Ninth Circuit cries foul on three-strikes sentence.

The California attorney general's office is preparing to take to the U.S. Supreme Court the Ninth Circuit's recent decision reversing a 50-year-to-life shoplifting sentence imposed under the state's three-strikes law. (Andrade v. Attorney Gen. of State of Cal., 270 F.3d 743 (9th Cir. 2001).)

The Ninth Circuit Court of Appeals granted a stay of its order that Leandro Andrade, who faces a minimum of 50 years in prison for shoplifting videotapes from Kmart, be resentenced within 60 days. The court had ruled that Andrade's sentence constituted cruel and unusual punishment because it was "grossly disproportionate" to the crime. In late November, the California attorney general's office won a postponement in the enforcement of the decision while it petitions the U.S. Supreme Court to review the case.

"We decided to go that route because we want this very important issue addressed as soon as possible," said Hallye Jordan, California attorney general Bill Lockyer's press secretary. The state prosecutor disputes the federal court's authority to overturn a state court sentencing decision.

The case is being closely watched by criminal lawyers, particularly those in California. Even though the Ninth Circuit stressed that Andrade was limited in application, defense lawyers see the case as a new tool to be used in striking down harsh sentences for nonviolent crimes.

"We certainly hope that, even though the Ninth Circuit said its decision only applies to Andrade's case, every defense lawyer in California will be making an Eighth Amendment argument in their three-strikes cases," said Mary Broderick, executive director of California Attorneys for Criminal Justice, an organization of criminal defense lawyers and allied professionals. "We know a lot of attorneys are doing that, but we hope every attorney will."

California enacted its tough sentencing law, aimed at keeping career criminals in prison, in 1994. The statute was a response to public outcry over the murder of 12-year-old Polly Klaas, who was killed by a repeat offender on parole. Twenty-four other states have similar laws, but California's is considered unique because it can be triggered by relatively minor offenses.

The Ninth Circuit's ruling in Andrade leaves the statute in effect. "Our holding is limited to the application of the three-strikes law to the unusual circumstances of Andrade's case," the court wrote. "The Eighth Amendment does not permit the application of a law which results in a sentence grossly disproportionate to the crime. Andrade's sentence of life in prison with no possibility of parole for 50 years is grossly disproportionate to his two misdemeanor thefts of nine videotapes."

Although the ruling was limited, Andrade's court-appointed lawyer, Erwin Chemerinsky, was pleased with the decision. He noted that for at least a century, the Supreme Court has held that grossly disproportionate sentences are unconstitutional. "If anything is grossly disproportionate, it's putting a person in prison for 50 years to life for $153 worth of videotapes," said Chemerinsky, a law professor at the University of Southern California.

Under the California criminal code, petty theft is normally punishable by a maximum of six months in county jail and a $1,000 fine. Andrade's criminal history, which includes burglary charges, triggered sentencing under the three-strikes law, which allows prosecutors to treat some misdemeanor offenses as felonies. In addition, under the law, the sentencing court had no discretion to impose Andrade's sentences concurrently, so he received two consecutive terms of 25 years to life.

In Los Angeles County, which has the country's largest public defender's office, lawyers are citing Andrade in cases with similar facts. If the Supreme Court lets the decision stand, criminals already in prison could seek reductions in their sentences.

"It's a very significant opinion," said the county's deputy public defender, Alex Ricciardulli. He noted that it is the first to hold any part of California's three-strikes law unconstitutional. Nearly 7,000 people are serving life terms in the state's prisons under the law, he said--nearly half for nonviolent crimes.

Ricciardulli disagreed with those who say Andrade could lead to opening prison gates for dangerous criminals. "That's dead wrong," he said, because the law still provides serious penalties for repeat offenders.

The U.S. Supreme Court expressed concern in January 1999 about the application of California's three-strikes law to petty offenses, indicating that it was waiting for rulings from a federal appeals court before addressing the issue.

In Riggs v. California, a homeless man was sentenced to 25 years to life for stealing a bottle of vitamins from a supermarket. Riggs, who did not have a lawyer, asked the Supreme Court to hear his case.

In denying Riggs's petition, the Court said the question of whether the 25-years-to-life sentence was grossly disproportionate "is obviously substantial, particularly since California appears to be the only state in which a misdemeanor could receive such a severe sentence."

Nevertheless the Court, over Justice Stephen Breyer's dissent, said that it was "prudent for this Court to await review by other courts before addressing the issue." (Riggs v. California, 119 S. Ct. 890 (1999).)

The Court is expected to decide by the end of April whether to hear the Andrade case.