Amicus Curiae Brief — Ewing v. California

OCTOBER TERM, 2001 _

GARY ALBERT EWING,

Petitioner,

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

On Writ of Certiorari to the

Court of Appeal of the State of California,

Second Appellate District

BRIEF FOR FAMILIES AGAINST MANDATORY

MINIMUMS AS AMICUS CURIAE IN SUPPORT OF

PETITIONER

Mary PRICE DONALD M. FALK

Families Against Counsel of Record

Mandatory Minimums Mayer, Brown, Rowe & Maw

1612 K Street, N.W. 555 College Avenue

Washington, D.C. 20006 Palo Alto, California 94306

(202) 822-6700 (650) 331-2030

ANDREW H. SCHAPIRO

LAUREN R. GOLDMAN

Mayer, Brown, Rowe & Maw

1675 Broadway

New York, New York 10019

(212) 506-2500

Counsel for Amicus Curiae

v oi?

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

INTRODUCTION AND

SUMMARY OF ARGUMENT

A. A Sentence of Life Without Possibility of Parole For

25 Years Is Grossly Disproportionate To The

Crime of Non-Violent Theft

. Ewing’s Sentence Is Excessive When Compared

To Punishments Imposed For The Same Crime In

Other Jurisdictions

CONCLUSION

ii

TABLE OF AUTHORITIES

Page(s)

Cases:

Atkins v. Virginia, No. 00-8452,

536 U.S. __, slip op. (June 20, 2002).......... passim

BMW v. Gore, 517 U.S. 559 (1996) ..............2.5.. 4

Brown v. Mayle, 283 F.3d 1019 (9th Cir.),

petition for cert. filed, 70 USLW 3643

EEE EPP PTTL TTT TEE 8,9

Buckingham v. State, 482 A.2d 327 (Del. 1984) ..... 14, 20

California Dep't of Corrections v. Morales,

cd cccccesbbececcccess 18

In re Cervera, 16 P.3d 176 (Cal. 2001) ............... 18

Clark v. State, 851 P.2d 426 (Nev. 1993) ............. 22

Cooper Indus. v. Leatherman Tool Group, Inc.,

EP POPP TET TTT ES 4-5

Durden v. California, 531 U.S. 1184 (2001) ............ 2

Gryger v. Burke, 334 U.S. 728 (1948)... 2.2.6... 655. 7,9

Harmelin v. Michigan, 501 U.S. 957 (1991) ....... passim

Hodges v. Humkin, 2 Bulst. 139,

SO Eng. Rep. 1015 (K.B. 1615) ................... 4

Moore v. Missouri, 159 U.S. 673 (1895) ............... 8

People v. Cline, 60 Cal. App. 4th 1327 (1998) ......... 26

People v. Superior Court of San Diego (Romero),

i ccc we ccccccceesenccees 22

People v. Terry, 47 Cal. App. 4th 329 (1996) .......... 26

Riggs v. California, 525 U.S. 1114 (1999) ........... 7,9

« dnd

TABLE OF AUTHORITIES — Continued

Page(s)

Robinson v. California, 370 U.S. 660 (1962) ........... 6

Rummel v. Estelle, 445 U.S. 263 (1980) .......... passim

Solem v. Helm, 463 U.S. 277 (1983) ............. passim

State ex rel. Walgamotte v. Blackburn,

481 So. 2d 1322 (La. 1986) .................. 24-25

State v. Angelucci, 405 A.2d 33 (Vt. 1979) ............ 23

State v. Barker, 410 S.E.2d 712 (W. Va. 1991)......... 25

State v. Battick, 349 A.2d 221 (Vt. 1975) .............. |

State v. Deal, 358 S.E.2d 226 (W. Va. 1987) .......... 25

State v. Dorthey, 623 So. 2d 1276 (La. 1993) .......... 25

State v. Harrington, 990 P.2d 144

(Idaho Ct. App. 1999) ......0000000000000... 14, 20

State v. Hayes, 739 So. 2d 301 (La. Ct. App. 1999) ..... 25

State v. Lewis, 447 S.E.2d 570 (W. Va. 1994) ......... 25

State v. Lindsey, 770 So. 2d 339 (La. 2000),

cert. denied, 532 U.S. 1010 (2001) ............... 24

United States v. Bajakajian, 524 U.S. 321 (1998) ........ 5

Wanstreet v. Bordenkircher, 276 S.E.2d 205

Ge Wb UEP Sndbsisucceshaddidedessuccses. 25

Weems v. United States, 217 U.S. 349 (1910)) .......... 4

Witte v. United States, 515 U.S. 389 (1995) ............ 7

iV

TABLE OF AUTHORITIES — Continued

Page(s)

Constitution, Statutes and Regulations, and Court Rules:

i i I ie tide vandniated 9

Ala. Code § 13A-5-9(c)(2) (West 2001) ...........05. 18

Ala. Code § 13A-8-3 (West 2001) ...........-..0008: 18

Ala. Code § 15-22-28 (West 2001) ..........-...005: 18

Alaska Stat. § 12.55.125 (West 2001) ............005- 16

Ariz. Rev. Stat. § 13-604 (West 2002) .............5. 16

Ariz. Rev. Stat. § 13-701(A) (West 2001) ...........-. 11

Ariz. Rev. Stat. § 13-701(C)(4) (West 2001) ........... 11

Ark. Code Ann. § 5-4-501 (West 2001) ............-. 19

Ark. Code Ann. § 16-93-608 (West 2001) ............ 19

Cal. Penal Code § 18 (West 1994) .............-0005: 10

Cal. Penal Code § 489(b) (West 1994) .............5. 10

Cal. Penal Code § 667(a) (West 1994) ............ 12, 22

Cal. Penal Code § 667(a)(1) (West 1994) ...........5. 12

Cal. Penal Code § 667(a)(2) (West 1994) ............. 12

Cal. Penal Code § 667(e)(2)(A) (West 1994) .......... 22

Cal. Penal Code § 667.5(c)(1) (West 2001) ............ 12

Cal. Penal Code § 667.5(c)(12) (West 2001) ........... 12

Cal. Penal Code § 667.5(c)(14) (West 2001) .........-. 12

Cal. Penal Code § 1192.7(c)(1) (West 2001) ........... 12

Cal. Penal Code § 1192.7(c)(9) (West 2001) ........--. 12

mia wees ST .

my z A Tt ee ;

ot Ps ae

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TABLE OF AUTHORITIES — Continued

Page(s)

Cal. Penal Code § 1192.7(c)(20) (West 2001) .......... 12

Cal. Penal Code § 1192.7(c)(31) (West 2001).......... 12

Colo. Rev. Stat. § 16-13-01 (West 2001)........... 14, 16

Conn. Gen. Stat. § 53a-40 (West 2001) ........... 16, 17

Conn. Gen. Stat. § 53a-40(h) (West 2001) ............ 22

D.C. Code § 22-1804 (West 2001) ...........0.0005. 14

D.C. Code § 22-1804(a) (West 2001) ................ 14

Del. Code Ann. tit. 11, § 4205 (2001) ................ 11

Del. Code Ann. tit. 11 § 4214(a) (West 2001) .......... 23

Fla. Stat. Ann. §775.084 (West 2001) ................ 16

Ga. Code Ann. §16-8-2 (West 2001) ................. 11

Ga. Code Ann. §16-8-12(a)(1) (West 2001) ........... 11

Ga. Code Ann. §17-10-3 (1999) .......0..0.0000000. 11

Ga. Code Ann. § 17-10-7 (West 2001) ............ 16, 17

Haw. Rev. Stat. § 706-605.5 (West 2001) ............. 16

Idaho Code § 18-2408(3) (Michie 1997) .............. 11

Idaho Code § 19-2514 (West 2001) .................. 16

720 Ill. Comp. Stat. § 5/33B-1 (West 2002) ........ 14, 16

Ind. Code Ann. § 35-50-2-7(a) (Michie 1998).......... 11

Ind. Code Ann. § 35-50-2-8 (West 2001) .......... 14, 16

lowa Code § 902.8 (West 2002) ............0.0.00.. 16

Kan. Stat. Ann. § 21-4704 (West 2001)............ 11, 16

vi

TABLE OF AUTHORITIES — Continued

Page(s)

Ky. Rev. Stat. Ann. § 532.080 (West 2001) ........ 16, 17

La. Rev. Stat. Ann. § 15:529.1 (West 2001) ........... 23

Md. Code Ann. Art. 27 § 643B (West 2001)........ 14, 16

Mass. Gen. Laws Ch. 279, § 25 (West 2002) .......... 14

Me. Rev. Stat. Ann. Tit. 17-A, § 1252 (West 2001) .. 14, 16

Me. Rev. Stat. Ann. tit. 17-A, § 1252(2)(D)

ee SO ae eere err re ou

Mich. Comp. Laws § 769.12 (West 2002) ............. 16

Mich. Stat. Ann. §769.12 (West 2002) ............... 23

Minn. Stat. Ann. § 609.1095 (West 2001) .......... 14, 16

Miss. Code Ann. § 99-19-81 (West 2001) .......... 14, 20

Mo. Rev. Stat. §558.011 (West 2002) ................ 19

Mo. Rev. Stat. § 558-016 (West 2002) .............-. 19

Mont. Code Ann. § 46-18-501 (West 2001) ........... 19

Mont. Code Ann. § 46-18-501-2 (West 2001) .......... 19

Mont. Code Ann. § 46-23-201 (West 2001) ........... 19

N.C. Gen. Stat. § 14-7.1 (West 2001) .......... 14, 17, 20

N.C. Gen. Stat. § 14-7.6 (West 2001) .......... 14, 17, 20

N.C. Gen. Stat. §14-72(a) (1999)... 0.2... cece eee eee 1

N.C. Gen. Stat. § 15A-1340.17(c) (1999) ............. 1

Vii

TABLE OF AUTHORITIES — Continued

Page(s)

N.C, Gen. Stat. § 1SA-1340.17(d) (1999) ............. 1]

N.D. Cent. Code § 12.1-32-09 (West 2001) ........... 17

N.H. Rev. Stat. Ann. § 651:6 (West 2001) ......... 14, 20

N.J. Stat. Ann. § 2C:20-11(c) (West 1995)

ED oe i eed Oe eeeen enc edeneees es 1]

N.J. Stat. Ann. § 2C:44-3 (West 2002) ......... 14, 16, 20

N.M. Stat. Ann. § 31-18-15(A)(6) (Michie 2000) ....... 1]

N.M. Stat. Ann. § 31-18-17 (West 2001) .......... 16, 17

N.Y. Penal Law § ,J.06 (McKinney 2002) ............ 17

Neb. Rev. Stat. § 29-2221 (West 2001) ............ 14, 20

Nev. Rev. Stat. § 207.010(1)(b) (West 2001) ....... 21,22

Ohio Rev. Code Ann. § 2929.14(A)(5) (West 2001) ..... 1]

Okla. Stat. Ann. Tit. 21, § 51.1 (West 2001) ........... 23

18 Pa. Cons. Stat. Ann. § 1104(3) (West 1998)......... 1]

42 Pa. Stat. Ann. § 9714 (West 2002) ............. 14, 16

R.I. Gen. Laws § 12-19-21 (West 2001) ........... 14, 20

S.C. Code Ann. § 17-25-45 (West 2001) ........... 14, 16

SP tu cceddndsdsdbcdiaekedediesecuseséees l

S.D. Codified Laws § 22-7-8 (Michie 2001) ........... 23

Tenn. Code Ann. § 40-35-106 (West 2001) ........... 17

Tex. Gen. Laws § 12.43 (West 2001) ................ 19

Tex. Gov’t § 508.145 (West 2001) ..............0.4.. 19

en

Vill

TABLE OF AUTHORITIES — Continued

(1999 WL 2147545) .. 0... ccc cee cee eee

Marc Mauer, Why Are Tough On Crime Policies

So Popular?, 11 STAN. L. & POL’y REV. 9

Page(s)

Tex. Penal Code Ann. § 12.21(2) (Vernon 2002) ....... 1]

Utah Code Ann. §76-3-203.5 (West 2001) ......... 14, 16

Va. Code Ann. § 19.2-297.1 (West 2002) .......... 14, 16

~ Vt. Stat. Ann. tit. 13, § 11 (West 2001) ............ 18, 22

Vt. Stat. Ann. tit. 13, § 501 (West 2001) ........... 18, 22

W. Va. Code § 61-3-13 (West 2001) ...........55555- 25

W. Va. Code § 61-3A-1 ef seg. (West 2001) ........... 25

W. Va. Code § 61-11-18 (West 2001) ............. 19, 26

W. Va. Code § 62-12-13(c) (West 2001) ........... 19, 25

Wash. Rev. Code § 9.944.030 (West 2002) ........ 14, 16

Wash. Rev. Code § 9.944.570 (West 2002) ........ 14, 16

Wis. Stat. Ann. § 939.62 (West 2001) ............455. 17

Wy. Stat. Ann. § 6-10-201 (West 2002) ........... 14, 16

Miscellaneous:

Linda S. Beres & Thomas D. Griffith, Habitual

Offender Statutes and Criminal Deterrence,

34 CONN. L. REV. 55 (2001)... 2... eee eee eee eee 15

CAL. DEP’T OF CORRECTIONS, SECOND AND

THIRD STRIKERS IN THE INSTITUTION

POPULATION (March 31, 2002) ..........005eee eee 2

Dave Lesher, Davis Takes Hard Line on Parole for

Killers, L.A. TIMES, April 9, 1999, at A3 ”

a

| . a

Se te tt il wa a

i

rR

|

ix

TABLE OF AUTHORITIES — Continued

Page(s)

Mike Males & Dan Macallair, Striking Out:

The Failure Of California's “Three Strikes And

You're Out” Law, 11 STAN. L. & POL’y REV.

DE Cue iet er whtetcd a bsveleesedeacess 9

U.S. DEP’T OF JUSTICE, “THREE STRIKES

AND YOU’RE OuT”: A REVIEW OF

STATE LEGISLATION (Sept.1997) ...............05. 2

Paul Van Slambrouck, Getting Even Ti ougher,

Christian Science Monitor, May 22, 2000

ae ee 18

Michael Vitiello, Three Strikes: Can We Return

to Rationality?, 87 J. CRIM. L. & CRIMINOLOGY

PE £48C4K46 backs Gebeb end itidus eawake 15

Ree ele ©

saw e

'

BRIEF FOR FAMILIES AGAINST MANDATORY

MINIMUMS AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

Families Against Mandatory Minimums Foundation

(“FAMM7”) isa nonprofit, nonpartisan association that conducts

research, promotes advocacy, and educates the public about

sentencing laws.' It was founded in 1991 to challenge

inflexible and excessive penalties required by mandatory

minimum sentencing. FAMM’s 26,000 members include

prisoners and their families, attorneys, judges, criminal justice

experts, and concerned citizens.

FAMM is a leading voice for sentencing justice and

sentencing reform. It conducts workshops for its members,

publishes a newsletter, maintains a website, serves as a

clearinghouse for the media, researches and places cases for pro

bono litigation, litigates individual cases as amicus curiae and

counsel of record, and provides input to the U.S. Sentencing

Commission on guideline amendments and reform.

FAMM doés not argue that crime should go unpunished,

but that the punishment should fit the crime. FAMM has been

particularly concerned with the application of the California

Three Strikes statute in cases in which the mandatory sentence

of life with parole eligibility only after 25 years is grossly

disproportionate to the offense. The application of the manda-

tory minimum sentencing scheme in this case has passed

beyond the realm of policy debate to the point that enforcement

of constitutional norms by this Court is necessary.

> a

' No counsel for a party authored this brief in any part. No person,

other than Families Against Mandatory Minimums and its counsel,

has made a monetary contribution to the preparation or submission

of this brief. See S. Ct. R. 37.6.

2

INTRODUCTION AND SUMMARY OF ARGUMENT

Petitioner Gary Ewing received a sentence of 25 years to

life in state prison for shoplifting three golf clubs, a crime so

insignificant that California law permits it to be treated as a

misdemeanor. Ewing will not be eligible for parole for at least

25 years, and even then, his chance of being paroled is

practically nil. Ewing’s situation is not unique in California,

though it is unique fo California, or nearly so. Two Justices of

this Court observed last year that “some 319 California

prisoners are now serving sentences of 25 years to life for what

would otherwise be misdemeanor theft under the California

scheme.” Durden v. California, 531 U.S. 1184, 1184 (2001)

(Sewer and Breyer, JJ., dissenting from denial of certiorari).

That number is now 344. See CAL. DEP’T OF CORRECTIONS,

SECOND AND THIRD STRIKERS IN THE INSTITUTION POPULATION

2 (March 31, 2002). Indeed, the United States Department of

Justice concluded that a “majority of California inmates have

been sentenced [under the Three Strikes law] for non-violent

crimes.” U.S. DEP’T OF JUSTICE, “THREE STRIKES AND YOU’RE

OuT”: A REVIEW OF STATE LEGISLATION 5 (Sept. 1997)

(emphasis added). That is still true. See CAL. DEp’T OF

CORRECTIONS, supra, at 2-3. Indeed, of 7,167 persons now

serving third-strike life terms, nearly 700 were imprisoned for

theft, and a similar number were sentenced for simple drug

possession. See ibid’

As the Court recently confirmed, “[t]he Eighth Amendment

succinctly prohibits ‘excessive’ sanctions.” Atkins v. Virginia,

No. 00-8452, 536 U.S. __, slip op. at 5 (June 20, 2002).

> In addition to the 344 persons convicted of petty theft, 108 persons

convicted of grand theft and 217 convicted of automobile theft are

now serving life sentences with a mandatory minimum of 25 years

_— parole eligibility. See CAL. DEP’T OF CORRECTIONS, supra, at

ROA ES

3

Excessiveness in sentences assessed in terms of years, like

other forms of unconstitutional excessiveness, is measured by

the proportionality of the punishment to the offense. A life

sentence without possibility of parole for 25 years is grossly

and_unconstitutionally disproportionate to the crime of theft.

Even when the value of the goods stolen permits classification

of the crime as a felony, non-violent theft is not among the

more serious offenses. California itself treats the crime as a

“wobbler,” that is, either a misdemeanor or a felony at the

option of the prosecutor and the court. While criminal history

may justify a sentence at the high end of those constitutionally

proportionate to the crime, shoplifting does not become the

equivalent of rape or murder because the offender had a

criminal past. Past crimes cannot be punished twice. Thus, no

matter how serious the past crimes, the sentence for a present

crime cannot be wholly disproportionate to that particular

crime, as Ewing’s sentence is here.

Ewing’s subjection to life imprisonment without possibility

of parole for 25 years results from the confluence of several

aspects of California’s Three Strikes law. California’s law is

the only one in the country that combines all of the following

characteristics: (i) it does not require the third strike to be a

serious or violent offense; (ii) it imposes a minimum sentence

of 25 years; (iii) it excludes meaningful opportunities for

parole; (iv) it does not require the prior “strikes” to have been

tried or punished on separate occasions; and (v) it strictly limits

sentencing judges’ discretion to impose lesser sentences. In a

number of cases, including this one, that combination of factors

yields sentences that are “excessive punishments” of the type

prohibited by the Eighth Amendment. Atkins, 536 U.S. __, slip

op. at 6 n.7.

This combination of factors is specific to California’s

application of its one-size-fits-all mandatory minimum

sentencing scheme to minor crimes. Thus, a ruling in

4

petitioner’s favor would not undermine recidivist provisions

generally. Few, if any, inmates in other States could presenta

similar case. The few other States whose laws might facially

permit a similar sentence for a similar crime in practice appear

to do so with exceeding rarity, while California now confines

more thar 700 persons under sentences of life without

possibility of parole for 25 years for non-violent theft crimes.

Cal “omia’s skewed sentencing mechanism has produced an

egregiously disproportionate sentence that violates the Eighth

Amendment and that therefore cannot stand.

ARGUMENT

It is a cardinal “precept of justice that punishment for crime

should be graduated and proportioned to the offense.’” Atkins,

536 U.S. __, slip op. at 6 (quoting Weems v. United States, 217

U.S. 349, 367 (1910)). “[A] criminal sentence must be

proportionate to the crime for which the defendant has been

convicted.” Solem v. Helm, 463 U.S. 277, 290 (1983)

(emphasis added). This fundamental principle, which has its

origins in the Magna Carta, “is deeply rooted and frequently

repeated in common-law jurisprudence.” /d. at 284. As the

Court of the King’s Bench declared nearly 400 years ago,

“imprisonment ought always to be according to the quality of

the offence.” Hodges v. Humkin, 2 Bulst. 139, 140, 80 Eng.

Rep. 1015, 1016 (K.B. 1615) (quoted in Solem, 463 U.S. at

285). Equally “deeply rooted” is the Due Process “principle

that punishment should fit the crime.” BMW v. Gore, 517 U.S.

559, 575 n.24 (1996).

This Court has “repeatedly applied this proportionality

precept” in Eighth Amendment cases of all kinds. Atkins, 536

US. _, slip op. at 6. That is not to say that the Constitution

requires precise proportionality in sentencing. But it is beyond

dispute that punishments that are “grossly disproportional to the

gravity” of the offense violate the Eighth Amendment. Cooper

5

Industries v. Leatherman Tool Group, Inc., 532 U.S. 424, 434

(2001) (quoting United States v. Bajakajian, 524 U.S. 321, 334

(1998)). See also, e.g., Harmelin v. Michigan, 501 U.S. 957,

997-98 (1991) (Kennedy, J., joined by O’Connor & Souter, JJ.,

concurring).

“A claim that punishment is excessive is judged not by the

standards that prevailed in 1685 when Lord Jeffreys presided

over the ‘Bloody Assizes’ or when the Bill of Rights was

adopted, but rather by those that currently prevail.” Atkins, 536

U.S. __, slip op. at 6. This Court has identified three factors to

be considered in assessing the proportionality — and thus the

constitutionality — of a criminal sentence: “(i) the gravity of

the offense and the harshness of the penalty; (ii) the sentences

imposed on other criminals in the same jurisdiction; and (ili)

the sentences imposed for commission of the same crime in

other jurisdictions.” Solem, 463 U.S. at 292. Accord Cooper

Industries, 532 U.S. at 434; Harmelin, 501 U.S. at 1004-1005

(Kennedy, J., concurring).

The first comparison is the most important: measuring the

sentence of life without the possibility of parole for 25 years

against the gravity of the current crime, shoplifting expensive

merchandise. See Harmelin, 501 U.S. at 997-1005 (Kennedy,

J., concurring). The other comparisons provide objective

confirmation for what in this case is obvious: the sentence of

life without the possibility of parole for 25 years is grossly

disproportionate to the crime of theft even against the backdrop

of an array of prior offenses. The sentence accordingly is

unconstitutional.

6

A. A Sentence of Life Without Possibility Of Parole For

25 Years Is Grossly Disproportionate To The Crime

Of Non-Violent Theft

A “comparison of the crime committed and the sentence

imposed” is the “threshold” test of a disproportionate sentence.

Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring). Ewing’s

sentence of a minimum of 25 years without parole for

shoplifting golf clubs clearly crosses that threshold.

1. The primary benchmark against which the proportion-

ality of a sentence is measured is the nature of the current

offense for which the defendant is being punished. If that crime

is non-violent and relatively minor, the defendant’s past

offenses cannot justify a draconian sentence. Although “a State

is justified in punishing a recidivist more severely than it

punishes a first offender,” and a defendant’s “prior convictions

are relevant to the sentencing decision,” courts reviewing a

claim of cruel and unusual punishment “must focus on the

principal felony * * * since [the defendant] already has paid the

penalty for each of his prior offenses.” Solem, 463 U.S. at 296

& n.21 (emphasis added). Where the legislature considers the

principal crime to be so minor that it is often charged and

punished as a misdemeanor, that focus should be all the

sharper. The Constitution permits recidivist statutes to subject

repeat offenders to harsher punishment for their most recent

crimes, but not to punish them again for previous crimes.

Thus, California cannot constitutionally impose upon a

recidivist who commits grand theft an enhanced sentence that

exceeds the permissible maximum for that crime. Just as the

“sanction” of a 90-day jail term for drug addiction “would be

excessive,” Atkins, 536 U.S. __, slip op. at 6, “[e]ven one day

in prison would be a cruel and unusual punishment for the

‘crime’ of having a common cold.’” Solem, 463 U.S. at 287

(quoting Robinson v. California, 370 U.S. 660, 667 (1962)).

tn UN et OO Mr les

7

This Court has noted that a sentence of life imprisonment

for the crime of overtime parking would violate the Eighth

Amendment. See Rummei v. Estelle, 445 U.S. 263, 274 n.11

(1980). That would be true even if the driver of the vehicle had

a long rap sheet. The driver’s criminal history might justify an

enhanced penalty, perhaps even a brief stay behind bars. But

even if the driver were John Gotti, a State could not constitu-

tionally rely on that history to impose upon him a sentence of

the sort usually reserved for murder, for the crime of failing to

place another quarter in a parking meter, or jaywalking, or

littering — or shoplifting golf clubs.

There is a compelling reason why the constitutionality of a

defendant's sentence must be measured by the crime for which

he is being punished, and not solely by his status as a repeat

offender. “[{I}n order to avoid double jeopardy concerns,” this

Court has “repeatedly emphasized” that under recidivist

sentencing schemes “the enhanced punishment imposed for the

[present] offense ‘is not to be viewed as * * * [an] additional

penalty for the earlier crimes,’ but instead as ‘a stiffened

penalty for the latest crime, which is considered to be an

aggravated offense because it is a repetitive one.’ Witte v.

United States, 515 U.S. 389, 400 (1995) (quoting Gryger v.

Burke, 334 U.S. 728, 732, (1948)).” Riggs v. California, 525

U.S. 1114, 1114 (1999) (op. of Stevens, J., respecting denial of

certiorari).°

But the penalty, wh'!= “stiffened,” nonetheless is a penalty

for the current offense, not the prior ones. As the Court

observed more than a century ago, under the enhanced penalties

imposed by a recidivist statute, “the accused is not again

> The former petitioner in Riggs is currently serving a sentence of 25

years to life for shoplifting a bottle of vitamins. That sentence also

results from the interaction of the Three Strikes law and a wobbler

statute. 525 U.S. at 1114.

punished for ihe first offence”; rather, “the punishment is for

the last offence committed, and it is rendered more severe in

consequence of the situation into which the party had

previously brought himself.” Moore v. Missouri, 159 U.S. 673,

677 (1895) (internal quotation marks omitted).

Accordingly, the fact that Ewing s prior offenses involved

the potential for violence cannot render his current sentence

constitutional, because his principal crime is a non-violent

one.* The Ninth Circuit has reasoned that “[wJhere the crime

of conviction is a violent one, a more severe recidivist

sentencing scheme for defendants with past convictions for

violent crimes would simply reflect a judgment that such

individuals cannot curb their violence and should therefore be

imprisoned for at least a lengthy time and for as long as life.

But where, as here, the present conviction does nor demonstrate

continued proclivity towards involvement in violent crime,

distinguishing between criminals convicted for non-violent

offenses on the basis of their past violence would run up

against compelling Double Jeopardy Clause considerations.”

Brown v. Mayle, 283 F.3d 1019, 1035 (9 Cir.), petition for

cert. filed, 70 USLW 3643 (Mar. 7, 2002) (No 01-1487).

Ewing’s sentence cannot be justified on the basis of the

State’s desire to incapacitate an individual with a continued

propensity to commit violent crimes, because the crime for

which Ewing has been sentenced did not demonstrate any such

propensity. To the contrary, one who commits a non-violent

crime after having a more violent history would seem to be

moving in tie right direction, still warranting punishment, but

* Ewing accumulated all of his prior strikes in a single criminal

proceeding in 1993, in which he was convicted of three counts of

burglary and one count of robbery. Two of the burglaries were non-

violent. At the third, he brandished a knife; accordingly, that

burglary was also charged as a robbery.

9

not on the scale of a violent offender.” Imprisoning a non-

violent offender for more than 25 years on the basis of his past

crimes of violence necessarily would impose an “additional

penalty for [his] earlier crimes,” for which he has already been

punished. Gryger, 334 U.S. at 732; see Solem, 463 U.S. at 297

n.21; Riggs, 532 U.S. at 1114 (op. of Stevens, J., respecting

denial of certiorari).° See also U.S. Const. amend. V.

2. In striking down a life sentence for passing a $100 “no

account” check, this Court emphasized that although the

* Bizarrely, had Ewing escalated his wrongdoing sequentially from

shoplifting, to burglary, to robbery, his sentence for robbery in that

event would be less than his sentence for shoplifting here, since the

shoplifting would not qualify as a strike. That is not the only

perverse effect of the California scheme. Because the California

Three Strikes Law applies to nonviolent crimes and lacks a “wash out

period” after which old prior convictions do not count as strikes,

many of the inmates serving long sentences under California’s Three

Strikes law are older felons who are less likely to be dangerous than

young, violent offenders. See Mike Males & Dan Macallair, Striking ~

Out: The Failure Of California's “Three Strikes And You're Out”

Law, 11 STAN. L. & POL’y REV. 65, 67 (1999) (two thirds of

offenders sentenced to life without possibility of parole for 25 years

under Three Strikes law were between the ages of 30 and 50 at the

time of admission to prison).

* As the Brown court observed (283 F.3d at 1037), moreover, the

California statute itself

does not distinguish between serious and violent prior offenses.

Rather, Three Strikes references other sections of the California

Penal Code, which exist for other purposes, to define what

felonies count as prior strikes. * * * Although certain of these

offenses * * * are labeled as violent, * * * [while others] are

labeled as serious, the category into which prior convictions fit

has absolutely no bearing on the application or length of a Three

Strikes sentence.

10

defendant was sentenced as a habitual offender for having

committed his seventh felony, his principal felony was “viewed

by society as among the less serious offenses.” Solem, 463

U.S. at 296. The sentence upheld in Harmelin, by contrast, was

for possession of wholesale quantities of pure cocaine — a

crime “far more grave than the crime at issue in Solem.” 501

U.S. at 1001 (Kennedy, J., concurring). While the crime in

Harmelin “threatened to cause grave harm to society,”

shoplifting golf clubs is a “relatively minor, nonviolent crime,”

Id. at 1002 (Kennedy, J., concurring), that is “among the less

serious offenses,” Solem, 463 U.S. at 296, no matter who the

shoplifter may be. Ewing’s record may provide a context that

makes his shoplifting a more serious transgression than a first

offense would be, but it is still shoplifting.

In determining whether Ewing’s crime is “among the less

serious offenses,” the Court should focus on the actual conduct

at issue, and not on the label placed on that conduct by the

State. Solem, 463 U.S. at 296. The “absolute magnitude” of an

offense is an objective consideration relevant to determining its

gravity. Id. at 293.

Thus, calling shoplifting a felony instead of a misdemeanor

does not alter the fact that the infraction is viewed by society as

a relatively minor one. While California’s “wobbler” provision

permits Ewing’s theft of three golf clubs to be charged either as

a misdemeanor or as a felony, that very flexibility demonstrates

ambivalence about the gravity of the crime even in that State.’

Ewing’s principal crime is not one that is universally recog-

nized as serious and “punishable by significant terms of

imprisonment in a state penitentiary.” Rummel, 445 U.S. at

” Standing alone, Ewing’s grand theft conviction would have

resulted in a sentence of no more than three years, and might have

garnered as little as 16 months. Cal. Penal Code §§ 489(b), 18 (West

2001).

PE aia Se ally ag i ee A Rai RE etc

A, ee ORR nt he Be oe he

11

274.* To the contrary, some States treat theft of property worth

$1,200 as a misdemeanor, and most of the other States treat it

as a low-grade felony. As a consequence, this offense most

often is punished with short — even minimal — sentences.”

Indeed, some shoplifters in California serve only misdemeanor

* Ewing’s shoplifting offense did not “involve[] injury to one’s

person, threat of injury to one’s person, violence, the threat of

violence, or the use of a weapon. Nor does the commission of [that

crime] ordinarily involve a threat of violent action against another

person or his property.” Rummel, 445 U.S. at 295 (Powell, J.,

dissenting).

* See, e.g. Ariz. Rev. Stat. § 13-701(A), (C4) (West 2001)

(classifying offense as Class 5 felony punishable by one and one-half

years in penitentiary); Del. Code Ann. tit. 11, § 4205 (2001) (Class

G felony punishable by not more than two years), Ga. Code Ann. §§

16-8-2, 16-8-12(a)(1), 17-10-3 (1999) (wobbler — ——

to 12 months in county jail or | to years in

pt do Idaho Code § 18-2408(3) (Michie 1997) (misdemeanor

punishable by not more than one year in county jail); Ind. Code Ann.

§ 35-50-2-7(a) (Michie 1998) (Class D felony punishable by one and

one-half years in prison); Kan. Stat. Ann. § 21-4704(a) (West 2001)

(assigning “severity level nine” to offense, which is punishable by 9

to 11 months in prison); Me. Rev. Stat. Ann. tit. 17-A, § 1252(2)(D)

(West Supp. 2001) (Class D crime punishable by less than one year

in prison); N.J. Stat. Ann. § 2C:20-11(c) (West 1995) (amended

2000) (disorderly persons offense punishable by no more than Six

months in prison); N.M. Stat. Ann. § 31-18-15(A)(6) (Michie 2000)

(fourth degree felony punishable by 18 months in prison); N.C. Gen.

Stat. §§ 15A-1340.17(c), (d); 14-72(a) (1999) (Class H_ felony

punishable by one year to 30 months in prison), Ohio Rev. Code

Ann. § 2929.14(A)(5) (West 2001 ) (fifth degree felony punishable by

six to 12 months in prison); 18 Pa. Cons. Stat. Ann. § 1104(3) (West

1998) (first degree misdemeanor punishable by not more than one

year in prison); Tex. Penal Code Ann. § 12.21(2) (Vernon 2002)

(Class A misdemeanor punishable by not more than one year).

12

terms in the county jail even when convicted of grand theft, as

Ewing was here.

3. The unconstitutional result in this case stems in part

from the fact that California’s recidivist statute, unlike those of

other jurisdictions, shifts the focus almost entirely away from

the principal crime. Under California’s Three Strikes Law, any

felony — major or minor, violent or non-violent — can serve

as the third strike that triggers a sentence of life in prison with

no possibility of parole for at least 25 years."® That is so even

if the “felony” is so marginal that, like the theft in this case, it

is not even consistently categorized as a felony at all.

The California statute enumerates the broad set of felonies

that the State considers sufficiently “serious” or “violent” to

serve as first and second “strikes.” Cal. Penal Code §§

667.5(c)(1), (12), (14); 1192.7(c\(1), (9), (20), (31) (West

2001). If the defendant’s prior offenses were among those

enumerated on the list, he is subject to a life sentence,

regardless of the nature of the principal felony. Thus,

Ewing’s conviction for grand theft produced a sentence of life

without the possibility of parole for 25 years even though grand

theft itself could not even count as a “strike.” The California

scheme’s nearly complete reliance on the nature of the crimes

for which a defendant already has been punished, rather than on

the gravity of the offense for which he currently is being

'° By contrast, before the Three Strikes Law, California’s recidivism

scheme imposed 20 years to life for a third violent felony conviction

if the defendant served separate prison terms for the first two

sentences, and provided life without parole for the fourth violent

felony conviction. Cal. Penal Code § 667(a)(1), (2) (West 1994).

Under the current scheme, a defendant with a violent third strike and

violent priors receives an additional consecutive five-year term for

each prior, further enhancing the focus on past rather than present

conduct. See Cal. Penal Code § 667(a) (West 2001).

13

sentenced, causes the Three Strikes law to produce sentences

that fail even the narrow constitutional proportionality test once

“focus” properly rests “on the principal felony.” Solem, 463

U.S. at 296 n.21.

B. Ewing’s Sentence Is Excessive When Compared To

Punishments Imposed For The Same Crime In-

Other Jurisdictions.

Once “a threshold comparison of the crime committed and

the sentence imposed leads to an inference of gross dispropor-

tionality,” a “comparative analysis of sentences” for other

crimes in the same jurisdiction is appropriate, as is a similar

analysis of sentences for the same crime in other States.

Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring). Having

nothing to add to the petitioner’s persuasive treatment of the

intrajurisdictional analysis, we focus on a few salient points

arising from the interjurisdictional comparison. That analysis

reveals that except for Mississippi — which would not have

applied its maximum recidivist penalty to Ewing on the basis

of his history — no State imposes a mandatory minimum for

grand theft shoplifting that even approaches the 25 years

without parole imposed on Ewing.

This Court recently reaffirmed the importance of the inter-

jurisdictional comparison in the evaluation of an Eighth

Amendment claim. The “clearest and most reliable objective

evidence of contemporary values is the legislation enacted by

the country’s legislatures.” Atkins, 536 U.S. __, slip op. at 7

(internal quotation marks omitted). Accordingly, that

California stands nearly alone in punishing shoplifting by a

recidivist with a mandatory mihimum sentence of life in prison

, 14 15

shoes could be sentenced as a recidivist, the resulting sentence

would be substantially shorter than that imposed by California

in this case.

Several variables determine the impact of each State’s

recidivist statute. Many commentators have noted that

without the possibility of parole for 25 years is highly probative

of that penalty’s unconstitutionality. ''

4 _ To our knowledge, no other State would impose a term of

| imprisonment that approaches the severity of the 25 years to

| life sentence — with no possibility of parole — imposed on

) Ewing for the crime of shoplifting three golf clubs with his California’s Three Strikes Law is more draconian than that of

| record of prior offenses. In many States, Ewing’s theft would virtually any other State because its legislature took the

y| not qualify him for the increased penalties applicable to a ; harshest possible position on nearly every pertinent variable.

BI habitual offender.'? Even in States where a thief in Ewing’s See, e.g., Michael Vitiello, Three Strikes: Can We Return to __

Rationality?, 87 J. CRIM. L. & CRIMINOLOGY 395, 402 (1997);

Marc Mauer, Why Are Tough On Crime Policies So Popular?,

;

:

4

:

;

?

;

}

'' In light of the Court’s instruction that the constitutionality of a ,

punishment must be measured against the “evolving standards of 11 STAN. L. & Pou’y REV. 9, 11-12 (1999); Linda S. Beres &

decency,” see Atkins, 536 U.S. __, slip op. at 6 (emphasis added) Thomas D. Griffith, Habitual Offender Statutes and Criminal

(citation and internal quotation marks omitted), the analysis that Deterrence, 34 CONN. L. REV. 55, 55-57 (2001).

follows is based upon the current versions of the States’ sentencing Thet ia not t that harshness equates with unconstitu

at 1s not to say E

i a a i ee el

Ee ee 2 ee

schemes, not those in place in 1994, when Ewing was sentenced. The

differences are not substantial. tionality. Many sentences may be long, even harsh, but

of constitutional. But Ewing’s sentence results from a bizarre,

| * Of the 48 States (plus the District of Columbia) with general | synergistic reaction among at least five factors: (i) the offenses

4 recidivist statutes, 22 jurisdictions would not apply enhancements that qualify as a third strike; (ii) the length of the sentence

“| under those statutes based upon Ewing’s principal crime and criminal | imposed; (iii) the availability of parole; (iv) the treatment of

4 history. See Colo. Rev. Stat. § 16-13-01 (West 2001); Buckingham closely related offenses as separate “strikes”; and (v) the

v. State, £62 A.26 327 (Del. 1984); D.C. Code §§ 22-1804, 1804(a) discretion afforded to sentencing courts. That confluence, in

4 (West 2001); State v. Harrington, 990 P.2d 144 (Idaho Ct. App. this case, has produced a grossly disproportionate — and hence

1999); 720 Ill. C . Stat. § 5/33B-1 (West , .C - Aelita

) —— : (West 2002); Ind. Code § 35 unconstitutional — sentence.

‘ 50-2-8 (West 2001); Me. Rev. Stat. Ann. Tit. 17-A, § 1252 (West

3 2001); Md. Code Ann. Art. 27 § 643B (West 2001); Mass. Gen. Laws 1. Grand theft as a third strike. Of course, if the most

Ch. 2”, § 25 (West 2002); Minn. Stat. Ann. § 609.1095 (West significant enhancements for recidivism do not apply with full

: 2001); Miss. Code Ann. § 99-19-81 (West 2001); Neb. Rev. Stat. § force to minor crimes, there is far less risk that a sentence

: 29-2221 (West 2001); N.H. Rev. Stat. Ann. § 651:6 (West 2001); satienh ter @ cacliintem caamenans ot te Guedty and

4 N.J. Stat. Ann. § 2C:44-3 (West 2002); N.C. Gen. Stat. §§ 14-7.1, 14- P y

unconstitutionally disproportionate to the crime of conviction.

7.6 (West 2001); 42 Pa. Stat. Ann. § 9714 (West 2002); R.I. “a ca :

( ) why =" a Twelve States minimize the risk of unconstitutional results in

Laws § 12-19-21 (West 2001); S.C. Code Ann. § 17-25-45 (West

2001); Utah Code Ann. § 76-3-203.5 (West 2001); Va. Code Ann. §

19.2-297.1 (West 2002); Wash. Rev. Code §§ 9.944.030, 9.944.570

(West 2002); Wy. Stat. Ann. § 6-10-201 (West 2002). Some of these record, but the resulting sentences would not raise constitutional

states would apply a variety of lesser enhancements based on Ewing’s concems.

pi,

16

this way by providing that only the most serious and violent

felonies trigger the heavy penalties imposed by their habitual

offender statutes; theft is not among those crimes.'”

2. 25-year-to-life sentence for grand theft with priors.

Although 35 States treat theft of property worth $1,200 as an

offense triggering an enhanced penalty, the majority of those

States ensure that those penalties are proportionate to the

gravity of the offense.'* Accordingly, in the majority of those

States, Ewing would receive a maximum sentence far shorter

than life in prison without possibility of parole for 25 years.”

'> See Colo. Rev. Stat. § 16-13-01; 720 Ill. Comp. Stat. § 5/33B-1;

Ind. Code § 35-50-2-8; Me. Rev. Stat. Ann. Tit. 17-A, § 1252; Md.

Code Ann. Art. 27 § 643B; Minn. Stat. Ann. § 609.1095; 42 Pa. Stat.

Ann. § 9714; S.C. Code Ann. § 17-25-45; Utah Code Ann. § 76-3-

203.5; Va. Stat. § 19.2-297.1; Wash. Rev. Code §§ 9.94A.030,

9.944.570; Wy. Stat. Ann. § 6-10-201.

'* In nine of those States and the District of Columbia, however,

Ewing’s record would not expose him to repeat-offender treatment.

See pages 20-21 infra.

'S See Alaska Stat. § 12.55.125 (West 2001) (three to five years;

presumptive sentence of three years); Ariz. Rev. Stat. § 13-604 (West

2002) (4 to 6 years; presumptive sentence of five years); Conn. Gen.

Stat. § 53a-40 (West 2001) (one to ten years); Fla. Stat. Ann. §

775.084 (West 2001) (up to ten years); Ga. Code Ann. § 17-10-7

(West 2001) (ten years); Haw. Rev. Stat. § 706-605.5 (West 2001)

(twenty months); Idaho Code § 19-2514 (West 2001) (inapplicable

as a result of judicially-imposed separate occurrences requirement,

but sentence would be five years if statute were applicable); lowa

Code § 902.8 (West 2002) (three to five years); Kan. Stat. Ann. § 21-

4704 (less than eighteen months); Ky. Rev. Stat. Ann. § 532.080

(West 2001) (maximum sentence of five to ten years); Mich. Comp.

Laws § 769.12 (West 2002) (up to 15 years); N.J. Stat. Ann. § 2C:44-

3 (West 2002) (inapplicable as a result of separate occurrences

17

Logically enough, many States punish recidivists by

sentencing them to the terms normally applicable to an offense

one degree more serious than the principal crime. In such

jurisdictions, therefore, a recidivist who commits a minor crime

receives a substantial, but not unconstitutional, penalty; a

recidivist who commits a major crime is locked up for life. In

Connecticut, for example, if an offender has a prior felony

offense, his sentence for the principal crime is enhanced to the

penalty applicable to the “next more serious degree of felony.”

Conn. Gen. Stat. § 53a-40 (West 2001). Accordingly, in

Connecticut Ewing would be sentenced to one to ten years —

a substantial penalty for shoplifting, but not one that shocks the

conscience. Kentucky, similarly, sentences repeat offenders to

a term that would ordinarily be applicable to the “next highest

degree” offense, Ky. Rev. Stat. Ann. § 532.080 (West 2001);

Ewing would be sentenced to a maximum term of five to ten

years. New Mexico would add one year to Ewing’s base

sentence, for a total term of two and one half years. N.M. Stat.

Ann. § 31-18-17 (West 2001). In Georgia, any fourth felony

triggers the recidivist statute, but the penalty is the mandatory

maximum sentence for the felony charged. See Ga. Code Ann.

§ 17-10-7 (2001). There, Ewing would receive a maximum

sentence of ten years.

3. Unavailability of parole and denial of “good time.”

California Three Strikes inmates essentially serve life sentences

requirement, but sentence would be five to ten years if statute were

applicable); N.M. Stat. Ann. § 31-18-17 (West 2001) (two and one

half years); N.Y. Penal Law § 70.06 (McKinney 2002) (three to four

years); N.C. Gen. Stat. §§ 14-7.1, 14-7.6 (West 2001) (inapplicable

as a result of separate occurrences requirement, but sentence would

be 80 to 100 months if statute were applicable); N.D. Cent. Code §

12.1-32-09 (West 2001) (maximum of ten years); Tenn. Code Ann.

§ 40-35-106 (West 2001) (four to eight years); Wis. Stat. Ann. §

939.62 (West 2001) (up to three years).

18

with only a slim possibility of parole beginning only after the

inmate has served 25 years. Ewing, like other Three Strike

inmates, will spend at least 25 years behind bars before he will

be eligible for parole; he cannot receive any credit for good

conduct in prison. See /n re Cervera, 16 P.3d 176, 180 (Cal.

2001) (holding that a Three Strikes convict must serve at least

the full 25-year minimum term). Like every California inmate

who is sentenced to life imprisonment with the possibility of

parole, Ewing will not be paroled without the approval of the

Board of Prison Terms. According to a Board spokeswoman,

the Board recommends parole in less than one percent of the

2,000 indeterminate life-imprisonment cases it e»nsiders each

year. See Paul Van Slambrouck, Getting Even Tougher,

Christian Science Monitor, May 22, 2000, at 3 (2000 WL

4428277); Dave Lesher, Davis Takes Hard Line on Parole for

Killers, L.A. Times, April 9, 1999, at A3 (1999 WL 2147545).

The rarity of parole is not a passing fad in California. Seven

years ago, this Court observed that 90 percent of al/ California

inmates are denied parole at their first hearing, and 85 percent

fail at subsequent hearings. See California Dep't of

Corrections v. Morales, 514 U.S. 499, 510-11 (1995).

Outside California, the States with the most severe

recidivist statutes — the only States in which Ewing could be

sentenced as a repeat offender to a lengthy prison term —

permit much earlier access to parole. In Alabama, for example,

Ewing’s theft would constitute a Class B felony, see Ala. Code

§ 13A-8-3 (West 2001), which could result in a sentence of

“life or any term of not less than 20 years” under that State’s

habitual offender statute. Jd. § 13A-5-9(c)(2). But Ewing

would be eligible for parole after the lesser of “one third [of his

sentence] or ten years.” Jd § 15-22-28. Similarly, a Vermont

court would have the discretion to impose upon Ewing a

sentence of “up to and including life” pursuant to that State’s

recidivist statute, 13 Vt. Stat. Ann. § 11 (West 2001).

19

However, even if he were sentenced to life, Ewing would be up

for parole after serving only one year of his sentence. See 28

Vt. Stat. Ann. § 501 (West 2001); State v. Battick, 349 A.2d

221, 222 (Vt. 1975). In Arkansas, Ewing’s sentence would be

between 3 and 20 years, but he would be up for parole after

serving one third of his sentence. Ark. Code Ann. §§ 5-4-501,

16-93-608 (West 2001).'°

The unavailability of parole in California is of

constitutional significance. This Court upheld the sentence in

Rummel in large part because the petitioner — unlike Ewing —

was likely to be paroled early. Under the Texas system at issue

in that case, a prisoner serving a life sentence could be eligible

for parole in ten years and would be expected, in the ordinary

course of events, to be eligible in twelve years. 445 U.S. at

280; see also Solem, 463 U.S. at 301-02. Ewing, by contrast,

will not be eligible for parole for at least 25 years, and even

then the chances against parole are 99 to 1. See Lesher, supra.

In determining whether a sentence is grossly dispropor-

tionate to the crime, this Court considers the actual operation of

the parole policy, and not just its existence:

In Rummel, the Court did not rely simply on the

existence of some system of parole. Rather it looked to

'© See also Mo. Rev. Stat. §§ 558-016, 558.011 (West 2002) (Ewing

would be sentenced to a term “not to exceed twenty years,” but would

be eligible for parole after 15 years); Mont. Code Ann. §§ 46-18-501,

46-18-502, 46-23-201 (West 2001) (Ewing would be sentenced to

between ten and 100 years, but would be eligible for parole after one-

fourth of term); Tex. Gen. Laws § 12.43, Tex. Gov’t § 508.145

(sentence would be between two and 20 years, but Ewing would be

eligible for parole after serving one fourth of his sentence); W. Va.

Code §§ 61-11-18, 62-12-13(c) (West 2001) (court could but likely

would not, (see page 24 infra) impose a life sentence, but Ewing

would be eligible for parole after 15 years).

20

the provisions of the system presented, including the

fact that Texas had “a relatively liberal policy of

granting ‘good time’ credits to its prisoners * * * .”

Solem, 463 U.S. at 301 (emphasis added), quoting Rummel, 445

U.S. at 280. In Solem, this Court stated that the petitioner’s

lack of opportunity for parole rendered his sentence “far more

severe than the life sentence we considered in Rummel.” 463

U.S. at 297. Ewing can receive no credit for good time, and

cannot even seek parole for 25 years. Because Ewing is likely

to spend the rest of his life in prison, the sentence imposed here

is as disproportionate as that deemed unconstitutional in Solem,

and is “far more severe” than that upheld in Rummel.

4. No “separate occurrences” requirement. Ewing’s four

prior convictions all resulted from a single criminal proceeding

in 1994. Accordingly, Ewing would not be subject to the

habitual offender statutes of Delaware, the District of

Columbia, Idaho, Mississippi, Nebraska, New Hampshire, New

Jersey, North Carolina, or Rhode Island.'? With some

variations on the theme, all of those States provide that prior

” See Buckingham v. State, 482 A.2d 327 (Del. 1984); D.C. Code §§

1804, 1804(a); State v. Harrington, 990 P.2d 144 (Idaho Ct. App.

1999); Miss. Code Ann. § 99-19-81; Neb. Rev. Stat. § 29-2221; N.H.

Rev. Stat. Ann. § 651:6; N.J. Stat. Ann. § 2C:44-3; N.C. Gen. Stat.

§§ 14-7.1, 14-7.6; R.I. Gen. Laws § 12-19-21. The recidivist statutes

of Colorado, Illinois, Indiana, Maryland, Minnesota, Virginia,

Washington, and Wyoming also include separate-occurrences

provisions that would preclude Ewing from being sentenced as a

multiple offender; however, those states also would not characterize

Ewing’s theft as a triggering offense, would not consider his prior

offenses to be strike crimes, or both. In some of those states, Ewing

might be subject to lesser enhancements based on his record, but the

general habitual offender statute would not apply and Ewing would

not be subject to a sentence approaching the 25 years to life that he

received in California.

21

felony convictions only count as separate “strikes” if they arose

from separate proceedings or resulted in separate sentences.

See, e.g, Miss. Code Ann. § 99-19-81 (West 2001). Under

such statutes, Ewing’s prior convictions would only count as

one “strike,” because he was charged in a single proceeding and

served one term in prison.

The separate-occurrences requirement recognizes that

habitual criminals should only be subjected to greatly enhanced

sentences if they demonstrate a repeated failure to learn from

the consequences of their felonious acts and to modify their

behavior. This Court found that factor significant in Rummel,

observing that under the Texas statute, “the State must prove

that each succeeding conviction was subsequent to both the

commission of and the conviction for the prior sentence.” 445

U.S. at 278 n.16."* All of Ewing’s strike convictions occurred

at once and resulted in a functionally single term of

incarceration. Moreover, the crime that triggered the

application of the recidivism statute was far less serious than

the crimes that qualified him for such treatment.

5. California’s mandatory minimum deprives sentencing

courts of almost all discretion. At first glance, Nevada's

habitual offender statute appears as harsh or harsher than

California’s with respect to its penalty for grand theft with

priors. Under the Nevada statute, Nev. St. § 207.0106 1)(b)

(West 2001), a four-time felon like Ewing could theoretically

be sentenced to life without parole.

There is an important practical difference between the

Nevada and California regimes, however: Nevada courts have

much greater discretion to impose lighter sentences. First of

‘8 Pursuant to Texas’ separate occurrences provision, Ewing would

be subject to a penalty under the habitual offender as a second-time

offender. He would, however, be eligible for parole after serving

one-fourth of his sentence. See n. 16 supra. \

22

all, in Nevada the sentencing court has an affirmative obligation

to consider whether it is appropriate to sentence a defendant as

a habitual offender. See, e.g., Clark v. State, 851 P.2d 426, 429

(Nev. 1993) (“[I}t was incumbent upon the trial court to weigh

properly whether the habitual criminality count should have

been dismissed pursuant to [its] discretion.”).'°

Even more significantly, as this Court observed in Solem

(463 U.S. at 300), the Nevada statute expressly provides that,

even after determining that the defendant is a habitual offender,

the court can choose to impose a shorter sentence. Two of the

court’s three sentencing options are (i) life with the possibility

of parole and (ii) a definite term of twenty-five years with the

possibility of parole. In either case, and by contrast with

California, parole eligibility begins after only ten years of time

served. See Nev. Rev. Stat. § 207.010(1)(b). Other States with

schemes less severe than Nevada’s also provide greater

discretion to the sentencing court so that excessive punishments

can be avoided.”

'° California courts have limited discretion to strike allegations of

prior convictions, and thereby to avoid application of the statute. See

People v. Superior Court of San Diego (Romero), 917 P.2d 628 (Cal.

1996). Unless a court takes the extraordinary step of “striking a

strike,” it must impose a sentence of 25 years to life, despite the fact

that the defendant will not be eligible for parole until he has served

25 years. See id. at 648 (“To guide the lower courts in the exercise

of their discretion * * * we emphasize the following: A court’s

discretion to strike prior felony conviction allegations in furtherance

of justice is limited.”); Cal. Penal Code § 667(e)(2)(A) (West 1994).

° See, e.g., Conn. Gen. Stat. § 53a-40(h) (enhanced sentence is only

imposed if the defendant “has been found to be a persistent dangerous

felony offender,” and “the court is of the opinion that such person's

history and character and the nature and circumstances of such

person’s criminal conduct indicate that extended incarceration and

lifetime supervision will best serve the public interest”). In Vermont,

23

As this Court explained in Solem, it is generally the role of

the courts to make distinctions among offenders, “and courts

traditionally have made these judgments — just as legislatures

must make them in the first instance.” 463 U.S. at 292. The

lower courts are quite capable of using their discretion to

“judge the gravity of an offense, at least on a relative

scale. * * * Comparisons can be made in light of the harm

caused or threatened to the victim or society, and the culpability

of the offender.” Jbid In determining the gravity of a

particular offense, courts can consider not only the “absolute

magnitude of the offense” and whether violence is involved, but

also more subtle factors, such as the defendant’s intent and his

motive. Jd. at 293. Courts also can “compare different

sentences. * * * The courts are constantly called upon to draw

similar lines in a variety of contexts.” /bid.

In California, the legislature has removed from the courts

the power to distinguish among offenders and offenses: it has

mandated that all third-time felony offenders be treated alike.

By contrast, in the States where courts retain some discretion in

similarly, a court would have discretion to sentence Ewing to the

sentence that is specified for his shoplifting offense standing alone.

See Vt. Stat. Ann. tit. 13, §§ 11, 501; State v. Angelucci, 405 A.2d 33

(Vt. 1979). See also, e.g., Ark. Code Ann. § 5-4-501 (setting broad

sentencing ranges for repeat offenders; Ewing’s sentence would be

between 3 and 20 years); Del. Code Ann. tit. 11 § 4214(a) (West

2001) (same; sentence would be between 2 years and life) (note that

Ewing would not be sentenced as a repeat offender in Delaware as the

result of a court-imposed separate offense requirement); Mich. Stat.

Ann. § 769.12 (West 2002) (same; sentence would be any term up to

15 years); Okla. Stat. Ann. Tit. 21, § 51.1 (West 2001) (setting broad

sentencing ranges for repeat offenders; sentence would be four years

to life); S.D. Codified Laws § 22-7-8 (Michie 2001) (same; sentence

would be “up to life,” but statute sets no minimum term; if Ewing

were sentenced to any term less than life, he would be eligible for

parole after serving three-eighths of his sentence).

24

sentencing recidivists, that appears sufficient (with extremely

rare exceptions) to prevent the imposition of sentences so

grossly disproportionate as to raise the constitutional issues

presented here and in the cases of the hundreds of other

Californians imprisoned for a mandatory minimum of 25 years,

and probably for life, for non-violent theft. That discretion -

generally keeps the systems in other States within constitutional

bounds. But that constitutional failsafe is absent in Califoruia.

* * *

Enforcing the constitutional guarantee against excessive

punishments in this case would not unduly impose federal

standards on state police powers. State courts themselves have

stepped in to invalidate as unconstitutionally excessive

sentences imposed under circumstances similar to those here.

In States in which the statutes facially permit such excesses,

and lower courts have not exercised their discretion to keep the

sentences within permissible bounds, state supreme courts have

relied upon state and federal constitutional provisions to

enforce mainstream notions of proportionality.

Although the statutes of Louisiana, for example, at one time

appeared to authorize a life sentence for recidivists who

committed non-violent theft crimes, the Louisiana courts would

not permit that outcome. When the Louisiana Supreme Court

considered whether a life sentence under the Louisiana

recidivism statute could be imposed upon a “fourth offender”

who was “before the court on [a] non-violent crime” —

possessing stolen property — the court observed that the

sentence “appears to be unconstitutionally excessive,” vacated

the sentence, and remanded for resentencing. State ex rel.

Walgamoite v. Blackburn, 481 So. 2d 1322, 1323 (La. 1986) .'

= See also, e.g., State v. Lindsey, 770 So. 2d 339, 343-44 (La. 2000)

(holding that life sentence imposed for purse snatching under habitual

25

In West Virginia, if Ewing were prosecuted under the

general petit larceny statute, W. Va. Code § 61-3-13 (West

2001), rather than the shoplifting statute that fits his crime more

closely, id. § 61-3A-1 et seq.), his offense might in theory

might have led to a life sentence. See id. § 61-11-18. West

Virginia case law, however, would not permit that result. The

Supreme Court of Appeals of West Virginia struck down a

statute providing a mandatory one-year sentence for felony

third-offense shoplifting as a violation of both state and federal

proscriptions of cruel and unusual punishment, being unable

“with a clear collective conscience, [to] conclude that Appellant

deserves to be imprisoned for a minimum of one year for

failing to pay for $8.83 worth of groceries.” State v. Lewis, 447

S.E.2d 570, 575 (W. Va. 1994). The same court likewise has

held unconstitutional on state-law grounds mandatory life

sentences imposed under a general recidivist statute for petty

forgeries. State v. Barker, 410 S.E.2d 712, 713-14 (W. Va.

1991); Wanstreet v. Bordenkircher, 276 S.E.2d 205, 211-14

(W. Va. 1981). And that court held unconstitutionally excessive

a life sentence for possession of marijuana with intent to

distribute it, even though the defendant’s prior offenses

included unlawful wounding. State v. Deal, 358 S.E.2d 226,

230-31 (W. Va. 1987). Accordingly, the courts of West

Virginia would not countenance a sentence of life without the

offender statute violated Louisiana Constitution), cert. denied, 532

U.S. 1010 (2001); State v. Dorthey, 623 So. 2d 1276, 1280 (La.

1993) (“Louisiana's judiciary maintains the distinct responsibility of

reviewing sentences imposed in criminal cases [under the habitual

offender statute] for constitutional excessiveness.”); State v. Hayes,

739 So. 2d 301, 303-04 (La. Ct. App. 1999) (sentence of life

imprisonment without parole was excessive penalty for theft of

$1,000).

26

possibility of parole for 25 years for the crime of shoplifting

golf clubs.”

The California courts, by contrast, have repeatedly declined

to impose limits on the application of the Three Strikes Law to

“wobblers” or other non-violent crimes. See, e.g., People v.

Cline, 60 Cal. App. 4" 1327 (1998) (upholding sentence of life

without parole for 25 years for grand theft); People v. Terry, 47

Cal. App. 4" 329 (1996) (upholding sentence of life without

parole for 25 years for third strike of petty theft that “wobbled

up” to a felony).

No single feature of California’s Three Strikes statute

makes it unique among the States. Rather, it is the fact that

California stakes out the most extreme position on every

pertinent variable that renders many of the sentences imposed

under it, including Ewing’s, uniquely and grossly dispropor-

tionate. No other State’s recidivist statute is triggered by any

felony, no matter how minor; provides for a mandatory mini-

mum sentence of 25 years to life; denies parole to all three-

strikers as a matter of law for the first 25 years of their

sentences; counts as separate strikes prior felonies that were all

adjudicated in a single proceeding; and grants its courts almost

no discretion to impose a reduced enhancement where the

principal crime is a minor one. In no other State would Ewing

be sentenced to 25 years to life for shoplifting three golf clubs.

That circumstance confirms the “inference of gross

disproportionality” (Harmelin, 501 U.S. at 1005 (Kennedy, J.,

concurring)) that arises from the mere comparison of that

sentence with that crime. The sentence is unconstitutional, and

should be vacated.

* In any event, a recidivist receiving a life sentence in West

Virginia is eligible for parole after serving 15 years (W.Va.

Code § 62-12-13(c)) (West 2001). That is ten years sooner than

Ewing is likely to have his first opportunity for parole.

27

CONCLUSION

The judgment of the Court of Appeal of the State of

California should be reversed.

Respectfully submitted.

MARY PRICE DONALD M. FALK

Families Against Mandatory Counsel of Record

Minimums Mayer, Brown, Rowe & Maw

1612 K Street, N.W. 555 College Avenue

Washington, D.C. 20006 Palo Alto, California 94306

(202) 822-6700 (650) 331-2030

ANDREW H. SCHAPIRO

LAUREN R, GOLDMAN

Mayer, Brown, Rowe & Maw

1675 Broadway

New York, New York 10019

(212) 506-2500

JULY 2002