Amicus Curiae Brief — Lockyer v. Andrade

No. 01-1127

IN THE

Supreme Court of the United States

BILL LOCKYER,

ATTORNEY GENERAL OF CALIFORNIA,

Petitioner,

Vv.

LEANDRO ANDRADE,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE

FAMILIES TO AMEND CALIFORNIA’S THREE STRIKES

AND CONGRESS OF CALIFORNIA SENIORS

IN SUPPORT OF RESPONDENT

GERALD F. UELMEN

Counsel of Record

SANTA CLARA UNIVERSITY SCHOOL OF LAW

500 EL CAMINO REAL

SANTA CLARA, CALIFORNIA 95053

(408) 554-5729

Attorney for Amici Curiae

Interest of Amici Curiae

Summary of Argument

L.

Il.

Conclusion

TABLE OF CONTENTS

The Enactment of the “Three Strikes” Law in

REN Sa ee a

Deferring to the Legislative Process That

Produced California’s “Three Strikes” Law

Would Undercut The Constitutional Guarantee

of a Republican Form of Government ................

Proportionality Review is Fully Consistent

With California Penological Theory ...................

Proportionality Review of California’s “Three

Strikes” Law Would Not Impair the Values of

Our Diverse Federal System ..............:cccsseeceeeeeees

Proportionality Review of California’s “Three.

Strikes” Law Can Be Guided by An Objective

Standard That Requires the Triggering

Offense for a Life Sentence To Be a Serious

TEED ccnnsnssetenteesnnesaicenuiinconnamenspssmnscsenteenniasse

SOE EEE EEE EEE EEE EEE EEE HEHEHE EEE EEEEEEEEHEHEEEE

SOCORRO EEE EEE EEE EEO EEE EEO EEE EEEEEEEEEEEEEEEEEHEEEEEEED

TABLE OF AUTHORITIES

Page(s)

CASES:

In Re Foss, 10 Cal.3d 910 (1974) .......cccccceeeeeesseeeeeeeeeeeeeeees 17

Bee Re Grant, 16 Cab.36 1 CIDER ccccccccctecessscssninsitiesnsineassios 17

Harmelin v. Michigan, 501 U.S. 957, 998

CDBG) cccscsserscsesncssastsncintscinimenemimeaiaeamaiial 2, 14, 19

Kadderly v. City of Portland, 74 P. 710, 720 (Or. 1903) ... 13

In Re Lynch, 8 Cal.3d 410 (1972) .....ccecccccesseeeeeeeseeseeeseeees 17

Manduley v. Superior Court, 27 Cal.4" 537 (2002) .......... 10

Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118

(BDEED -cccccssccessecsensetemenisiniimenamaa 13

People v. Anderson, 6 Cal.3d 628 (1972) ....ccscccsccseereeereeees 17

People v. Fryman, 97 Cal.App.4™ 1315 (2002) .........s0000 11

Pierce v. Society of Sisters, 268 U.S. 510 (1925) .........064. 15

Reitman v. Mulkey, 387 U.S. 369 (1967) ......cccccsecceeseeeeeeees 15

Romer v. Evans, 517 U.S. 620 (1996) .........ccccscceceseseeeeeeeees 15

Washington v. Seattle School Dist. No. 1, 455 U.S. 457

(IGT) ..ccccsessssssessssestascenionenismniiiiiaineasaaaaia 15

CONSTITUTIONAL PROVISIONS:

U.S. Const., Art. TV, Section 4 o......ccccccceeeeesseeeeeeeeeeeeeeeees 11

Calif. Const., Art. I, Section 17 ..........ccsccscessssseseseersesereeees 17

Calif. Const., Art. I, Section 27 .0.........::ssesssesesseeseeeseseeeees 17

Calif. Const., Art. II, Section 8(d) ...............:cccceeeeeceeeeeeeeeeee 10

Calif. Const., Art. II, Section 10(C) .............cceccceeeseeeeeeeeees 3,9

Table of Authorities (Continued)

Page(s)

STATUTES:

Calif. Health & Safety Code § 1210, 1210.1 00.00.0000... 10, 11

Calif. Penal Code §§ 499, 4990 ..ccccccsosssossnrssssnernereee 20

CE 9

Calif. Penal Code $1170 .....cccssssssssssssssssss —— 4,17

CE 10

Calif. Welf. & Inst. Code § 602, 707 .........cccccccccccseseseseeeens 10

OTHER AUTHORITIES:

California Assembly Committee on Public Safety,

Committee Analysis of A.B. 1652, 2000-01 Leg., at

Er 11

ee i)

Campaign for an Effective Crime Policy, “Three

Strikes” Laws: Five Years Later, Washington,

LL 18

Clark, Austin & Henry, Three Strikes and You're Out: A

Review of State Legislation, Nat’! Institute of

Justice, Washington, D.C. 1997 ooo.....cccccccccceeseeeeees 18

Eule, Judicial Revi..» of Direct Democracy, 99 Yale

ID arssssiciscesnesssnsnsnsnenenssses 12, 14, 16

THE FEDERALIST, No. 63, at 428 (J. Madison) . 12, 14, 15

Hecht, “Two Grieving Fathers Part Ways on ‘3 Strikes’

Crusade,” Sacramento Bee, July 10, 1994, p. A} ......... 6

Table of Authorities (Continued)

Page(s)

Morain, “A Father’s Bittersweet Crusade, Mike

Reynolds Vowed that His Murdered Daughter

Would Not Die in Vain; Few Thought He Would

Win, But Today He Will See the “Three Strikes’

Bill Signed Into Law,” Los Angeles ~imes, March

Be a 8 cee 6-7

Schrag, Paradise Lost (New Press, 1998) ................000000+- . i

Skelton, “Wilson Seizes the Day After Polly’s Murder,”

Los Angeles Times, Dec. 13, 1993, p. A3 ..............0002. 6

SUTHERLAND STATUTORY CONSTRUCTION, §

22.2, at pp. 244-45 (6" Ed. 1996) ...........cccccceceeseeceseeeees 9

Uelmen, Handling Hot Potatoes: Judicial Review of

California Initiatives After Senate v. Jones, 41

Santa Clara L. Rev. 999 (2001) ...........cccccccceeeseeeceeeees 10

Willkie, “Prop. 184: 3 Strikes Already on Books, Foes

Say Its Passage Only Bolsters a Bad Law,” San

Diego Union, Oct. 12, 1994, p. AD ....ccccccccccccceeeeeeeeees 5

Zimring, Hawkins & Kamin, Punishment and

Democracy: Three Strikes and You're Out in

California (Oxford Univ. Press 2001) .................00+. 5,7

39 Authors, The Jurisprudence of Yogi Berra, 46 Emory

ne Gee ET CRUD cenunnsnsnsemmninecemmen 1>

iv

Interest of Amici Curiae’

Amici are concerned citizens, family members, and

friends of persons sentenced under California’s Three Strikes

Law for non-violent low-level offenses. Amici share with all

Californians a steadfast concern for public safety and fervent

desire to reduce crime. But while amici are sympathetic to

the impulse to “do more” to fight crime, we are deeply

troubled by the grossly disproportionate sentences that have

flowed from the wide net cast by California’s Three Strikes

Law. For reasons we explain herein, our experience

convinces us that California’s sentencing scheme stands as

an anomaly within the nation and is deserving of a

proportionality review by this Court.

Amicus curiae Families to Amend California’s Three

Strikes (“FACTS”) is a California-based organization begun

in 1996 dedicated to reforming California’s Three Strikes

Law to bring it into conformity with the so-called “three

strikes” laws of the other states by restricting its application

to violent offenders only. FACTS, through its membership

and more than a dozen chapters throughout California,

engages in a variety of public education efforts to inform the

public and policy makers about the statewide

implementation and impact of Three Strikes. To this end,

FACTS tracks the implementation of the Three Strikes Law,

concerning the law, compiles the personal and family stories

of individuals currently serving sentences of 25 years to life

as a result of “third strike” convictions for low-level non-

' The parties have consented to the filing of this brief. It was not

authored in any part by counsel for a party, and the Center for Policy

Reform made a monetary contribution toward its preparation.

l

violent offenses, and helps coordinate individuals and

organizations to speak out on behalf of Three Strikes reform.

Amicus curiae Congress of California Seniors

(“CCS”) is a non-profit advocacy organization established in

1977 dedicated to improving the quality of life for seniors

and their families. As an umbrella organization for hundreds

of affiliated senior groups and individuals, CCS has a

combined membership of over 650,000 Californians. The

broad-based CCS coalition, which includes senior centers,

retired-public-employee organizations and trade unions, has

emerged as a major voice for California seniors at the state

capitol and beyond.

Summary of Argument

Justice Kennedy’s concurring opinion in Harmelin v.

Michigan, 501 U.S. 957, 998 (1991) identified four common

principles which give content to the uses and limits of

proportionality review. The first of these principles is

substantial deference to the judgments of state legislatures,

where substantive penological judgments are most

appropriately balanced. 501 U.S. at 998-999. The second of

these principles is the lack of constitutional mandate for any

particular theory of punishment, noting that different weights

have been accorded at different times to the often competing

goals of retribution, deterrence, imcapacitation and

rehabilitation. 501 U.S. at 999.

The third principle values the diversity which is an

inevitable result of our federal system. The mere fact that a

state has the most severe punishment for a particular crime

does not, by itself, render the punishment grossly

disproportionate. 501 U.S. at 999-1000. The fourth

principle requires that proportionality review be guided by

objective factors. 501 U.S. at 1000-1001.

2

This brief will focus upon these four guiding

principles in the context of California’s “Three Strikes Law”

enacted in 1994. This context is unique in several respects.

Although the identical measure was enacted by both the

California legislature and popular initiative, no legislative

hearings were ever conducted and no penological experts

were consulted in its drafting. There was no legislative

compromise or amendment affecting any of its language. An

emotional reaction to one horrendous crime was

manipulated to present the electorate with an “all or nothing”

approach to an extremely complex matrix of options.

While a legislative enactment can subsequently be

amended at any time, the California constitution provides

that initiative measures can only be amended by subsequent

initiatives, unless the measure itself provides otherwise.

Calif. Const., Art. I], Section 10(c). The “Three Strikes”

initiative provides that any amendments will require a two-

thirds vote of the legislature or a subsequent initiative

measure. Two subsequent initiative measures have modified

the “Three Strikes Law,” introducing even more anomalies

and contradictions.

In their Opening Brief, Petitioners suggest that “over

time the attitude of the citizens of California may change. In

the meantime, however, deference should be at its apex... .”

[Pet. Opening Brief, p. 16]. Unfortunately, the super-

majority or subsequent initiative requirements imbedded in

the “Three Strikes Law” were deliberately designed to

frustrate any efforts to ameliorate the measure. Deference is

inappropriate for a setting in which laws are enacted in an

emotional paroxysm without deliberation or compromise,

and subsequent amendment or correction is practically

precluded. The principle of deference is designed to

promote the goals of federalism and our republican form of

government. California’s initiative process is the antithesis

3

of the republican form of government. In this setting,

deference should be at its nadir.

The context of California’s “Three Strikes Law” is

also unique with regard to California’s explicit recognition

of a controlling theory of punishment. In 1976, California

rejected an indeterminate sentencing system and adopted a

determinate sentencing scheme which explicitly recognized

proportionality as its goal. In Penal Code Section 1170, the

legislature declared:

[T]he purpose of imprisonment for crime is

punishment. This purpose is best served by terms

proportionate to the seriousness of the offense

with provision for uniformity in the sentences of

offenders committing the same offense under similar

circumstances.

This commitment to proportionality was not undermined or

modified by the enactment of the “Three Strikes Law,”

although its operation may occasionally result in grossly

disproportionate sentences, as it did in this case. Thus, in

applying a constitutional standard to forbid extreme

sentences that are grossly disproportionate to the crime, this

Court would not be mandating adoption of a penological

theory rejected by California, but actually promoting the

penological theory explicitly embraced by the state.

The diversity promoted by our federal system is fully

reflected in the variety of “Three Strikes” measures adopted

by twenty-five states and the federal government. But with

one singular exception, these measures all reflect a consistent

judgment that a serious felony must be the triggering offense

to justify a life sentence for a repeat offender. California

stands alone in the breadth of its measure. And with one

singular exception, all of these measures can be ameliorated

4

by subsequent amendment by a majority vote of Congress or

the state legislature. California stands alone in imposing a

supermajority requirement for amelioration. A ruling that

grossly disproportionate sentences violate the federal

constitution will not discourage diverse approaches to

sentencing. It will merely insure that a “safety valve” can

correct extreme injustices which may not have been fully

anticipated upon enactment, but become apparent only with

hindsight.

Finally, an objective standard is readily available to

inform proportionality review in this case. The penalty of

life imprisonment without parole differs from other forms of

punishment, and the use of petit theft as a triggering offense

to escalate punishment from a discretionary sentence of up to

one year in the county jail to a mandatory sentence of 50

years to life in state prison is objectively extreme and grossly

disproportionate to the crime.

L. The Enactment of the “Three Strikes” Law in

California.

California’s “Three Strikes” law has been aptly

described as “an extreme example of a populist preemption

of criminal justice policy making.” Zimring, Hawkins &

Kamin, Punishment and Democracy: Three Strikes and

You're Out in California (Oxford Univ. Press 2001), p. 3.

First proposed by Mike Reynolds, the Fresno father of a

murder victim, the measure was put on the California ballot

by an alliance of two groups active in lobbying for crime

victims: the California Correctional Officers Association (the

prison guards union) and the National Rifle Association.

Willkie, “Prop. 184: 3 Strikes Already on Books, Foes Say

Its Passage Only Bolsters a Bad Law,” San Diego Union,

Oct. 12, 1994, p. Al. The campaign for its enactment was

bolstered when 12-year-old Polly Klaas was abducted from

5

her Petaluma home, sexually assaulted and murdered by a

twice-convicted violent offender recently paroled from state

prison. The case generated a media frenzy, and California’s

then Governor Pete Wilson, preparing for a hotly contested

reelection contest against Kathleen Brown, the daughter of

one former Governor and the sister of another, announced

his endorsement of the Reynolds “Three Strikes” proposal at

the funeral of Polly Klaas. Skelton, “Wilson Seizes the Day

After Polly’s Murder,” Los Angeles Times, Dec. 13, 1993, p.

A3.

Democrats were in control of the state legislature,

and their concern that the Governor would co-opt the “tough

on crime” sentiment generated by the Polly Klaas murder

produced an unusual game of “chicken” between the

governor and the legislature, remarkable even for California

politics. Five different versions of proposals for increased

sentences for repeat offenders had been introduced in the

state legislature, including one identical to the Reynolds

proposed initiative. Mark Klaas, the father of murder victim

Polly Klaas, at first endorsed the Reynolds proposal, but later

campaigned against it and endorsed a less sweeping “Three

Strikes” law which was also endorsed by the California

District Attorneys AsSociation. It would have required the

third strike to be a serious or violent felony, the same as the

first two strikes. Hecht, “Two Grieving Fathers Part Ways on

*3 Strikes’ Crusade,” Sacramento Bee, July 10, 1994, p. Al.

The legislative leadership announced it would pass

whatever version of “Three Strikes” the Governor selected.

The Governor’s choice of the most extreme version, the

Reynolds measure headed for the ballot in initiative form,

then induced the legislature to enact legislation virtually

identical to the proposed initiative, to deprive the Governor

of a campaign issue. Morain, “A Father’s Bittersweet

Crusade, Mike Reynolds Vowed that His Murdered

6

Daughter Would Not Die in Vain; Few Thought He Would

Win, But Today He Will See the ‘Three Strikes’ Bill Signed

Into Law,” Los Angeles Times, March 7, 1994, p. Al.

The legislative process that produced California’s

“Three Strikes” law was unique for the absence of analytic

attention from criminal justice professionals and academic

experts prior to enactment, and the complete !ack of any

“fine tuning” by elected power brokers in the legislature or

governor’s office. There were no legislative hearings and no

amendments were ever proposed or considered. A proposal

drafted by a special interest lobbying group with no public

input literally sailed to enactment untouched by human

hands. Zimring, Hawkins & Kamin, supra at 11-13. To

some extent this was attributable to the one-time frenzy

which the horror of the Polly Klaas murder injected into a

contentious political campaign, but to an even greater extent

it was attributable to the role that the initiative process has

come to play in California government.

The displacement of elected government officials as

policy makers by the California initiative process is

dramatically demonstrated by Peter Schrag, an astute long-

time observer of California government, in Paradise Lost

(New Press, 1998). During the past two decades, he writes,

“California has been in nearly constant revolt against

representative government.” Jd. at 9-10. A long succession

of broad ballot initiatives promoted by interest groups have

mandated or prohibited major programs and policies,

imposing supermajority requirements for legislative action.

Paradoxically, the further the initiative process goes,

the more difficult and problematic effective

citizenship becomes. California has not just seen a

sharp decline in the quality of public services —

education, public parks, highways, water projects —

7

that were once regarded as models for the nation. It

has also seen the evolution of an increasingly

unmanageable and incomprehensible structure of

state and local government that exacerbates the same

public disaffection and alienation that have brought it

on, thus creating a vicious cycle of reform and

frustration. Each measure, because it further reduces

governmental discretion, and because it moves

control further from the public — from local to state

government, from the legislature to the constitution,

from simple majorities to supermajorities — makes it

harder to write budgets, respond to changing needs,

and set reasonable priorities

Schrag, supra at 11-12.

The legislative enactment of the harshest version of

“Three Strikes” would logically have led to abandonment of

the campaign to enact the measure as an initiative. Why

spend money to promote a ballot measure which the

legislature has already adopted? The reason the initiative

campaign proceeded, however, is precisely the reason why

California’s “Three Strikes” law deserves so little deference

from this Court. Enactment of the initiative was sought to

“protect” the measure against subsequent amelioration by

legislative amendment.

The measure passed by the legislature being a word-

for-word copy of the proposed initiative, it contains the

“supermajority for amendment” proviso that characterizes

many California initiatives:

The provisions of this section shall not be amended

by the Legislature except by statute passed in each

house by rollcall vote entered in the journal, two-

thirds of the membership concurring, or by a statute

that becomes effective only when approved by the

electors.

Stats. 1994, ch. 12, p. 75; Calif. Pen. Code, § 667(j). The

measure dispensed with the supermajority requirement,

however, for legislative measures increasing the length of

sentences. Stats. 1994, ch. 12, p. 72; Calif. Pen. Code § 667

(a) (3). In other words, subsequent legislatures could amend

the law at will to make it harsher, but any ameliorative

amendments would require a two-thirds majority. This

attempt to limit subsequent amendment was patently

invalid,” and its inclusion is an amusing example of how the

legislature completely abandoned its normal function of

drafting and debating statutory language in its haste to jump

on the “Three Strikes” bandwagon. Only an initiative could

achieve the desired limitation on the authority of subsequent

legislatures.

The subsequently enacted initiative thus did more

than “ratify” the previously enacted legislation. It enhanced

its status to take full advantage of Article II, Section 10(c) of

the California Constitution, which provides:

The Legislature... . may amend or repeal an initiative

Statute by another statute that becomes effective only

when approved by the electors unless the initiative

Statute permits amendment or repeal without their

approval.

The difficulty of mustering a two-thirds majority in the

California legislature and the enormous cost of preparing,

promoting and passing an initiative measure render the

? A legislature cannot limit the power of amendment of a subsequent

legislature, either as to the extent or manner of its exercise.

SUTHERLAND STATUTORY CONSTRUCTION, § 22.2, at pp. 244-

45 (6" Ed. 1996). Cf. 58 Cal. Jur. 3d, Statutes § 50, at p. 383 (1980).

9

“Three Strikes” law virtually untouchable. Only two

subsequent amendments have been achieved by

incorporating modifications in initiative measures designed

to achieve other purposes.

On March 7, 2000, California voters approved

Proposition 21, which gives prosecutors discretion to

prosecute specified categories of juvenile offenders as adults

without the previously required judicial approval. Calif.

Welf. & Inst. Code § 602, 707 (2000). This initiative also

substantially expanded the list of serious or violent felonies

which count as “strikes” to make all defendants eligible for

sentencing under the “Three Strikes” law. Calif. Pen. Code §

1192.7 (2000). The constitutionality of Proposition 21 was

challenged under the requirement of California Constitution

Article II, Section 8 (d) that initiative measures address a

“single subject,” because it combined major reforms of

juvenile court procedure with an expansion of the “Three

Strikes” law. That challenge was rejected by the California

Supreme Court in Manduley v. Superior Court, 27 Cal.4"

537 (2002). The California Supreme Court has invalidated

only one initiative for violating the “single subject” rule

since that requirement was added to the California

constitution in 1948. Uelmen, Handling Hot Potatoes:

Judicial Review of California Initiatives After Senate v.

Jones, 41 Santa Clara L. Rev. 999 (2001).

On November 7, 2000, the California electorate

enacted Proposition 36, which mandates that drug offenders

convicted of simple possession be placed on probation and

put in drug treatment programs. Calif. Health & Safety Code

§ 1210, 1210.1 (2001). A defendant is excluded from

Proposition 36 if he has been previously convicted of a

serious or violent felony, unless there has been a period of

more than five years in which the defendant remained free of

prison custody and was not convicted of any felony offense

10

other than a nonviolent drug possession offense or of any

misdemeanor involving threatened or actual physical injury

to another person. Calif. Health & Safety Code §

1210.1(6)(1). But for Proposition 36, a non-excluded

defendant with a prior conviction of a serious or violent

felony would receive a mandatory prison sentence under the

“Three Strikes” law, and receive life imprsonment if he had

two such priors. As of February 28, 2001, 637 persons have

received life sentences under the “Three Strikes” law for a

third felony offense of possession of a small amount of

drugs. California Assembly Committee on Public Safety,

Committee Analysis of A.B. 1652, 2000-01 Leg., at 3 (Cal.

Apr. 24, 2001). This has created serious disparity in the

treatment of many drug offenders in California. If a

defendant had two serious prior felonies, regardless of how

old the convictions were, and he was convicted of drug

possession prior to July 1, 2001 (the effective date of

Proposition 36), he was sentenced to life imprisonment. The

same defendant, if five years had elapsed since he served

time for his priors, would automatically be sentenced to

probation under Proposition 36. This disparity led at least

one California court to declare that Proposition 36 must be

applied retroactively to avoid a constitutional problem of

denial of equal protection of the laws. People v. Fryman, 97

Cal.App.4™ 1315 (2002).

Il. Deferring to the Legislative Process That

Produced California’s “Three Strikes” Law

Would Undercut The Constitutional Guarantee of

a Republican Form Of Government.

Article IV, Section 4 of the United States

Constitution provides:

The United States shall guarantee to every state in

this Union a Republican Form of Government. . . .

1]

This guarantee reflects a fundamental commitment to

representative government, as contrasted with the “pure

democracies of Greece.” THE FEDERALIST, No. 63, at

428 (J. Madison). Placing lawmaking power in the hands of

elected representatives insures that legislation is the product

of a deliberative process which offers “time for reflection,

exposure to competing needs, and occasions for transforming

preferences.” Eule, Judicial Review of Direct Democracy,

99 Yale L.J. 1503, 1527 (1990).

Amici do not contend that the initiative process itself,

as it exists in most states that permit it, is a repudiation of the

republican form of government. In most of these states, laws

enacted by initiative are treated the same as laws enacted by

the legislature; they may be subsequently amended or

repealed by the legislature. California, however, has gone a

step beyond this concept of shared legislative power. In

California, an initiative enactment is given an elevated,

exalted status that places it beyond the reach of the ordinary

power of the legislature. Under the California constitution,

an initiative statute becomes as difficult to amend or repeal

as a constitutional provision. The initiative statute which

enacted California’s “Three Strikes” law provides:

The provisions of this measure shall not be amended

by the Legislature except by statute passed in each

house by rollcall vote entered in the journal, two--

thirds of the membership concurring, or by a statute

that becomes effective only when approved by the

electors.

Initiative Measure No. 184, Section 4, Stats. 1994, at p. A-

317. Thus, amelioration of the unusually harsh sentences

mandated by the “Three Strikes” law cannot be achieved by

the ordinary legislative process. A supermajority must be

12

assembled, or a new initiative campaign must be financed

and mounted.

It is precisely this feature of California initiatives that

renders them anti-republican. In the earliest state court

opinion upholding the initiative and referendum process, the

Oregon Supreme Court defended lawmaking by plebiscite

only to the extent that it did not interfere with the continued

authority of elected representatives. Kadderly v. City of

Portland, 74 P. 710, 720 (Or. 1903). This meant that

ordinary laws could not be put beyond legislative reach, by

placing them in the state’s constitution or by other special

obstacles to later legislative action. Linde, State Courts and

— Government, 41 Santa Clara L. Rev. 951, 963

1).

In 1912, this Court dismissed a challenge to an

Oregon initiative which claimed the enactment of a tax by

the initiative process violated the guarantee of a republican

form of government. Pacific States Telephone & Telegraph

Co. v. Oregon, 223 U.S. 118 (1912). The Court read the

words “The United States” in the Guarantee Clause to place

the onus for keeping state governments republican on the

federal political branches rather than the federal courts. This

allocation of federal power rendered the guarantee “not

justiciable” in the Supreme Court. 223 U.S. at 151. This

ruling should pose no obstacle, however, when the issue

presented is the degree of deference this Court should give to

the laws enacted by an initiative process which limits

subsequent action by the legislature. Although speaking in

broader terms, the late Professor Julian Eule succinctly put

the argument:

In the end, my claim is that direct democracy is

constitutionally suspect, not impermissible. It

triggers a harder judicial look. This argument is not

13

hampered by the justiciability problems that surround

the republican form clause, for I do not contend this

clause should be the lens under which direct

democracy will be scrutinized. My argument instead

is that when laws enacted by plebiscite are

challenged under other provisions of the federal

constitution, the republican form clause informs the

nature of the judicial role.

Eule, supra at p. 1545. Amici do not advocate heightened

scrutiny for all laws enacted by initiative, however, as does

Professor Eule. We limit our argument to initiatives which

disarm elected legislatures from subsequent amelioration.

This approach particularly recommends itself when the

constitutional lens through which legislation is being

scrutinized is the prohibition of cruel and unusual

punishment in the Eighth Amendment. The fundamental

balancing of competing penal policies and theories, and the

tempering of inflamed passions, is particularly suited to the

deliberative process of representative government. As noted

in Justice Kennedy’s concurring opinion in Harmelin, supra

at 998:

Determinations about the nature and purpose of

punishment for criminal acts implicate difficult and

enduring questions respecting the sanctity of the

individual, the nature of law and the social order.

“As a moral or political issue [the punishment of

offenders] provokes intemperate emotions, deeply

conflicting interests, and intractable disagreements.”

D. Garland, Punishment and Modern Society |

(1990).

These words echo a theme which runs throughout The

Federalist. “{TJhere are particular moments in public

affairs,” Madison opined in The Federalist No. 63, “when the

14

people stimulated by some irregular passion, or some illicit

advantage, or misled by the artful misrepresentations of

interested men, may call for measures which they themselves

will be the most ready to lament.” THE FEDERALIST, No.

63 at 425; see also id., No. 10 at 60-61; No. 49 at 343; No.

71 at 482. California’s “Three Strikes” law was clearly

responsive to “irregular passion” aroused by a horrendous

crime and artful politicians. As noted in Petitioner’s

Opening Brief (p. 16), the citizens of California may, at

some point, lament the severity of their response. The

problem with the California initiative process, however, is

that lamentation encounters greater legislative obstacles than

the original passion. Representative or republican

government is stymied.

This, of course, is not the first case in which this

Court has reviewed the constitutionality of state laws enacted

by popular initiative. That case was Pierce v. Society of

Sisters, 268 U.S. 510 (1925), where the Court invalidated an

Oregon initiative inspired by the Ku Klux Klan which

imposed criminal penalties upon parents who sent their

children to parochial schools. Subsequent cases have

subjected initiative measures to strict scrutiny, not because

they were enacted by initiative, but because they involved

racial discrimination or impinged upon First Amendment

rights. E.g., Romer v. Evans, 517 U.S. 620 (1996)

[Referendum Measure permitting discrimination against gays

and lesbians}; Washington v. Seattle School Dist. No. 1, 455

U.S. 457 (1982) [Initiative Measure prohibiting school

busing to achieve desegregation of schools]; Reitman v.

Mulkey, 387 U.S. 369 (1967) [Initiative Measure permitting

racial discrimination in sale or leasing of real property]. This

is, however, the first case in which Eighth Amendment

proportionality review is sought for a criminal sentencing

measure enacted by popular initiative. Traditional deference

to the state legislative process is especially inappropriate

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when the process impairs the normal protections of our

republican form of government. In this setting, the judiciary

stands alone in guarding against the evils incident to

transient, impassioned majorities the the constitution seeks to

dissipate. Eule, supra at p. 1525.

III. Proportionality Review is Fully Consistent With

There need be little concern in this case that

proportionality review will impose a penological theory of

punishment upon California that is in any way inconsistent

with current and prevailing theories embraced by the state.

California’s “Three Strikes” law did not explicitly embrace

any theory of punishment, other than to lock up felons as

long as possible. The purpose of the law is stated in its first

paragraph:

It is the intent of the People of the State of California

in enacting this measure to ensure longer prison

sentences and greater punishment for those who

commit a felony and have been previously convicted

of serious and/or violent felony offenses.

Stats. 1994, ch. 12, p. A-314. Imposing greater punishment

on recidivists can be justified by any or all of the competing

theories of the purpose of punishment: retribution,

deterrence, incapacitation, and even rehabilitation.

California’s “Three Strikes” law did not offer any of these

justifications, but simply and forthrightly declared its

purpose to be “greater punishment” for certain repeat

offenders. This is fully consistent with, and must be

construed in conformity with, prior declarations of the

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purpose of punishment contained in California law. The

most direct declaration of the purpose of punishment found

in California law is contained in Section 1170 of the

California Penal Code, adopted in 1976:

[T]he purpose of imprisonment for crime is

punishment. This purpose is best served by terms

proportionate to the seriousness of the offense with

provision for uniformity in the sentences of offenders

committing the same offense under similar

circumstances.

A commitment to proportionality of : hment is also

embedded in the California constitution, w. ch contains a

prohibition of “cruel or unusual punishment.” Calif. Const.,

Art. I, Section 17. In People v. Anderson, 6 Cal.3d 628

(1972), the California Supreme Court seized upon the

disjunctive nature of this prohibition to declare California’s

death penalty law unconstitutional. The constitution was

later amended to declare that the death penalty is “neither

cruel nor unusual punishment,” Calif. Const., Art. I, Section

27, but the prohibition is still stated in the disjunctive. In

numerous cases, the California Supreme Court has construed

this clause to impose a requirement of proportionality in

sentences of imprisonment. Jn Re Lynch, 8 Cal.3d 410

(1972); In Re Foss, 10 Cal.3d 910 (1974); In Re Grant, 18

Cal.3d 1 (1976).

Thus, there is little or no risk that applying

constitutional proportionality review to sentences imposed

under California’s “Three Strikes” law will impose a

penological theory that California has rejected. California

has embraced proportionality as the principal goal of its

sentencing laws in both its constitution and its Penal Code,

and the “Three Strikes” law is fully consistent with that goal.

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IV. Proportionality Review of California’s “Three

Strikes” Law Would Not Impair the Values of

Our Diverse Federal System.

Between 1993 and 1996, twenty-five states and the

federal government all adopted some form of legislation

utilizing the popular baseball metaphor, “Three Strikes and

You’re Out.” Clark, Austin & Henry, Three Strikes and

You're Out: A Review of State Legislation, Nat’| Institute of

Justice, Washington, D.C. 1997. The impact of most of

these laws has been symbolic. A 1998 survey revealed that

fourteen states had sentenced fewer than ten defendants

under their “Three Strikes” laws, the entire federal system

had sentenced thirty-five, and no state except California had

accumulated more than 1,000 “Three Strikes” sentences. In

California, 40,000 defendants had been sentenced under the

new law. Campaign for an Effective Crime Policy, “Three

Strikes” Laws: Five Years Later, Washington, D.C., 1998.

The primary reason for the huge impact of the

California law was the unique breadth of its coverage. Only

one prior qualifying felony is necessary before expanded and

mandatory imprisonment is required, and a third strike

sentence of life imprisonment is invoked by any triggering

felony conviction, including petit theft if a prior felony

conviction is present. Other “Three Strikes” laws only

aggravate penalties after two prior strikes and require at least

a serious felony theft conviction to trigger the third-strike

penalties. Clark, Austin & Henry, supra.

California stands alone in permitting any felony to

serve as the triggering offense. One consequence of this

overbreadth is that many relatively minor transgressions are

swept up in the California Penal Code’s classification of

felonies to include “wobblers”: offenses that can be treated

as either a felony or a misdemeanor. Thus, in this case, a

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petit theft ordinarily punishable by up to one year in the

county jail was escalated to a felony because of the

defendant’s prior conviction, then the felony was escalated to

a third strike to mandate a life sentence. While we might

value the diversity of a federal system that allows California

to stand alone, the imposition of a minimal constitutional

standard will hardly impede further experimentation by the

states. It might actually encourage experimentation by

insuring that unforeseen excesses can still be remedied.

If the purpose of our federal system is to permit

diverse experimentation by the states, the states must accept

the responsibility to monitor their experiments and intervene

to ameliorate unanticipated injustices. Every “Three Strikes”

law adopted by 24 states and Congress can be modified or

amended by a majority vote of-the legislature. California

also stands alone in imposing a supermajority requirement

for amelioration. The value we attach to diversity should not

extend to states which turn a blind eye to the possibility that

their experiments may run awry. We should recognize the

baseball wisdom of Yogi Berra, who observed, “Foresight is

always better, afterward.” 39 Authors, The Jurisprudence of

Yogi Berra, 46 Emory L.J. 697, 727 (1997). In California,

the value of delayed foresight is rejected by a rule

demanding a supermajority to perform any fine tuning of the

experiment.

V. Proportionality Review of California’s ‘Three

Strikes” Law Can Be Guided By An Objective

Standard That Requires the Triggering Offense

For a Life Sentence To Be a Serious Felony.

Two objective factors readily present themselves to

guide proportionality review in this case. The first,

described by Justice Kennedy as the “most prominent

objective factor,” Harmelin, 501 U.S. at 1000, is the type of

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punishment imposed. A penalty of life imprisonment

without parole differs from other forms of punishment in its

total abandonment of any pretense of a rehabilitative

purpose. The offender is being permanently removed from

society. Unlike the prisoner given a term of years, who can

mark the passage of those years on the wall of his cell, the

“lifer” must abandon all hope of eventual release. Short of

the death penalty, it is the most drastic form of punishment

available, once reserved for those who murder with

premeditation.

The second objective factor is the nature of the

triggering offense. This Court should declare that a life

sentence cannot be imposed upon a repeat offender whose

offense is less than a serious felony. “Serious” felony can be

defined as one punishable by more than one year in jail,

excluding the California “wobbler” utilized in this case.

California casts the net too wide, to encompass not only petit

theft with a prior, as ir this case, but even offenses involving

no criminal intent to steal, such as temporary use of a bicycle

without permission of the owner. Calif. Penal Code §§ 499,

499b. Permitting these relatively minor offenses to trigger a

life sentence allows an escalation of the penalty far in excess

of any legitimate penological purpose. In this case, absent

the “Three Strikes” law, the maximum penalty the defendant

faced was up to one year in the county jail, or a prison

sentence of 16 months, 2 years or 3 years.

Another alternative to define “serious” felony would

be to require the triggering offense to be just as serious as the

offenses counted as priors. If, as under the California law,

only serious or violent felonies can be counted as strikes,

then only a serious or violent felony should function as the

third strike. To escalate the penalty when the seriousness of

the offender's criminality is deescalating serves no legitimate

purpose. Even in baseball, a foul ball is not counted as the

third strike.

Conclusion

All four of the principles identified by Justice

Kennedy as informing this Court’s exercise of

proportionality review support the appropriateness of such

review in this case. Little or no deference should be given to

an initiative process that impedes ameliorative measures.

California’s explicit endorsement of proportionality as

serving the purpose of punishment invites proportionality

review. The diversity of our federal system will not be

impaired by the limited proportionality review proposed

here, and objective factors are readily available to guide that

review. For all of these reasons, the judgment of the U.S.

Court of Appeals for the Ninth Circuit should be affirmed.

Respectfully submitted,

GERALD F. UELMEN

Counsel of Record

Santa Clara University School of Law

500 E] Camino Real

Santa Clara, California 95053

(408) 554-5729

At.orney for Amicus Curiae

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