Unidentified Justice: Oh, other than--

QUIN DENVIR: --previous crimes that were misdemeanors.

Unidentified Justice: --other than the burglaries.

QUIN DENVIR: I think that's... the sentencing judge relied on that, to some degree, in denying him any discretionary--

Unidentified Justice: Now--

QUIN DENVIR: --relief.

Unidentified Justice: --it actually went back to 1984, didn't it, with grand theft in '84, grand theft in '88?

QUIN DENVIR: Your Honor, the grand theft actually was a misdemeanor, as we've shown in the appendix to our reply brief.

There was... there was a misconception that that was a felony.

And in fact, it was a misdemeanor in Ohio, the first--

JUSTICE GINSBURG: That was the Ohio offense.

QUIN DENVIR: --I--

Unidentified Justice: The--

QUIN DENVIR: --I'm sorry.

JUSTICE GINSBURG: --the one that was alleged to be a felony, I think, in the government's brief--

QUIN DENVIR: Is in--

JUSTICE GINSBURG: --I think that it was only a misdemeanor.

QUIN DENVIR: --In fact, we've attached the governing court records as an appendix to our reply brief that shows it was a misdemeanor.

JUSTICE SCALIA: How many... how many convictions in all, felonies plus misdemeanors?

QUIN DENVIR: Your Honor, I believe that he had the four... the four prior convictions... the strike convictions, the felonies, and I think he had another nine misdemeanors, and then this present offense.

I think that's the--

JUSTICE SCALIA: And the purpose of the three-strikes law, as I understand it, is to take off of the streets that very small proportion of people who commit an enormously high proportion of crimes.

I forget what the statistics are, but it's something like, you know, of those convicted, 20 percent commit 85 percent of the crimes.

It sounds to me like your client is a very good candidate for that law.

QUIN DENVIR: --We got... we got--

JUSTICE SCALIA: I mean, if that's a reasonable law.

It seems to me this is precisely the kind of person you want to get off the streets.

He's obviously going to do it again.

QUIN DENVIR: --Your Honor, we believe that the law, in itself, is not unreasonable and it could result in a proportionate sentence.

It did not in this case.

Under this court's decision in Solem versus Helm, the Court has said that you can look to the prior record as relevant to the sentencing decision because it aggravates the present crime, but the focus must remain on the present crime.

Unidentified Justice: Well, Solem stands with Rummel and with Harmelin.

They're really three different points, and Solem is probably the case that favors you most.

But certainly Rummel is good law, and Harmelin is good law.

And I think those cases don't favor you.

QUIN DENVIR: Well, Your Honor, I believe that Rummel... the Court said in Solem... the majority opinion said that Rummel would be controlling only in a similar factual situation.

We do not believe we have that here.

And as far as Harmelin was concerned, the basic principles of Solem were reaffirmed by seven justices in Harmelin and, we believe, when applied here, will show that this is a grossly disproportionate sentence.

JUSTICE GINSBURG: Mr. Denvir, would you clarify whether your challenge is strictly as applied?

Because some of the... some of the points that you make seem to be going to the statute wholesale.

So, for example, you talk about it... the statute's infirm, because it has no washout for aging offenses, but there was no such offense at stake here.

The strikes were all rather recent.

QUIN DENVIR: That's correct, Your Honor.

And--

JUSTICE GINSBURG: So--

QUIN DENVIR: --and to answer your question, we are challenging only the sentence that Mr. Ewing received for the crime that he committed, that he was sentenced at.

There's much discussion on both sides of... as... I... as the background of the three-strikes law.

We have no doubt the three-strikes law could result in a... in a constitutional sentence.

It did not, in this case.

So however the scheme is that reached this sentence, this life sentence for stealing three golf clubs, that sentence is... falls under the Eighth Amendment, in our view.

JUSTICE GINSBURG: --But we... so we should leave out things like no washout, that someone who never served any time would subject to the three strikes--

QUIN DENVIR: I think that's correct, Your Honor, that they don't play into this case.

And I think that... as I said, that the three-strikes law is merely... it's the process that produced an unconstitutional sentence.

It could have been produced by a different sentencing scheme, also.

Unidentified Justice: --Well, when we're examining the constitutionality of the three-strikes law, as applied to this sentence, we should take into account, should we not, the purposes of the California law, which was to have a law which was... gave simple, clear notice of the three-strikes policy?

And if you want us to take case-by-case, then that whole policy is undercut, it seems to me.

QUIN DENVIR: Well, Your Honor, I don't... I don't think that's true.

In Solem v. Helm, the Court made very clear that it was looking only to the sentence that was imposed on Mr. Helm.

Unidentified Justice: Yeah, I was going to ask you about that, because you had said that the principal focus has to be on this sentence.

I'm just not sure what your authority for that is when we have a recidivist scheme of this kind.

QUIN DENVIR: Well, Your Honor, the... in Solem versus Helm, the Court, of course, had a recidivist scheme.

The focus there was on number of prior offenses, as opposed to the nature of the prior offenses.

The Court said that the defendant, under double-jeopardy principles, cannot be punished for those prior crimes ; however, they are relevant to the... to the sentence imposed for the present crime.

And the... and the reason they are relative... and the Court said this best in Gryger versus Burke... is what they... what they... what they authorize is a, quote, +"/.

+" stiffened penalty for the latest crime, which is considered to be an aggravated offense because of repetitive one.

That's at page 8 in our reply brief.

But what Solem v. Helm made very clear is, although the prior crimes are relevant, the focus must remain, when judging proportionality or gross disproportionality, on what this... what this defendant did at this time, what he is being sentenced for at this time.

Unidentified Justice: I'm just not sure how that works.

What am I supposed to do with recidivism as a factor in analyzing this sentence?

QUIN DENVIR: Your Honor--

Unidentified Justice: Give it some weight, but not controlling weight, or something like that?

QUIN DENVIR: --I think that what the Court can say is that his prior crimes are relevant, in the sense that they make this crime a more aggravated crime than a crime committed by a first offender--

Unidentified Justice: Well--

QUIN DENVIR: --and that there can be a reasonable enhancement for that.

But in this case, he has been sentenced to... he has... his sentence has gone from a maximum of three years for a first offender to life, all based on the recidivism.

Unidentified Justice: --Well, why--

QUIN DENVIR: At that point--

Unidentified Justice: --why can't the State say that... where a person has a string of convictions like this man has, that it's time to get him off the street, as Justice Scalia says, that he simply cannot conform to the law?

QUIN DENVIR: --Your Honor, if he, in fact, committed a crime at this point that was a serious or a violent crime, they may have a basis, but what the Court has said very clearly is that--

Unidentified Justice: What--

QUIN DENVIR: --is the focus remains on this, because otherwise--

Unidentified Justice: --What--

QUIN DENVIR: --he's being punished for the prior crimes.

I'm sorry, Your Honor.

Unidentified Justice: --Well, what's the reason for saying that though... that you can only... that the focus remains on this crime, but others are relevant?

I mean, that really is kind of meaningless, it seems to me.

QUIN DENVIR: Well, I don't think so, Your Honor, because, as I say, what the Court has said over the years is that the important part about the prior crimes is that it shows that this is a repeat offense.

And the fact that he has committed offenses in a row makes this particular offense worse.

The fact that he has committed worse offenses in the past does not aggravate this crime.

I... this is... this still remains shoplifting three golf clubs, regardless if he had been a triple murderer or anything else, and that's what he's being punished for.

Because if he's being punished because of those prior crimes, their nature, there's really serious double jeopardy--

Unidentified Justice: What do you think would be enough?

Thirty years?

Would you like 30 years for walking off with three golf clubs?

QUIN DENVIR: --Your Honor, I... the... if you... if you look at our--

Unidentified Justice: I mean, if you're going to look on it as just stealing three golf clubs, and cast a blind eye to his long record of criminal activity, I don't know why you can give him any more than, you know, a couple of years.

QUIN DENVIR: --Well, Your Honor, if you look to our... to the comparison with other jurisdictions... and I just don't think this has been highlighted in our brief... there are only... there are only five jurisdictions that would have allowed a life sentence.

There's only one additional jurisdiction, Montana, that would have allowed a term of years as great as the minimum sentence here, and that's... Montana allows... is five to a hundred years.

And most states allow for either grand theft or recidivist grand theft--

Unidentified Justice: But we said--

QUIN DENVIR: --ten years at the most.

Unidentified Justice: --we said in Rummel, there's always going to be some state that punishes more harshly than others.

And certainly it was not intimated that that state, therefore, would... it was cruel and unusual.

QUIN DENVIR: No, that's correct, Your Honor.

In Solem v. Helm, the Court noted that he could... that Mr. Helm could have received a comparable sentence in one other state, and nevertheless held that it fell under the Eighth Amendment.

Unidentified Justice: Well, just help us one more time.

The prior history is relevant, but then how relevant?

QUIN DENVIR: Well, Your--

Unidentified Justice: You say the principal focus has to be on the three golf clubs, like we're some judges out of Victor Hugo or something and that's all we have to focus on.

But this... there's a... there's a long recidivism component here, and that's the whole purpose of the California law that you're asking us to ignore, it seems to me.

QUIN DENVIR: --Your Honor, and... what I'm saying is... I'm going back to what the Court said in Solem v. Helm in its analysis, which I think is controlling here.

It made... it made the point that the... the prior convictions... he cannot be punished for those, but they do aggravate this present crime that he's being punished for.

And the way they aggravate it is that... is that this shows that it's a repetitive offense.

Now, he can have a reasonable enhancement of the normal penalty for grand theft based on the repetition aspect of it, but at some point it becomes unreasonable.

And it becomes unreasonable if you go from three years to life based on his prior crimes.

At that--

Unidentified Justice: Why isn't is reasonable to say if he commits another felony... he's committed, you know, three already and nine other convictions... ["], California tells him, +"/.

+" and you go away for life.

Why isn't that reasonable?

And this... and this was a felony.

QUIN DENVIR: --Because of the nature of the crime that he committed, which is stealing three golf clubs, a crime that is not deemed either serious or violent under California law.

Unidentified Justice: But is a felony under California law.

QUIN DENVIR: It is a felony.

It's actually a wobbler and could be charged either way.

Unidentified Justice: Why--

QUIN DENVIR: But in this case, it's a felony.

Unidentified Justice: --Why can't California decide that enough is enough, that someone with a long string like this simply deserves to be put away?

QUIN DENVIR: Well, Your Honor, if that were true, then there would be no limiting principle on recidivist laws under the Eighth Amendment.

It would... at that point, you could say the mere fact that he broke any law... if he broke a traffic offense... a petty offense would show that he couldn't follow the law and could get a life sentence.

Unidentified Justice: Oh, I'd be with you there, if it was a misdemeanor or, you know, some... but this is a felony under California law.

QUIN DENVIR: It is a felony, and it's one of the least grave felonies in California.

JUSTICE O'CONNOR: But we have given... we've said, at least, here, that we are going to give great latitude to state legislatures in determining how many years to give, and how to categorize an offense.

Why don't... why don't we look to the Harmelin case for the standards, rather than Solem?

Unidentified Justice: Harmelin came later.

QUIN DENVIR: Well, Your Honor, I think you do, because, as I understand the Harmelin case, if you take the dissent and the plurality, they both agreed on the basic principle here, which is that there cannot be gross disproportion between the offense and the sentence.

And the reason I go back to Solem versus Helm is that it was a recidivist case and there was some further information.

I don't... as I read the Court's opinion, at least the plurality opinion, in Harmelin, the big change was that you would... you would not look automatically to intra-jurisdictional or inter-jurisdictional comparisons.

You would first have to find an inference of gross disproportionality before you'd go to the second... the other two steps.

That's what I understood to be the major... the major refinement of Solem v. Helm that was in the plurality opinion.

JUSTICE BREYER: I'm slightly stuck on this, because I... I'd like... there is some relevant information that I can't get a hold of, and you may some in your experience, but it isn't in the brief.

Imagine... let's take the set of people who have committed at least two serious crimes or more, maybe 50 serious crimes.

They're very serious criminals.

And they're warned, +"/.

+" If you do anything again, you've had it.

So think of that set of people.

Now, I would like to know, in light of that set of people, now one of the members of that set commits a crime equal to stealing [dollar] 1200... whether they steal [dollar] 1200 or equal to that ; that's a very subjective judgment... what's the longest sentence such a person has ever actually served?

Here, they are going to 25 years, real years.

And the second question I'd like to know is, What is the least bad crime that such a person ever committed who did serve 25 real years?

QUIN DENVIR: Well, Your Honor--

JUSTICE BREYER: I'd like to know both of those things.

And, obviously, they're find-outable.

QUIN DENVIR: --I... let me see if I can answer your question.

As far as under the three-strikes law, there is... because it sets this absolute minimum of 25 years... it's a life sentence, but it adds a kicker to it which says, unlike other life sentences, you have to wait at least 25 years before you can even be considered.

So we... since this law was passed in 1994, we have no experience with this law.

JUSTICE BREYER: Obviously, I don't want experience--

QUIN DENVIR: Right.

JUSTICE BREYER: --under this law.

That would be circular.

QUIN DENVIR: Well, Your Honor--

JUSTICE BREYER: What I'm looking for is, in the absence of this law--

QUIN DENVIR: --Oh, I'm sorry.

I understand--

JUSTICE BREYER: --in the absence of this law, what is the longest sentence a person like yours... and I'm defining 1200.

And there's loads of records... I mean, in the California Adult Authority before this law was passed, et cetera.

And the second question is, What is the least bad thing such a person who really served 25 years did?

QUIN DENVIR: --Your--

JUSTICE BREYER: That... those are empirical questions, and you're talking about this being unusual.

Unidentified Justice: I don't know if it's unusual unless I know what happened to other people.

QUIN DENVIR: --Well, Your Honor, I don't... I... there's nothing in the record that would answer that, but let me see if I can answer it in a different way.

But for the three-strike law, Mr. Ewing, with his record, could receive no more than four years.

Now, there are other recidivist laws in California besides the three-strike law.

JUSTICE BREYER: Under the California Adult Authority, which was only the law in California for 70 years, people could receive very, very, very long sentences.

QUIN DENVIR: They could, Your Honor, and California is--

JUSTICE BREYER: And... not this long for this thing, but... but... but--

QUIN DENVIR: --I think that's right.

I think the long sentence... the... California substituted determinate sentencing law for indeterminate in 1977, and... but under the old indeterminate sentencing law, my clear recollection is that those long, indeterminate sentences were always triggered by serious or violent felonies, and that is something that--

JUSTICE BREYER: --No, they... I've looked it up, actually--

QUIN DENVIR: --No?

JUSTICE BREYER: --and you're quite right that this is not as... you couldn't get this long a sentence, but you could get a pretty long one for being a third offender and committing a property crime.

QUIN DENVIR: And--

JUSTICE BREYER: But I... that doesn't tell us how long the people actually served.

QUIN DENVIR: --Well, Your Honor, if you look for the question of parole in California, which the... which the State suggests is... saves his life sentence, the Court looked at this in 1995 in the case California Department of Corrections versus Moralez.

And what the Court said at that time was that 90 percent of all defendants who came up for their first parole hearing were found unsuitable for parole and that 85 percent were found unsuitable at subsequent hearings.

Now, that has not improved any, because, as you'll see in the amicus brief of Families Against Mandatory Minimums, at page 18, as of 2000, the Board of Prison Terms, which is the... which is the parole authority... their official records show that they only recommended parole in 1 percent of the 2000 cases that came before them with a life sentence.

Unidentified Justice: Mr. Denvir, can't the people of... this thing, by the way, was not adopted by the legislature, was it?

It was adopted by plebiscite, of the people of California--

QUIN DENVIR: By both, Your Honor.

Unidentified Justice: --By both.

QUIN DENVIR: Both by legislature and by--

Unidentified Justice: By plebiscite.

So the people of California decided, ["].

Why do we have to be bound by whatever the more permissive scheme was earlier?

The people of California knew that scheme, and they decided, +"/.

+" This is no good.

+" We still have too much crime.

+" We're not punishing people enough, or we're not keeping them... keeping them incarcerated long enough.

Why do we have to be bound by whatever the previous record was?

QUIN DENVIR: --Well--

Unidentified Justice: It seems to me the question before us is, Is it unreasonable to put away somebody who has this record?

QUIN DENVIR: --Your Honor, first of all, as to the question of initiative versus legislation, it is my understanding that the Court, in other areas, has said that there's no greater deference given to one than the other.

But the other question is, there's no doubt that some deference has to be paid by this Court to legislative judgments or initiative judgments in the questions of punishment and in dealing with recidivists.

The Court has made that very clear.

But it is that deference that has led to the Court setting a very forgiving standard.

The Court said that it would not require, in this area, or as excessive fines, strict proportionality between the crime being punished and the sentence.

It has said it was only when there was a gross disproportion, and that's a very deferential standard.

That is a standard that allows the legislature to make many reasonable judgments, but says that--

JUSTICE GINSBURG: So how do you decide--

QUIN DENVIR: --some judgments are unreasonable.

JUSTICE GINSBURG: --how much is too much?

QUIN DENVIR: Well, Your Honor--

Unidentified Justice: What's the--

QUIN DENVIR: --life imprisonment for... for the crime of stealing three golf clubs, we believe, is cruel and unusual punishment.

JUSTICE BREYER: --It's not life imprisonment.

Unidentified Justice: But we're just doing--

JUSTICE BREYER: --It's 25 years.

QUIN DENVIR: Your Honor--

JUSTICE BREYER: It's 25 years that he'll really serve.

We know that.

As far as... what happens after those 25 years is a matter of parole or a decision by other people.

QUIN DENVIR: --Your Honor, the sentence that he's been given is life in prison.

He's been consigned to die in prison unless some administrative agency determines to let him out.

And as I've just quoted you--

JUSTICE BREYER: But I mean, parole, in all the cases you're citing, is relevant, so you can describe it as you want.

We both know what the facts are.

The facts are he has to be in jail for at least 25 years, and then he might be paroled.

QUIN DENVIR: --And he might be, but on... there is no... there is nothing in this record that would suggest he has a reasonable expectation in that regard.

In fact... in fact, what's before the Court would suggest that there is not a reasonable expectation, particularly if the animus that drives... that drove the passage of this law continues for 25 years and they still think, +"/.

+" Well, gee, if they committed these prior crimes, they ought to be locked up for life, because they may commit other crimes.

JUSTICE GINSBURG: In the statistics that you were quoting, though, those were not three-strikes cases.

QUIN DENVIR: Those are not three-strikes cases.

Unidentified Justice: Those are cases where people might have gotten reduced time for good behavior--

QUIN DENVIR: That's correct.

Unidentified Justice: --none of which is... and one question I wanted to ask you, In view of the infirmities of Mr. Ewing... is he still alive?

QUIN DENVIR: He is alive, Your Honor.

He is--

Unidentified Justice: Counselor--

QUIN DENVIR: --he's lost... he's aged and has lost eyesight in one eye as a result, but he's still alive at this point--

Unidentified Justice: --How old was he at the time of sentence?

QUIN DENVIR: --He was 38 years old.

He's 40 years old now.

So--

Unidentified Justice: Counselor--

QUIN DENVIR: --as a practical matter... I mean, this... 25 years is probably a life sentence for him, unless there's some major medical development that--

JUSTICE SOUTER: --Mr. Denvir, you conceded a moment ago that the prior offenses can be considered for purposes of treating this offense as an aggravated offense, given the prior record ; and yet when you answer... you've done this more than once... when you have answered the question of going to disproportionality, you have said, +"/.

+" It's 25 to life for stealing three golf clubs.

I don't think you can have it both ways.

Either your argument is it's 25... the appropriate comparison is... or the appropriate characterization is +"/.

+" 25 to life for three golf clubs.

in which case you, in effect, are telling us, +"/.

+" Ignore the priors ; they don't aggravate.

or you've got to say, +"/.

+" It's 25 to life for stealing three golf clubs when you have a prior record.

--whatever it was, nine prior offenses, including four felonies, in this case.

Which is it?

Because I assume it may well affect the result.

QUIN DENVIR: --Your Honor, I... if... I misspoke.

What we say is the focus must be on the present offense.

It is an aggravated offense.

He is a repeat--

JUSTICE SOUTER: But when you said that--

QUIN DENVIR: --a repeat offender.

He is a repeat offender.

He is someone who committed this offense with a prior record of offenses.

JUSTICE SOUTER: --Is it inconsistent with your position... when you say, +"/.

+" The focus must be on this offense.

is it inconsistent with that to say, +"/.

+" This offense... is stealing three golf clubs worth [dollar] 1200 by somebody with a prior record of nine offenses?

Is that consistent with putting the focus on this offense, in the terms that you're using?

QUIN DENVIR: I think it is, in the sense that it shows that there has... there has been some... there has been a series of repetition.

But what I'm suggesting to the Court is that regardless of the repetition, the fact that it's a repetitive offense, if the focus remains on what he did now, the triggering offense, which, under Solem v. Helm, is the focus, then no matter what he has done in the past, no matter how much repetition, it is... it is grossly disproportional to sentence him to a life sentence.

At that point--

JUSTICE SOUTER: A hundred prior instances of stealing three golf clubs would not affect the analysis then on your view?

QUIN DENVIR: --Your Honor, if there... if there were a... if there were a series of crimes of the same nature... for instance, if there--

JUSTICE SOUTER: Well, I've just... I've just given you one.

QUIN DENVIR: --Yes.

JUSTICE SOUTER: A hundred prior... three golf clubs every time, a hundred times... would that justify the treatment that he has gotten?

QUIN DENVIR: Your Honor, I think that that would... that would show a propensity to steal golf clubs, but, again, I don't believe--

Unidentified Justice: I would concede that, but the--

[Laughter]

QUIN DENVIR: --I don't believe--

Unidentified Justice: Posit further that his score has not improved.

[Laughter]

QUIN DENVIR: --He shouldn't be penalized for that.

That may be beyond his control.

JUSTICE SOUTER: Okay, but if we... if we've got our crazy example of a hundred priors exactly like this, and we follow your verbal criterion at least of focusing on this event as aggravated, would this be disproportionate, grossly?

QUIN DENVIR: I believe that life is, because it is still... the crime that has to be punished... I mean, and this is what the Court said in Solem v. Helm... this is--

JUSTICE SOUTER: Well, maybe we were trying--

QUIN DENVIR: --you know, in Solem v. Helm--

JUSTICE SOUTER: --maybe we were trying to have it both ways verbally because we were imprecise.

But with respect, I think that's what you're trying to do.

Because on the one hand, you concede, yes, it may regarded as an aggravated offense in light of the priors, and then in the next breath you say, +"/.

+" But the focus has got to be on this offense.

QUIN DENVIR: --Your Honor, I... Your Honor, there's no doubt that the prior record... and the Court has said that is relevant to the punishment for the present crime, and it does aggravate it.

But there are limits to how aggravated shoplifting three golf clubs can be, no matter what has happened before--

JUSTICE SOUTER: Even with the hundred prior instances?

QUIN DENVIR: --Your Honor, it's still three... it's still stealing three golf clubs.

It's not robbery, rape, murder, or something of that nature.

I mean, it is... it is still there.

I mean, the... to raise your question, what if someone had a long history of jay-walking and had seven or ten or a hundred convictions for jay-walking and jay-walked again?

I think the Court would not say you could get a life sentence for that just--

Unidentified Justice: I don't--

QUIN DENVIR: --because it's repetitive.

Unidentified Justice: --I don't think it would.

And the reason it wouldn't is... I assume you would concede... is that jay-walking does not hurt other people the way 100 instances of stealing golf clubs worth [dollar] 1200 hurts other people.

QUIN DENVIR: It hurts in the sense that it's a property crime and causes--

Unidentified Justice: Well, you know, and--

QUIN DENVIR: --a loss, that's correct.

Unidentified Justice: --and may lead to something beyond property crime.

Isn't grand larceny much more likely to result in physical confrontation and--

QUIN DENVIR: Your Honor, I--

Unidentified Justice: --physical injury than jay-walking?

QUIN DENVIR: --Your... it is... it is, Your Honor, and I think--

Unidentified Justice: Which is why it's a felony.

QUIN DENVIR: --and I think that if there had been some... some violence that had actually occurred out of this, then he undoubtedly would have been punished under a different statute with higher--

Unidentified Justice: It's a serious crime, in part because of that... in part because of the risk of physical confrontation that he poses.

QUIN DENVIR: --But Your Honor, California determined that when it set the ranges for grand theft--

CHIEF JUSTICE REHNQUIST: Would you like... would you like to reserve time, Mr. Denvir?

QUIN DENVIR: --If the Court has further questions, I'd rather answer the questions--

CHIEF JUSTICE REHNQUIST: Very well--

QUIN DENVIR: --than reserve time.

CHIEF JUSTICE REHNQUIST: --Very well.

You asked for it, you--

QUIN DENVIR: California considered that when they set the penalties for grand theft.

And they set the penalty as a maximum of three years in prison.

If they set different penalties for grand theft from a person, and for robbery, there is... there is... all those things are taken into consideration here.

And the fact that this could have eventuated into something else, the fact of the matter is that it did not.

And in fact, if anything, Mr. Ewing seemed to be doing everything he can to be... to get out of there undetected, if that... if you look at the facts of this crime.

Unidentified Justice: --I'm curious about one thing.

Was he really a very tall man, or were these irons rather than wood?

[Laughter]

QUIN DENVIR: Your Honor, to tell you the truth, I have no idea how he could have done that.

It seems to me a miracle that he could have... actually got out the door, but he apparently did.

He's not a very tall man, as I recall.

Unidentified Justice: It is a good thing that walking is not an essential part of golf, because otherwise walking with those--

QUIN DENVIR: I think--

Unidentified Justice: --golf clubs in his pants would have been very difficult.

[Laughter]

QUIN DENVIR: --I think he was planning on removing them before he used them, I take it--

Unidentified Justice: He took a golf cart out to the car.

[Laughter]

QUIN DENVIR: --Your Honor, I would reserve any additional time, unless there's additional questions.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Denvir.

QUIN DENVIR: Thank you.

Unidentified Justice: Mr. De Nicola, we'll hear from you.

ORAL ARGUMENT OF DONALD E. DE NICOLA ON BEHALF OF THE RESPONDENT

DONALD E DE NICOLA: Mr. Chief Justice, and may it please the Court: First, I think, in answer to Justice Breyer's question, I don't know what the statistics are under the old indeterminate sentencing law that was in effect in California until 1976.

But in a way, I think the... Your Honor's question triggers an issue that I think is central here.

The ISL, the old California law, was premised very explicitly on a penological theory that emphasized rehabilitation of the offender.

I think the question that's raised in this case, and it's a question that's particularly apt in light of the Harmelin opinion, is, When can a state decide that they're going to move away from a more lenient policy of rehabilitation or extending leniency to a first-time offender, and move toward a policy, a tougher policy, of incapacitation?

JUSTICE BREYER: So, tell me, am I fair to say assume there never, in the history of the United States, has been a person who... of the set... I'm only... I don't want to be pejorative ; I want to characterize it your way, and I'll characterize it as taking the set of very serious criminals with very serious records, and a person in that set commits another crime, and the other crime is approximately theft of [dollar] 1200... and am I fair in saying there hasn't been, ever, a sentence in the history of the United States in the last hundred years anywhere close to this one?

And I base that on my knowledge... which you could get ; it's public... of 35,000 real cases in the federal system where to get a sentence like this one for a prior offender, you had to... you have to now, you know, hijack an airplane, commit murder, something really serious beyond belief compared to this, and that the worst sentence you could get for something like this is about four, five years.

And then I look to the California Adult Authority, and I see, under that sentencing, nobody could have gotten more than ten real years, and, indeed, the average was somewhere around five.

And you have all those records, and you have come up with nothing in your brief.

And therefore, can I say... my assumption is, this is by an order or factor of two or three times higher than anyone ever was sentenced before in the United States for such a thing?

You see, I'm making a very extreme statement empirically, and I want to know what the response is to my statement, and I want to know why I shouldn't hold you to my statement since you have the information, and why I shouldn't say that's just way too much.

DONALD E DE NICOLA: Well, again, Your Honor, I... the... my answer is that I do not know what those records would have shown.

Unidentified Justice: I guess he shouldn't hold you to it, since you don't have the burden of persuasion here, do you?

I thought you're defending a... a decision below.

DONALD E DE NICOLA: Yes, and I did interpret the issue to be a proportionality issue rather than an unusualness issue.

But I do... something in the recesses of my mind tells me that we had a three-time loser statute in California, and I think that put people away for life without parole.

JUSTICE BREYER: Well, all right, how do we decide... how do we decide if you say, of this serious set of criminals, you go to jail for life if you jay-walk... I mean, the next time.

Is that... is that disproportionate?

How am I supposed to say what is or was... is not if I don't look to the empirical facts?

And I'm not holding you to present empirical facts.

I'm just saying, Why shouldn't I decide on the basis of empirical fact that is available?

DONALD E DE NICOLA: Well, in our view, the most prominent, kind of, objective factor that this Court could look to in weighing this sentence is what the legislature has said are felonies.

What California has done in this case is, they've narrowed their target to a subclass of felons who have committed what the legislature has deemed to be... and I think what, on the face of it, can reasonably interpreted as being... serious or violent crimes.

Unidentified Justice: What's the limit for being... what is dividing line between grand theft and petty theft in California?

DONALD E DE NICOLA: Four hundred dollars, Your Honor.

Unidentified Justice: When I went to law school, it was [dollar] 100, except if it was citrus that you stole, it was [dollar] 50.

[Laughter]

DONALD E DE NICOLA: Now it's [dollar] 100 if it's citrus.

[Laughter]

But once there is that predicate of serious or violent felonies set in place, then what the three-strikes law does is, I think, reasonably moves toward a policy of incapacitation upon the commission of, not just any new crime, not a misdemeanor or an infraction, but a new crime that the legislature has--

Unidentified Justice: One of the things that puzzles me about the statute... maybe you can enlighten me... I thought that if there were two priors that were violent but not related to property, such as murder and rape, that the third related to property wouldn't trigger the statute.

DONALD E DE NICOLA: --No, Your Honor.

The way the statute is written is that if the prior felonies meet the statutory definition of being serious or violent... if you have two of those, then any new felony triggers the three-strike sentence.

Unidentified Justice: Even if you... if you had, say, a murder conviction and a rape conviction and then you committed a wobbler that was a property crime?

Would the statute treat that as a third strike?

DONALD E DE NICOLA: Yes, because wobblers are felonies, by definition, in California, and any felony qualifies.

Unidentified Justice: Regardless of the character of the first two strikes.

DONALD E DE NICOLA: As long as the first two strikes meet the level of being serious or violent, which--

Unidentified Justice: I see.

So... and there's no requirement that it be related to property.

I misunderstood.

DONALD E DE NICOLA: --No, Your Honor.

Unidentified Justice: All right.

JUSTICE BREYER: Also, I don't know how to work with felony and misdemeanor, because, across the nation, my impression is that those are classified in very different ways, and they are classified sometimes according to the prison that you serve in, as in Massachusetts, and sometimes you can find a felony that, in ordinary common sense, is a lot less serious than certain misdemeanors.

That's why I'm very pushed to know what to work with unless you work with empirical fact.

DONALD E DE NICOLA: Well, we... in California, the felony is defined by the... not just the locus of where the term will be served, but also by the length.

It's more than a year.

And we think that that's a traditional line of demarcation between offenses that, over the course of time, society deems to be of elevated seriousness.

Unidentified Justice: I think some of our constitutional jurisprudence makes it... makes... turns upon the distinction between felonies and misdemeanors, doesn't it?

DONALD E DE NICOLA: Yes, Your Honor, I think that is so, and there are political restraints on the legislature in enacting laws in general applicability.

There are certainly economic restraints on a legislature in deciding to set a punishment scheme that provides for long terms of imprisonment.

That's costly.

And that to... for a court to second-guess that, comes, we think, perilously close to the court suggesting that the legislature can, in some instances, not declare a certain crime to be a felony, but must declare it to be a misdemeanor, and we don't think there's anything in the Court's jurisprudence that would... that would support that type of an intrusion.

JUSTICE GINSBURG: Mr. De Nicola, there's a lot of discretion built into this scheme.

It comes across as three strikes and you're out, and that's it ; but it's not.

There's discretion in the prosecutor and discretion in the judge.

Are there, in Los Angeles or in California, any guides to prosecutors in exercising their discretion, say, whether to treat a wobbler as a misdemeanor or a felony?

DONALD E DE NICOLA: There are no statewide standards.

Each elected district attorney in the various counties in California has the option of promulgating guidelines.

Some of them have.

And the fact of the matter is some of them... some of them differ.

We think that's a rather unremarkable event in light of the fact that prosecutorial discretion is always going to lead to some sort of different approach depending on local conditions.

But there is not, as far as I know, any statewide guideline, and certainly nothing that would be binding on the local prosecutors.

JUSTICE GINSBURG: The prosecutor can charge something as a misdemeanor.

As far as the striking a strike is concerned, is that solely for the judge?

Or, I suppose, it depends on what's charged.

The prosecutor can decide not to charge two strikes.

DONALD E DE NICOLA: Yes, the prosecutor, under the statute, is required to allege the priors, but the prosecutor may seek dismissal of the prior strikes either in the furtherance of justice, or because of problems of proof.

But the judge also has authority to strike strikes, even without the consent of the prosecutor, in California.

And so--

JUSTICE GINSBURG: And similarly, to reduce a wobbler to a misdemeanor.

DONALD E DE NICOLA: --Yes, the prosecutor, in a way, has that discretion, because he or she can charge a... an alternative felony or misdemeanor as a misdemeanor in the first place, but even under the three-strikes law, the trial judge retains the discretion to sentence a... an alternative felony misdemeanor as a misdemeanor, and that would take the case out of the three-strikes scope.

JUSTICE STEVENS: May I ask you a question about your theory of the limits of the constitutional protection here?

Supposing the offense was speeding... and it can be dangerous speeding... and you had a... you said that... 15 arrests for speeding gives you this very sentence we got in this case.

Would that be permissible, do you think?

Unidentified Justice: Just on the theory that Justice Scalia has explained... where this guy is just too dangerous, we just don't want him on the street anymore, so we'll put him in jail for life, 25 years without possibility of parole.

DONALD E DE NICOLA: Well, we think that might possibly be constitutional, Your Honor.

I--

JUSTICE STEVENS: Possibly be constitutional or unconstitutional?

DONALD E DE NICOLA: --Might possibly be constitutional.

I think it's more likely that it would be--

JUSTICE STEVENS: Well, why wouldn't it clearly be constitutional if we're thinking about protecting the public from repetitive offenders?

DONALD E DE NICOLA: --Well, because I think the limiting principle that we're seeking here, Your Honor, is one that's premised on the felony classification.

If the--

JUSTICE STEVENS: Do you think the statute would have been unconstitutional if they had said it's a misdemeanor when it's [dollar] 1200... if the legislature just, say, called the three golf clubs for [dollar] 1200 by a misdemeanor instead of by felony, would that change the constitutional analysis?

DONALD E DE NICOLA: --It... I think it would make the constitutional... it might change the constitutional analysis.

It might make the result different.

I think, again, once you have the predicate in place of the serious or violent felonies, then I think the reason you're--

JUSTICE STEVENS: But serious or violent... it really doesn't have to be violent ; it has to serious.

But you could have had [dollar] 1200 thefts, four or five of them, and he would still qualify, wouldn't he?

DONALD E DE NICOLA: --No, Your Honor.

If... the prior crimes have to qualify as serious or violent under the definitions of a separate statutory scheme, so they would not--

JUSTICE STEVENS: But are there not serious crimes that are not violent?

DONALD E DE NICOLA: --Yes, I think that's true.

There are serious crimes where no injury is inflicted, but the crimes, I think, by their nature, tend to be crimes where the prospect of violence is rather imminent.

JUSTICE STEVENS: But they're... I'm just trying to... I'm trying to understand the theory.

Is violence an absolute requirement, in your view, in one of the priors?

DONALD E DE NICOLA: No, I think... I think--

JUSTICE STEVENS: Okay.

So then we could have something equivalent... maybe instead of [dollar] 1200, [dollar] 2000 or something.

But if you just had five... or three or four [dollar] 2,000 burglaries, that... do you... would that be permissible to put him in jail on the same sentence that you have in this case?

DONALD E DE NICOLA: --I... again, Your Honor, I... it's a... it's a much tougher call.

I think it might be permissible to do it, provided that the sentence allows for a possibility of parole, after the--

JUSTICE STEVENS: After 25 years.

DONALD E DE NICOLA: --Yes.

That would distinguish it from Solem, Your Honor.

But nevertheless, here, the predicate, even though the prior crimes don't necessarily have to involve the actual infliction of violence, they are crimes that by their nature--

JUSTICE STEVENS: But in your view, violence is really more significant than the number of prior offenses, if I understand you correctly.

DONALD E DE NICOLA: --Well, I think it might be a sliding scale, but I think violence does play a significant role and can justify a scheme like this, even in the absence--

JUSTICE STEVENS: Okay.

DONALD E DE NICOLA: --of a great number of priors.

JUSTICE STEVENS: But you... but I'm not quite sure what your view would be if there were no violence, but just seven or eight high-speed offenses, say, speeding, or [dollar] 1200 golf clubs.

DONALD E DE NICOLA: Well, we think a lot would depend on whether the legislature in the jurisdiction had determined for... for... on an historical basis and for reasons independent--

JUSTICE STEVENS: Well, speeding is dangerous.

People get hurt in automobile accidents.

It seems to me it's exactly the same risk to the public that you have with this kind of crime.

DONALD E DE NICOLA: --But we think... if the legislature declares those to be a felony, then I think we become a lot... we come a lot closer to--

JUSTICE STEVENS: It depends on what the legislature calls the offense.

DONALD E DE NICOLA: --Yes, it does, Your Honor, in a very significant respect, because what the legislature calls the offense in connection with it being a misdemeanor or a felony does reflect, we think, a reliable longstanding consensus of the... of the community.

And under the Harmelin principles of deference and reliance and objective factors, we think that's a prominent objective factor.

JUSTICE BREYER: On Justice Stevens' hypo, taking it one step further, I guess we would have to say that if there were 15 prior speeding offenses, and they had been classified as felonies in California, that there was no disproportion between 25-to-life for 15... with a predicate of 15 prior speeding offenses, on the one hand, and the penalties for torture and murder, on the other hand.

Because I think it's undisputed that the only standalone penalties that are this great are the penalties for torture and homicide.

That would be rather a stretch, wouldn't it, regardless of whether the legislature wants to put a felony label on them or not?

DONALD E DE NICOLA: Well, again, Your Honor--

JUSTICE BREYER: Speeding's important, but--

DONALD E DE NICOLA: --Yes.

JUSTICE BREYER: --I mean, torture and murder?

DONALD E DE NICOLA: I do think that it is a much tougher case for us, and I'm not at all certain that it would be constitutional if all of the crimes, the predicate through the new crime, were simply speeding.

I think--

JUSTICE GINSBURG: Might it be an abuse of the judge's discretion not to reduce such a... if it's a wobbler, in such a case, or not to strike a strike?

DONALD E DE NICOLA: --Well, I don't... in the California context, the question would only arise... well, I don't think it would arise at all, because you wouldn't have a speeding... even as a predicate, any felony-triggering events, and the speeding wouldn't qualify as a serious or violent felony under the statute anyway.

So this hypothetical is very far removed from the three-strikes scheme that California has in place.

JUSTICE SCALIA: I would have thought that your response to Justice Souter would have been that it might seem disproportionate insofar as the penal goal of punishment or retribution is concerned, but it depends on what you want your penal goals to be.

California has decided that disabling the criminal is the most important thing, and in... from that point of view, it's not necessarily disproportionate.

The one is disabled as the other.

DONALD E DE NICOLA: Well--

JUSTICE SCALIA: I mean, proportionality... you necessarily have to look upon what the principal objective of the punishment is.

If the objective of... if the objective is retribution, then, sure, I guess it's disproportionate to execute somebody for killing only one person, when you do no more than execute somebody for killing 20 people.

But if your purpose is disabling the criminal, I'm not sure that it... that the example that Justice Souter gave is disproportionate.

DONALD E DE NICOLA: --Well, again, Your Honor, I don't... I don't think I would absolutely concede that it would be unconstitutional.

I'm just saying that--

JUSTICE SOUTER: Well, do you adopt Justice Scalia's analysis?

I mean, this came up in the briefs, and this was an interesting point.

Does the State, for purposes of proportionality analysis, have the option to adopt a different theory of penalty?

And he's given an example.

Do you... do you adopt that argument here?

And do you think that is a justification that you want to rely on in this case?

DONALD E DE NICOLA: --Yes, we do adopt the theory of incapacitation, and we do rely on incapacitation as a theory that justifies the sentence in this case.

JUSTICE SOUTER: All right.

Here's the problem that I have with that, and this is... this is... this is what I wish you would address.

If we allow, for purposes of proportionality or gross disproportionality analysis, this kind of... the consideration of varying intentions... retribution, incapacitation, deterrence, and so on... and every time the State gets to a very high offense, the State says, +"/.

+" Oh, we've changed the theory.

+" We've gone from deterrence to retribution.

it seems to me that it makes this kind of analysis of comparables... this proportionality analysis... impossible because we no longer have two comparable entities on either side of our comparison.

What we have is a low sentence on the one hand for deterrence, and a high sentence for incapacitation or retribution.

We have apples and oranges instead of oranges and oranges.

So my question is, If we accept the State's option to say, ["], don't we read comparability analysis right out of the law?

Doesn't it simply become logically impossible?

DONALD E DE NICOLA: Well, I think it becomes much more difficult, but I don't think it necessarily becomes logically impossible, because I think there is still room for judicial scrutiny, within the context of the Harmelin narrow proportionality principle, to take a hard look--

JUSTICE SOUTER: But my problem is, I don't know what we're supposed to... what we can compare for comparable examples on proportionality analysis if it can be fundamentally affected by the State's change of intention from one theory in one crime, or one set of penalties, to another theory in another set of penalties.

I don't see what we can compare.

We no longer have comparables.

DONALD E DE NICOLA: --Well, but I think the Court can still look at whether the phenomenon of... as in this case, of heightened recidivism based on prior violence, or serious offenses threatening violence and triggered by a new crime that, say... that's classified as a felony by the legislature and that offers a sentence of... a lengthy sentence, but that still offers a possibility of parole--

Unidentified Justice: I guess the conclusion that Justice Souter's questions would lead to is that a State cannot use any factor except retribution.

Or if it uses any other factor, it does so at the risk of our simply holding it to be disproportionate.

DONALD E DE NICOLA: --Yes, Your Honor--

Unidentified Justice: And I don't know that our... I'm sure that our cases don't support that.

DONALD E DE NICOLA: --It... and I acknowledge it... to Justice Souter, it makes it a very difficult situation.

But under Harmelin, those, I think, are penological objectives that the Judiciary ought to defer to the State.

JUSTICE SOUTER: But maybe... maybe, and I... we've... we haven't said this... maybe our assumption is that the State, in establishing a penal system, is going to establish it on a set of consistent and neutral principles from beginning to end.

Would that be a legitimate basis for us to ground our constitutional analysis?

DONALD E DE NICOLA: No, Your Honor.

It disables the states from changing... from dealing with changing conditions.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. De Nicola.

Mr. Chertoff, we'll hear from you.

ORAL ARGUMENT OF MICHAEL CHERTOFF ON BEHALF OF THE RESPONDENT

MICHAEL CHERTOFF: Mr. Chief Justice, and may it please the Court: I think the last series of questions which Justice Souter posed to Mr. De Nicola really framed the issue in light of this case's most recent pronouncement in Harmelin... this Court's most recent pronouncement in Harmelin.

I would have read Harmelin as establishing two principles, at a minimum.

One is, the analysis is not proportionality ; it's gross disproportionality, an extremely rare basis to invalidate a statute.

Second, we recognize that the states are entitled to adopt different penological theories, or a mix of theories.

In fact, I would have thought that a state's entitled to say, for example, that certain types of crimes ought to be addressed in terms of retribution ; other types of crimes posing other kinds of issues can be dealt with in terms of deterrence and incapacitation.

And if the consequence of that principle is that this Court has very limited review on comparability of sentences, at least where we are dealing with sentences that allow for the possibility of parole, then I think the conclusion is that it is the extremely rare case in which a sentence gets--

JUSTICE BREYER: Well, why isn't that this case?

I mean, I don't know how to approach proportionality other than to say, What sentences are given for the same crime, or what crimes are treated with the same sentence?

Now, suppose, looking at that, I find this is the rare case.

If it isn't, why isn't it?

I mean, all the information we have, as I've said before, seems to suggest that this is higher by a factor of two or three times anything else you can find.

MICHAEL CHERTOFF: --Well--

Unidentified Justice: Now, if that isn't grossly disproportionate, why isn't it?

MICHAEL CHERTOFF: --It's not for several reasons, Your Honor.

First of all, although there's nothing in the record to speak to what the pre-1977 proportions were in terms of sentencing, we do know, for example, that elsewhere in the country there have been comparable sentences.

We've cited in the United States--

JUSTICE BREYER: Cited a lot of instances in which the law permits such a sentence, but that's quite different from saying there was such a sentence.

MICHAEL CHERTOFF: --Actually, I think in footnote 13, we've cited several cases in other states where you have very comparable punishments, where you have larcenies between 4 and [dollar] 700 as the third strike--

JUSTICE BREYER: And do you have instances where people were sentenced to 25 real years in prison for having committed such an offense?

Or were you citing that the law would permit such a sentence?

MICHAEL CHERTOFF: --We cited review and rejection of disproportionality challenges in one case in Nevada to a life sentence without parole for a grand larceny of--

JUSTICE BREYER: Good, okay, thank you.

MICHAEL CHERTOFF: --[dollar] 476, and a similar one, I think, in South Dakota.

Also, of course, as we look at the current sentencing regime, this is not, as in Solem versus Helm, where you have single judge who is apparently an outlier under the state sentencing scheme.

In this case, if one takes, in fact, a petitioner's own figures, you have at least 2 to 300 individuals whose third strike, under the California scheme as it now exists, has, in fact, been a property-based crime.

And I think the most compelling reason why this is not that very, very rare case where we strike down a sentence is precisely what Justice Ginsburg has been repeatedly asking about, the discretion that the courts have to tailor the particular sentence in this case to the facts of the case.

If we look at the record in this case, in the joint appendix, the sentencing judge carefully considered the entirety of the file with respect to the trigger... or the predicate offenses, which involved, actually, three burglaries in the course of a single month, one of which involved pulling a knife and threatening somebody, as well as at least nine prior offenses.

And interestingly, in no case since 1988 had the petitioner ever successfully completed probation or parole.

He was always violating probation or parole by committing his next offense.

And that's precisely what the sentencing judge looked at and explicitly referred to in rejecting the request on the part of the petitioner either to downgrade the triggering offense to a misdemeanor, or to eliminate some of the strikes.

And I would have thought that is precisely what we expect and want judges to do in a rational sentencing system.

JUSTICE SOUTER: In effect, you're... going back to the beginning of your argument, I think you're... I think you're saying that what the judge here did in rejecting the request to downgrade or to disregard, in effect, was saying, +"/.

+" Yes, I am finding that this is a case in which it is appropriate to sentence on an entirely different theory, a theory of putting them away, as opposed to a theory of deterrence.

and I... that seems to be the logic of what's going on.

MICHAEL CHERTOFF: That's correct ; an entirely different theory, though, that is embraced by the State in passing this law.

JUSTICE SOUTER: And may I ask you one more question on that?

Because again, you started toward it in responding to me at the beginning.

Like you, I came in here assuming that the State could change its theories.

If that is so, then I guess what that means for proportionate or gross disproportionality analysis is this: A State can do it and can pass our Eight Amendment test if it has a reasonable basis for saying, +"/.

+" We are going, under certain circumstances, to say there is a change to theory of sentencing.

+" The theory changes from deterrence or mere retribution to a theory or public protection, putting away the person who simply will repeat and repeat and repeat.

So, for purposes of our proportionality analysis, the question would come down, Do they have a reasonable basis for doing that under their statute, in general?

And in particular, is there a reasonable basis for saying that this is a case for that?

And if the answers to those two questions are yes, then it passes the test.

Is that... would you adopt that analysis?

MICHAEL CHERTOFF: I would absolutely agree that if it satisfies those two, it passes the test.

That's not to say that if it flunks those, it automatically fails the test.

But certainly if you meet those conditions, I think you pass the test.

And I think there's a common sense to that.

One could look, for example, at certain types of violent crimes, like murders and rapes and say, irrespective of whether it was a crime of passion or something that will never happen again, +"/.

+" It is so heinous, our philosophy is we have to punish it.

But one can also look at comparatively small crimes, at least if they're felonies, and say, +"/.

+" If someone is repetitiously unable to conform their conduct to the requirements of the law, we don't have to wait until he commits the next felony or the next two felonies before we put an end to it.

And interestingly, if one goes back Blackstone, who talks a little bit about the issue of proportionality as it related back in his day, he discusses the fact that when you deal with habitual offenders, it would be cruel to the public to simply allow that person to get out again and commit their next crime.

So, I don't know that it's so much that the State changes its theory, as that the State adapts its theory to the particular type of crime and particular type of offender.

And that's, of course, what we want to have in sentencing.

And, finally, I would say this.

In a scheme like California, where the state judge has the power to tailor to the particular offender and the particular offense what the right answer is, for the federal courts to come in under gross disproportionality analysis and recalibrate that... even if, sitting as state trial judges, the justices might feel we would do it differently... would be essentially converting the courts into a constitutional sentencing commission.

And if one looks at the companion case--

Unidentified Justice: Excuse me, would be essentially to--

MICHAEL CHERTOFF: --Convert the court into a constitutional sentencing commission.

Doing the kind of analysis that we now have, a sentencing commission--

JUSTICE BREYER: --And that would be a very bad thing.

I agree.

Unidentified Justice: [Laughter]

MICHAEL CHERTOFF: --It would be a... certainly very complicated thing, Justice Breyer.

So... and if one looks at the companion case, Andrade, and the subsequent cases in the Ninth Circuit that have flowed from that case, one sees this phenomenon beginning to emerge, where every fact pattern is evaluated slightly differently.

One court views burglary as being a violent offense ; one court says it's not a violent offense.

Unidentified Justice: Could you argue that, because discretion is consistent with the goals of the statute before the sentencing, that some discretion is also permitted to a reviewing court after the sentencing, and they can still maintain the symmetry and the purpose of the statute?

MICHAEL CHERTOFF: The state law could certainly provide for some kind of review as a matter of state sentencing law in terms of abuse of discretion by the sentencing judge.

JUSTICE STEVENS: But in this... in California, does the appellate court ever set aside sentences on the ground there was an abuse of discretion to invoke the three strikes law?

MICHAEL CHERTOFF: I know of cases where they have affirmed trial judges that have set aside strikes.

I don't know of a case--

Unidentified Justice: No, I... has... has a trial judge ever been set aside for imposing the third strike?

MICHAEL CHERTOFF: --I'm not aware of it.

Unidentified Justice: I don't think--

MICHAEL CHERTOFF: I'm not aware--

Unidentified Justice: --there are any--

MICHAEL CHERTOFF: --of such a case.

Certainly the state law could allow that to happen.

If there are no further questions, I will return the rest of my time to the Court.

CHIEF JUSTICE REHNQUIST: --Thank you, Mr. Chertoff.

Mr. Denvir, you have one minute remaining.

REBUTTAL ARGUMENT OF QUIN DENVIR ON BEHALF OF THE PETITIONER

QUIN DENVIR: Your Honor, the point I... I'd like to make two points.

One is, if the discretion in... under the California law is very limited.

One thing would be to treat a wobbler, if it is a wobbler, and reduce it to a misdemeanor ; so you would go from 25 to life, or life, to one-year maximum penalty.

That's not used very often.

The other one is to strike a prior conviction.

But that's a... the California Supreme Court in Romero said that's a very limited discretion, that it is only when you can find that this offender is outside the ["], whatever that is.

And there's an amicus brief filed by the Los Angeles public defender in Romero that shows that that discretion has been used very little in California.

So the... this limited discretion has no effect on it.

The only other point I'd make, as far as the repetition... as far as the labeling, if all the legislature has to do is say, +"/.

+" What we're doing here is incapacitation, and, therefore, the Court can't look at that.

then it really writes the Eighth Amendment protections against grossly disproportional sentences out totally.

If it's just a question of... they say, ["], and you can't even question that, because they can always claim they want to incapacitate any criminal for any amount of time.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Denvir.

The case is submitted.

(Whereupon, [*55] at 11:09 a.m., the case in the above-entitled matter was submitted.)