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EWING v. CALIFORNIA:
THE SUPREME COURT TAKES A WALK ON "THREE STRIKES" LAWS...AND THAT'S FINE

Frank O. Bowman III
Indiana University School of Law - Indianapolis
JURIST Guest Columnist

0n March 5, 2003, the Supreme Court issued two opinions rejecting challenges to California's "three strikes" laws. Ewing v. California, 123 S.Ct. 1179 (2003) and Lockyer v. Andrade, 123 S.Ct. 1166 (2003). In Ewing, the Court found no constitutional error in a sentence of twenty-five years to life imposed on the defendant following his conviction for stealing three golf clubs valued at $1200 from the El Segundo Golf Course pro shop. In Andrade, the Court upheld a sentence of fifty years to life following conviction for stealing $150 in videotapes.

These decisions have already produced the predictable cries of outrage. I say "predictable" because, when the cases are reduced to one-sentence journalistic shorthand ("man sentenced to 25-years-to-life for shoplifting golf clubs"), the sentences imposed and opinions upholding them do seem pretty outrageous. Nonetheless, carefully considered, the Supreme Court's decisions in Ewing and Andrade seem to me correct, or at least entirely defensible, readings of the Cruel and Unusual Punishments Clause of the Constitution. In this essay, I will focus on Ewing because Andrade turns largely on interpretation of federal habeas corpus jurisdiction.

Make no mistake -- as a matter of public policy, I think mandatory minimum sentencing laws, particularly those carrying decades-long sentences, are generally a bad idea. However, the question in Ewing was not whether "three strikes" laws are good policy. Rather, the Court confronted the interlocking questions of whether California is constitutionally barred from passing such laws and whether, even if such statutes are permissible in the abstract, the federal courts should nonetheless actively intervene to monitor their application in individual cases.

The issue at the heart of Ewing is whether there are limits on the right of states to make a priori categorical sentencing judgments, that is, their right to say that all defendants with a particular combination of offense characteristics and criminal history must be sentenced to a particular term of years. Unlike death penalty cases in which part of the constitutional argument in the three decades since Furman v. Georgia, 408 U.S. 238 (1972), has been whether capital punishment is ever permissible, there is no issue about whether states may ever sentence a defendant to twenty-five years or fifty years in prison. They certainly may and they do so all the time. The question is whether the Constitution limits the imposition of a class of penalties that are concededly permissible in many cases.

Two members of the majority in Ewing, Justices Scalia and Thomas, answer this question with a categorical no, at least where the penalty at issue is a term of years. They maintain that the Cruel and Unusual Punishments Clause is about types of punishment. That is, it precludes torture or maiming, but not imprisonment. They reject the idea that there is a proportionality principle in the Clause. The remainder of the Court agrees that the Constitution requires some proportionality analysis of prison sentences. Justice O'Connor, joined by Rehnquist and Kennedy, applies the deferential proportionality analysis of Kennedy's concurrence in Harmelin v. Michigan, 501 U.S. 957 (1991), to uphold Ewing's sentence.

The dissents would have found Ewing's sentence violative of the Cruel and Unusual Punishments Clause. Though both are signed by all four dissenters, the two opinions take rather different tacks. Justice Stevens eschews detailed analysis in favor of the sweeping pronouncement that "the Eighth Amendment directs judges to exercise their wise judgement in assessing the proportionality of all forms of punishment." Ewing, 123 S.Ct. at 1192. By contrast, Justice Breyer performs a careful exegesis of the facts and holdings of prior Eighth Amendment cases.

Despite their differences in approach, the emotional core of both dissents is an evident revulsion at the perceived disproportion between the sentence imposed on the defendant and the offense that triggered the sentence. Though Justice Breyer candidly acknowledges that a defendant痴 record is a factor in proportionality analysis, when stripped bare, the dissenters' real position is simple -- a twenty-five year sentence is unconstitutionally disproportionate to the crime of shoplifting golf clubs. There are two difficulties with this reductionism.

First, Ewing was not sentenced for being a shoplifter, but for committing a felony after having committed two other felonies. Therefore, a proper proportionality analysis must begin by asking, not whether twenty-five years is proportional to felony shoplifting, but whether twenty-five years is constitutionally disproportionate for a two-time felon who commits a third felony. The answer must surely be that, at least sometimes and maybe most of the time, such a sentence is either appropriate or not so obviously inappropriate as to violate the Constitution. Although Solem v. Helm, 463 U.S. 277 (1983), can be read to imply that constitutional proportionality analysis must focus almost exclusively on the current offense of conviction even if the sentence is based on the defendant's record of recidivism, this stricture seems logically suspect and even Justice Breyer did not insist on it. Thus, if states may sometimes impose minimum penalties on recidivist felons, then in order for Ewing to get relief, proportionality analysis must go further and winnow from among all three-time felony recidivists the subclass for whom twenty-five years would be cruel and unusual punishment.

Which brings us to the second distortion created by looking only at an offender's current offense. Ewing's criminal record was hardly limited to a theft conviction and two priors. Between 1984 and 2000 (the year of the golf club caper) Ewing was convicted on ten separate occasions of a total of one petty offense, seven misdemeanors, and five felonies (four burglaries and one robbery with a knife). Before receiving his twenty-five year sentence, he had served seven terms of incarceration in either jail or prison, the last being a five-year stretch completed only ten months before the golf club snatch. It is only by focusing our attention on the last crime in the series that the dissenters can make Ewing's sentence look like an glaring miscarriage of justice instead of what it was -- a reasonable application of a rational, though very harsh, statute to a classic recidivist.

When you step back from the particulars of Mr. Ewing's case, it becomes clear that in order to grant relief to defendants like him, federal courts would have to do one of three things: (1) Rule that states may never create recidivist statutes that carry long mandatory sentences; (2) devise a set of standards that any recidivist statute must meet in order to pass constitutional muster; or (3) create an analytical framework that would identify particular defendants whose circumstances require excluding them from the recidivist category the state has created.

Option 1 is a constitutional non-starter. At the most basic level, there is no textual or historical argument for a blanket constitutional prohibition on legislatively mandated sentences for crime. Chapman v. United States, 500 U.S. 453, 467 (1991). The United States has oscillated back and forth between determinate and indeterminate sentencing schemes for over two centuries. Justice Stevens claim that, until recently, federal and state sentencing judges enjoyed 砥ncabined discretion within broad ranges is, with the greatest respect, simply inaccurate. See Frank O. Bowman, III, Fear of Law: Thoughts on 擢ear of Judging and the State of the Federal Sentencing Guidelines, 44 St. Louis U. L.J. 299, 310-18 (2000).

Nor is there a serious argument for the more particular claim that a single-penalty or mandatory minimum sentencing scheme cannot constitutionally be based on the commission of a current offense by one with a prior criminal record. One can fairly argue that a record of felony recidivism suggests a heightened degree of future dangerousness, calls for a threat of harsher penalties to deter future offenses, and even implies greater blameworthiness in one who reoffends despite receiving society's harsh admonishment in the form of prior convictions and penalties. Thus mandatory minimum recidivist statutes are consistent with three of the four most commonly recognized rationales for punishment -- incapacitation, deterrence, and retribution. Certainly none of these justifications for enhanced recidivist penalties is constitutionally irrational.

Option 2, devising a set of tests for a constitutionally acceptable recidivist statute, may seem superficially attractive. After all, this is essentially what the court has done with the death penalty. In Woodson v. North Carolina, 428 U.S. 280 (1976), and Roberts v. Louisiana, 428 U.S. 325 (1976), the Court rejected several states' effort to cure the defects found by Furman in their death penalty statutes by declaring that all persons convicted of a particular class of homicide would be sentenced to death. The Court required as preconditions for a death sentence both a murder conviction and the now-familiar semi-individualized balancing of aggravating and mitigating factors. However, in Harmelin, the Court rejected this approach for non-capital mandatory sentences because "death is different." 501 U.S. at 994-95. In truth, the Court's real reason for refusing to extend capital punishment-like proportionality analysis to non-capital penalty schemes probably has as much to do with the practical difficulties of creating useful standards as it does with the "qualitative" difference between death and long imprisonment.

First, as difficult and time-consuming as creating acceptable lists of aggravators and mitigators has proven in capital cases, the task is simplified by the fact that capital sentencing litigation concerns one crime, murder, and one penalty, death. In the case of recidivist statutes, neither side of the equation is that simple. The triggering offense for such statutes can be anything from felony theft to murder. And the mandatory penalties vary widely from jurisdiction to jurisdiction and statute to statute. Across the country, the length of the mandatory sentence called for by various recidivist statutes ranges from as little as five years to as much as life imprisonment. The California regime alone provides five different ways of calculating the applicable minimum sentence depending on the defendant's prior record and the nature of the triggering offense.

Moreover, the proportionality equation for recidivist statutes necessarily involves a third term -- the defendant's prior criminal history. Perhaps twenty-five years imposed upon conviction of a non-violent felony theft crime is constitutionally disproportionate if the defendant has two prior low-loss non-violent theft convictions. But what if the mandatory minimum were fifteen years? Or if the required sentence were twenty-five years, would that be constitutionally disproportional if the theft defendant had two prior convictions for armed robbery? How about ten years for a theft crime following one theft and one manslaughter? Or ten years for a theft crime following ten prior felony theft convictions? The permutations of triggering crime, prior record, and length of mandatory sentence are endless.

If devising a priori rules for constitutionally acceptable recidivist statutes would, as I think, prove prohibitively difficult, Option 3 of post hoc case-by-case adjudication is even less attractive. In the absence of generally understood standards, a case-by-case proportionality analysis with any teeth at all would become a festival of disparity, with some courts finding one thing, some another, and states endlessly scrambling to make sense of the patchwork of decisions.

Justice Breyer argues that case-by-case proportionality analysis presents no threat of frequent judicial encroachment on state legislative prerogatives because lower courts have been performing such analyses since Solem v. Helm in 1983, but have found virtually no instances of constitutionally disproportionate sentences. However, Justice Breyer's argument proves very little except that lower courts have been unwilling to extend Solem v. Helm much beyond its facts (life sentence without parole unconstitutional for a recidivist with no violent priors who wrote $100 bad check). Granting relief to Ewing would significantly expand Solem's reach. Read together, Breyer and Stevens are arguing, not for maintenance of a narrow, largely theoretical power to deal with bizarre disproportionality, but for a wide-ranging grant of discretion to judges to police the proportionality of prison sentences imposed under "three strikes" and other recidivist statutes.

In the end, the Court faced a choice. On the one hand, it could begin fashioning a proportionality standard with teeth, a long litigation-generating project very much at odds with the deference to state legislative judgment beloved of the New Federalism. On the other, the Court could announce a simulacrum of a proportionality standard, one which would avoid the embarrassment of an outright abandonment of its own recent cases endorsing Eighth Amendment proportionality analysis of imprisonment, and would at the same time preserve the power to act in those very few instances where a majority of the Court feels a sentence has utterly exceeded the bounds of reason. Ewing is an embrace of the simulacrum.

Disappointing as Ewing is to those who oppose "three strikes" laws, its result may be a blessing in disguise. Only state legislatures can eliminate draconian recidivist laws. No Supreme Court decision would do more than nibble at their edges. And history suggests that reliance on litigation to achieve political ends can backfire. The immediate effect of the Supreme Court痴 invalidation of most state death penalty schemes in Furman v. Georgia was to provoke a national rush to reenact death penalty statutes, followed by years of litigation over exactly how the death statutes had to be worded in order to pass the Court's new test. One might argue that Furman reinvigorated state capital punishment supporters determined not to be dictated to by a federal authority, and that it diverted the attention of death penalty opponents from arguments on the merits in the political realm to arguments about process.

Opponents of 鍍hree strikes laws should be concentrating their effort in political forums, not the courts. To the extent the Supreme Court has compelled that outcome, it may prove a blessing in disguise.


Frank Bowman is Professor of Law at Indiana University School of Law - Indianapolis. He was formerly a federal and state prosecutor, Special Counsel to the U.S. Sentencing Commission, and academic advisor to the Criminal Law Committee of the U.S. Judicial Conference.

March 24, 2003

GUEST COLUMNIST

JURIST Guest Columnist Frank Bowman is Professor of Law at Indiana University School of Law - Indianapolis. He was formerly a federal and state prosecutor, Special Counsel to the U.S. Sentencing Commission, and academic advisor to the Criminal Law Committee of the U.S. Judicial Conference. He is the author of a variety of publications relating to the law of sentencing. These include the treatise Haines, Bowman & Woll, Federal Sentencing Guidelines Handbook (West 2002), and numerous law review articles, most recently including Quiet Rebellion II: An Empirical Analysis of Declining Federal Drug Sentences Including Data from the District Level, 87 Iowa L.R. 477 (2002) (with Michael Heise).