Struck out looking: continued confusion in Eighth Amendment proportionality review after Ewing v. California.

• Author: Pater, Joshua R.

This past Term, California's "three strikes" law withstood two challenges in the Supreme Court. In Ewing v. California, the Court held that a sentence of 25-years-to-life imposed on a recidivist offender convicted of stealing three golf clubs worth approximately $1,200 did not violate the Eighth Amendment's Cruel and Unusual Punishments clause. (1) It made a similar holding in Lockyer v. Andrade, although on different grounds. (2) This note will examine the Court's treatment of California's three strikes law in Ewing, and will argue that the Court missed an opportunity to make a necessary clarification of its Eighth Amendment jurisprudence. Indeed, the Supreme Court made an already lamentable situation worse by applying proportionality review to non-capital sentences given to repeat offenders while neglecting to provide lower courts with any coherent guidelines to employ in conducting that review. In other words, the Court was thrown a perfect pitch on the three strikes question, but it struck out looking.

1. LEGISLATIVE HISTORY

   In 1994, California became the second state to pass a recidivist sentencing law under the moniker "Three Strikes and You're Out." (3) Shortly thereafter, twenty-three other states and the federal government did the same. (4) The California law, passed both by the state legislature (5) and by voters through a ballot initiative, (6) gained support after the much-publicized kidnapping and murder of twelve-year-old Polly Klaas by a repeat offender. (7)

   California's "three strikes" law actually is a "two strikes" law as well. (8) That is, when a defendant previously convicted of a "serious" or "violent" felony (9) is convicted of another felony, he is sentenced to "twice the term otherwise provided as punishment for the current felony conviction." (10) Additionally, pursuant to the third strike provision, a defendant with two prior serious or violent felony convictions receives "an indeterminate term of life imprisonment" (11) with parole to be determined. (12) A number of features make the California law harsher than those of other states, (13) the most significant of which is perhaps the additional penalty for a second strike, which has had a larger effect than the third strike provision. (14) There also are temporal oddities: courts are not allowed to consider the amount of time separating the offenses, and in fact two strikes may result from a single act. (15) More significant in this context is the existence of "wobblers." These are crimes that may be charged either as misdemeanors or felonies and that trigger the three strikes law only if treated as felonies. (16) One court gave this definition: "An offense which is punishable either by imprisonment in the state prison or by incarceration in the county jail is said to 'wobble' between the two punishments and hence is frequently called a 'wobbler' offense." (17) Examples of wobblers include participation in a criminal street gang, (18) receiving stolen property, (19) and possession of methamphetamine. (20) For some wobblers, the choice between misdemeanor and felony depends on a defendant's record; for example, if a defendant has served time for certain theft--related crimes, a subsequent conviction of petty theft otherwise a misdemeanor--is a felony. (21) Though prosecutors are required to allege all prior felonies, (22) a three strikes sentence still can be avoided: The prosecutor can move to treat the wobbler as a misdemeanor (23) or to vacate a prior strike, (24) and the courts can do the same. (25)

   The three strikes law has proven to be exceptionally controversial. Opponents criticize the inclusion of crimes such as petty theft among triggering offenses, (26) the fact that the sentences might well exceed the time at which a career criminal would retire from a life of crime, (27) and the general shift from retribution and rehabilitation to incapacitation as a penological theory, (28) among other things. (29) Yet the law is not without its supporters, who credit it with identifying and isolating intractable delinquents. (30) One scholar, while not endorsing the law, concludes that it has a significant deterrent effect not merely on habitual offenders but also on others who wish to avoid a first or second strike. (31)

2. HISTORY OF EWING

   1. Facts

      From 1984 to 1993 appellant Gary Albert Ewing accumulated ten arrests and fourteen criminal convictions. (32) First convicted of grand theft in Ohio in 1984, he moved to California, where he was convicted of grand theft auto in 1988 (convicted of a felony and reduced to a misdemeanor after completing probation) and petty theft with a prior in 1990. (33) Subsequently, over a seventeen-month period beginning in July, 1992, he tallied up five arrests and the following convictions: battery, theft, burglary, possession of drug paraphernalia, appropriation of lost property, possession of a firearm, trespassing, robbery, and three additional counts of burglary. (34)

      The final robbery and burglaries occurred over a 5-week period at an apartment complex in Long Beach, California. (35) There, while attempting to steal a video cassette recorder, Ewing disturbed one of his victims as she slept; he ran away after she screamed. (36) Another victim was less fortunate. Ewing, claiming to have a gun, confronted that victim in the mailroom and demanded his wallet. (37) After the victim refused, Ewing took out a knife and forced the victim into the apartment. (38) The victim managed to flee, after which Ewing made off with his money and credit cards. (39) Following Ewing's arrest in December of 1993, a jury convicted him of first-degree robbery and three counts of residential burglary. (40) Although sentenced to nine years and eight months in prison, Ewing was paroled five and a half years later in June, 1999. (41)

      Nine months after his release, on March 12, 2000, Ewing stole three Callaway golf clubs from the pro shop at El Segundo Golf Course in Los Angeles County. (42) The clubs, each worth $399, were hidden in his pants leg. (43) The resultant limp in Ewing's gait attracted the attention of an El Segundo employee, who called the police. (44) An officer detained Ewing in the parking lot of the pro shop. (45)

   2. Procedural History

      A California jury found Ewing guilty of felony grand theft of personal property in excess of $400, yet acquitted him of burglary. (46) Pursuant to the three strikes law, the prosecutor alleged, and the trial court found, that Ewing previously had been convicted of four serious or violent felonies after his spree at the Long Beach apartment complex. (47) At sentencing, Ewing attempted to avoid a three strikes sentence by asking the trial court both to reduce his grand theft conviction--a wobbler--to a misdemeanor, (48) and to dismiss some or all of his prior serious or violent felony convictions. (49) The court declined to strike Ewing's prior convictions, instead noting that his recidivism posed a threat to the community. (50) It imposed the mandatory sentence of 25-years-to-life, but avoided a one-year sentence enhancement by striking a prior prison term allegation. (51)

      The Court of Appeals for the Second District of California affirmed in an unpublished opinion. (52) It first rejected Ewing's contention that the trial court abused its discretion in denying his motion to reduce the wobbler offense to a misdemeanor. (53) The appeals court found no basis for the claim that the trial court neglected to consider information regarding Ewing's background, (54) notwithstanding that the trial court made no statement regarding that information. (55)

      The appellate court next rejected Ewing's contention that the trial court abused its discretion by refusing to strike his prior felony convictions. (56) Under California law, the trial court is to consider whether, given the circumstances of the offense and the defendant's history, the defendant falls within the spirit of the three strikes scheme. (57) The Court of Appeals agreed that Ewing belonged within that scheme given his extensive criminal background, the fact that he had been on probation or parole since 1988, the fact that he committed this offense only nine months after his release, and the fact that his rehabilitative prospects were "bleak." (58)

      The appellate court's final pertinent holding was its rejection of Ewing's claim that his sentence was cruel and unusual in violation of the state and federal constitutions. (59) It held that his recidivist past and "dim prospects for the future" rendered the sentence proportional to the offense and offender, and that the sentence was comparable to those given to repeat offenders in California and other states. (60) It also held that, given the Supreme Court's holding in Rummel v. Estelle, (61) which upheld a life sentence for a recidivist charged with obtaining $120.75 under false pretenses, Ewing's 25-years-to-life sentence did not violate the Eighth Amendment protection against cruel and unusual punishment. (62)

      Ewing appealed. The Supreme Court of California declined to hear the case, but the United States Supreme Court granted certiorari. (63)

3. SUPREME COURT DISPOSITION

   1. Plurality Opinion

      The Supreme Court affirmed Ewing's 25-years-to-life sentence, with Justice O'Connor writing a plurality opinion in which the Chief Justice and Justice Kennedy joined. (64) After a recitation of the history of California's three strikes law and of the facts of the case, the plurality asserted that "[t]he Eighth Amendment, which forbids cruel and unusual punishments, contains a 'narrow proportionality principle' that 'applies to noncapital sentences.'" (65) The plurality never defined the proportionality principle it purported to apply; instead, it discussed four previous cases and adopted Justice Kennedy's distillation in Harmelin of the principles from those cases. (66) A look at those cases is helpful to discern what was at stake in Ewing. (67)

      The first of those cases, Rummel v...