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Monday, October 14, 2002
No. 01-6978 Ewing v. California


No. 01-1127 Lockyer v. Andrade


I realize that I have gone suddenly wildly out-of-order because these cases are going to be argued in November, but I had a good reason to review the few materials available on these cases this weekend, so here goes:


These cases present challenges to California’s “three strikes and you’re out” law. Ewing was convicted of grand theft, a “felony misdemeanor” after having two prior felonies. Andrade was convicted of two counts of “petty theft with priors.” Which is a California way of elevating petty theft to a felony. Andrade had two prior burglary convictions, thus the two convictions were his third and fourth “strikes” under the law. Ewing was sentenced to 25 years to life, and through yet another quirk of California law, Andrade was sentenced to 50 years to life. Andrade got 25-life for each of his convictions, and the 25 years before parole have to be served consecutively.


These cases boil down to interpretation of three prior Supreme Court cases. In Rummel v. Estelle, 445 U.S. 263 (1980), the Court upheld a sentence of life in prison with the possibility of parole in 12 years, where the defendant had committed three non-violent felonies. In Solem v. Helm, 463 U.S. 277 (1983), the Court reversed a sentence of life in prison without the possibility of parole, where the defendant had seven non-violent priors. The Court stated three factors that should be considered to determine whether a punishment was grossly disproportionate to the crime. The factors are the gravity of the offense and the harshness of the penalty; 2) the sentences imposed on other criminals in the same jurisdiction; and 3) the sentences imposed on the same crime in other jurisdictions.


Finally, in Harmelin v. Michigan, 501 U.S. 957 (1991), the Court upheld a life sentence for a defendant convicted of possession of more than 650 grams of cocaine. Although there was no majority opinion in that case, Kennedy wrote for himself, Souter and O’Connor that sentences may be evaluated as to whether they are “grossly disproportionate” to the crime. Kennedy focused on the first prong of the Solem case as a threshold, finding that given the gravity of Harmelin’s crime, the punishment imposed by the legislature was not grossly disproportionate. Because the case did not pass this first threshold, Kennedy found it unnecessary to evaluate the second and third prongs. Chief Justice Rehnquist and Justice Scalia would have foreclosed any possibility of “proportionality review,” while the remaining justices would have found the sentence to violate the Eighth Amendment under Solem.


I agree with the 9th Circuit in Andrade, that given the fact that Andrade’s underlying crimes would otherwise be misdemeanors and that his statutory minimum must be served consecutively, his life sentence is grossly disproportionate to his crime and that the Court will AFFIRM the Ninth Circuit’s holding that his sentence is unconstitutional. On the other hand, because Ewing’s crime is always a felony and because it does not implicate the provision that requires minimum sentences to be served consecutively, I believe the Court will AFFIRM his sentence.