Striking back: using death penalty cases to fight disproportionate sentences imposed under California's three strikes law.

AuthorRomano, Michael


At the climax of oral argument in one of the most important criminal cases ever before the United States Supreme Court, Gregg v. Georgia, (1) Justice Potter Stewart asked defense attorney Anthony Amsterdam whether his argument that the death penalty was inherently unconstitutional would also unravel the country's entire criminal justice system.

The argument lasted two days and involved four other related cases (2) Amsterdam and co-counsel from the NAACP Legal Defense Fund (LDF) represented all of the defendants--and, in effect, every death row inmate in the country. Their basic argument was that enforcement of the decision of whether or not to impose a death sentence was inherently arbitrary, in violation of the Eighth and Fourteenth Amendments.

Justice Stewart was considered the swing vote in the case. Four years earlier, in Furman v. Georgia, (3) he joined four colleagues holding unconstitutional all capital procedures then in effect throughout the country. Following Furman, state legislatures amended their states' death penalty procedures to address concerns raised by the Court. Those newly enacted procedures were at issue in Gregg. The Court was finally forced to decide whether the death penalty was unconstitutional across the board.

"Mr. Amsterdam," Justice Stewart pressed, "Doesn't your argument prove too much?" Our entire system of justice is rife with discretion, nullification, grace, and capriciousness. Is it all unconstitutional?

Amsterdam famously responded as follows:

Our argument is essentially that death is different. If you don't accept the view that for constitutional purposes death is different, we lose this case...." (4) Although others had previously argued that the death penalty required unique constitutional protections, Amsterdam is credited with coining the "death is different" phrase and articulating its core rationale. (5) As he explained to the Court during the argument in Jurek v. Texas and Roberts v. Louisiana, two companion cases of Gregg:

Death is final. Death is irremediable. Death is unnullable; it goes beyond the world.... Death is different because even if exactly the same discretionary procedures are used to decide issues [in noncapital sentences] ... the result will be more arbitrary on the life or death choice. (6) Amsterdam lost the argument. In Gregg and its companion cases, the Court held that capital punishment was permissible, provided that certain safeguards were in place to ensure against arbitrary and disproportionate executions. (7) However the Court ultimately embraced Amsterdam's position that "death is different" from all other forms of criminal punishment, and ever since Gregg capital defendants have received special constitutional protections (sometimes called "super due process") and financial resources for trial, appellate, and habeas counsel that do not apply to the vast majority of ordinary criminal defendants who are prosecuted in noncapital cases. (8)

The thesis of this Article is that the case law and litigation strategies forged by Amsterdam, LDF, and a generation of capital defense lawyers litigating under the "death is different" rubric since Gregg provide a roadmap toward resolving some of the most intractable criminal constitutional issues outside of the capital context. I am particularly interested in constitutional issues raised by California's so-called "Three Strikes" law, which is widely recognized as the harshest and most broadly applied (noncapital) sentencing scheme in the country. (9)

As a historical matter, Amsterdam says that he and his colleagues at LDF were initially interested in addressing injustice throughout the criminal system, not just the death penalty. They focused on death cases for two reasons. First, Amsterdam says that he and LDF felt morally compelled to represent any death row inmate who requested their help. "We could no more let men die that we had the power to save than we could have passed by a dying accident victim sprawled bloody and writhing on the road without stopping to render such aid as we could," he says. (l0) Second, Amsterdam believed the death penalty put problems that plagued the entire criminal system in stark relief. He felt constitutional rights developed in the death penalty context would "trickle down" to nondeath cases and reform the entire criminal justice system. (11)

"One would have to be ignorant of the entire history of constitutional criminal procedure ... to be unaware that death cases had always been the occasions for whatever modest advances the Supreme Court was willing to make in the protections afforded criminal defendants generally," Amsterdam says. (12) The Scottsboro Boys case, Powell v. Alabama, (13) established that indigent defendants had a constitutional right to court-appointed counsel in capital cases. Gideon v. Wainwright (14) extended the right to court-appointed counsel in all felony trials. Gideon, in turn, begat Argersigner v. Hamlin, (15) which extended the right to appointed counsel in misdemeanor cases involving the potential deprivation of liberty.

But the death penalty cases took on a life of their own. (16) Relying on the "death is different" rubric, the Supreme Court applied special rules and constitutional protections in capital cases that it explicitly refused to extend to nondeath cases. (17)

According to Professor James Leibman, who was an LDF lawyer alongside Amsterdam, the "death is different" argument led to some perverse consequences. Leibman contends that new constitutional special rights provided to capital defendants ultimately provoked death penalty proponents to "fast track" capital appeals (by legislation and court rule), arguing that death penalty trials were especially reliable because they followed special procedures designed to protect the accused from unfair conviction. (18)

Though Amsterdam and LDF hoped constitutional protections won in capital cases would spread to nondeath cases, Leibman laments that the exact opposite has taken place. "Confounding [our] predictions," Leibman says, "the death-driven 'reform' of the last fifteen years has been that procedural rights ... 'wither' first in capital cases, with the blight spreading to, and the devastation being greatest in, noncapital cases." (19) New rules designed to prevent condemned inmates from delaying their executions with frivolous appeals have led to new procedural obstacles that apply to all criminal cases. These obstacles are virtually impossible to navigate for the vast majority of criminal defendants, who unlike capital defendants, have no right or access to lawyers beyond the direct appeals process. (20)

If Leibman is right--that the backlash against special constitutional rules in death cases has done the most damage in nondeath cases--no group has suffered more than those serving life sentences for minor crimes under California's infamous Three Strikes recidivist sentencing law.

Twenty-five years after Gregg, the Supreme Court granted certiorari in two cases challenging California's Three Strikes law as cruel and unusual punishment, in violation of the Eighth Amendment. (21) At the time, it was unclear exactly how the Eighth Amendment applied to noncapital sentences--or even if the Eighth Amendment prohibited excessive prison terms, no matter how long or disproportionate a sentence may seem. The Court had previously noted that "one could argue without fear of contradiction by any decision from this Court that ... the length of [a prison] sentence actually imposed is purely a matter of legislative prerogative." (22)

On November 5, 2002, Erwin Chemerinsky came before the Court on behalf of Leandro Andrade, who was serving a Three Strikes sentence for shoplifting children's videotapes from Kmart. As with all Three Strikes defendants, Andrade was subject to a life term because he had been previously convicted of at least two prior "strikes," which are certain felonies deemed to be "serious" as defined by statute. (23) In Andrade's case, his prior strikes were nonviolent residential burglaries. (24) Chemerinsky argued that no other person in the history of the United States has ever received a life term for such a minor crime. "The punishment here isn't just cruel and unusual," Chemerinsky told the Court; "It's cruel and unique." (25)

The argument fell on deaf ears. The Court affirmed Andrade's sentence, ruling that the Three Strikes law was well within California's legislative prerogative and that Andrade's life sentence for shoplifting did not even raise an "inference" of disproportionality. Although the majority did leave room for Eighth Amendment relief in the "extraordinary" case, most observers believed that Andrade, and its companion case, Ewing v. California, effectively foreclosed constitutional challenges to sentences imposed under California's Three Strikes law. (26)

This Article describes the experience of the Mills Criminal Defense Clinic at Stanford Law School, which is successfully litigating cases on behalf of clients sentenced under California's Three Strikes law. The Clinic is the only organization in the country devoted to Three Strikes cases. When Professor Larry Marshall and I formed the Clinic in 2006, conventional wisdom held that Ewing and Andrade foreclosed constitutional challenges to life sentences imposed under the Three Strikes law, even for minor crimes like petty theft and simple drug possession. (27) Amending the law also seemed impossible. In 2004, California voters rejected a ballot measure that would have ameliorated the most punitive aspects of the law.

The Criminal Defense Clinic took a different approach. We believed that the "death is different" rubric litigation strategies developed in the capital context could apply to Three Strikes cases.

My thesis is that constitutional doctrine and litigation tactics developed under the "death is different" rubric can and should be applied to noncapital defendants, particularly...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT