Bizarre, Draconian And Disproportionate?

By Margot Roosevelt/Los Angeles

On the face of it, the penalty seems a travesty of justice. A California man steals $153 worth of children's videos from two K Marts. The nine movies, including Snow White, Cinderella and Free Willy 2, are Christmas presents, he claims. Convicted of petty theft, he is sentenced to a 50-years-to-life term in prison.

But what if the man, a sometime her-oin abuser, is a chronic offender? What if he had already served four years for burglarizing three homes? And what if, after serving that time, he had been convicted of a shoplifting offense before the K Mart incidents? Does his past thievery justify the harsh penalty for stealing videos--a punishment 50 times as long as a first-time sentence for petty theft? California legislators think so, or at least they did eight years ago. Sensing that voters were on the verge of getting ahead of them with a ballot initiative, they passed the now famous "three strikes" statute, which doubles the penalty for second-time offenders committing a serious or violent crime and mandates 25 years to life for any third felony. That's the law that district attorneys like Dennis Stout of San Bernardino County are enforcing. The video thief is "a scoundrel who has had his chances," Stout says of the case.

Scoundrel or scapegoat, Leandro Andrade is the focus of a federal-state showdown over mandatory prison sentencing. The U.S. Supreme Court is scheduled to hear arguments this week on whether Andrade's penalty amounts to unconstitutional "cruel and unusual punishment," as ruled by a federal appeals court. The court will also consider a second case, that of Gary Ewing, an aids-afflicted crack addict who was sentenced to 25 years to life for stealing three golf clubs from a pro shop in El Segundo, Calif.

The court's decision could have a broad effect. Over the past decade, 26 states and the Federal Government have enacted three-strikes statutes--part of a nationwide trend toward mandatory minimum sentences. But California's is the only one that can lead to life in prison for a nonviolent offense. Should the court uphold the Andrade and Ewing penalties, few challenges in states with more supple repeat-offender laws could hope to succeed. Says Franklin Zimring, a law professor at the University of California, Berkeley: "If the court does not invalidate penalties that are this extreme, it is telling the states, 'Anything goes.'"

With 160,000 inmates, California has one of the largest prison systems in the world--bigger than those of France and Germany combined. More than a quarter of the state's inmates have been sentenced under the three-strikes law. The law swept in on a wave of public outrage after Polly Klaas, 12, a girl from Petaluma, Calif., was murdered by a parolee in 1993. Today Polly's father Marc Klaas, who initially opposed the law as too harsh, has no regrets. "It has gotten a lot more dirtbags off the streets," he says.

Nonetheless, a backlash is growing. Although the law was touted as a way to prevent violence, fewer than half of either second-or third-strikers are serving time for crimes against people. Of the 7,300 prisoners sentenced to 25 years to life, more than 2,000 are behind bars for burglary or theft and some 700 for drug possession. Several juries have refused to convict obviously guilty defendants when lawyers found ways to indicate that their clients would be subject to a third-strike penalty. Some judges are using the leeway the three-strikes law allows them to avoid counting earlier crimes as strikes, thereby averting a potential life sentence. And even district attorneys are having doubts. Los Angeles' Steve Cooley was elected on a platform of cutting back third-strike prosecutions of nonviolent offenses. "The public doesn't want bizarre, draconian and disproportionate sentences," he says.

But what if locking up all those criminals--even for minor offenses--makes the streets safer? "Sixty percent of crimes are committed by 6% of criminals," says California secretary of state Bill Jones, who sponsored the bill as a legislator. "We shouldn't have to wait for another victim to be raped or another child to be sexually abused." Jones credits the law for a 45% drop in the crime rate, but several academic studies say the decline began three years before the law was enacted and is attributable to such factors as a prosperous economy, a decline in the population of young men (the group that commits the most crimes), gun-control laws and the subsiding of the crack epidemic.

Meanwhile, the three-strikes cases of minor offenders have been capturing local headlines: the man who grabbed a slice of pizza from some kids on the beach, the homeless derelict who filched four chocolate-chip cookies. Like Andrade, 344 shoplifters are in prison for 25 years to life, including men who took off with a $20 bottle of vitamins, a $25 car alarm or a $3 magazine. Shouting "Let the time fit the crime!" three dozen protesters gathered last month at the California Institution for Women in Frontera, Calif. Decrying the disproportionate effect of the law on African Americans and Latinos, they waved photographs of imprisoned relatives. "My brother was put away for half a gram of cocaine," said Jose Verduzgo, a warehouse laborer. "He was an addict, but he had a job, he had a family, and he never hurt anyone. Now he is buried alive, and he won't get out until he is 80."

With the Supreme Court closely divided on criminal justice, the outcome of the Andrade and Ewing cases is unpredictable. The Bush Administration and nine states have filed briefs supporting California, asking the court to defer to the states' prerogative to set prison sentences. Historically, the court has rarely applied the Eighth Amendment against "cruel and unusual punishment" in repeat-offender cases. But in a 1991 Michigan case upholding a life-without-parole sentence for possession of 672 g of cocaine, the Justices nonetheless ruled that the Constitution forbids "extreme sentences that are grossly disproportionate" to the crime. Andrade and Ewing are counting on that precedent to save them.