Comparing the strike zones of "three strikes and you're out" laws for California and Georgia, the nation's two heaviest hitters.

• Author: Heyer, Cole F.

"[I]t is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense." (1)

"As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment." (2)

1. INTRODUCTION

   On November 4, 1995, Leandro Andrade was arrested for the benign offense of shoplifting $84.70 worth of children's movies from a K-Mart store located in Ontario, California. (3) Just fourteen days later, Andrade was again arrested for stealing $68.84 of children's movies in Montclair, California. (4) A life of crime was nothing new to Andrade. (5) In fact, Andrade had been in and out of prison since 1982 for a host of offenses, including petty theft, first-degree residential burglary, and transporting marijuana. (6)

   In 1994, California adopted a "Three Strikes and You're Out" law (three strikes law), which is an antirecidivist law that mandates a sentence of twenty-five years to life in prison upon a criminal's third felony conviction if the criminal has two prior serious or violent felony convictions. (7) The State charged and convicted Andrade of two counts of petty theft with a prior conviction for shoplifting children's videotapes--a felony in California. (8) Tragically, because Andrade had two prior violent or serious felony convictions, a judge sentenced Andrade to serve two consecutive terms of twenty-five years to life in prison. (9) Leandro Andrade will not be eligible for parole until 2046, at which time he will be eighty-seven years old. (10)

   If California's three strikes law is considered overly broad, at the opposite end of the spectrum is Georgia's version, which only applies to seven specific offenses. (11) Colloquially known as Georgia's "Seven Deadly Sins Law" (two strikes law), Georgia's two strikes law is considered the nation's harshest because it only takes two strikes--as opposed to three--for a criminal to be "out." (12) A criminal who is convicted for committing a second serious violent felony is sentenced to life in prison without the possibility of parole or any other sentence-reducing measures. (13) In Ortiz v. State, (14) Robert Ortiz was charged and convicted of rape, aggravated sodomy, and burglary in Georgia. (15) Because the crimes of rape and aggravated sodomy are categorized as serious violent felonies, Ortiz will spend the rest of his life behind bars without any hope for parole. (16)

   Here are two versions of a three strikes law, two repeat offenders with differing criminal histories, two very different triggering offenses, and yet, both Leandro Andrade and Robert Ortiz will spend the rest of their lives behind bars. (17) The message both California and Georgia are trying to send to recidivists, although not equally clear in California's case, is that if you continually commit a certain class of felonies, you are going to prison for life. (18) Yet, when juxtaposed, these specific outcomes inevitably beg the question: Does incarcerating a repeat offender for life--in Andrade's case, for petty theft--violate the Eighth Amendment's proscription against cruel and unusual punishment? (19) Moreover, do the social and financial costs saved from prevented crimes warrant the frequent use of three strikes laws in California and Georgia? (20) Or rather, are these laws needlessly filling prisons with lifelong prisoners who, as they age, will only cost states more to incarcerate? (21)

   This Note compares California's and Georgia's versions of a three strikes law. (22) Part II of this Note briefly discusses the meaning of the Eighth Amendment's Cruel and Unusual Punishment Clause as interpreted by the United States Supreme Court. (23) Additionally, Part II explains the respective mechanics and effects of both California's and Georgia's versions. (24) Finally, Part III of this article seeks to substantiate several claims: first, the United States Supreme Court has significantly diverged from its prior decisions interpreting the Eighth Amendment's Cruel and Unusual Punishment Clause regarding noncapital punishments; second, Georgia's version of a three strikes law warrants greater judicial deference than California's; and third, although both California's and Georgia's versions of a three strikes law contribute to prison overcrowding and increased costs in their respective states, California's version causes a greater burden. (25)

2. HISTORY

   News of the brutal slayings of Kimber Reynolds and Polly Klaas, each committed by a paroled violent offender, swept the nation in late 1992 and 1993. (26) Mike Reynolds, Kimber's father, demanded swift action be taken to prevent repeat offenders from ever committing such heinous crimes again. (27) The American public, by an overwhelming margin, echoed his sentiment. (28) More than twenty states and Congress responded to Reynolds's plea by enacting legislation commonly called "Three Strikes and You're Out," or three strikes laws. (29) The State of Washington was the first to pass a three strikes law in 1993; other states, including California and Georgia, soon followed. (30) Ironically, however, these laws were enacted at a time when crime rates were actually stagnating, or even declining. (31)

   Prisoners decry these laws as imposing disproportionate prison sentences that violate the Cruel and Unusual Punishment Clause of the Eighth Amendment. (32) Opponents of three strikes laws fear that the population of lifelong prisoners will drastically swell in size, and correspondingly, so will total incarceration costs. (33) Moreover, these monetary costs promise only to increase because aging prisoners require costly medical services that the state is obligated to provide. (34) Yet, despite these attacks, the United States Supreme Court has held three strikes laws constitutional, and thus, these laws remain viable tools for states to deter crime. (35)

   1. The Dynamic Meaning of "Cruel and Unusual"

      The Eighth Amendment prohibits the federal government from inflicting cruel and unusual punishments. (36) In Robinson v. California, (37) the United States Supreme Court held that this prohibition applies to the states through the Due Process Clause of the Fourteenth Amendment. (38) The exact meaning of the Cruel and Unusual Punishment Clause, although vague, has been interpreted by the Supreme Court to contain a narrow proportionality requirement regarding noncapital punishments. (39)

      1. Origins of "Cruel and Unusual"

         The familiar legal axiom that the punishment must fit the crime existed well before the Framers of the Constitution incorporated the phrase "cruel and unusual punishments" into the Eighth Amendment. (40) One of the earliest examples limiting the type of punishment inflicted for a particular wrong comes from the Book of Exodus, which directs that the punishment for a particular wrong be retributive only--specifically, "eye for eye, tooth for tooth." (41) In seventeenth-century England, as judges increasingly relied upon prison sentences as a form of punishment against the wrongdoer, the common law required that the punishment be in proportion to the offense. (42) The proportionality principle was expressly adopted in the English Declaration of Rights of 1688, which declared, "excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted." (43) Less than a hundred years later, the English jurist William Blackstone defined "cruel" to mean punishment that is severe and excessive to the charged act. (44) The drafters of the United States Constitution directly imposed this language, and arguably by extension, its substantive meaning into the Eighth Amendment. (45)

      2. The Eighth Amendment Contains a Narrow Proportionality Requirement for NonCapital Sentences

         a. The Punishment Must Be Proportional to the Offense

         Over a century ago, in Weems v. United States, (46) the Supreme Court--reviewing a case from the United States-occupied Philippines--evaluated whether a law allowing for a prison sentence ranging from twelve to twenty years, hard and painful labor, and fines as punishment for the crime of falsification of public documents constituted cruel and unusual punishment. (47) A Philippine court convicted Weems of falsifying public documents when he falsely recorded the payment of wages to two employees as paid. (48) The Philippine court sentenced Weems to fifteen years in prison, hard and painful labor, and a fine of four thousand pesetas. (49) After an exhaustive discussion concerning the undefined yet dynamic meaning of the Cruel and Unusual Punishment Clause, the Supreme Court ultimately held that the Philippine law imposed cruel and unusual punishment, and therefore, contravened the Philippine Bill of Rights. (50) Most importantly, the Weems Court held that the backbone of the Cruel and Unusual Punishment Clause stands for the principle that the punishment must be proportional to the committed offense. (51)

         b. Courts Will Rarely, If Ever, Invalidate a Prison Sentence

         In Solem v. Helm, (52) the Supreme Court gave flesh to the proportionality analysis by providing a precise framework for lower courts to apply in cases involving noncapital sentences. (53) Specifically, courts are to compare: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction ...; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." (54) Applying this analysis, the Court rejected South Dakota's argument that the proportionality principle is inapplicable to felony prison sentences and held that the criminal sentence must be proportional to the presently charged crime. (55)

         Just eight years later, however, in Harmelin v...