THREE STRIKES, YOU’RE IN

The arguments and opinions offered in the Supreme Court’s double rulings Wednesday on California’s controversial “three strikes” law provide fascinating insight on the complex issues of penology, prisoner rehabilitation and recidivism. The glimpses these rulings offer into the minds of the nation’s highest jurists are interesting, too.

The two cases before the court, Ewing and Andrade, were similar in that both men had long criminal records, including violent crimes. Both had spent many years in prison on many occasions and had been released only to continue committing crimes. The offenses, the third strikes that earned them sentences of 25 years and 50 years without parole, were minor – Gary Ewing stole three golf clubs from a pro shop, Leandro Andrade stole nine children’s videotapes from a department store.

By 5-4 votes, the court upheld both sentences. Within the five, though, the split is significant. Justices O’Connor, Rehnquist and Kennedy held that sentencing decisions for state crimes were essentially a matter for the states and that the problem of recidivism – repeat offenders – is serious enough to warrant strong measures. Justices Scalia and Thomas went further, rejecting the principle established by previous courts that the Eighth Amendment prohibition of cruel and unusual punishment requires proportionality in sentencing; the Constitution, they said, addresses types of punishment, not length of sentences. The four dissenters – Justices Breyer, Souter, Stevens and Ginsburg – held fast to the proportionality principle, maintaining that the sentences for petty thefts can vary according to circumstances, but not nearly to this extent.

The harshness of the California law is easy to understand. It was passed in 1994, a time when that state, already outraged by rampant repeat offenders, was horrified by the kidnapping and murder of 12-year-old Polly Klaas by a man with a long history of violent crime who had been released from prison after serving only half of his most recent sentence. Studies since show that California, in its fury, made a rational, or at least supportable, decision. The highest recidivism rates are among property crime offenders, such as Ewing (nine prior sentences, several for multiple crimes) and Andrade, (more than 20 theft and burglary convictions since 1982), as opposed to criminals who commit violent or drug-related crimes.

These rulings are evidence that such strong response to the persistent problem of crime is so fragile and personal. After more than two and a quarter centuries as a nation, the fundamental question of what, exactly or even approximately, is meant by “cruel and unusual punishment” is subject to a one-vote swing. Five justices justify the Ewing and Andrade sentences by the accumulated records of criminal activity and their accumulated impacts upon law-abiding society; four see three stolen golf clubs, nine shoplifted videos and two lives effectively ended for petty offenses. Despite the extensive references the justices made to volumes of previous cases, opinions and arguments, the feeling remains that these rulings were made not by great legal scholars but by ordinary people with ordinary concerns and emotions.