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California’s “three strikes” law appeared to survive intense but mainly favorable scrutiny from the Supreme Court on Nov. 5. The Court’s leading conservatives — and some of its moderates, too — seemed to favor the view that states should be allowed to determine sentencing schemes on their own without being second-guessed by the federal courts, even if those laws result in lengthy prison terms for relatively minor crimes. “Why can’t California decide ‘enough is enough’?” asked Chief Justice William Rehnquist at one point. “We’ve given great latitude to the states,” added Justice Sandra Day O’Connor. “The people of California decided, ‘We want to be tougher,’ ” proclaimed Justice Antonin Scalia. The two hours of oral argument were the long-awaited culmination of legal challenges that have dogged the three-strikes law since it was enacted in 1994 to punish repeat offenders like the one who had kidnapped and murdered 12-year-old Polly Klaas a year earlier. The law provides that anyone with two serious or violent felonies on their records can be sentenced to 25 years to life for their third offense. The cases before the Court were Ewing v. California, No. 01-6978, and Lockyer v. Andrade, No. 01-1127. In the first case, Gary Ewing was sentenced to 25 years in prison on his third-strike offense of stealing three golf clubs from the El Segundo Golf Course pro shop. In the second, Leandro Andrade’s third offense was the theft of videotapes from two Kmarts, leading to a 50-year sentence without parole. While other states have enacted similar laws, critics say no other state besides California would allow such a heavy sentence for similarly nonviolent third strikes. “It becomes unreasonable when you go from three years to life,” Quin Denvir told the justices, arguing on behalf of Ewing. But for the three-strikes law, Ewing would have faced, Denvir said, a maximum of three years in prison, or four years if his prior record were considered. Denvir, the federal public defender in Sacramento, said Ewing, 40, is in poor health and that a 25-year sentence is “a life sentence for him.” Denvir asked the justices to focus on the law as applied to Ewing, stating that the law “no doubt could result in a constitutional sentence, but not in this case.” But several justices sought a general principle that would apply to the case, and Justice Stephen Breyer pressed unsuccessfully for statistics on sentences for similar criminals in other jurisdictions. Breyer was a member of the U.S. Sentencing Commission before joining the Court in 1994. “I don’t know if this [sentence] is unusual,” Breyer said. Breyer asked Deputy California Attorney General Donald De Nicola whether “there has ever been a sentence close to this one.” De Nicola said he was not sure, and Breyer asked, “Why shouldn’t we say that it’s way too much?” But Breyer’s question was one of the only comments that seemed sympathetic to the defendants, and at other points it did not seem that even Breyer would vote against the California law. Other justices suggested hypotheticals in which defendants’ prior convictions were for jaywalking or speeding. De Nicola said some three-strike laws could be unconstitutional, but insisted that California’s was not. The state, he said, was entitled to shift its sentencing policy from one that was more lenient and rehabilitative to one that was tougher. Justice Scalia agreed. “California has decided that disabling the criminal is the most important thing,” he said. Assistant U.S. Attorney General Michael Chertoff, who heads the Criminal Division, argued as amicus curiae on California’s behalf that “this Court has very limited review” of state sentencing schemes. Excessive Supreme Court scrutiny, Chertoff said, would “convert the Court into a constitutional sentencing commission.” Breyer interjected, “That would be a very bad thing.” While the Ewing case came to the justices via the California court system, the Andrade case arrived on appeal from the U.S. Court of Appeals for the 9th Circuit. Ruling on Andrade’s appeal of the denial of a habeas corpus petition, the San Francisco-based 9th Circuit found his sentence “grossly disproportionate” to the crime. Deputy State Attorney General Douglas Danzig argued the case could be resolved on statutory, rather than constitutional, grounds by referring to the Anti-terrorism and Effective Death Penalty Act of 1996. But the justices seemed interested in the Eighth Amendment issue anyway. Danzig said the Court should assess the three-strikes law using a “rational basis” test, or whether the penalty is “reasonably susceptible to debate by reasonable minds.” University of Southern California law professor Erwin Chemerinsky, arguing on behalf of Andrade, said, “If any sentence is disproportionate, this is.” Chemerinsky, working from the lectern without the aid of notes, repeatedly relied on the Supreme Court’s line of cases on disproportional sentences, especially Justice Anthony Kennedy’s concurring opinion in Harmelin v. Michigan, a 1991 case in which a divided Court upheld a life sentence for possession of 650 grams of cocaine. Kennedy’s concurrence, joined by Justices O’Connor and David Souter, articulated the “grossly disproportionate” standard. But Rehnquist and other justices argued that the Kennedy concurrence was not binding and that other, less-favorable precedents took precedence. Kennedy’s concurrence is “a highly controverted position,” Scalia said as Kennedy stared into the crowd, looking uncomfortable. “It’s not an opinion of the Court, it’s an opinion of Justice Kennedy.” But Chemerinsky held to it, prompting Scalia to draw an analogy with a more celebrated case. Would Chemerinsky also argue, Scalia asked incredulously, that Justice Lewis Powell’s solitary opinion in the 1978 Regents of the University of California v. Bakke affirmative action case was “law of the land”? Many courts and scholars believe exactly that, but Chemerinsky sidestepped the chance to get into what was, for him, an unwanted and extraneous controversy. “Soon enough,” Chemerinsky replied, the Court would have a chance to pronounce its own view on Scalia’s question. He was referring to litigation pending before the Supreme Court over the University of Michigan’s affirmative action program, in which the meaning of Bakke and the Powell opinion is a key issue. DUE PROCESS? A day earlier, the Court appeared troubled by a Pennsylvania case in which a defendant whose conviction and life sentence was reversed on appeal was sentenced to death at his second trial. Justices tried to fit the case of Sattazahn v. Commonwealth of Pennsylvania, No. 01-7574, into the Court’s double jeopardy and due process jurisprudence. Several justices seemed to think that the retrial, with its greater penalty, was an unfair second bite at the apple for prosecutors. But it was unclear whether this view would gain five votes. David Sattazahn and others in his position face a “terrible choice,” said Justice Breyer at one point. “If he doesn’t appeal, he lives. If he does appeal, he may die.” Convicted of the 1987 murder of a restaurant manager in Berks County, Sattazahn was sentenced to life in prison when his jury split 9-3 against the death penalty. Under Pennsylvania procedure the automatic result of such a deadlock is a life sentence. Sattazahn appealed and won a new trial. The second jury found him guilty and sentenced him to death, as the state requested. The Pennsylvania Supreme Court ruled against Sattazahn, finding that the double jeopardy clause did not preclude imposition of the death penalty at retrial. But Sattazahn appealed to the U.S. Supreme Court, invoking the 1981 high court ruling in Bullington v. Missouri, which said that a life sentence amounts to an acquittal of the death penalty. Much of the oral argument on Nov. 4 was spent trying to determine how the outcome of Sattazahn’s first trial should be characterized: as an acquittal of the death penalty, which would trigger double jeopardy, or merely as a hung jury, which would not. Rehnquist repeatedly pronounced it a hung jury, but Assistant Federal Public Defender Robert Dunham insisted it was “not a hung jury in a traditional sense.” Dunham added, “Any failure by the state to prove its case to a unanimous jury constitutes an acquittal.” In Sattazahn’s case, Dunham said, a mistrial was not called, but rather a final judgment entered-a sentence of life in prison. Justices Ruth Bader Ginsburg and John Paul Stevens seemed persuaded by the point. When First Assistant District Attorney Iva Dougherty of Reading, Pa., argued for the state’s position, Stevens repeatedly asked her if there was any material difference between a unanimously reached life sentence and what happened in Sattazahn’s case. Dougherty acknowledged that Sattazahn faced “a life sentence either way.” Justice Kennedy told Dougherty that the first proceeding against Sattazahn had been a “flawed trial” and that the second one, with its greater penalty, was “a little troubling.”

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