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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 in violation of the Eighth Amendment. (1) After the Court's 5-4 decisions in both Ewing v. California (2) and 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 habeas corpus relief to state prisoners. For these reasons, the two decisions are likely to have an impact far beyond California.

Disproportionate sentencing

California's three-strikes law was enacted by the state legislature in 1994 and passed as a voter initiative that same year? The law provides that if a person has been convicted of a "serious" or "violent" felony, a second such conviction is punished by "twice the term otherwise provided as punishment for the current felony conviction." (5) If the defendant has two prior serious or violent felonies, then a third felony of any type--even a felony that does not meet California's definitions of serious or violent crimes--is punished by life in prison with no possibility of parole for at least 25 years. (6)

Gary Ewing, the plaintiff in Ewing v. California, had a long history of prior offenses, including thefts, battery, possession of drug paraphernalia, 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. 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, 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)

The Court applied the Solem test eight years later in Harmelin v. Michigan, 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, joined by Justices Sandra Day O'Connor 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 and justices Antonin Scalia, Clarence Thomas, and John Paul Stephens--considered the first part of the Solon 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." (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 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 type of punishment, and not the length of a sentence, can violate the Eighth Amendment.

Habeas corpus

The 1996 Antiterrorism 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. 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 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 $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 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 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, 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, 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.

(24.) Id.

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California. He served as counsel for Leandro Andrade in the Ninth Circuit and the Supreme Court.
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Title Annotation:California
Author:Chemerinsky, Erwin
Date:May 1, 2003
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