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The 9th U.S. Circuit Court of Appeals on Friday ruled that sending people convicted of minor offenses to jail for long sentences under California’s Three Strikes law violates the constitutional prohibition on cruel and unusual punishment. The decision, coming seven years after voters enacted the controversial tough-on-crime provision, does not overturn Three Strikes but may serve as a barrier against much criticized applications of the law. “Our decision today does not invalidate California’s Three Strikes law,” wrote Judge Richard Paez for a divided three-judge panel. “Yet, the Eighth Amendment does not permit the application of a law which results in a sentence grossly disproportionate to the crime.” According to the defendant’s court-appointed lawyer, law professor Erwin Chemerinsky, the decision is “the first time that any court has struck down the California Three Strikes law as applied to being cruel and unusual punishment.” Leandro Andrade, 37, was given a 50-years-to-life sentence after he was twice caught shoplifting a total of nine videotapes from a Kmart. The petty offense is normally punishable by up to six months in county jail, but Andrade was sentenced based on three prior burglary convictions. The California attorney general’s office said it was still reviewing the decision and had not decided if it will appeal. “We believe the issue here is the standards that constitute cruel and unusual precedent,” said spokeswoman Hallye Jordan, adding that Andrade’s case didn’t meet those standards. Judge Paez, who was joined by Chief Judge Mary Schroeder, resolved the tension between three key U.S. Supreme Court precedents in favor of Andrade, and delivered, on a silver platter, a case some justices have signaled they were waiting for. In 1999, four members of the Supreme Court signaled concern over just such an application of Three Strikes, although they deferred until a more complete record had been developed. In that case, Justice Stephen Breyer argued that the case of a man who received a 25-years-to-life sentence for stealing a bottle of vitamins should have been taken up, while three others, led by John Paul Stevens, said they too were concerned but would wait. However, earlier this year one of the justices who joined Stevens wrote that he was through waiting. “A principal reason that three of us were led to concur in the denial of review was the expectation that rulings by other courts on challenges to the California scheme would be valuable to us in any examination of the issue we might ultimately give it,” wrote Justice David Souter in a February denial of certiorari. “I no longer think this a sufficient reason to postpone what I assume will inevitably be a decision at some point to examine the matter.” Souter wondered specifically why the 9th Circuit had never taken up the issue. Now it has. To reach his decision, Paez had to sort through three Supreme Court precedents. Rummel v. Estelle, 445 U.S. 263 (1980), upheld a life sentence with the possibility of parole for a three-time nonviolent offender, while Solem v. Helm, 463 U.S. 277 (1983), overturned a life sentence without the possibility of parole of a seven-time nonviolent offender. Solem established a “proportionality” test, in which the sentence is measured against the crime when examined under the Eighth Amendment. Specifically, Solem held that if a sentence seems disproportionate, it should be analyzed first against sentences for other crimes in the prisoner’s state and then against sentences for similar crimes in other states. But in 1991, the Supreme Court decided Harmelin v. Michigan, 501 U.S. 957, in which a plurality held that there need not be a “strict” proportionality test, but that the Eight Amendment forbids sentences that are “grossly disproportionate.” The vitality of Solem after Harmelin, the 9th Circuit noted, has been subject to interpretation. In Harmelin, the life sentence for possession of a pound of cocaine was upheld by Justice Anthony Kennedy, but Paez wrote that Solem survives. “In concluding that Harmelin’s sentence did not raise an inference of gross disproportionality, Justice Kennedy did not suggest, implicitly of explicitly, that his analysis would have led to a different outcome in Solem,” Paez wrote. “Accordingly, we conclude that Solem remains good law after Harmelin.” The 9th Circuit then proceeded to measure Andrade’s sentence under the Solem test. “Andrade’s indeterminate sentence of 50 years to life is exceeded in California only by first-degree murder and a select few violent crimes,” Paez noted. The court then compared the sentence to those under Three Strikes-type laws in other states. The state conceded that there were only four where petty theft with a prior would have triggered a Three Strikes conviction. “Even in these four states, however, Andrade could not receive a sentence nearly as severe as he did under California’s Three Strikes law,” Paez wrote in an analysis of each state. Although it has apparently been waiting for just such a decision, Hastings College of the Law professor Rory Little questioned whether the Supreme Court would pick up Andrade v. Attorney General of California, 01 C.D.O.S. 9423. He pointed out that Andrade, a one-time heroin addict with a long rap sheet, has also been convicted on two federal drug charges, which the 9th Circuit declined to consider since they didn’t appear to have been a factor in his sentence. That may scare off some justices. “He’s not the ideal plaintiff,” Little said. “This might be one of those cases that just simply sits there because everyone’s afraid of it.” Andrade had one distinct advantage over other petitioners who have argued their sentences were unconstitutional representation. Andrade’s case was argued by Chemerinsky, a University of Southern California Law School professor. “Although the court was very careful to just find that this sentence was cruel and unusual punishment, it certainly opens the door to others like Andrade whose third strike is a minor crime,” he said. Chemerinsky said he believes 350 people in California have been given lengthy sentences for “minor” crimes. “I think this could lead to challenges in those cases as well,” he said. In dissent, Judge Joseph Sneed argued that the court should have deferred to the people of California. “Two consecutive sentences of 25 years to life — with parole eligibility only after the minimum 50 years — is obviously severe,” Sneed wrote. “Nevertheless, it is the sentence mandated by the citizens of California through the democratic initiative process and, additionally, legislated by their elected representatives.” Doug Keiso, a spokesman for Families to Amend California’s Three Strikes, said his organization was pleased with the decision but wished it had gone further. He was also concerned that the case would be brought before the Supreme Court. “We’re not sure what’s going to happen there,” Keiso said. “It’s definitely more conservative than the 9th Circuit.”

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