The Supreme Court
Are Penalties Required in “Third Strike” Laws Too Cruel?
Not all cruel and unusual punishment cases involve the death penalty. In the 2002 case of Lockyer v. Andrade, the Supreme Court looked at the question of whether two consecutive terms of 25 years to life was cruel and unusual punishment for a crime of petty theft involving the theft of about $150 worth of videotapes.
Leandro Andrade received that long sentence after being caught stealing for the third and fourth times in California. California has a “third strike” law that mandates the stiff penalty.
In November 1995, Andrade attempted to steal five videotapes from a Kmart. He was arrested upon leaving the store. Two weeks later, before trial on the first videotape theft offense, he was arrested outside another Kmart for trying to steal five more tapes. Andrade, who was a long-time heroin addict, had a 15-year criminal history with five felonies and two misdemeanors on his record. All previous crimes were nonviolent.
Based on his record, prosecutors determined that he already had two strikes under the California law when his prosecution started for the petty theft in the Kmart stores. Petty theft is a so-called “wobbler,” which means it can be tried as a misdemeanor or felony depending on circumstances. Andrade, who was 37, was convicted and sentenced to 25 years for each of the videotape petty theft counts (strikes three and four). According to California's three strikes law, these sentences had to be served consecutively (not at the same time), so Andrade would become eligible for parole in 50 years at age 87.
You can be sentenced to 25 years to life for petty theft if it's your third strike and you are convicted in a state that has a “three strikes” law.
Andrade appealed the case to the California State Court of Appeals, which affirmed the lower court sentence. Next he appealed it to the 9th Circuit Court, which overturned the sentence as being “grossly disproportionate” to the crime committed. The state of California then appealed to the United States Supreme Court. The issue to be decided by the United States Supreme Court was whether the California “three strikes” law violates the Eighth Amendment protection against “cruel and unusual” punishment.
In a closely divided 5 to 4 decision, the United States Supreme Court ruled in favor of the state and overturned the circuit court. Justice Sandra Day O'Connor wrote the decision for the Court and was joined by Chief Justice Rehnquist and Justices Kennedy, Scalia and Thomas. Justice Souter wrote the dissenting opinion and was joined by Justices Breyer, Ginsburg, and Stevens. In writing the opinion for the court, O'Connor ruled that the California court did not err, but instead the 9th Circuit Court erred in overturning the California court on the principle of “gross disproportionality”. O'Connor wrote:
In writing the dissent, Justice Souter disagreed:
At least for now, petty theft can lead to a 50-year sentence given circumstances similar to those that Andrade faced. Whether this ruling will stand for a long time depends on the future makeup of the Court when the next case winds its way to the Supreme Court's doorstep.