The American mainstream strikes back
URL: http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2002/11/10/IN62505.DTL
California aches for the role of the legal maverick, the state that acquits the killer running back, extols the joint as medicine and three- strikes the petty thief into a life of doing time. But comeuppance for the trendsetter is due. On Tuesday, the U.S. Supreme Court listened to lawyers argue the cruel and unusual qualities of California's three-strikes statute, the most extreme repeat-offender law in the nation. And when it comes to the cruel and unusual, the justices don't like laws that go to extremes. We know this from the high court's decision in a death penalty case last February. The justices struck down the practice of executing retarded criminals as cruel and unusual because recent state laws demonstrated "a national consensus . . . against it." California's three-strikes statute may offend a similar national consensus. Under the circumstances, no other state would have allowed a punishment as harsh as the life sentence imposed on the shoplifter whose suit is one of two California three-strikes cases before the court. There is virtue in being different, but a law so far outside the mainstream seems a prime target for the constitution's ban on cruel and unusual punishment. The problem lies with the "third strike." In November 1985, Leandro Andrade stole about $75 worth of kids' videos from each of two K-Marts near Los Angeles. Normally petty thefts, his offenses rose to felonies under a quirky California rule that gives prosecutors discretion to make certain small crimes big ones. Andrade committed two burglaries 12 years before, so the thefts became his third strike. Not because they were violent or even serious, but because the state's three-strikes law says any felony qualifies as a third strike. So Andrade, 37, landed behind bars for 50 years to life. I don't have much sympathy for Andrade, a first-class crook by any definition. But even with his prior record, is life in prison appropriate for stealing kids' videos? No other state thinks so. Almost all states have some type of three-strikes law. But most say the last strike must be serious or violent to trigger the harshest penalty. Others tie the severity of the sentence to the severity of the strikes. And none would treat the theft of less than $200 as a felony. Which wouldn't matter so much if, as the law's defenders claim, it allowed for some leeway. But it doesn't. Sure, a judge can theoretically dismiss a strike, but under circumstances so limited that the option is virtually useless. And a prisoner serving a life sentence can technically earn parole, but Gray Davis has staked his career on never paroling lifers. One would think the Legislature could simply amend a law so heavily flawed. And one would be wrong. Because the law itself says it can only be amended through a statewide initiative or a two-thirds vote of the California Legislature, daunting hurdles absent from the repeat-offender laws in other states. Although critics of the Supreme Court's death-penalty decision in February find this hard to believe, the meaning of cruel and unusual punishment depends, in the justice's words, on "evolving standards of decency" expressed through state legislation. Many states prohibit the execution of retarded killers, so the court struck down the practice. Even more states refuse to inflict life sentences on petty thieves. You do the math. A victory for Andrade won't eliminate the three-strikes law, only its application to lower-level crooks like him. But according to the California Legislative Analyst's Office, almost half the prisoners condemned to life sentences under three-strikes -- more than 3,000 inmates -- committed third strikes that were neither violent nor serious. That's 3,000 repeat offenders potentially headed for resentencing or, in some cases, a street corner near you. It's enough to make a legal maverick long for the boring and safe. E-mail Reynolds Holding at http://www.oocities.org/rholding@sfchronicle.com . ©2002 San Francisco Chronicle
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