Cruel and Unusual Punishment |
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Hopes that the constitutional prohibition of cruel and unusual punishment could be used to strike down
three-strike sentences for petty offenders were dealt a harsh blow by the Supreme Court on March 5,
2003. In Ewing v. California (2003) 538 U.S. 11, the high court examined the case of Gary Ewing,
who was sentenced to 25 years to life for stealing three golf clubs, having previously been convicted
of one robbery and three burglaries. The Court affirmed the judgment. The five justices who voted to
affirm were split as to why the judgment should be affirmed. Three (Justice O'Connor, who wrote
the opinion, Chief Justice Rehnquist, and Justice Kennedy) concluded that the Eighth Amendment
prohibits sentences that are grossly disproportionate to the offense, but found that Ewing's sentence was not
grossly disproportionate to his crime, in light of Ewing's criminal history. Justice Scalia asserted that only
certain modes of punishment can be considered cruel and unusual; prison sentences can not be
unconstitutional under that clause. Justice Thomas concluded that the clause does not contain any
requirement that prison sentences be proportional to the offense. The dissenters (Justices Breyer, Stevens,
Souter and Ginsburg, in an opinion by Breyer) took the position that Ewing's sentence was grossly
disproportionate to the theft of three golf clubs even in view of his recidivism. In another opinion
authored by Justice Stevens, the dissenters found in the prohibition of cruel and unusual punishments
a broad proportionality principle, in contrast to the narrow proportionality principle favored by Justices
O'Connor, Rehnquist, and Kennedy.
In Lockyer v. Andrade, (2003) 538 U.S. 63, also decided on March 5, 2003, the Supreme Court
overturned a decision of the Ninth Circuit Court of Appeal, which had struck down consecutive
sentences of 50 years to life imposed on Leandro Andrade, who shoplifted videotapes on two
occasions, having previously been convicted of three burglaries. The Ninth Circuit erred in granting
Andrade's petition for a writ of habeas corpus, the high court ruled, for the state court's decision
affirming the judgment was not contrary to, nor did it involve an unreasonable application of,
clearly established law (as required for a writ of habeas corpus to be granted.) The only
clearly established Eighth Amendment legal principle applicable
to prison terms is that they may not be grossly disproportionate to the offense. "The gross
disproportionality principle reserves a constitutional violation for only the extraordinary case," the
Court said. "In applying this principle ... it was not an unreasonable application of our
clearly established law for the California Court of Appeal to affirm Andrade's sentence of two
consecutive terms of 25 years to life in prison." The Court's opinion was authored by Justice
O'Connor and joined by Justices Rehnquist, Scalia, Kennedy,
and Thomas. Justices Souter, Stevens, Ginsburg, and Breyer
dissented.
The Supreme Court in Ewing gave strong support to the authority of state
legislatures to enact three-strikes-type laws and recommended that any criticism of such
laws be directed to the legislatures that enact them. As hopes that the courts might
ameliorate the harshness of theThree Strikes law have now been dashed, it appears that
there is nothing to do but follow the Court's recommendation.
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3-Strikes.
Date last modified: 1/12/04.
