Eight years after California voters turned their outrage over the murder
of a young Petaluma girl into the "three strikes, you're out" law, the
U.S. Supreme Court is set to consider whether the state went too far.

On Tuesday, the justices will for the first time take a close look at the
nation's toughest sentencing law, which allows the state to send repeat
offenders away for decades or even life when they get caught for petty
crimes such as stealing videos or golf clubs. California is the only state
in the country that allows such stiff punishment for a minor, non-violent
"third strike."

With thousands of inmates in California prisons for non-violent "third
strikes," the Supreme Court agreed earlier this year to hear two cases
that might once and for all settle the legal conflict over the law that
has become a lightning rod in the debate over crime and punishment.

Both cases raise a basic question: whether a potential life sentence for a
non-violent "third strike" is cruel and unusual punishment under the
Eighth Amendment, even in cases where a defendant has a history of
committing serious or violent felonies.

Last year, the 9th U.S. Circuit Court of Appeals crystallized the issue in
the case of Leandro Andrade, a San Bernardino County man who received a
50-years-to-life sentence for a "third strike" of stealing videos from a
Kmart store in 1996. Andrade had a string of prior serious felonies on his
record for home burglaries and marijuana possession, but no violent

Setting the stage for the Supreme Court, the 9th Circuit called Andrade's
sentence "grossly disproportionate."

The fate of inmates like Andrade inspires deep division between foes and
backers of "three strikes." Even two of the central figures in the
original events that produced the law -- the aftermath of the kidnap and
murder of 12-year-old Polly Klaas -- no longer agree on its merits.

"The people that passed this thing thought they were going after violent
criminals," said Joe Klaas, the grandfather of Polly Klaas, whose murder
by parolee Richard Allen Davis inspired the "three strikes" law. "I don't
think guys should get 50 years to life for stealing something like $150
worth of videos. That's ridiculous."

But Fresno photographer Mike Reynolds, the father of a murdered teen who
once stood side-by-side with the Klaas family and helped draft the law,
remains one of the state's strongest advocates. Reynolds and a majority of
prosecutors worry that one of the state's most potent crime-fighting
weapons could be diminished.

"Should we make laws that criminals, their families and their attorneys
like?" Reynolds asks. "If you think you are going to stop crime, you've
got to lock up criminals."

In addition to the Andrade case, the Supreme Court is reviewing related
"three strikes" questions in the appeal of Gary Ewing, who received a
25-years-to-life sentence when he was convicted in Los Angeles of grand
theft for attempting to steal $1,200 worth of Calloway golf clubs from a
pro shop.

Ewing also had a rap sheet of burglaries and robberies, including one
incident in which he brandished a knife. The California state appellate
courts affirmed Ewing's sentence, but the Supreme Court agreed to hear his
case with Andrade's.

Both Andrade's and Ewing's "third strikes" were so-called "wobblers,"
potential misdemeanor offenses that frequently are bumped up to felonies
under the "three strikes" sentencing scheme.

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, from
property theft to drug possession. While Santa Clara County prosecutors
have not been as aggressive on non-violent "third strikes" as counties in
the Central Valley and the Los Angeles area, defendants have been packed
away for 25-years-to-life in the local courts for third offenses that
include stealing razors from Safeway, blankets and costume jewelry from
Macy's and supplies from Home Depot.

If the Supreme Court sides with Andrade and Ewing, inmates serving time
for such offenses throughout the state could file a raft of challenges to
their sentences.

"For almost a century, the Supreme Court has said that grossly
disproportionate sentences are cruel and unusual punishment," said Erwin
Chemerinsky, a University of Southern California law professor who
represents Andrade. "This is an opportunity for the U.S. Supreme Court to
decide how that applies in the 'three strikes' context."

Backers of the law, who many legal experts believe have an advantage in
the conservative Supreme Court, credit it with reducing California's crime
rate since it was approved in 1994. In a recent interview, California
Attorney General Bill Lockyer also noted that the law has safeguards
against abuses, most notably a 1998 California Supreme Court ruling that
gave judges the leeway to knock out a "third strike" if it would lead to
an excessive and unfair sentence.

"I think the current law is correct," Lockyer said.

Lockyer is backed in the case by a host of prosecutor organizations and
conservative criminal justice groups who maintain that "three strikes"
sentences like the one in Andrade's case have produced misconceptions
about the law.

In a brief to the Supreme Court, the California District Attorney's
Association said, "Petty thieves are not rotting in California dungeons
for their petty thievery. Instead, 'Three strikers' have earned their long
sentences because they are the most thick-skulled and predictably wicked
of felons."

The law's foes, however, say "three strikes" is out of whack with the rest
of the nation, an argument fundamental to those attacking it as cruel and
unusual. Congress and two dozen states adopted some form of "three
strikes" laws in the tough-on-crime environment of the early and
mid-1990s, but none of them as harsh as California's.

A number of groups have unsuccessfully attempted to push the Legislature
to alter the law to require that a "third strike" be a violent felony, and
there are efforts to put the issue before the voters next year. Geri
Silva, state chair of Families to Amend California's Three Strikes, calls
the "third strike" provision a "scourge" on the state.

The Supreme Court, however, will decide if the law is constitutional.

"It's going to be hard if the Supreme Court rules this constitutional,"
said Klaas, who is part of an organization called Citizens Against Violent
Crime. "I'm not soft on crime. But I'm pretty hard on injustice."

Pubdate: Monday, November 4, 2002
Author: Howard Mintz, Mercury News
Source: San Jose Mercury News
Contact: letters@sjmercury.com
Website: http://www.sjmercury.com/