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The weight that should be given prior convictions in a California Three Strikes sentence emerged as a primary issue in arguments Wednesday before the 9th U.S. Circuit Court of Appeals. The court was hearing challenges brought by two California inmates who drew 25-years-to-life sentences after shoplifting convictions. Last month, another 9th Circuit panel decided that a 50-years-to-life sentence for stealing videotapes from Kmart was cruel and unusual punishment. But unlike Leandro Andrade, the defendant in that case, the two defendants whose cases were argued Wednesday have a history of violent crime. A defense lawyer for Earnest Bray and Richard Brown argued that prior criminal history should matter little when considering when a sentence runs afoul of the Eighth Amendment. “If anything is grossly disproportionate, it is here, an indeterminate life sentence for shoplifting,” said University of Southern California constitutional law professor Erwin Chemerinsky, who took the cases after representing Andrade. Both Bray and Brown were convicted of petty theft, normally a misdemeanor. But under California law, petty theft with a prior felony is itself a felony. And under Three Strikes, it can count as a third strike and trigger stiff penalties. Bray has four prior robbery convictions. Brown was convicted of a robbery and assault with a deadly weapon. Those convictions formed the basis of the state lawyers’ attempts to limit the scope of Andrade v. Attorney General for the State of California, 01 C.D.O.S. 9423. “I think there are significant differences between this case and Andrade,” said Deputy Attorney General Stephanie Miyoshi, referring to Bray’s and Brown’s history of violence. But the panel of judges, Stephen Reinhardt, A. Wallace Tashima and Marsha Berzon, was concerned that a crime normally punishable by six months in jail could send a criminal away for the rest of his life. Tashima asked if the nonviolent nature of Andrade’s prior strikes was crucial to the outcome in his case, a point Miyoshi conceded. But delving into a criminal’s past to justify his sentence was problematic for the panel. “How do you escape the fact that you’re resentencing him for his prior violence?” Berzon asked. The state argued that under U.S. Supreme Court precedent, recidivism can be a factor in a sentence, but Chemerinsky argued that California takes it to an unconstitutional extreme. “The punishment, in the end, must be proportionate to this [petty theft] crime, otherwise it would be violating double jeopardy,” Chemerinsky said. In Andrade, the 9th Circuit explicitly stated that its ruling did not overturn Three Strikes generally. But it does pave the way for prisoners to challenge their sentences. Andrade was essentially a lead case for the 9th Circuit, where many challenges have been filed after being denied by state courts and lower federal courts. Because Andrade was fact-specific, rulings in additional cases would help define the boundaries of Eighth Amendment challenges to California’s Three Strikes law. Attorney General Bill Lockyer is appealing Andrade to the U.S. Supreme Court, citing its importance to California sentencing law. Chemerinsky did not escape without some tough questions. Few sentences have ever been struck for being disproportionate to the crime, Tashima said. “What do you make of that pattern?” Chemerinsky countered that it has happened frequently — in a variety of state courts. But the 9th Circuit was the first court to strike down a sentence under California’s law. Some justices on the U.S. Supreme Court have indicated in previous rulings an interest in deciding the constitutionality of the state’s Three Strikes law as applied to petty theft cases.

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