Three Strikes Law Shoplifting
25 years to life for Shoplifting (Three Strikes Law):
In Ewing v. California (2003) 538 U.S. 11, defendant was convicted of grand theft for shoplifting three golf clubs worth $ 1,200. (At p. 122.)
In conducting a proportionality analysis, the court weighed not only the gravity of defendant's current offense "but also his long history of felony recidivism." (Ibid.)
It noted the purpose of the "Three Strikes" Law is not merely punishing the current offense but also "'dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.'" (Ibid.)
Based on defendant's recidivist history, which included a robbery and three residential burglaries, the court concluded defendant's sentence of 25 years to life was not grossly disproportionate and did not violate the Eighth Amendment's prohibition against cruel and unusual punishment. ( Ewing, supra, at p. 123.)
In Ewing, Gary Ewing was sentenced to a term of 25 years to life under the Three Strikes law for stealing three golf clubs priced at $ 399 each.
Ewing had prior theft-related convictions and a long criminal history. He was on parole from a nine-year prison term when he stole the golf clubs. In 1984, when he was 22 years of age, Ewing pleaded guilty to theft. He was sentenced to a suspended jail sentence, fined, and placed on three years' probation. In 1988, he was convicted of felony grand theft auto and sentenced to one year in jail and three years' probation. In 1990, he was convicted of petty theft with a prior and sentenced to 60 days in jail and three years' probation. In 1992, Ewing was convicted of battery and sentenced to 30 days in jail and two years' probation. Only a month later, he was convicted of theft and sentenced to 10 days in jail and 12 months' probation. in January 1993, Ewing was convicted of burglary and sentenced to 60 days in jail and one year's probation. in February 1993, he was convicted of possessing drug paraphernalia and sentenced to six months in jail and three years' probation. in July 1993, he was convicted of appropriating lost property and sentenced to 10 days in jail and two years' probation. in September 1993, he was convicted of unlawfully possessing a firearm and trespassing, and was sentenced to 30 days in jail and one year's probation.
In October and November 1993, Ewing committed three burglaries and one robbery over a five-week period. On one occasion, he awakened one of the victims. On another occasion, he accosted a victim in the mailroom of an apartment complex. Ewing claimed he had a gun and ordered the victim to hand over his wallet. When the victim resisted, Ewing produced a knife and forced the victim back to the apartment. While Ewing rifled through the bedroom, the victim fled, screaming for help. Ewing absconded with the victim's money and credit cards.
On December 9, 1993, Ewing was arrested on the premises of the same apartment complex for trespassing and lying to a police officer. Ewing was convicted of first degree robbery and three counts of residential burglary. He was sentenced to nine years and eight months in prison. (Ibid.)
Ewing was paroled in 1999, but only 10 months later stole the golf clubs which were the subject of his Three Strikes law sentence. He was charged with and convicted of one count of felony grand theft of personal property in excess of $ 400.
The trial court denied Ewing's request to reduce the conviction for felony grand theft--a "'wobbler'"--to a misdemeanor to avoid a Three Strikes sentence.
The trial court declined to exercise its discretion to strike some or all of Ewing's prior convictions.
Ewing was sentenced under the Three Strikes law to 25 years to life. (Ibid.)
The Court of Appeal affirmed in an unpublished decision. The California Supreme Court denied Ewing's petition for review. The United States Supreme Court affirmed the sentence.
The Supreme Court confirmed "the Eighth Amendment, which forbids cruel and unusual punishments, contains a 'narrow proportionality principle' that 'applies to noncapital sentences.'"
The Supreme Court then examined its precedents in Rummel v. Estelle (1980) 445 U.S. 263 (Rummel), Hutto v. Davis (1982) 454 U.S. 370, Solem v. Helm (1983) 463 U.S. 277, (Solem), and Harmelin v. Michigan (1991) 501 U.S. 957 (Harmelin) to explain the meaning and extent of this narrow proportionality principle. The Supreme Court concluded "the proportionality principles in our cases distilled in Justice KENNEDY's concurrence in Harmelin guide our application of the Eighth Amendment in the new context that we are called upon to consider."
In Harmelin, a majority of the Supreme Court held that the imposition of a life sentence without possibility of parole for possession of 672 grams of cocaine did not constitute cruel and unusual punishment. (Harmelin, supra, 501 U.S. at pp. 961, 994, 996 (lead opn. of Scalia, J.).)
Justice Kennedy, in his concurrence in Harmelin, wrote: "The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are 'grossly disproportionate' to the crime. " (Id. at p. 1001 (conc. opn. of Kennedy, J.), citing Solem, supra, 463 U.S. at p. 288.)
The Supreme Court in Ewing then examined California's Three Strikes law.
The Supreme Court explained it traditionally defers to state legislatures in making policy decisions about criminal sentencing, and "when the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime."
The Supreme Court does not sit as a "'superlegislature'" to second- guess a legislature's policy choices so long as there is a reasonable basis for the legislature's decision.
California, the Supreme Court concluded, has an interest in deterring crime and has a reasonable basis for believing that "dramatically enhanced sentences for habitual felons" advance the goals of its criminal justice system in a substantial way. (Ibid.)
The Supreme Court then applied the principles of gross disproportionality and deference to legislative policy choices to conclude that Ewing's sentence of 25 years to life "is not grossly disproportionate and therefore does not violate the Eighth Amendment's prohibition on cruel and unusual punishments."
The Supreme Court explained that "in weighing the gravity of Ewing's offense, we must place on the scales not only his current felony, but also his long history of felony recidivism."
"Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record."
In sum, in Ewing v. California (2003), the United States Supreme Court affirmed a California judgment imposing a Three Strikes sentence of 25 years to life. The defendant, who had been convicted of grand theft, claimed his sentence violated the Eighth Amendment's prohibition on cruel and unusual punishment. But Ewing concluded that "traditional deference to legislative policy choices finds a corollary in the principle that the Constitution 'does not mandate adoption of any one penological theory.' . . . Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts. When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice. To the contrary, our cases establish that 'States have a valid interest in deterring and segregating habitual criminals.' . . . Recidivism has long been recognized as a legitimate basis for increased punishment. " (Id. at pp. 1187-1188.)
"Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record. . . . To be sure, Ewing's sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated. The State of California 'was entitled to place upon Ewing the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State.' Ewing's is not 'the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.' " (Id. at p. 1190.)