Is any sentence cruel and unusual punishment?On March 5, the Supreme Court rejected constitutional challenges to life sentences that had been imposed on shoplifters in two different cases under California's three-strikes law. For almost a century, the Court has held that grossly disproportionate sentences are cruel and unusual punishment Such punishment as would amount to torture or barbarity, any cruel and degrading punishment not known to the Common Law, or any fine, penalty, confinement, or treatment that is so disproportionate to the offense as to shock the moral sense of the community. in violation of the Eighth Amendment. (1) After the Court's 5-4 decisions in both Ewing v. California Ewing v. California, (2) and , is one of two cases upholding a sentence imposed under California's three strikes law against a challenge that it constituted cruel and unusual punishment in violation of the Eighth Amendment. Lockyer v. Andrade Lockyer v. Andrade, , (3) it will be extremely difficult to successfully challenge any punishment as "grossly disproportionate." Moreover, the Lockyer ruling significantly narrows federal courts' ability to grant , decided the same day as Ewing v. California, held that there would be no relief by means of a petition for a writ of habeas corpus from a sentence imposed under California's three habeas corpus habeas corpus (hā`bēəs kôr`pəs) [Lat.,=you should have the body], writ directed by a judge to some person who is detaining another, commanding him to bring the body of the person in his custody at a specified time to a relief to state prisoners. For these reasons, the two decisions are likely to have an impact far beyond California.
California's three-strikes law was enacted by the state legislature A state legislature may refer to a legislative branch or body of a political subdivision in a federal system.
The following legislatures exist in the following political subdivisions:
Gary Ewing Garrison Arthur "Gary" Ewing, was a character in the American television series Knots Landing and also in the television series Dallas. The character of Gary Ewing was played most notably by Ted Shackelford (1979-1993) and briefly played by David Ackroyd , the plaintiff in Ewing v. California, had a long history of prior offenses, including thefts, battery, possession of drug paraphernalia drug paraphernalia Controlled paraphernalia Substance abuse As defined in a regulatory context, DP is a hypodermic syringe, needle, metal or plastic (snorting) tube, or other instrument or implement or combination adapted for the administration of controlled , burglaries, and a robbery. In March 2000, he was caught trying to steal three golf clubs--each worth $399--from a pro shop in El Segundo El Segundo (ĕl sēgŭn`dō), industrial city (1990 pop. 15,223), Los Angeles co., S Calif., on Santa Monica Bay; inc. 1917. Its products include navigation and computer systems, aircraft parts, office machines, telephone apparatus, and . Theft of more than $400 worth of merchandise or money is deemed grand theft in California. Ewing was convicted and sentenced under California's three-strikes law.
Ewing and Lockyer are not the first cases in which the Supreme Court has considered whether a sentence constitutes cruel and unusual punishment. In Solem v. Helm Solem v. Helm, , the Court declared a life sentence without the possibility of parole unconstitutional when it was imposed on a person who had passed a "no account" check for $100. (7) The Court also articulated a three-part test for determining whether sentences are grossly disproportionate. First, courts are to compare "the gravity of the offense and the harshness of the penalty." Second, courts are to consider the sentences imposed on other criminals in the same jurisdiction for similar offenses. Finally, courts are to look to the "sentences imposed for commission of the same crime in other jurisdictions." (8) , was a United States Supreme Court case concerned with the scope of the Eighth Amendment protection from cruel and unusual punishment. Mr.
The Court applied the Solem test eight years later in Harmelin v. Michigan Harmelin v. Michigan, 501 U.S. 957 (1991), was a case decided by the Supreme Court of the United States under the Eighth Amendment to the United States Constitution. , when it upheld a life sentence without the possibility of parole for a person caught possessing 672 grams of cocaine. (9) Justice Anthony Kennedy's concurring opinion Noun 1. concurring opinion - an opinion that agrees with the court's disposition of the case but is written to express a particular judge's reasoning
judgement, legal opinion, opinion, judgment - the legal document stating the reasons for a judicial decision; , joined by Justices Sandra Day O'Connor Sandra Day O'Connor (born March 26 1930) is an American jurist who served as the first female Associate Justice of the Supreme Court of the United States from 1981 to 2006. She was considered a strict constructionist. and David Souter, agreed with Solem's holding that a grossly disproportionate prison sentence violates the Eighth Amendment. (10) Kennedy reaffirmed Solem's three-part test but said that courts need not examine the second and third factors--the reviews of sentences within the jurisdiction and elsewhere--unless a "threshold comparison of the crime committed and the sentence imposed leads to an inference of gross dis-proportionality." (11)
In Ewing, O'Connor's affirmation of the sentence stressed that "though three-strikes laws may be relatively new, our tradition of deferring to state legislatures in making and implementing such important policy decisions is long-standing." (12)
After emphasizing the need for deference to the legislature, O'Connor--joined by Chief Justice William Rehnquist Noun 1. William Rehnquist - United States jurist who served as an associate justice on the United States Supreme Court from 1972 until 1986, when he was appointed chief justice (born in 1924)
Rehnquist, William Hubbs Rehnquist and justices Antonin Scalia, Clarence Thomas Clarence Thomas (born June 23, 1948) is an American jurist and has been an Associate Justice of the Supreme Court of the United States since 1991. He is the second African American to serve on the nation's highest court, after Justice Thurgood Marshall. , and John Paul The name John Paul might refer to: Full name
Solon (sō`lən), c.639–c.559 B.C., Athenian statesman, lawgiver, and reformer. He was also a poet, and some of his patriotic verse in the Ionic dialect is extant. At some time (perhaps c.600 B.C. test. When weighing the gravity of the offense and the harshness of the punishment, O'Connor wrote, the Court "must place on the scales not only his current felony, but also his long history of felony recidivism recidivism: see criminology. ." (13) This is quite different from the approach taken in Solem, in which the Court stated, "A criminal sentence must be proportionate to the crime for which the defendant has been convicted." (14)
By requiring consideration of a defendant's entire criminal record in evaluating a recidivist recidivist n. a repeat criminal offender, convicted of a crime after having been previously convicted. (See: habitual criminal) sentence, the Court makes it much harder to argue that a punishment is grossly excessive. Because of Ewing's prior record, the Court held that his "sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the three-strikes law, is not grossly disproportionate and therefore does not violate the Eighth Amendment's prohibition on cruel and unusual punishment." (15) The Court came to this conclusion even though, as Justice Stephen Breyer pointed out in his dissent, no one in the country would have received a sentence like Ewing's before the three-strikes law was enacted. (16)
Scalia and Thomas wrote separate opinions, in which they argued that no sentence ever should be found to be cruel and unusual punishment. (17) They contended that only an impermissible im·per·mis·si·ble
Not permitted; not permissible: impermissible behavior.
im type of punishment, and not the length of a sentence, can violate the Eighth Amendment.
The 1996 Antiterrorism an·ti·ter·ror·ist
Intended to prevent or counteract terrorism; counterterror: antiterrorist measures.
an and Effective Death Penalty Act significantly narrowed the availability of habeas corpus relief to state prisoners, as is seen in Lockyer v. Andrade. The act, which modified 28 U.S.C. [section]2254(d), provides that a federal court may grant habeas corpus relief only if a state court decision is "contrary to" or an "unreasonable application of" clearly established federal law, as determined by the United States Supreme Court United States Supreme Court: see Supreme Court, United States. . In Lockyer, the Court held that the defendant was not entitled to habeas corpus relief because neither of these criteria applied.
The Court found that there was no clearly established law as to what constitutes a disproportionate sentence. This conclusion is surprising because it seems to ignore the three-part Solem test, which was applied in Harmelin; on many occasions, the Court has cited that test approvingly. (18)
Despite this, O'Connor wrote that the "only relevant clearly established law ... is the gross disproportionality Dis`pro`por`tion`al´i`ty
n. 1. The state of being disproportional. principle." (19) However, she never explained why a life sentence, with no possibility of parole for 50 years, fails to meet this standard, in no other state could Leandro Andrade, who was convicted of stealing videotapes valued at $153, have received this sentence; it is much greater than the punishment for rape, manslaughter, or second-degree murder under California law. O'Connor's opinion will make it much harder for habeas petitioners to gain relief because it sets such a difficult--and ambiguous--standard for determining when clearly established federal law exists.
The Court also found that Andrade's sentence was not "contrary to" or an "unreasonable application of" clearly established federal law. The Court has held that a state court decision is "contrary to" federal law "if the state court applies a different rule from the governing law set forth in our cases, or if it decides a case differently than we have done on a materially indistinguishable set of facts." (20) Andrade argued that the California Court of Appeal acted contrary to federal law because it never applied the three-part test prescribed by Solem and Harmelin, but the Supreme Court rejected that claim.
The antiterrorism act also allows a federal court to grant habeas corpus relief if, again, the state court "decides a case differently than [the Supreme Court has] done on a materially indistinguishable set of facts." The factual similarities between Lockyer and Solem are striking. Both Andrade and Helm were in their mid-30s when sentenced to life in prison. Both had received their first felony convictions for residential burglary about 15 years earlier. Both had purely nonviolent prior records, consisting mostly of financial and property crimes. Both received a life sentence under state recidivist statutes for minor offenses: Helm for issuing a no-account check worth about $100; Andrade for shoplifting Ask a Lawyer
Country: United States of America
caught shoplifting at sears 12/05/05, first time, 20yearsold, have no criminal record. $153 worth of videotapes.
O'Connor said that the difference between Lockyer and Solem is that Andrade was eligible for parole in 50 years, whereas Helm was sentenced to life in prison without the possibility of parole. O'Connor thus concluded that Lockyer was similar to Rummel v. Estelle, where the defendant was sentenced to life in prison for misappropriating about $100 worth of property but was eligible for parole in 12 years. (21) O'Connor's analysis means that a sentence is immune from Eighth Amendment attack as long as parole remains a theoretical possibility.
Realistically, an indeterminate life sentence with no possibility of parole for 50 years is the same as a life sentence with no chance of parole. After O'Connor's opinion, a state can immunize im·mu·nize
1. To render immune.
2. To produce immunity in, as by inoculation.
im its sentences from Eighth Amendment analysis--while virtually ensuring that a convict will never be released--just by setting parole in 75 or 100 years.
Federal courts also can grant habeas corpus relief if a state court decision is an "unreasonable application" of clearly established federal law. The Ninth Circuit held that this standard is met if the state court commits "clear error." (22) O'Connor, however, said that this standard "fails to give proper deference to state courts." (23) She wrote: "It is not enough that a federal habeas court, in its 'independent review of the legal question,' is left with a 'firm conviction' that the state court was 'erroneous.'" (24)
But O'Connor never explained why a "clear error" by a state court is not sufficient to be an "unreasonable application" of federal law. Nor did she explain the standard that courts should use in the future for making this determination. As a result, Lockyer v. Andrade is likely to create much confusion in the law of habeas corpus, and may be used as a significant new obstacle for state prisoners seeking remedies for constitutional violations.
By upholding the life sentences imposed on Ewing and Andrade, the Supreme Court has made it extremely unlikely that any sentence will be deemed to constitute cruel and unusual punishment. Not one justice in the majority expressed concern, let alone outrage, that two men have been imprisoned im·pris·on
tr.v. im·pris·oned, im·pris·on·ing, im·pris·ons
To put in or as if in prison; confine.
[Middle English emprisonen, from Old French emprisoner : en- for life for shoplifting a small amount of merchandise. If only one of them had seen the cases differently, Ewing and Andrade would have been released from prison in weeks; now they will probably spend the rest of their lives there.
(1.) See, e.g., Weems v. United States Weems v. United States, 217 U.S. 349 (1910), was a decision of the United States Supreme Court. It is primarily notable as it pertains to the prohibition of cruel and unusual punishment. , 217 U.S. 349 (1910).
(2.) 123 S. Ct. 1179 (2003).
(3.) 123 S. Ct. 1166 (2003).
(4.) CAL. PENAL CODE [subsections] 667.5, 1192.7 (2003).
(5.) Id. [subsections] 667(e)(1), 1170.12(c)(1).
(6.) Id. [subsections] 667(e)(2)(A), 1170.12(c)(2)(A).
(7.) 463 U.S. 277 (1983).
(8.) Id. at 291.
(9.) 501 U.S. 957 (1991).
(10.) Id. at 1001 (Kennedy, J., concurring).
(11.) Id. at 1005 (Kennedy, J., concurring).
(12.) 123 S. Ct. 1179, 1187.
(13.) Id. at 1189-90.
(14.) 463 U.S. at 290.
(15.) 123 S. Ct. 1179, 1190.
(16.) Id. at 1199 (Breyer, J., dissenting).
(17.) Id. at 1190-91 (Scalia, J., concurring in the judgment; id. at 1191 (Thomas, J., concurring in the judgment).
(18.) See, e.g., Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 435 (2001); United States v. Bajakajian United States v. Bajakajian, 524 U.S. 321 (1998), is a case decided by the Supreme Court of the United States regarding the Excessive Fines clause of the Eighth Amendment. , 524 U.S. 321, 336 (1998).
(19.) Lockyer, 123 S. Ct. 1166.
(20.) Belly. Cone, 122 S. Ct. 1843, 1850 (2002).
(21.) 445 U.S. 263 (1980).
(22.) Van Tran v. Lindsey, 212 F.3d 1143, 1153-1154 (Ninth Circuit, 2000).
(23.) Lockyer, 123 S. Ct. 1166, 1175.
Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California The U.S. News & World Report ranked USC 27th among all universities in the United States in its 2008 ranking of "America's Best Colleges", also designating it as one of the "most selective universities" for admitting 8,634 of the almost 34,000 who applied for freshman admission . He served as counsel for Leandro Andrade in the Ninth Circuit and the Supreme Court.