JUSTICES TO RULE ON 'THREE STRIKES'

WASHINGTON - The Supreme Court said Monday 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, including Florida, and the federal government have some
version of a three-strikes law, which typically allows 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 P. 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 like 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.

"No other state in the country has such a sentencing scheme where
misdemeanor conduct can be the basis for an indeterminate life sentence,"
said Andrade's lawyer, University of Southern California Law School
professor Erwin Chemerinsky.

A state court upheld Andrade's sentence, but the 9th U.S. Circuit Court of
Appeals, in a widely noted decision last year, ruled it unconstitutional.
The ruling was limited to cases like his, and did not overturn the
three-strikes law itself.

A divided three-judge panel of the appeals court found Andrade's sentence
"grossly disproportionate" to the theft, and said Supreme Court rulings
require a trial judge to examine whether the punishment fits the crime.

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.

California voters and lawmakers approved the three-strikes law in 1994 amid
public furor over the kidnapping and murder of 12-year-old Polly Klaas.
Richard Allen Davis, a repeat offender on parole at the time of the
kidnapping, was convicted of the murder and sentenced to death.

Three-strikes laws in other states and the federal government were also
passed in the 1990s, when the spread of crack cocaine fed public fears
about rising violent crime.

California Secretary of State Bill Jones, an author of the state's 1994
law, credited the law with helping lower crime in the state by 41 percent,
more than twice the national average decline in the same period. "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
Monday.

The law is getting career criminals off the street and serves as a
deterrent for criminals who already have one or two felonies on their
record, Jones said.

The cases are Lockyer v. Andrade, 01-1127, and Ewing v. California, 01-6978.