COURT UNDERMINES `THREE STRIKES' LAW

U.S. Panel Invalidates Stiff Terms For Non-Violent 3rd Offense

Expanding on an earlier ruling that weakened California's ``three
strikes, you're out'' law, a federal appeals court on Thursday found
that a potential life sentence for shoplifting is cruel and unusual
punishment even when a defendant has a past record of violent crimes.

In a unanimous decision, a three-judge panel of the 9th U.S. Circuit
Court of Appeals, while not invalidating the ``three strikes'' law,
struck a major blow to a key ingredient of California's tough-on-crime
initiative. Under the court's reasoning, it would be nearly impossible
for defendants to receive a 25-years-to-life term for a non-violent
third felony offense.

The issue most likely will decided by the U.S. Supreme Court. The
state has appealed to the nation's highest court an earlier appeals
court ruling that voided the life sentence of a convicted shoplifter.

Thursday's decision goes to the heart of the most controversial aspect
of California's "three strikes" law, the lengthy sentences meted out
to defendants for non-violent third strikes that often involve crimes
such as drug possession or petty theft. California is the only state
with a law that imposes its harsh terms for a non-violent third
offense, prompting critics to charge that it is unfair.

Shoplifter case

The 9th Circuit broke new ground in November by finding that a
50-years-to-life sentence was cruel and unusual in a case involving
Leandro Andrade, a shoplifter whose prior convictions were serious
felonies but not classified as violent. In Thursday's decision, the
federal appeals court went further, specifically finding that it was
unconstitutionally harsh for two shoplifters, Ernest Bray Jr. and
Napoleon Brown, to receive 25 years to life, despite the fact they had
been convicted of violent felonies in the past.

Bray was sentenced for stealing three videos in Long Beach. Brown was
put away for stealing a $25 steering wheel alarm from a drug store.

``Bray and Brown's sentences of life imprisonment with no possibility
of parole for 25 years are grossly disproportionate to their
respective crimes,'' 9th Circuit Judge Marsha Berzon wrote. ``Even in
light of their criminal records.''

While it is unclear how the ruling will apply to all non-violent third
strike cases, it is likely to invalidate the sentences of more than
300 inmates now serving potential life terms for shoplifting. Overall,
nearly half of California's 7,200 "three strikers" have been sentenced
to 25 years to life for non-violent crimes of some sort.

Erwin Chemerinsky, a University of Southern California law professor
who represents Bray, Brown and Andrade, said the 9th Circuit is
sending a clear message that the sentence for a third offense has to
be proportionate to the crime, not the past record.

``I think this case opens the door to saying you can't impose a life
sentence for a non-violent third offense,'' Chemerinsky said. ``This
case does establish a proposition that is quite important.''

California Attorney General Bill Lockyer's office strongly disagrees
with the 9th Circuit's recent "three strikes" rulings, arguing that
the voters approved the law in 1994 with the intention of punishing
repeat offenders. Last week, Lockyer asked the U.S. Supreme Court to
review the Andrade case, warning that the ``decision will open the
floodgates of litigation on nearly all three strikes sentences'' in
California.

Under review

Hallye Jordan, Lockyer's spokeswoman, said the Bray and Brown cases
are being reviewed.

A recent Mercury News review of "three strikes" cases found that while
48 percent of Santa Clara County's 381 "three-strikers" are serving
25-years-to-life terms for non-violent crimes, 95 percent of those
convicts had previously committed multiple violent acts before getting
busted on their third offense.

Santa Clara County Deputy District Attorney Dave Tomkins, who
supervises the office's "three strikes" unit, said the 9th Circuit's
rulings would not abolish the use of non-violent third offenses, but
simply force prosecutors to be more selective in applying the law to
only the worst violent criminals.

``The only thing I take out of it,'' Tomkins said, ``is that if you're
a DA's office and evaluating these cases, you better be mindful that
they need to be really bad in the hierarchy of bad, and we do that
already.''