Ewing v. California - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in two cases will be announced by Justice O’Connor.

Argument of Justice O’connor

Mr. O’connor: I will announce first the opinion in Ewing versus California, No. 01-6978.

The case comes on writ of certiorari to the Court of Appeals of California’s Second Appellate District.

California’s Three-Strikes Law was designed to protect the public safety by ensuring longer prison terms and greater punishment for repeat felony offenders.

Under the Three-Strikes Law, defendant who is convicted of a felony and has previously been convicted of two or more serious or violent felonies must receive a sentence of at least twenty-five years to life in prison.

While on parole from a nine-year prison term, the petitioner stole three golf clubs worth nearly $400 a piece from a pro shop, a California jury convicted petitioner of felony grand theft.

The prosecutor alleged and the Trial Court found the petitioner had been convicted previously of four serious or violent felonies.

In sentencing petitioner to twenty five years to life, the Trial Court declined to exercise its discretion either to reduce petitioner’s felony conviction to a misdemeanor or to dismiss the allegations of some or all of his prior convictions.

The California Court of Appeal affirmed concluding the petitioner’s sentence did not violate the Eight Amendment’s prohibition on cruel and unusual punishment.

The Supreme Court of California denied review.

In an opinion filed with the Clerk of the Court today, we affirm the California Court of Appeals' decision.

In enacting the Three-Strikes Law, the California Legislature made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior and whose conduct has not been deterred by more conventional approaches to punishment must be isolated from society in order to protect the public safety.

Though, Three-Strikes Laws may be relatively new, we have a long-standing tradition of deferring to State legislatures in making and implementing these kinds of important policy decisions.

The Constitution does not mandate the adoption of any one penalogical theory and nothing in the Eight Amendment prohibits California from deciding to incapacitate repeat offenders like petitioner who have already been convicted of at least one serious or violent felony.

We have long recognized recidivism as a legitimate basis for punishment and it is a serious public safety concern in California and across the nation.

Any criticism of the law should be directed at the legislature which is primarily responsible for making the policy choices that underlie any criminal sentencing scheme.

Petitioner’s sentence is long but so is his criminal history.

He has served nine separate prison terms and committed most of crimes while on probation or parole.

His prior strikes were serious felonies including robbery and residential burglary.

In weighing the gravity of his current offence, we must also place on the scales petitioner’s long record of recidivism.

Though long, petitioner’s sentence reflects a rational legislative judgment that is entitled a deference.

Justice Scalia and Justice Thomas each have filed an opinion concurring in the judgment; Justice Stevens has filed a dissenting opinion which Justices Souter, Ginsburg, and Breyer have joined; Justice Breyer has filed a dissenting opinion in which Justices Stevens, Souter, and Ginsburg have joined.

Argument of Justice Breyer

Mr. Breyer: As Justice O’Connor said, Justice Stevens, Justice Souter, Justice Ginsburg and I dissent that the crime at issue here consists of theft of three golf clubs with a sticker price totaling $1,197.

The offender has a prior criminal record that includes four prior felony convictions arising out of three burglaries, one with a knife.

The sentence consists of twenty five years of real prison time not mitigated by any possibility of parole.

The legal question is whether this sentence is grossly disproportionate.

In answering this question, we recognize, the four of us, what this court has previously held.

First, the Eighth Amendment does apply to a sentence for a term of years; second, the Constitution does leave the States with great sentencing leeway forbidding only the rare sentence at the outer bound, and third, it is important for courts to apply objective criteria in so far as possible.

We have tried to apply reasonably objective criteria and our conclusion is that this case does present that rare case where a punishment is grossly disproportionate.

In our view, comparative sentencing practices provide the most reliable objective measure of proportionality, but we accept, at least for argument’s sake, the majority's view that we should make these comparisons only after first determining that a sentence crosses a legal threshold, a threshold that we assume is designed to separate whether perfectly innocuous sheep from the potential goats.

The sentence here, in our view, does fall within that potential goat category.

For one thing, it is similar to but not identical with the recidivist sentence that this Court struck down in Solem versus Helm, the real time sentence in this case is shorter.

It is twenty five years without parole compared with life without parole in Solem, but that difference twenty five years versus life simply puts this case into a twilight zone of legal uncertainty.

That uncertainty adding plausibility to the defendant’s legal attack helps the sentence cross the legal threshold.

For another thing, it amounts to application of one of the most severe punishments available to one of the less severe forms of criminal behavior.

However we measure that conduct severity, including which we do through use of the Government’s own criteria.

Finally, experienced judges, namely those who sentenced offenders in the 40,000 actual proceedings upon which the Federal Sentencing Commission based its federal guideline, apparently also would have thought this sentence unduly harsh.

For the Commission use neither prior shoplifting nor other similar theft defenses as a basis for specially augmenting a recidivist sentence.

So, we conclude at the least the Court should have undertaken a comparative sentence analysis.

Now, the comparative sentence analysis here shows that this sentence before us is out of line and by a considerable degree with prior sentencing practice in California as well as prior and present sentencing practices in other States and in the federal system.

When we make the determination, we note that what matters is real time served, not the time that sentencing statutes authorized, and we asked two questions: first, how do other jurisdictions punish similar offenders namely recidivists who engage in similar conduct?

Second, for what other form of criminal conduct do other jurisdictions reserve this kind of severe punishment, twenty five real years in jail?

I would summarize our answers as follows: As to the first question, the State supported by the Federal Government has found precisely one relevant example of another jurisdiction's similar sentence outside this California Three-Strike Law context.

There is good reason to believe that the fall that there is only one does not lie in the research.

After all, it would be illegal to impose a sentence anywhere near twenty five real prison years in all but a handful of states, and even as to those latter handful, there is very little reason to believe that judges do impose the maximum sentence that the law in those few states permits them to impose.

Given a present population approaching two million, that single example of a relevant similar sentence that State and Federal Governments together have been able to find suggest that outside contemporary California such sentences are truly unusual.

It does not suggest the contrary.

As to the second question, the kind of conduct that this type of severe punishment is reserved for in other jurisdiction twenty five years real time, in those other jurisdictions, the kind of conduct involves recidivists who go on to commit murder, air piracy, drug offenses involving what we say twenty pounds of heroine, robbery involving serious bodily injury in a million dollars and so forth.

In California before the Three-Strikes Law, 90% of all nonrecidivists first-degree murderers served less than twenty real years in prison, and even now, California caps prison time at ten years or less for nonrecidivist crimes such as voluntary manslaughter and arson involving great bodily injury.

It reserves Ewing sentence twenty five real years for nonrecidivist first-degree murderers.

Now, compare with this conduct, the conduct here at issue, theft of three golf clubs with a sticker price totaling $1,197.00.

Now, we like the majority recognize the Constitution does permit California to adopt a new stricter sentencing system and that is what it has done with the Three-Strikes Law, but after looking as we do in the opinion in some detail at that law, we can find no administrative consideration or other considerations that could justify the sentence given here for this type of crime.

For these and other reasons set forth in our opinion, we would find the sentence grossly disproportionate and hold it unconstitutional.