# Amicus Curiae Brief — Lockyer v. Andrade

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 63

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0541%3A15. Public record. Not legal advice.