Will Supreme Court Rule "3 Strikes Law" Cruel And Unusual?

by Earl Ofari Hutchinson

Twenty-six states now have three-strikes laws on their books. The laws mandate that repeat offenders be slapped with severely enhanced sentences. California has the toughest and most vigorously enforced three-strikes law in the nation. A defendant convicted of a third offense, no matter how petty, can be slapped with a prison sentence of 25 years to life.

In February, the U.S. 9th Circuit Court of Appeals overturned the conviction of three-strikes prisoner Leandro Andrade in California, citing the Eighth Amendment prohibition against cruel and unusual punishment. In April, the Supreme Court agreed to hear Andrade's case and the case of Gary Ewing, whose three-strikes sentence was upheld.

The two prisoners were not convicted rapists, murderers, pedophiles, bank robbers, arsonists or drug kings. They were petty thieves. Yet a judge tossed the book at Ewing for trying to steal three golf clubs from a golf shop, and at Andrade for pilfering videotapes from two K-Mart stores.

Despite ruling Andrade's sentence unconstitutional, the California appeals court limited its ruling and did not overturn three strikes. That means that hundreds of three-strike offenders continue to be herded into the state's already bulging jail cells. The majority of them are Latinos and African-Americans. They are jailed mostly for non-violent crimes such as drug offenses or petty theft. Taxpayers are forced to spend extra millions to feed, house, and provide medical care for them while they wile away decades in prison. Andrade would limp or be wheeled out of prison at 87.

Most district attorneys in California and other states that have three-strikes laws continue to nail repeat offenders with three strike convictions. Every attempt to dump or change the law in California and other states by initiative or legislative action has failed, for two main reasons.

One, much of the public is not reassured by news reports, studies and government statistics that show crime has dropped. Furthermore, few are willing to make any distinction between someone who robs a bank or sells or possesses a small amount of cocaine. The assumption is that the cocaine dealer or user today could be the bank robber or murderer tomorrow. It's better, the logic goes, to get them off the streets now.

The second reason the law doesn't change is that politicians know that there is no detectable swing in public sentiment toward modifying, let alone eliminating, three strikes. Married to opinion polls, few politicians dare risk being branded as soft on crime by pushing for reform or elimination of the law.

Some politicians indeed defend three strikes by claiming that it is a powerful weapon to fight crime. That was the rationale of California's attorney general, an elected official, who practically demanded that the Supreme Court reverse the appeals court decision. But there's no evidence that three strikes deters, let alone reduces, crime.

In New York and other states that have no three-strikes laws, the crime rate has plunged just as sharply as in California. It dropped because of an aging population, an improved job and business climate, the expansion of community policing programs and more effective youth and adult drug counseling and treatment programs. Three-strikes laws needlessly imprison thousands of persons who commit petty crimes, and criminalize a generation of young black and Latino males. For a fraction of the cost of preserving three strikes, most of these men could be helped by more drug treatment and job-training programs. These programs work much better than prison cells to help people turn their lives around.

Twenty-five years in jail for stealing golf clubs? It's time for the Supreme Court to bring some sanity back to our sentencing laws.