandem with an appeal by Gary A. Ewing, who is seeking reversal of his
25-years-to-life sentence for stealing golf clubs worth about $1,200.

California's three-strikes law was adopted at a time of strong public
revulsion at the 1994 abduction and murder of 12-year-old Polly Klaas -- a
brutal crime for which a repeat offender on parole at the time of the
kidnapping was later convicted and sentenced to death.

Some 57 percent of the 7,000 people serving sentences under the California
law were convicted of nonviolent third felonies, including 644 convicted of
drug possession and 340 convicted of petty theft, state officials say.

One of the most hotly debated aspects of California's three-strikes law,
other than the long mandatory prison terms, is that prosecutors have
discretion whether to charge certain third offenses as felonies rather than
misdemeanors. (Judges may, in some cases, decide to reduce felonies to
misdemeanors after conviction.)

This "wobbler" rule is at the heart of the two cases on which the court has
agreed to rule.

Andrade, a heroin addict, had been convicted of five felonies, including
first-degree burglary and a drug charge, before 1995, when he was arrested
for stealing about $150 worth of videos from K-mart stores.

Petty theft is usually treated as a misdemeanor in California, punishable
by six months in jail and a $1,000 fine. But Andrade's previous felony
convictions permitted the prosecutor to treat his latest offense as a
felony, activating the "three strikes" rule. He will be eligible for parole
in 2046, when he is 87.

Ewing was also a drug addict who financed his habit by theft. In March
2000, he was spotted by a clerk at an El Segundo, Calif., pro shop walking
stiff-legged from the store to the parking lot. Police discovered that
Ewing had left the pro shop with three expensive golf clubs stuffed down
his pants. If Ewing's crime, grand theft, had been treated as a
misdemeanor, it would have carried a one-year maximum sentence.

Ewing, who has AIDS, will be eligible for parole in 2025, when he is 63. He
challenged his sentence in state court, but his appeals were denied and he
petitioned for Supreme Court review.

"The sentence of [25] years to life is cruel and unusual punishment for a
person who is seriously ill and does not expect to live very long because
he stole golf clubs," Ewing's petition said.

The cases are Lockyer v. Andrade, No. 01-1127, and Ewing v. California, No.
01-6978. The court will hear oral arguments next fall, and a decision is
due by July 2003.