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March 6, 2003 9:30 a.m. Three Strikes and You’re Still Out The Ninth Circuit loses another one.

ike a favorite hymn learned in childhood, the words are as comforting as they are familiar: "The judgment of the United States Court of Appeals for the Ninth Circuit, accordingly, is reversed."

So ruled the Supreme Court on Wednesday in holding that California's "three strikes" law does not violate the Eighth Amendment's prohibition against cruel and unusual punishment. In identical 5-4 votes, the court overruled (as it so often does) the Ninth Circuit in Lockyer v. Andrade, and upheld a California appellate court in a companion case, Ewing v. California. The upshot from these decisions is that Messrs. Andrade and Ewing, career criminals both, will remain in prison for years to come, perhaps to ponder their wayward lives and, more importantly, to serve as living reminders to those who would follow them that the people of California weren't fooling around when they enacted the three-strikes law in 1994.

Some background: In November of 1995, Leandro Andrade stole five videotapes worth $84.70 from a Kmart store in Ontario, California. Two weeks later he boosted four more tapes, these valued at $68.84, from a Kmart in Montclair, California. He was apprehended by store security guards after both incidents, but for reason not made clear in the court's decision he was not arrested and charged with the thefts until sometime later. Ordinarily these crimes would be charged as misdemeanors, punishable by a fine or a term in the county jail. But California law allows petty theft to be punished as a felony — and, as in this case, a third strike — if the offender has been previously been convicted of a similar crime. And indeed Mr. Andrade's criminal record is one of impressive proportions, vividly illustrating his disdain for the system of justice before which he made this most recent, fruitless appeal. Quoting from Justice Sandra Day O'Connor's opinion for the majority:

According to the state probation officer's presentence report, Andrade has been in and out of state and federal prison since 1982. In January 1982, he was convicted of a misdemeanor theft offense and was sentenced to 6 days in jail with 12 months' probation. Andrade was arrested again in November 1982 for multiple counts of first-degree residential burglary. He pleaded guilty to at least three of those counts, and in April of the following year he was sentenced to 120 months in prison. In 1988, Andrade was convicted in federal court of [t]ransportation of [m]arijuana . . . and was sentenced to eight years in federal prison. In 1990, he was convicted in state court for a misdemeanor petty theft offense and was ordered to serve 180 days in jail. In September 1990, Andrade was convicted again in federal court for the same felony of [t]ransportation of [m]arijuana . . . and was sentenced to 2,191 days in federal prison. And in 1991, Andrade was arrested for a state parole violation — escape from federal prison. He was paroled from the state penitentiary system in 1993.

So you see, Andrade is hardly the poster child for a vindictive justice system his sympathizers might have you believe. It seems fair to speculate that in at least some of the instances cited above, Andrade received a lecture from the bench instructing him to turn his life around or face severe consequences in the future. The future has now arrived for Mr. Andrade, as have those pesky consequences.

Gary Ewing is also a man, as the British might say, well known to the police. In 1984, at age 22, he embarked on a path that would see him jailed no less than nine times on a variety of charges ranging from petty theft to robbery. In a five-week period in 1993, for example, he committed three burglaries and a robbery at a Long Beach, California apartment complex. Only ten months after being released and still on parole for those crimes, Ewing walked into the pro shop at an El Segundo, California golf course and stuffed three golf clubs down his pants before walking out. Police officers responding to the reported theft found him noticeably limping across the parking lot and, suspecting something amiss, put the old habeas grabbus on him. He was convicted at trial for the theft of the golf clubs and sentenced under the three-strikes law to 25 years to life in prison.

At issue through the appeals process were the questions of whether or not the sentences imposed on Andrade and Ewing were disproportionate to the crimes for which they were convicted, and whether or not federal courts should have the authority to override a state's lawfully enacted statute governing the sentencing of recidivists. "We do not sit as a 'superlegislature' to second-guess these policy choices," Justice O'Connor wrote in her Ewing opinion. "It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons advances the goals of its criminal justice system . . ." Thus, in two sentences, O'Connor distills the far larger issue of judicial activism and illustrates the importance of future nominations to the federal courts.

Taking the opposite view in his dissenting opinion in Ewing, Justice Steven Breyer went so far as to add a lengthy appendix to his opinion, naming the 33 jurisdictions in which Ewing would have received lesser punishment than that imposed by California. And therein lies the conflict in both judicial philosophy and the notion of state sovereignty: Because all of these various states would punish Ewing less harshly, Breyer is saying, California has no right to impose the sentence it has, and it is up to us, the legal sages appointed to lifetime terms, to show California's legislators the error of their backward ways.

In an interesting aside, further proof of media bias — as if any were needed — was put on glorious display in the A.P. story regarding these cases posted Wednesday on both the Los Angeles Times and the New York Times websites. The story identifies Ewing as an "AIDS patient," as though this should somehow qualify him for special consideration in sentencing. And, in discussing Andrade, the AP writer made an even more blatant reach for the heartstrings. "Anrade's 'third strike'" the AP story explained, "was a 1995 charge for twice shoving children's videos down his pants and walking out of Southern California Kmart stores. The tapes, including 'Batman Forever' and 'Cinderella,' were worth $153." The reader is left with the impression that Andrade wanted nothing more than to show a few movies to some unfortunate children who might otherwise be left to frolic out in the traffic. But O'Connor's opinion in Andrade tells the whole truth. Quoting Andrade's pre-sentencing report from a probation officer, O'Connor writes, "The defendant admitted committing the offense. The defendant further stated he went into the K-Mart Store to steal videos. He took four of them to sell so he could buy heroin. He has been a heroin addict since 1977. He says when he gets out of jail or prison he always does something stupid. He admits his addiction controls his life and he steals for his habit."

Leandro Andrade and Gary Ewing will be in prison for a long, long time. They may in fact die there. So be it; they have no one to blame but themselves.