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January 01, 2004

Life in Prison for Shoplifting: Cruel and Unusual Punishment

by Erwin Chemerinsky

According to statistics from the California Department of Corrections, thousands of individuals are serving life sentences under California's three strikes law for nonviolent third strikes—in fact, 360 individuals in California are serving life sentences for shoplifting small amounts of merchandise. California is one of twenty-six states nationally with a three strikes law, but California's is the harshest in that the third strike need not be a serious or violent felony-any felony, even shoplifting, can be the basis for a life sentence.

For almost a century, the U.S. Supreme Court has held that grossly disproportionate sentences constitute cruel and unusual punishment in violation of the Eighth Amendment. In April 2003, the Court decided two cases concerning the constitutionality of California's three strikes law as applied to shoplifters. Although the two cases involved California law, the Supreme Court's reasoning applies to criminal sentencing in every state.

Ewing v. California, 538 U.S. 11 (Mar. 5, 2003), concerned a man who stole three golf clubs worth $1,200 from a pro shop by putting them down his pants. When he tried to walk out of the store, he was caught and charged with grand theft-stealing more than $400 worth of merchandise-and because of prior convictions was sentenced to life in prison with no possibility of parole for twenty-five years.

Lockyer v. Andrade, 538 U.S. 63 (Mar. 5, 2003), involved a man who was sentenced to life in prison, with no possibility of parole for fifty years, for stealing $153 worth of videotapes in two separate incidents. (Note: The author represented the defendant in the U.S. Court of Appeals for the Ninth Circuit and in the U.S. Supreme Court.) In November 1995, Leandro Andrade, a nine-year Army veteran and father of three, was caught shoplifting five children's videotapes ( Batman Forever, Casper, The Fox and the Hound, The Pebble and the Penguin, and Snow White) worth a total $84.70, from a K-Mart store in Ontario, California. Two weeks later, Andrade went to a different K-Mart store, in Montclair, California, and was caught shoplifting four children's videotapes ( Cinderella, Free Willy 2, Little Women, and Santa Clause) worth $68.84.

Under California law, these incidents would generally be regarded as crimes of petty theft-misdemeanors-punishable by a fine or a jail sentence of six months or less. CAL. PENAL CODE ANN. § 490 (West 1998). "Petty theft with a prior conviction for a property offense," however, is a felony Id. § 666. Because Andrade had at least two prior convictions, albeit for the nonviolent crime of burglary, his two arrests for shoplifting were prosecuted as felony petty theft with a prior.

Andrade had developed a drug habit while in the Army during the 1970s and early 1980s and, after his release from the Army, had committed a series of relatively minor property crimes. His most serious offenses occurred during 1983, twelve years before the K-Mart offenses, when he committed three residential burglaries on the same day. During each burglary, Andrade was unarmed, and no one was home. Convicted of burglary, Andrade received a two-and-a-half-year prison sentence, which he served.

It was these three burglaries that caused Andrade's thefts of the videotapes in 1995 to be charged as petty theft with a prior, which requires that the previous conviction be for a property offense. Ironically, if Andrade's prior crimes had been rape or murder, his maximum sentence for shoplifting would have been one year in jail.

The crime of petty theft with a prior in California is punishable by three years in prison, and two counts of petty theft with a prior is punishable by a maximum of three years and eight months in prison. But in 1994 California voters approved the "three strikes and you're out" provision, Proposition 184, for which the first two felonies must be "serious" or "violent" crimes. California law is explicit as to which crimes fit the definitions of serious and violent felonies. Burglary is deemed a serious felony under California law, but under the three strikes provision, the third strike is any felony, not necessarily a serious or a violent one.

Because Andrade was convicted of two counts of petty theft with a prior, he was sentenced under the California three strikes law to two sentences of twenty-five years or life, to run consecutively. Realistically phrased, the sentence is for life with no possibility of parole for fifty years. Andrade was convicted in 1996 when he was thirty-seven years old; by the time he is eligible for parole in 2046, he will be eighty-seven years old.

The U.S. Supreme Court, in two 5-4 decisions, rejected the argument that its sentences were cruel and unusual punishment and ruled against Ewing and Andrade. Justice Sandra Day O'Connor wrote for the Court in each case, and her opinions were joined by Chief Justice William Rehnquist and Justices Scalia, Kennedy, and Thomas.

The remainder of this article examines three questions:
o Do three strikes laws work to decrease crime?
o Why did the Supreme Court rule against Ewing and Andrade?
o What do the Court's decisions mean for California and the country in the future?

Do Three Strikes Laws Work?

There is nothing new about laws that punish recidivists more harshly than first-time offenders. But the novel development of the early 1990s that produced the "three strikes and you're out" laws and provided for life sentences for people convicted three times of a felony have had a decade to illustrate their effectiveness. The evidence is overwhelming that they do not succeed in decreasing crime.

Careful studies of the effects of the three strikes law have shown that it has had no deterrent effect on crime in California. One empirical study of the relationship between three strikes and the recent decline of crime in California concluded, "[T]here is no evidence that Three Strikes played an important role in the drop in the crime rate." Linda S. Beres & Thomas D. Griffith, Did "Three Strikes" Cause the Recent Drop in California Crime?, 32 LOYOLA L.A. L. REV. 101, 102 (1998). The most extensive study of the effects of the three strikes law, by three prominent professors, also concluded that the "decline in crime observed after the effective date of the Three Strikes law was not the result of the statute." FRANKLIN E. ZIMRING, GORDON HAWKINS, & SAM KAMIN, PUNISHMENT AND DEMOCRACY: THREE STRIKES AND YOU'RE OUT IN CALIFORNIA 101 (2001). This is supported by another empirical study that found, "Counties that vigorously and strictly enforce the Three Strikes law did not experience a decline in any crime category relative to the more lenient counties." Mike Males & Dan Macallair, Striking Out, 11 STAN. L. & POL'Y REV. 65, 66-67 (1999). Analysts at the RAND Institute compared crime rates between states with three strikes provisions and those without and found that three strikes laws had no independent effect on the crime rate in states with such statutes. Susan Turner, Peter Greenwood, et al., The Impact of Truth-in-Sentencing and Three Strikes Legislation, 11 STAN. L & POL'Y REV. 75 (Winter 2000).

Why Did the Supreme Court Rule Against Ewing and Andrade?

In Solem v. Helm, 463 U.S. 277 (1983), the Supreme Court announced a three-part test for determining whether a sentence is grossly disproportionate and thus cruel and unusual punishment. Under this analysis a court must (1) compare the gravity of the offense and the harshness of the punishment; (2) examine the punishments for other crimes in the same jurisdiction; and (3) consider the punishments in other states for the same crime. In Harmelin v. Michigan, 501 U.S. 957 (1991), seven Court justices reaffirmed this test, though Justice Kennedy's plurality opinion stated that courts should consider the second two factors only if there is a finding that the punishment is unduly harsh relative to the gravity of the offense. The Supreme Court has approvingly cited to this test on many occasions.

But in Ewing the Court found that states may impose a life sentence on recidivists even if the final crime triggering the punishment is shoplifting. Justice O'Connor, writing for the Court, said that in comparing the gravity of the offense to the harshness of the punishment, a court should compare all of the defendant's prior crimes, not just the last offense. The Court stressed the need for deference to state governments in deciding appropriate punishments for recidivists and said that states may impose life sentences on repeat offenders.

Lockyer v. Andrade involved the availability of habeas corpus relief, which requires that the state court decision be "contrary to" or an "unreasonable application of" clearly established federal law. 28 U.S.C. § 2254(d). The Court held that Andrade was not entitled to habeas relief because first, there was no clearly established law and second, the state court decision was not contrary to or an unreasonable application of federal law.

Yet Justice O'Connor's conclusion that there was no clearly established law in this area failed to mention the three-part test from Solem and Harmelin, let alone to explain why it did not control. Moreover, under section 2254(d), a federal court can grant habeas corpus if the state court "decides a case differently than we have done on a materially indistinguishable set of facts." The factual similarities between Lockyer v. Andrade and Solem v. Helm are striking. Both Andrade and Helm were in their mid-thirties when sentenced to life in prison, and both had received their first felony convictions approximately fifteen years earlier, each for residential burglary. Both had purely nonviolent prior records, principally for financial and property crimes. Both received life sentences under state recidivist statutes for minor offenses: Helm for uttering a no-account check worth approximately $100 and Andrade for shoplifting $153 worth of videotapes.

Justice O'Connor said the difference between Lockyer v. Andrade and Solem v. Helm was that Andrade would be eligible for parole in fifty years, whereas Helm was sentenced to life in prison without the possibility of parole. Justice O'Connor thus concluded that Andrade was similar to Rummel v. Estelle, 445 U.S. 263 (1980), in which the defendant was sentenced to life in prison for misappropriating approximately $100 worth of property but was eligible for parole in twelve years. Justice O'Connor's analysis means a sentence is immune from Eighth Amendment attack so long as there is the theoretical possibility of parole at some point. Realistically, an indeterminate life sentence with no possibility of parole for fifty years is the same as a life sentence with no chance of parole. After Justice O'Connor's opinion, a state would be able to immunize its sentences from Eighth Amendment analysis just by setting parole in seventy-five or one hundred years.

What Are the Implications of the Court's Decisions?

In Ewing only Justices Scalia and Thomas took the position that no sentence can be deemed cruel and unusual punishment. Since the rulings in Ewing and Andrade, however, it will be difficult to establish that any sentence is grossly disproportionate and in violation of the Eighth Amendment. In his dissent in Ewing, Justice Breyer pointed out that prior to California's three strikes law, no person in the history of the United States ever had received a life sentence for shoplifting. The punishments imposed on Ewing and Andrade were not just cruel and unusual, they were cruel and unique.

The decisions also point to inconsistencies in the Court's approach to punishment under the Constitution. A few years ago, in United States v. Bajakajian, 524 U.S. 321, 336 (1998), an opinion by Justice Thomas invalidated a forfeiture for violating the "excessive fines" clause of the Eighth Amendment, stating, "[W]e therefore adopt the standard of gross disproportionality articulated in our Cruel and Unusual Punishments Clause precedents." Recently, the Court reaffirmed that the imposition of the death penalty violates the Eighth Amendment if the punishment is disproportionate to the crime. Atkins v. Virginia, 122 S. Ct. 2242, 2246 (2002). Yet this creates a profound inconsistency: the Eighth Amendment limits fines and the imposition of the death penalty but not prison sentences. As the Supreme Court itself expressed in Solem v. Helm, "It would be anomalous indeed if the lesser punishment of a fine and the greater punishment of death were both subject to proportionality analysis, but the intermediate punishment of prison were not."

Also last year, in State Farm Mutual Automobile Insurance Co. v. Campbell, 123 S. Ct. 1513 (2003), the Court invalidated a large punitive damages award as being grossly disproportionate and thus unconstitutional. A jury in Utah awarded $1 million in compensatory damages and $145 million in punitive damages against an insurance company for bad faith in refusing to pay and settle a claim. The Court found that the award violated due process in being grossly excessive. Comparing State Farm with Ewing and Andrade highlights a cruel irony: according to the Supreme Court, too many years in prison for shoplifting does not violate the Constitution, but too much money from a corporation in punitive damages is unconstitutional.

Although the Supreme Court's decisions in Ewing and Andrade dealt only with California law, they will have implications throughout the country. The Court clearly indicated a strong desire for deference to state governments in deciding the appropriate punishment for recidivists, and it may be very difficult to show that a sentence is so disproportionate as to constitute cruel and unusual punishment. Certainly it is unlikely that successful Eighth Amendment challenges can be brought to three strikes laws anywhere in the country.

Erwin Chemerinsky

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California. Professor Chemerinsky represented several individuals who received life sentences for shoplifting under California's three strikes law.