Criminal
Mar. 22, 2003
Cruel Punishment
Forum Column - By Erwin Chemerinsky - For a century, the U.S. Supreme Court has held that grossly disproportionate sentences are cruel and unusual punishment in violation of the Eighth Amendment. See, for example, Weems v. United States , 217 U.S. 349 (1910). If any sentence is grossly disproportionate, surely it is life imprisonment for shoplifting.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
For a century, the U.S. Supreme Court has held that grossly disproportionate sentences are cruel and unusual punishment in violation of the Eighth Amendment. See, for example, Weems v. United States, 217 U.S. 349 (1910). If any sentence is grossly disproportionate, surely it is life imprisonment for shoplifting.
Yet in two cases decided March 5, the Supreme Court upheld life sentences for shoplifting pursuant to California's three-strikes law. In Lockyer v. Andrade, 2003 DJDAR 2484 (U.S. March 5, 2003), the court held that a federal court could not grant habeas corpus relief to an individual who received an indeterminate life sentence with no possibility of parole for 50 years for stealing $153 worth of videotapes.
In Ewing v. California, 2003 DJDAR 2490 (U.S. March 5, 2003), the court upheld as constitutional an indeterminate life sentence with no possibility of parole for 25 years imposed on a person for stealing three golf clubs worth $1,200.
Both of these cases were decided by the same 5-4 margin, with Justice Sandra Day O'Connor writing the majority opinion in each. In neither case did even one justice in the majority express concern, let alone outrage, that human beings were imprisoned for life for shoplifting. In each case, the majority ignored precedents and substantially changed the law without acknowledging that it was doing so.
I want to focus on the court's decision in Andrade, which will be most significant in that the Supreme Court further narrowed the availability of habeas corpus. In this way, the decision will have implications far beyond cases involving claims under the Eighth Amendment.
The 1996 Antiterrorism and Effective Death Penalty Act narrowed the availability of habeas corpus relief to state prisoners. The act modified in 28 U.S.C. Section 2254(d) to provide that a federal court may grant habeas corpus only if a state court decision is "contrary to" or an "unreasonable application of clearly established Federal law, as determined by the United States Supreme Court."
In Andrade, the court held that Leandro Andrade was not entitled to habeas corpus relief for two reasons. First, there was no clearly established law. Second, the state court decision was not contrary to or an unreasonable application of federal law. Neither of these conclusions withstands careful analysis.
First, O'Connor's conclusion that there was no clearly established law ignores the precedents in this area. In Solem v. Helm, 463 U.S. 277 (1983), the court announced a three-part test for determining whether a sentence is grossly disproportionate and thus cruel and unusual punishment.
Under Solem, a court is to compare the gravity of the offense and the harshness of the punishment, examine the punishments for other crimes in the same jurisdiction and consider the punishments in other states for the same crime.
In Harmelin v. Michigan, 501 U.S. 957 (1991), seven justices reaffirmed this test. On many occasions, the court has approvingly cited to this test. See, for example, Cooper Indus. v. Leatherman Tool Group Inc., 532 U.S. 424 (2001); United States v. Bajakajian, 524 U.S. 321 (1998). Yet O'Connor concluded that there was no clearly established law without mentioning this test, let alone explaining why it was not controlling.
Under this test, Andrade's sentence was clearly cruel and unusual punishment. Under the Solem/Harmelin analysis, a sentence of 50 years to life in prison for two counts of stealing videotapes is "grossly disproportionate." The offense was minor, but the punishment was enormous.
California deems petty theft a misdemeanor, and two counts of petty theft are punishable by, at most, one year in jail. Absent the three-strikes law, two counts of "petty theft with a prior" are punishable by, at most, three years and eight months in prison. Penal Code Section 1170.1(a)
In California, only first-degree murder and a few other violent crimes would receive a sentence greater than Andrade's punishment. See, for example, Penal Code Section 193 (voluntary manslaughter: up to 11 years in prison); Penal Code Section 264 (rape: up to eight years in prison); Penal Code Section 190 (second-degree murder: 15 years to life in prison).
In fact, if Andrade's prior crimes had been for murder or rape, the maximum sentence for his shoplifting would have been one year; under California law, the crime of petty theft with a prior requires that there be a previous property crime. Penal Code Sections 490, 666.
In no other state could Andrade have received an indeterminate life sentence with no possibility of parole for 50 years.
As Justice John Paul Stevens recently noted, California is the "only state in the country in which a misdemeanor could receive such a severe sentence." Riggs v. California, 2003 DJDAR 563 (U.S. Jan. 19, 1999) (Stevens, J., opinion respecting the denial of certiorari).
Moreover, O'Connor's opinion stated that the "only relevant clearly established law ... is the gross disproportionality principle" - the constitutional rule that grossly disproportionate sentences are cruel and unusual punishment. However, O'Connor never explains why a life sentence, with no possibility of parole for 50 years, fails to meet this standard.
O'Connor's opinion will make it much harder for habeas petitioners to gain relief because it sets such a difficult and ambiguous standard for when there is clearly established federal law.
Second, the court ruled that the state court decision was not "contrary to" or an "unreasonable application [of]" clearly established federal law. The court has held that a decision is "contrary to" federal law "if the state court applies a different rule from the governing law set forth in our cases, or if it decides a case differently than we have done on a materially indistinguishable set of facts." Bell v. Cone, 2002 DJDAR 5809 (U.S. May 28, 2002).
The California Court of Appeal acted contrary to federal law in that it never applied the three-part test prescribed by Solem and Harmelin. In fact, the state court "question[ed]" whether "proportionality analysis applies under ... [the] federal constitution."
It is hard to imagine a clearer instance of a court disregarding clearly established federal law.
Under Section 2254(d), a federal court also can grant habeas corpus if the state court "decides a case differently than [the Supreme Court would] have done on a materially indistinguishable set of facts." Andrade.
The factual similarities between Andrade and Solem are striking. Both Andrade and Jerry Helm were in their mid-30s when sentenced to life in prison. Both had received their first felony convictions 15 years earlier, each for residential burglary. Both had purely nonviolent prior records, principally financial and property crimes. Each received a life sentence, under state recidivist statutes for minor offenses: Helm for uttering a no account check worth $100; Andrade for shoplifting $153 worth of videotapes.
O'Connor said that the difference between Andrade and Solem is that Andrade was eligible for parole in 50 years, whereas Helm was sentenced to life in prison without the possibility of parole. O'Connor thus concluded that Andrade was similar to Rummel v. Estelle, 445 U.S. 263 (1980), where the defendant was sentenced to life for misappropriating $100 worth of property but was eligible for parole in 12 years.
O'Connor's analysis means that a sentence is immune from Eighth Amendment attack so long as there is the theoretical possibility of parole at some point. Realistically, an indeterminate life sentence with no possibility of parole for 50 years is the same as a life sentence with no chance of parole. After O'Connor's opinion, a state can immunize its sentences from Eighth Amendment analysis just by setting parole in 75 or 100 years.
Federal courts also can grant habeas corpus if a state court decision is an "unreasonable application" of clearly established federal law. The 9th U.S. Circuit Court of Appeals held that this standard is met if the state court commits "clear error."
O'Connor, however, said that this standard "fails to give proper deference to state courts."
The court stated, "It is not enough that a federal habeas court, in its 'independent review of the legal question' is left with a 'firm conviction' that the state court was 'erroneous.'"
But O'Connor never explains why a "clear error" by a state court is not sufficient to be an "unreasonable application" of federal law. Nor does she explain the standard that courts should use in the future for making this determination. In this way, Andrade likely will create much confusion in the law of habeas corpus.
Had one justice in the majority seen the case differently, Andrade surely would be released from prison within weeks because he has served seven years for shoplifting. Now, he faces another 43 years before he is eligible for parole.
There are 343 other individuals serving life sentences for the same crime as Andrade: stealing less than $400 of merchandise. All are left without hope of judicial relief from their sentences.
These are human beings imprisoned for life for shoplifting. Under a Constitution that prohibits cruel and unusual punishment, this just can't be right.
Erwin Chemerinsky is Sydney M. Irmas professor of public interest law, legal ethics and political science at the University of Southern California Law School.
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