Isaac Ramirez v. R.A. Castro, Warden

KLEINFELD, Circuit Judge,

dissenting:

I respectfully, and regretfully, dissent.

I agree with the majority that Ramirez’s sentence is inappropriately harsh. For shoplifting a $199 videocassette recorder, *776 having previously shoplifted twice before, he was sentenced to spend between 25 years and the rest of his life in prison, with no eligibility for parole until he has served at least 25 years. Even Hammurabi limited the penalty for an eye to an eye.

True, Ramirez’s recidivism suggests that if he is not more or less permanently caged, he may do something like this again. Some people commit relatively ■small crimes, without graduating to more serious ones, but appear unable to be deterred. The sentencing goals of incapacitation and deterrence are thus served by the harsh sentence. But those are not the only goals. The goals of reaffirming societal norms and of just retribution are dis-served as much by an excessively harsh sentence as by an excessively lenient one. Furthermore, excessively harsh sentences such as this one create a potential incentive for a defendant facing a third-strike conviction to take drastic measures to avoid a conviction. This raises a risk of obstruction of justice and even murder of witnesses in cases where such things would otherwise be inconceivable.

Even the reasonable victim of such a crime would not want to visit such harsh punishment on the criminal. Nor would a reasonable person favor spending hundreds of thousands of dollars to incarcerate Ramirez for decades to protect stores from the occasional $200 shoplifting. And despite his criminality, a fair sentence cannot, of course, ignore the impact on Ramirez. Our societal norm against stealing is not intense enough to justify a sentence comparable to what people get for rape or murder. What Ramirez has done, repeatedly, is just not bad enough to justify wasting most of the rest of his life in a cage.

As the majority points out, Ramirez argued his own case before us pro se. He did it so well that I did not realize until well into his argument that he was the petitioner and not a lawyer for the petitioner. My impression from the record and from our extensive colloquy with this man during oral argument is that he is a good and intelligent man whose self control occasionally ¿ves way under the stresses 'of life to a criminal impulse that he expresses by stealing something from a store. The 5$ years he already served for his most recent crime seem like an adequate social response even with his- having done it twice before.

But these are all thoughts I would have were I the sentencing judge. I am hot. We are not. The question whether a writ of habeas corpus should issue to a state prison warden is quite different from whether the sentence is justifiable. It is even different from whether we think the sentence is grossly disproportionate to the crime. We can only grant relief if the sentence was grossly disproportionate and if the state court’s determination that it was not grossly disproportionate was contrary to or an unreasonable application of Supreme Court law. 1

The majority opinion acknowledges that the California Court of Appeal did not fail to apply controlling Supreme Court law. 2 The majority then carefully works through the Supreme Court decisions — which require considerable parsing — to determine whether the state court unreasonably applied them. In Rummel, life with parole eligibility in 12 years for three small thefts was not disproportionately harsh. 3 In So- *777 lem, life without parole was disproportionately harsh for a petty thief with a more serious record, whose “uttering” a false check crime was “one of the most passive felonies a person could commit.” 4 In Ewing, another theft case, the Court held on direct review that 25 to life was not disproportionately harsh, but there the petitioner’s record showed a substantially higher level of dangerousness. 5 The petitioner in Andrade was, like Ramirez, a repeat petty shoplifter who got 50 to life, on two counts. His .record also showed a higher level of dangerousness because of a prison escape and marijuana offenses. 6

Under the majority’s analysis, the question whether the sentence is cruel and unusual comes down roughly to which of these Supreme Court cases in point is most closely analogous, because, as the Supreme Court itself pointed out in An-drade, the verbal formulas in the cases are largely indeterminate. 7 Parsing these cases, the majority concludes, understandably, that Ramirez’s sentence is a violation of the Eighth Amendment. The problem is that such an analysis is just the type of subtle parsing that necessarily conflicts with the deference we owe to state judgments about which punishment is appropriate. 8 We are not supposed to cut so finely when evaluating the proportionality of a sentence', particularly when our review is through a petition for habeas corpus and is governed by AEDPA.

In the end, what-prevents me from joining the majority, which I would very much like to do, is the word “unreasonable” in AEDPA. The Supreme Court has said, on several occasions, that “unreasonable” means not just wrong, but so wrong as to be “objectively unreasonable.” 9 The Court told us in Andrade that even “[t]he gloss of clear error fails to give proper deference to state courts by'conflating error (even clear error) with unreasonableness.” 10 That is quite a standard. I can easily say (and have said)- that I would have reached a different conclusion from the sentencing court, and perhaps I could bring myself to say that the state appellate court erred. And though this is much harder in light of the indeterminacy of the Supreme Court language and the arguability of which of the Court’s precedents is *778 analogous, perhaps I could bring myself to join in a conclusion that the state appellate court clearly erred. But I cannot bring myself to say that the state court was “objectively unreasonable” in its application of Andrade, Harmelin, Solem, Ewing, and Rummel.

The practical significance of Andrade is not a precise formulation of what, the test is for a sentence so disproportionate as to violate the Eighth Amendment. Andrade concedes that the “precise contours” of the Court’s own.proportionality principle “are unclear.” 11 Andrade means, as a practical matter, that the federal courts, on habeas review, have extremely limited authority over the harshness of state sentences. It operates more as a federalism decision than as an Eighth Amendment decision. Ramirez’s sentence would stand, under my reluctant reading, not because it is just as between. California and Ramirez, but because it is lawful as between the state and federal judiciaries. Thus, I do not think we have the authority to do what the majority does, and what I would like to do.

. Lockyer v. Andrade, 538 U.S. 63, 73-77 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003).

. Maj. Op. at 773-774.

. Rummel v. Estelle, 445 U.S. 263 , 100 S.Ct. 1133 , 63 L.Ed.2d 382 (1980).

. Solem v. Helm, 463 U.S. 277, 296 , 103 S.Ct. 3001 , 77 L.Ed.2d 637 (1983) (internal quotation omitted).

. Ewing v. California, 538 U.S. 11 , 123 S.Ct. 1179 , 155 L.Ed.2d 108 (2003).

. See Andrade, 538 U.S. at 66-67 , 123 S.Ct. 1166 .

. Id. at 76 , 123 S.Ct. 1166 .

. See id. (noting that in the Eighth Amendment context, "the governing legal principle gives legislatures broad discretion to fashion a sentence that fits within the scope of the proportionality principle — the 'precise contours' of which 'are unclear.' ” (quoting Harmelin v. Michigan, 501 U.S. 957, 998 , 111 S.Ct. 2680 , 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment))); Solem, 463 U.S. at 290 n. 16, 103 S.Ct. 3001 ("Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.... In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.”); id. at 294 , 103 S.Ct. 3001 ("It is clear that a 25-year sentence generally is more severe than a 15-year sentence, but in most cases it would be difficult to decide that the former violates the Eighth Amendment while the latter does not.” (footnote omitted)); Rummel, 445 U.S. at 279-82 , 100 S.Ct. 1133 .

. Andrade, 538 U.S. at 76, 123 S.Ct. 1166 ; see also Williams v. Taylor, 529 U.S. 362, 411 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000).

. Andrade, 538 U.S. at 75 , 123 S.Ct. 1166 .

. Id. at 76 , 123 S.Ct. 1166 (internal quotation omitted).