9th U.S. Circuit Court of Appeals,
Criminal
Nov. 17, 2001
Behind Bars
On Nov. 2, the 9th U.S. Circuit Court of Appeals, for the first time, invalidated a sentence under California's three-strikes law as cruel and unusual punishment in violation of the Eighth Amendment. Andrade v. Attorney General of the State of California , 2001 U.S.App.LEXIS 23720 (9th Cir. Nov. 2, 2001). The court ruled that it was "grossly excessive" to sentence a man to 50 years to life in prison for stealing $153 worth of videotapes.
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).
On Nov. 2, the 9th U.S. Circuit Court of Appeals, for the first time, invalidated a sentence under California's three-strikes law as cruel and unusual punishment in violation of the Eighth Amendment. Andrade v. Attorney General of the State of California, 2001 U.S.App.LEXIS 23720 (9th Cir. Nov. 2, 2001). The court ruled that it was "grossly excessive" to sentence a man to 50 years to life in prison for stealing $153 worth of videotapes.
The 9th Circuit's decision was very narrow; the court was clear that it was not invalidating the three-strikes law or announcing any general rules as to when it may be applied. But by concluding that Andrade's sentence was cruel and unusual punishment, the court has opened the door to challenges by other prisoners who are serving ridiculously long sentences for minor crimes.
The hope is that the Andrade decision will bring about a much-needed change in the law so that no longer will individuals receive sentences of 25 years to life in prison, or more, for minor, nonviolent conduct. The state Legislature should amend the three-strikes law so that it does not apply to crimes like petty theft, for which Andrade was convicted.
Many district attorneys' offices have adopted policies of not charging such crimes as third strikes. All should do so. The state attorney general should reconsider its policy of vigorously defending such sentences on appeal. The attorney general is obligated to uphold the Constitution and should conclude that such punishment for petty offenses is impermissible.
Leandro Andrade, whom I represented in the 9th Circuit, is typical of many in the state who are serving unconscionably long sentences for minor, nonviolent crimes. He never had been convicted of any violent crime. He committed three burglaries on the same day in 1986. He was convicted and served his sentence for these crimes, which later counted as prior strikes, triggering the three-strikes law, when he was convicted of petty theft for stealing the videotapes. He also had a marijuana conviction that was not considered a prior strike.
In 1996, he was caught twice within a week stealing videotapes from K-Mart department stores. Both times, he was seen doing this on store cameras, and the tapes were confiscated; their total value was $153. Under state law, his crime is deemed "petty theft." This is a misdemeanor, carrying a sentence of no more than six months in prison. The maximum sentence for two counts of petty theft is a year in prison.
But the state also has a law that says that it is a felony if a person is convicted for petty theft if the individual has a prior felony conviction. The state thus "double counts" the prior conviction. First, it is used to convert a misdemeanor into a felony. Then, the enhanced felony is used as a third strike. The judge in Andrade's case imposed two sentences of 25 years to life to run consecutively, or 50 years to life altogether. As the 9th Circuit pointed out, only first-degree murder and a few other violent crimes in the state are punishable by a sentence of 50 years to life.
Andrade is not alone in serving a very long sentence for a minor offense. According to the state Bureau of Prison statistics, approximately 350 people are serving sentences of at least 25 years to life in prison with their third strike being "petty theft."
Last year, I sought U.S. Supreme Court review for a defendant, Stanley Durden, who was sentenced to 25 years to life for stealing an umbrella and two bottles of liquor worth $43 from a supermarket on a cold, rainy night. Unfortunately, review was denied. Durden v. California, cert. denied, 121 S.Ct. 1183 (2001).
Earlier, the Supreme Court denied review in a case involving a homeless man who was sentenced to 25 to life for stealing a bottle of vitamins. Riggs v. California, cert. denied, 525 U.S. 1114 (1999).
For at least a century, the Supreme Court has held that grossly disproportionate penalties constitute cruel and unusual punishment in violation of the Eighth Amendment. Weems v. United States, 217 U.S. 349 (1910).
In Solem v. Helm, 463 U.S. 277 (1983), Justice Lewis Powell, writing for the majority, suggested criteria for determining whether a sentence is grossly disproportionate: "[A] court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions."
In Andrade, the 9th Circuit properly applied this test to conclude that Andrade's sentence violated the Eighth Amendment. First, the offense was minor, petty theft, but the punishment was enormous: a sentence of 50 years to life in prison. Under state law, this is deemed to be a life sentence. In re Lynch, 8 Cal.3d 410 (1972). Andrade was 37 when he was convicted in 1986; he will not be released from prison until 2046, when he is 87. The "gravity of the offense" (petty theft) was minimal, but the "harshness of the punishment" (a life sentence) was tremendous.
The second factor to be considered is the sentences imposed on others in the same jurisdiction for similar offenses. Under state law, Andrade's crimes constitute petty theft, a misdemeanor punishable by a fine or a jail sentence of six months or less. Penal Code Section 490. Even two counts of petty theft, punished to the maximum of one year in prison, is vastly different from a sentence of 50 years to life in prison.
The final factor is a comparison to sentences in other jurisdictions. Twenty-five states enacted three-strikes laws between 1993 and 1995. As the 9th Circuit pointed out, in none of these states could Andrade have received "a sentence nearly as severe as he did under the California Three Strikes law on the basis of his two prior convictions for residential burglary."
Thus, the 9th Circuit properly concluded that Andrade's sentence was "grossly disproportionate" and a violation of the Eighth Amendment. The state may seek en banc review and likely will seek Supreme Court review. Rather than wait to see what happens in these courts, the Legislature should amend the law, and the attorney general should revise its policy of defending such sentences.
The three-strikes law was intended to take violent criminals off the streets for a very long time. There is no indication that the Legislature that enacted it, or the voters who ratified it by initiative, ever wanted it to extend to nonviolent crimes.
It is irrational to impose such sentences; the costs of incarceration vastly outweigh the benefits to society in, at best, preventing some future instances of petty theft. Putting a shoplifter, even a recidivist shoplifter, in prison for 25 or 50 years makes no economic or moral sense.
Erwin Chemerinsky is Sydney M. Irmas professor of public interest law, legal ethics and political science at USC Law School.
Submit your own column for publication to Diana Bosetti
For reprint rights or to order a copy of your photo:
Email
jeremy@reprintpros.com
for prices.
Direct dial: 949-702-5390
Send a letter to the editor:
Email: letters@dailyjournal.com