Facts
Viewed separately from his criminal history, the crime Gary Ewing committed in this case is relatively benign. In 2000, he stole three golf clubs worth $399 each from the pro shop of the El Segundo Golf Course in El Segundo, California. He slipped them down the leg of his pants, and a shop employee called the police when he noticed Ewing limping out of the pro shop. [4]
Ewing was charged with and convicted of felony grand theft of personal property. [5] Under California law, felony grand theft is a "wobbler," meaning that both the prosecutor and the trial judge have discretion to reduce classification of the seriousness of the crime to a misdemeanor. [6] Although Ewing asked the trial court to exercise its discretion in this way, thus making him ineligible for sentencing under the three strikes law, the trial judge declined to do so, in part based on Ewing's extensive criminal history: [7]
- Ewing committed his first crime in 1984 when he was 22 years old. He pleaded guilty to theft, and received a six-month suspended sentence.
- In 1988 Ewing was convicted of felony grand auto theft and sentenced to a year in jail and three years' probation.
- In 1990, Ewing was convicted of petty theft and sentenced to 60 days in jail and three years' probation.
- In 1992, Ewing was convicted of battery and sentenced to 30 days in jail.
- Sometime in the first nine months of 1993, Ewing was convicted of burglary, possession of drug paraphernalia, appropriating lost property, unlawful possession of a firearm, and trespassing.
- In October and November 1993, Ewing committed his most serious crimes to date—a string of burglaries and robbery at apartment complexes in Long Beach, California, where he made off with money, electronics, and credit cards.
- In December 1993 Ewing was arrested on the premises of another Long Beach apartment complex. Police found on his person a knife used in the prior robbery, along with a glass cocaine pipe. He was convicted of one count of first-degree robbery and three counts of residential burglary, and sentenced to nine years in prison.
Ewing was paroled in 1999, ten months before he stole the golf clubs from the pro shop in El Segundo. [8]
At sentencing on the golf club theft, the judge classified the 1993 burglaries and robbery as "two strikes" and imposed the 25-to-life sentence under California's three strikes law. [9]
Ewing appealed his conviction to the California Court of Appeal, which rejected his challenge that the 25-year sentence was grossly disproportional to the crime of stealing $1200 worth of goods in a non-violent incident. The California Supreme Court denied review. [9]
Plurality decision
Justice O'Connor wrote an opinion for herself, Chief Justice Rehnquist, and Justice Kennedy. Under the Eighth Amendment, a narrow proportionality principle applies to non-capital sentences. Before Ewing, the Court had from time to time examined lengthy sentences imposed for relatively minor crimes. In Rummel v. Estelle, [10] the Court upheld a life sentence for obtaining $120.75 by false pretenses imposed on a three-time offender under Texas's recidivist statute. In Solem v. Helm, [11] the Court struck down a life without parole (LWOP) sentence imposed on a defendant who had committed a seventh non-violent felony. Most recently, in Harmelin v. Michigan, [2] the Court upheld a life without parole sentence imposed on a first-time offender convicted of possession of more than 650 grams of cocaine. Against this backdrop of case law, O'Connor said that the gross disproportionality principle contained in the Eighth Amendment would require striking down only an extreme noncapital sentence, such as a life sentence for overtime parking.
Three-strikes laws, O'Connor observed, represented a new trend in criminal sentencing. "These laws respond to widespread public concerns about crime by targeting the class of offenders who pose the greatest threat to public safety: career criminals." Such laws were a "deliberate policy choice" on the part of legislatures to isolate those who have "repeatedly engaged in serious or violent criminal behavior" from the rest of society in order to protect public safety. For O'Connor, the desire to punish repeat criminals more harshly was "no pretext" for the legitimate policy choice that the three-strikes law implemented. Such laws serve the valid penological goals of incapacitation and deterrence. Although California's three-strikes law may have generated some controversy, "we do not sit as a superlegislature to second-guess" the policy choices made by particular states. "It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons advances the goals of its criminal justice system in any substantial way."
She noted that Ewing's crime was not simply that of stealing three golf clubs—it was stealing three golf clubs after being convicted of two violent or serious felonies. "In weighing the gravity of Ewing's offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature's choice of sanctions." Ewing's sentence might be long, but it "reflects a rational judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated." For this reason, O'Connor reasoned that Ewing's 25-years-to-life sentence did not violate the Eighth Amendment.
Justice Scalia was willing to accept that the Eighth Amendment contained a gross disproportionality requirement "if I felt I could intelligently apply it." However, because a criminal sentence can have many justifications—not simply retribution, a goal to which proportionality is inherently linked— he thought it was impossible to intelligently apply a proportionality requirement to non-capital sentences. Even so, Justice Scalia concurred in the judgment that Ewing's sentence was constitutional.
Justice Thomas believed that the Eighth Amendment contained no proportionality principle at all, and concurred in the judgment.
Dissents
Justice Stevens explained that a proportionality principle for non-capital sentences was compatible with the Eighth Amendment. After all, judges must determine the proportionality of fines, bail, and death sentences. There should be no reason why these lesser and greater forms of punishment should be subject to a proportionality requirement, but not the length of a prison sentence.
Judges have historically exercised much discretion in criminal sentencing. Much of this discretion had been conferred by legislatures, who fixed criminal penalties over very broad ranges. "It was not unheard of for a statute to authorize a sentence ranging from one year to life, for example." In order to exercise this discretion, judges had to take into account all the goals of punishment in fixing a proportional sentence. Stevens believed that the Eighth Amendment could support such determination of proportionality. "I think it clear that the Eighth Amendment's prohibition of cruel and unusual punishments expresses a broad and basic proportionality principle that takes into account all of the justifications for penal sanctions."
Justice Breyer conceded that successful proportionality challenges to criminal sentences should be rare, but argued that Ewing's sentence could be successfully challenged as disproportional. For Breyer, three characteristics of a sentence bear on whether it is proportional: the length of the sentence in real time, the conduct that triggered the sentence, and the offender's criminal history. Although Ewing was a recidivist, his present crime was not violent, and so he should not have been sentenced as harshly as a recidivist who had committed yet another violent crime. The experience of some federal judges, as described by data aggregated by the United States Sentencing Commission, suggested that Ewing would not have been treated so harshly under federal sentencing law. Finally, the fact that Ewing's sentence would have been the same if he had been convicted of a violent crime, like rape or murder, suggested it was too harsh a sentence for a shoplifter, even a recidivist shoplifter like Ewing. "Outside the California three strikes context, Ewing's recidivist sentence is virtually unique in its harshness for his offense of conviction, and by a considerable degree."
The Eighth Amendment to the United States Constitution protects against imposing excessive bail, excessive fines, or cruel and unusual punishments. This amendment was adopted on December 15, 1791, along with the rest of the United States Bill of Rights. The amendment serves as a limitation upon the state or federal government to impose unduly harsh penalties on criminal defendants before and after a conviction. This limitation applies equally to the price for obtaining pretrial release and the punishment for crime after conviction. The phrases in this amendment originated in the English Bill of Rights of 1689.
Measure 11, also known as "One Strike You're Out", was a citizens' initiative passed in 1994 in the U.S. State of Oregon. This statutory enactment established mandatory minimum sentencing for several crimes. The measure was approved in the November 8, 1994 general election with 788,695 votes in favor, and 412,816 votes against.
Felony petty theft is the colloquial term for a statute in the California Penal Code that makes it possible for a person who commits the crime of petty theft to be charged with a felony rather than a misdemeanor if the accused had previously been convicted of a theft-related crime at any time in the past. The technical name for the charge is petty theft with a prior.
In the United States, habitual offender laws have been implemented since at least 1952, and are part of the United States Justice Department's Anti-Violence Strategy. These laws require a person who is convicted of an offense and who has one or two other previous serious convictions to serve a mandatory life sentence in prison, with or without parole depending on the jurisdiction. The purpose of the laws is to drastically increase the punishment of those who continue to commit offenses after being convicted of one or two serious crimes.
A hybrid offence, dual offence, Crown option offence, dual procedure offence, offence triable either way, or wobbler is one of the special class offences in the common law jurisdictions where the case may be prosecuted either summarily or on indictment. In the United States, an alternative misdemeanor/felony offense lists both county jail and state prison as possible punishment, for example, theft. Similarly, a wobblette is a crime that can be charged either as a misdemeanor or an infraction, for example, in California, violating COVID-19 safety precautions.
Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and Roberts v. Louisiana, 428 U.S. 153 (1976), is a landmark decision of the U.S. Supreme Court. It reaffirmed the Court's acceptance of the use of the death penalty in the United States, upholding, in particular, the death sentence imposed on Troy Leon Gregg. The set of cases is referred to by a leading scholar as the July 2 Cases, and elsewhere referred to by the lead case Gregg. The court set forth the two main features that capital sentencing procedures must employ in order to comply with the Eighth Amendment ban on "cruel and unusual punishments". The decision essentially ended the de facto moratorium on the death penalty imposed by the Court in its 1972 decision in Furman v. Georgia (1972). Justice Brennan's dissent famously argued that "The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person's humanity ... An executed person has indeed 'lost the right to have rights.'"
The Penal Code of California forms the basis for the application of most criminal law, criminal procedure, penal institutions, and the execution of sentences, among other things, in the American state of California. It was originally enacted in 1872 as one of the original four California Codes, and has been substantially amended and revised since then. The entirety of the Penal Code is available for free.
Mandatory sentencing requires that offenders serve a predefined term of imprisonment for certain crimes, commonly serious or violent offenses. Judges are bound by law; these sentences are produced through the legislature, not the judicial system. They are instituted to expedite the sentencing process and limit the possibility of irregularity of outcomes due to judicial discretion. Mandatory sentences are typically given to people who are convicted of certain serious and/or violent crimes, and require a prison sentence. Mandatory sentencing laws vary across nations; they are more prevalent in common law jurisdictions because civil law jurisdictions usually prescribe minimum and maximum sentences for every type of crime in explicit laws.
Robinson v. California, 370 U.S. 660 (1962), is the first landmark decision of the United States Supreme Court in which the Eighth Amendment of the Constitution was interpreted to prohibit criminalization of particular acts or conduct, as contrasted with prohibiting the use of a particular form of punishment for a crime. In Robinson, the Court struck down a California law that criminalized being addicted to narcotics.
A habitual offender, repeat offender, or career criminal is a person convicted of a crime who was previously convicted of other crimes. Various state and jurisdictions may have laws targeting habitual offenders, and specifically providing for enhanced or exemplary punishments or other sanctions. They are designed to counter criminal recidivism by physical incapacitation via imprisonment.
Some jurisdictions may commit certain types of dangerous sex offenders to state-run detention facilities following the completion of their sentence if that person has a "mental abnormality" or personality disorder that makes the person likely to engage in sexual offenses if not confined in a secure facility. In the United States, twenty states, the federal government, and the District of Columbia have a version of these commitment laws, which are referred to as "Sexually Violent Predator" (SVP) or "Sexually Dangerous Persons" laws.
Coker v. Georgia, 433 U.S. 584 (1977), held that the death penalty for rape of an adult was grossly disproportionate and excessive punishment, and therefore unconstitutional under the Eighth Amendment to the U.S. Constitution. A few states continued to have child rape statutes that authorized the death penalty. In Kennedy v. Louisiana (2008), the court expanded Coker, ruling that the death penalty is unconstitutional in all cases that do not involve intentional homicide or crimes against the State.
Harmelin v. Michigan, 501 U.S. 957 (1991), was a case decided by the Supreme Court of the United States under the Eighth Amendment to the United States Constitution. The Court ruled that the Eighth Amendment's Cruel and Unusual Punishment Clause allowed a state to impose a life sentence without the possibility of parole for the possession of 672 grams (23.70 oz) of cocaine.
Lockyer v. Andrade, 538 U.S. 63 (2003), decided the same day as Ewing v. California, held that there would be no relief by means of a petition for a writ of habeas corpus from a sentence imposed under California's three strikes law as a violation of the Eighth Amendment's prohibition of cruel and unusual punishments. Relying on the reasoning of Ewing and Harmelin v. Michigan, the Court ruled that because no "clearly established" law held that a three-strikes sentence was cruel and unusual punishment, the 50-years-to-life sentence imposed in this case was not cruel and unusual punishment.
United States v. Rodriquez, 553 U.S. 377 (2008), was a United States Supreme Court case interpreting the Armed Career Criminal Act. Justice Samuel Alito, writing for the 6–3 majority, ruled that although the elements of a crime may not be considered "serious," sentence enhancements related to a defendant's prior record will bear on how the determination is made.
Rummel v. Estelle, 445 U.S. 263 (1980), was a United States Supreme Court case in which the Court upheld a life sentence with the possibility of parole under Texas' three strikes law for a felony fraud crime, where the offense and the defendant's two prior offenses involved approximately $230 of fraudulent activity.
The Armed Career Criminal Act of 1984 (ACCA) is a United States federal law that provides sentence enhancements for felons who commit crimes with firearms if they are convicted of certain crimes three or more times. Pennsylvania Senator Arlen Specter was a key proponent for the legislation.
The Stanford Law School Three Strikes Project is one of the eleven Mills Legal Clinics at Stanford Law School. Founded in 2006, it provides legal representation to convicts serving life sentences under California's three strikes law for committing minor, non-violent felonies. Under the supervision of clinic instructors, students represent clients in both federal and state court. The Project is directed by attorney and lecturer Michael Romano.
The United States Constitution contains several provisions related to criminal sentencing.
Proposition 36, also titled A Change in the "Three Strikes Law" Initiative, was a California ballot measure that was passed in November 2012 to modify California's Three Strikes Law. The latter law punishes habitual offenders by establishing sentence escalation for crimes that were classified as "strikes", and requires a mandatory minimum sentence of 25 to life for a "third-strike offense."
