In regard to the Philosophy of Punishment, few pieces of legislation contain more uncertainties on the limits of the government’s punishment power than California’s Three Strikes Law. When confronted with the murder of two young girls, the California General Assembly responded in knee jerk fashion. Due to the General Assembly’s reaction, the legislation that was created became known as “The Three Strikes Law”. In order to sufficiently evaluate the validity of this statute, it is necessary to examine the political and legislative history surrounding its inception, the application mechanisms of the law, and the constitutional interpretation of similar laws by the courts. From this analysis, it will become clear that California’s statute passed in 1994 is ultimately a faulty and unconstitutional law.
PURPOSE AND CONTENT ANALYSIS OF THREE STRIKES
Purpose of the Three Strikes Law’s Passage
Buried amid the legal technicalities and legislative jargon which infests the debate concerning the Three Strikes Law is the story of two young murdered girls, and two fathers who altered California’s legal environment indefinitely. Polly Klass was the victim of a brutal home kidnapping and murder at the hands of recidivist offender Richard Allen Davis. In the same vein, Kimber Reynolds was also the victim of violence by a recidivist offender; she was shot in the head for refusing to give up her purse to the robber. Both murderers had significant criminal histories: Davis touted seventeen arrests, three for kidnapping and sexual abuse, and the man who shot Kimber Reynolds was still on parole after only being released from prison for three months. (Markel 1996, 2 of 38). Mike Reynolds, the father of Kimbell, attempted to propose the three strikes initiative, but to little effect. However, in lieu of Polly Klass’s subsequent murder, Reynolds found the opportunity he needed to place the initiative on the ballot in November of 1994. The public outcry that erupted in response to the death of Klass forced the hands of many legislators to push forward AB 971, the original Three Strikes proposition that was passed into law. (Ibid. 1996, 3 of 38). In order to bind the legislature from altering the Three Strikes law, Reynolds pushed to place the legal alteration on the November ballot as a an initiative. He received 815,000 signatures, a surplus of 435,000 more than needed to place an initiative on the ballot. Thus Reynolds was able to send a clear message to legislators: the people wanted a law that was tough on crime. (Ibid. 1996, 3 of 38).
The political whirlwind that developed from the ballot initiative prevented many politicians from considering or endorsing more rational alternatives to AB 971. Assembly Bill 2429, for instance, sought to apply only to criminals who committed two or more violent felonies and whose third strike was also considered a violent felony. AB 2429 also included a “washout” provision which would not allow courts to consider any prison term which exceeded ten years from the triggering offense. Said bill also proposed a rehabilitative training seminar for young offenders in order to head off future recidivist behavior. The legislature at large rejected the notion, supporting the public’s need for incapacitation of repeat offenders. (Ibid. 1996, 5 of 38). Assemblyman Rainey’s Assembly Bill 1568 represents the most rational of alternative recidivist statutes presented. It proposed a ten year enhance per felony offense and a washout provision. It also required that strikes be violent or serious felonies and that past juvenile convictions not be considered as strikes. However, California Governor Pete Wison stated that he would veto any bill that was not the AB 971 version.(Ibid. 1996, 5 of 38). Thus, the people of California convinced their legislatures to adopt a draconian method of punishment through appeals to pathos, as opposed to logical reasoning. As noted in In re Lynch, 8 Cal.3d 410, “punishments are unconstitutional even though popular sentiment may favor them” (Markel 1996, 8 of 38 citing In re Lynch at 929).
Content of the Three Strikes Law
The Three Strikes law specifies that a defendant convicted of any current felony who has suffered two or more prior specified convictions must be sentenced to at least 25-years-to-life in state prison. In order to be considered valid priors, a defendant’s past conviction must be either classified as “serious” or “violent”. (Ricciarduli. 2002, 3 of 36). Until 2012 the current offense, the “triggering” offense, need not be serious or violent. The rational for allowing the triggering offense to be a non-serious or violent crime is essentially that you are punishing the criminal’s propensity to commit severe offenses. Proponents of this piece of the Three Strikes law also rationalized that many serious criminals may have ceased from hardcore criminal acts, instead opting for petty crimes. (Ibid. 2002, 4 of 36).However, with the passage of Proposition 36, it was established that life sentences would only occur when the defendant’s current conviction is for a violent or serious crime.
With its general content in mind, it is clear that the California legislatures had not intention to deter the average citizen from committing crimes. Instead, the recidivist statue sends a message to those offenders with a certain propensity to commit violent crimes: if you continue your criminal activity, you will face a continuing severity of punishment. However, the recidivist rate in California from 1996-1998 has consistently shown that at least 50% of offenders who are released from prison re-offend within two years of release (Ardaiz 2000, 4 of 29). This seems to show that the likelihood of a rehabilitative method of punishment in California is unlikely.
The primary philosophical theories employed in the formation of California’s Three Strikes law are retributivism and incapacitation. Retribution is the “price society exacts for the magnitude” of an offense (Ibid 2000). With this theory of punishment in mind, it seems only logical that repeat offenders, those who have enacted a greater evil to society, should be punished more harshly. This idea reiterated by Justice Ewing v. California 538 U.S. 11 (2003): “California’s three strikes law reflects a shift in the State’s sentencing policies toward incapacitating and deterring repeat offenders who threaten the public safety” (Ewing 2003, 1 of 51). Justice Scalia’s concurring opinion reasoned that incapacitation was the only philosophy behind the Three Strike’s penology: “…the purpose of California’s Three Strikes law: incapacitation” (Ibid 2003, 21 of 51). And, Alex Riccirduli proposes that the passage of the Three Strikes law represented as a conflict between “deterrence, retribution, and incapacitation versus rehabilitation” (Riccrrduli 2002, 4 of 46). Regardless of which combination of legal philosophies are invoked, it is clear that proportionality of punishment was not taken into mind during the statute’s formation. Instead of applying clear, proportional punishments, the drafters of the California law sought to express the overall outrage felt by citizens toward recidivists. The aforementioned outrage is expressed in lengthy prison sentences; ergo California invoked the legal philosophy of isolationism as a proper outlet for its retributivist minded social outrage.
In comparison to similar recidivist statutes, it seems clear that California’s law carries a much weightier punishment that that of its colleagues. For instance, Article 63 of Texas’s Penal Code states that “whoever shall have been three times convicted of a felony less than capital shall on such this conviction be imprisoned for life in the penitentiary.” (Rummel v. Estelle 1980 2). Though this provision is quite harsh, it does allow for possibility of parole, thus there is a chance for revaluation for the convicted under the Texas statute. Similarly, South Dakota’s statute, noted to be far more severe than the statute considered in Rummel v. Estelle (Solem v. Helm 1983 8 of 31), provides that “When a defendant has been convicted of at least three prior convictions in addition to the principal felony, the sentence for the principal felony shall be enhanced to the sentence for a Class 1 felony”, however even this draconian recidivist law offers a chance for evaluation from the governor: “The Governor is authorized to pardon prisoners, or to commute their sentences, but no other relief from sentence is available even to a rehabilitated prisoner.” (Ibid, 1983 9 of 31). Without a chance for mitigating circumstances to be taken into account or even a possibility for a review of an offender’s term, the California Three Strikes law, even with the addition of Proposition 36, stands as substantially harsher than other state recidivist laws.
When considering the harshness of the content of the California Three Strikes law, it is important to analyze it’s consideration of juvenile offenses. Under the law, a juvenile who commits a crime while sixteen or seventeen years old will constitute a strike (Markel 1996, 12 of 38). However, it is quite inequitable to consider adult standards of punishment when adjudicating minors, considering that minors do not receive a trial by jury. The purpose of the juvenile court system is rehabilitative: “when the juvenile court system was created, its purpose was to treat and rehabilitate juveniles rather than to determine guilt or innocence and punish” (Ibid 1996, 12 of 38 citing In re Gault, 387 U.S. 15-16). It is apparent that until the Supreme Court extends the right to trial by jury to juvenile offenders, it is impermissible to consider juvenile convictions as prior strikes. Merkel succinctly explains the paradox facing juvenile offenders:
California should not be able to have it both ways. Either juvenile adjudications should remain informal and not carry grave consequences, such as counting juvenile adjudications as strikes, with the potential for putting a person in prison for twenty-five years to life, or the right to jury trials should be extended to juvenile adjudication in an effort to endure proper due process. (Ibid 1996 14 of 38).
Furthermore, if the juvenile court system is essentially meant to serve a rehabilitative purpose, its products should not be utilized in the retributivist and incapacitation minded Three Strikes process. Ultimately, it is unconstitutional to subject juvenile adjudications to the same standard as adult adjudications in the current legal environment.
APPLICATION ANALYSIS OF THREE STRIKES
Rulings from various appellate level courts have altered the way in which California’s Three Strikes law can be applied. In People v. Superior Court (Romero) the California Supreme Court reviewed the case of Jesus Romero, a man charged with possession of .13 of a gram of cocaine and two prior strikes. The lower court in Romero’s case dismissed one of his priors, but prosecutors objected stating that the Three Strike’s law did not allow for such judicial discretion. However, the California Supreme Court determined that trial judges may strike a prior when it is in the “furtherance of justice” to do so. (Riccarduli 2002, 7 of 46). Furthermore, judges may dismiss portions of past actions, such as enhancements. (Ibid 2002, 8 of 46). Though the power to dismiss past strikes allows for the possibility of more equitable rulings in Three Strikes cases, it ultimately does not alter the basic unconstitutional nature of recidivist statute. Unless judges only consider the triggering offense, and not crimes that one has committed in the past, will the statute be constitutional. Romero’s gift of judicial discretion is particularly diminished in light of the California Supreme Court’s subsequent ruling in People v. Williams, 17 Cal.4th 148 (1998). In this case, the court determined that a judge may only strike past offenses if “in the light of the nature of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character and prospects, the defendant may be deemed outside the Three Strikes law’s spirit.” (Ibid 2002, 9 of 46).
Even though judicial discretion was severely limited thanks to People v. Williams, the discretion allotted to prosecutors is quite substantial. Under the current system, prosecutors are barred from dismissing prior convictions via plea bargaining and must apply the Three Strikes law in every applicable case. However, prosecutors do have the ability to petition the judge to strike a particular prior offense if they feel that there is not enough evidence to support it in court or if it will further justice in doing so. (Walsh 2004, 16 of 78). Even with the barring of plea bargaining, however, it is noted by Pillsbury that “the possibility of charging second and third strike enhancements has given prosecutors increased please bargaining power, with prosecutors frequently agreeing to refrain from seeking punishment enhancement under the scheme in return for a guilty guilty plea…” (Pillsburry 2002, 489 of 522). However, there is no requirement that they do so. It is likely that prosecutors will ask for a strike of prior convictions only if they think they cannot prove the past offense. Thus, there is nothing constraining the prosecutor to take into account circumstances such as period of time between offense, current socio-economic status of the offender, or possible addictions which may have led to a third strike offense. Thus, though prosecutors have the ability to move for strikes of past offenses, they are not provided any incentive to do so aside from the possibility of a losing a case, and have no formal rule to designate when it may be appropriate to consider the furtherance of justice, as opposed to the likelihood of a prosecution, when moving for a strike of a prior conviction. When the prosecutor places personal comfort or ambition above her role as protector of society, the idea of a prosecutor whose only motivation is her “law enforcement zealotry” fades. (Pillsbury 2002, 500 of 522).
Though measures of discretion do exist within the current framework of California’s recidivist statute, it is far from the ideal measure of individualized sentencing. Because of the ruling in People v. Williams, judges are only able to strike a post-conviction in the narrowest of circumstances. Even more problematic is the inconsistency in which the judiciary implements the structured sentencing guidelines. In the more liberal county of San Francisco one is thirteen times less likely to be sent to prison with a strike enhancement. (A Primer 2005, 8 of 12). Because judges differ on their interpretation of how much discretion is afforded them from Romero, a patchwork of varying sentencing structures appear from county to county. Prosecutors are also allowed discretion in the pursuit of what to charge as a post-conviction strike; however this leaves much room for pursuits of personal gain, and until concrete rules are instituted to prevent such, prosecutorial discretion is ultimately faulty. The only way in which individualized sentencing can truly be employed is if the Three Strikes law itself is removed. Judges and prosecutors will be able to employ proper individualized discretion if they are not burdened by mandatory sentencing schemes, are able to consider mitigating circumstances, and are able to punish an individual on a crime-by-crime basis, as opposed to punishment of one’s criminal background.
The purpose of the Three Strikes law was to keep the most violent and dangerous recidivist felons off the streets. However, nearly sixty-three percent of offenders who are currently serving prison sentences under California statute were convicted on crimes not committed against other individuals such as property crimes, drug crimes, or possession of weapons. Only thirty-seven percent of convicted criminal are serving for robbery, assault with a deadly weapon, or assault or battery. (A Primer 2005, 5 of 12). This seems quite outside the “spirit of the Three Strikes” law, considering that its genesis occurred from the senseless murders committed by hardened, violent offenders.
The aforementioned statics reveal that the law in question provides for many sentences which go beyond the Three Strikes original spirit. Mishandlings of judicial discretion have the potential to provide such unjust sentences.For instance, the case of People vs. Taylor, 71 Cal.App.4th saw the defendant sentenced to 25 years to life in prison for stealing food from a church’s refrigerator. The defendant had a close relationship with the priest of the church in question and was under the impression that the church would have provided him the food anyway. Regardless, the trial judge refused to utilize his discretion in striking two past burglary convictions, despite the fact that said prior convictions occurred ten years before the triggering offense. (Riccarduli 2002, 9 of 46). In People v. Gaston, a lower court judge carefully enacted his judicial discretion and chose to not sentence a third strike offender to a life sentence due to the offender’s being “wobblers”, offense which can be tried as either a misdemeanor or a felony. However, the prosecution in People v. Gaston appealed. The appellate level court reversed the strike because “neither count can be deemed [to be] outside the [Three Strikes] scheme’ spirit.” (Ibid 2002, 10 of 46).
The Supreme Court has been faced with Eighth Amendment challenges to several recidivist statutes. When determining whether or not such laws constitute cruel and unusual punishment, the justices have had to reconcile the Constitution’s relationship with a proportionality principle. The issue has been quite divisive, producing many 5-4 decisions, dissenting opinions, and overall antithetical philosophical approaches to the Constitution’s relationship to punishment.
Rummel v. Estelle
The case of Rummel v. Estelle 445 U.S. 263 (1980) concerns a defendant sentenced to life under a Texas recidivist statute similar to California’s Three Strikes scheme of punishment. Under the Texas law an offender who “[has] been three times convicted of a felony less than capital shall on such this conviction be imprisoned for life in the penitentiary.” The Texas statute did offer the possibility of parole. (Rummel v. Estelle 1980 2 of 23).
Rummel had two previous charges prior to his triggering offense. The first was the fraudulent use of a credit card, totaling at $80. This constituted a felony under the Texas Penal Code, and Rummel served three years. The second conviction occurred when Rummel passed a forged check for $28.36, for which the defendant served a total of four years imprisonment. Rummel’s triggering occurred when he obtained $120.75 by false pretense; because the amount was greater than $50, the crime constituted felony theft. Even though Rummel’s criminal record constituted a total of only $229.11, the prosecution chose to apply the recidivist statute to all priors and Rummel was sentenced to life by the trial court. (Rummel v. Estelle 1980 2-4 of 23).
Though Rummel’s punishment was grossly disproportionate to his crime, the majority refused to apply the proportionality principle set forth in Weems v. United States 217 U.S. 349 (1910), stating that the unique nature of the punishment in Weems created a very narrow proportionality application that did not extend to the Rummel case. The majority of 8th Amendment challenges concerning cruel and unusual punishment that had been decided at the time of Rummel dealt with capital punishment offenses. The majority applied a “death is different” principal, stating that the unique nature of the death penalty makes previous decisions concerning it mostly inapplicable (Ibid 1980 3 of 23).
The majority paid particular attention to the Texas statute’s possibility of parole when determining that Rummell’s life sentence did not constitute cruel and unusual punishment. The majority notes that Texas “has a relatively liberal policy of granting ‘good time’ credits to its prisoners, a policy that historically has allowed a prisoner serving life sentences to become eligible for parole in as little as 12 years.” (Rummel 1980, 6 of 23). The court used this provision to note that Rummel may not be compelled to serve his life sentence. The court ultimately deferred to the Texas legislature, noting that the state had the ultimate say on how to punish its offenders (Ibid 1980, 6 of 23).
It is clear that the majority’s opinion in Rummel was faulty. I feel that the minority opinion in said case would have produced a much more desirable result. I am quite baffled by the majority’s opinion that non-capital offenses do not have to be subjected to proportionality requirements, particularly in light of the court in Weems’s assertion that “it is a precept of justice that punishment for a crime should be graduated and proportioned to [the] offense.” (Ibid 1980, 6 of 23, citing Weems v. United States ). Furthermore, the minority utilizes the ruling of Robinson v. California, which not only extended the 8th Amendment’s ban on cruel and unusual punishment to the states, but also found that imprisoning an individual for being a drug addict constituted cruel and unusual punishment, thus applying said standard to a non-capital case. (Ibid 1980, 14 of 23). I also feel that the majority pays far too much focus on the possibility of Rummel being eligible for parole. Parole is not guaranteed right, it is merely a possibility. Even if the defendant were able to receive parole, cruel and unusual punishment would still have been inflicted, for it is incorrigible to allow an individual with such an insignificant criminal record to be punished so harshly punished.
Solem v. Helm
The defendant, Jerry Helm, in the case of Solem v Helm was sentenced to life imprisonment without parole under South Dakota’s recidivist statute. Helm has three prior offenses: third degree burglary, grand larceny, and driving while intoxicated. His triggering offense was the writing of a no account check for $100. (Solem v. Helm 1983, 3 of 21). Though parole was denied to Helm, it was possible under the South Dakota statute to receive either a pardon or commute an offender’s life sentence. The defendant filed a writ of habeas corpus, asking the governor to commute his sentence to a defined period of time. (Ibid 1983). His request was denied, and Jerry Helm appealed.
The majority in Solem found that a proportionality principle does exist within the nature of the constitution. They invoked both Weems and Robinson, noting that “we hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted.” (Ibid 1983, 5 of 21). The majority opinion also refused the assertion that proportionality of punishment is only a concern when considering capitol offense cases: “When we have applied the proportionality principle in capital cases, we have drawn no distinctions with cases of imprisonment.” (Ibid 1983, 5 of 21). Thus, the Solem majority adopted an approach to review of non-capital punishments that was quite antithetical to the one adopted in Rummel
The majority in Rummel devised a set of objective criteria to determine if Jerry Helm’s conviction constituted cruel and unusual punishment. The three pronged established by the majority examined the following elements: the gravity of the offense and the harshness of the penalty, comparisons between the sentence and other convicted defendants in the same jurisdiction who were dealt the same punishment, comparisons between the offense and sentences for that offense in other jurisdictions. (Markel 1996, 10 of 38).
With respect to the first prong, the court found that Helm’s triggering crime of passing a no account check was extremely passive. Furthermore the court noted that his past offenses were also particularly trivial. (Solem 1983, 8 of 21). Another principle factor in determining that Jerry Helm’s penalty was particularly disproportionate was the fact that his life sentence was ineligible for any likely executive review. Unlike the defendant in Rummel who was guaranteed some sort of parole review, Helm’s only saving grace would come from the slight possibility of executive clemency. (Ibid 1983). In the second factor, the court found that other crimes which carry the punishment of a life-sentence without parole were far more severe than Helm’s offense. These included murder, treason, first degree manslaughter, first degree arson, and kidnapping. (Markel 1996, 10 of 38). Thus, Helm was punished far more severely for a relatively minor crime than a defendant who committed more heinous crimes such as attempted murder and first degree rape. (Ibid 1996). The majority found in its application of the third prong a general disproportionality between South Dakota’s punishing scheme and most of the other state’s jurisdictions. South Dakota and Nevada stood alone as the only states which allowed for life imprisonment for Helm’s triggering offense, thus Helm was treated more harshly in South Dakota than he would have been in any other state. (Solem 1983, 9 of 21). Thus, from these three criteria, the court overruled Jerry Helm’s life sentence.
The court in Solem devised a test which struck a perfect balance, one which considered both the right of the state to punish and the nature of an individual’s sentence. It created a necessary safety net for those prosecuted under draconian recidivist statutes for crimes which are grossly disproportionate to the extensive prison sentences inflicted upon them.
Harmelin v. Michigan
The progress gained in Solem towards a more just and equitable manner of reviewing 8th Amendment challenges to prison sentences was all but obliterated in the Supreme Court’s opinion in Harmelin v. Michigan, 501 U.S. 957 (1991). The defendant in the case was sentenced to life without parole after being convicted for possession of six hundred-seventy-two grams of cocaine. The defendant challenged his sentence based on the belief that said punishment was cruel and unusual and that the trial judge was unable to review possible mitigating circumstances under a mandatory sentencing scheme. (Harmelin 1991, 1 of 27). The court upheld Harmelin’s sentence due to Justice Scalia’s assertion that the 8th Amendment of the Constitution does not contain a proportionality principle for punishments. Scalia notes that “the real function of a constitutional proportionality principle, if it sexists, is to enable judges to evaluate a penalty that some assemblage of men and women has considered proportionate-and to say that is not. For the real world enterprise, the standards seem so inadequate that the proportionality principle becomes an invitation to imposition of subjective values.” (Harmelin v. Michigan 1991, 9 of 27). Due to this perceived subjectivity, Justice Scalia found the test established in Solem void.
Justice White presented the dissenting opinion in Harmelin. In it, he challenged Scalia’s assertion that the 8th Amendment’s lack of a specific enumerated proportionality principle was proof enough that such a principle did not exist. I agree with White’s assertion that precedent such as Weems and Robinson proves that the Supreme Court has explicitly found a proportionality principle within the 8th Amendment. (Harmelin 1991, 21 of 27). Furthermore, White notes that the Court must be mindful of certain evolving standards of decency. I concur with White’s belief in a general consensus in what is acceptable in the realm of punishment. This is the primary reason why the second and third prongs of the Solem test are so useful.
Justice Kennedy’s concurring opinion did not “deliver a swift death sentence to Solem”, but it did “eviscerate it, leaving only an empty shell.” (Ibid 1991, 23 of 27). Kennedy reasoned that a narrow proportionality principle did exist within the constitution, and did exist for both capital and non-capital cases. However, Kennedy determined that there was no distinguishable factor for determining sentences for a term of years, thus Kennedy effectively struck the second and third factors of the Solem test, leaving judges to only review prison sentences when there is a question of gross disproportionality. Because of the “dangers flowing from drug offenses”, Kennedy felt that Harmelin’s sentence should be upheld. (Ibid 1991, 20 of 27). Thus, the courts were left with no clear objective standards in determining similar cases in the future. (Markel 1996, 11 of 38).
The Court’s Application to California’s Three Strikes Law: Ewing v. California
The case of Ewing v. California 538 U.S. 11 (2003) saw the court uphold the sentencing of an individual sentenced to life under the California Three Strikes law. On March 12, 2000, Gary Ewing, a serial offender with a long history of criminal convictions, was arrested for stealing three golf clubs, each worth three hundred-ninety-nine dollars from a Los Angeles-area golf course. At the time of his arrest, Ewing was on parole from a 9-year prison term for convictions in three burglaries and one robbery. (Ewing v. California 2003, (1-3 of 52). This case represents a culmination of the major divisions facing the court’s interpretation cruel and unusual punishment. Justice O’Connor wrote the majority opinion while Justices Breyer and Stevens presented dissents.
O’Connor applies Rummel as showing that the court recognizes that sentencing a recidivist to a life sentence with the possibility of parole does not violate the 8th Amendment. (Ewing v. California 2003, (11 of 52). She reiterates the opinion typical of conservative justices that a proportionality principle outside of capital cases is the exception, not the rule. O’Connor goes on to apply the first prong of the test set forward in Solem, noting that Ewing’s offense was “surely not one of the most passive felonies a person could commit.” (Ibid 2003, 18 of 52). O’Connor channels Kennedy’s opinion in Harmelin, focusing primarily on the idea that judges must only determine if a punishment is “grossly disproportionate” to the crime committed. Under this standard, O’Connor found that Ewing’s punishment was not “the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” (Ibid 2003, 20-21 of 52).
Justice Stevens dissent placed Solem v. Helm as the principle precedent when determining the whether Ewing’s punishment was cruel and unusual. Because Harmelin dealt with a one-time offender who was not subject to a recidivist statute, he felt that it was only logical that Solem be the premiere case. (Ibid 2003, 23 of 52) Stevens correctly asserts that the Eight Amendment’s ban on excessive bail represents a requirement for all justifications of penal sanctions to be taken into account. He notes that “this broad proportionality principle…would preclude reliance on any of the justifications for punishment to support, for example, a life sentence for overtime parking.” (Ibid 2003, 24-25 of 52). Judges must use their own discretion in reviewing a particular sanction, taking all possible philosophical justification in mind, in order to be sure that the punishment is not disproportionate.
Breyer’s dissent also would have Solem be used as the primary precedent in determining Ewing’s case. He argues that Ewing’s case not only passes the majority’s application of Justice Kennedy’s “grossly disproportionate” standard:
A threshold test that blocked every ultimately invalid constitutional claim—even strong ones—would not be a threshold test but a determinative test. And, it would be a determinative test that failed to take account of highly pertinent sentencing information, namely, comparison with other sentences…Sentencing comparisons are particularly important because they provide proportionality review with objective content. (Ibid 2003, 32 of 52).
However, even with only utilizing the majority’s application of gross disproportionality, Breyer contends that Ewing’s sentence is still wholly unconstitutional. (Ibid 2003, 43 of 52).
The dissenter’s belief that Ewing’s sentence was unconstitutional reflects my own approach to the issue. I believe that Justice Breyer presents the optimal method of deciding Ewing’s case. The application of the second and third prongs of the Solem test are the only method in which an objective standard can be reached, without such clear methods of comparison, a judge is able to apply subjective standards of disproportionality.
Ultimately, the Three Strikes law as passed in 1994 is an unconstitutional and faulty measure. Analysis of the law’s purpose reveals that it was developed in order to incarcerate the most dangerous offenders, however statistical analysis reveals that the majority of those prosecuted under the California law did not commit crimes against other individuals. Analysis of the law’s application reveals the inconsistencies which occur due to judicial and prosecutorial discretion, which can ultimately lead to extreme mishandlings of justice. It is apparent that this issue will not be resolved particularly swiftly when one considers the Supreme Court’s unclear and divisive opinions concerning proportionality and the Eighth Amendment, however I am hopeful that the judiciary will recognize that to punish one’s criminal history, as opposed to one’s triggering offense is a violation of a vested proportionality principle within the Constitution.
Steven Palmer will be a fourth-year student at the University of Tennessee at Chattanooga
Ardaiz, James A. 2000. “California’s Three Strike’s Law: History, Expectations, Consequences.” McGeorge Law Review 32, 1-32 http://web.lexisnexis.com/universe/ form/academic/s_ guidednews.html (October 10, 2010).
Brown, Brian and Greg Jolivette. 2005. A Primer: Three Strikes. The Impact After More than a Decade. Sacramento: California Legislative Analyst’s Office. October 2005.
Ewing v. California. 2003, 1-24 http://www.lexisnexis.com (November 20, 2010).
Harmelin v. Michigan. 1991, 1-30 http://laws.lp.findlaw.com/US (November 15, 2010).
Markel, Christine. 1996. “A Swing and a Miss: California’s Three Strikes Law.” Whittier Law Review 17, 1-38 http://web.lexisnexis.com/universe/form/academic/s_guidednews.html (October 13, 2010).
Pillsbury, Samuel H. 2002. “A Problem in Emotive Due Process: California’s Three Strikes Law.” Buffalo Criminal Law Review 6, 1-27 http://web.lexisnexis.com/universe/form/academic/s_ guidednews.html (October 21, 2010).
Ricciardulli, Alex. 2002. “The Broken Safety Valve: Judicial Discretion’s Failure to Ameliorate Punishment Under California’s Three Strikes Law.” Duquesne University Law Review 41, 1-46 http:// web. lexisnexis.com/universe/form/academic/s_guidednews.html (November 1, 2010).
Rummel v. Estelle. 1980, 1-26 http://laws.lp.findlaw.com/US (November 7, 2010).
Solem v. Helm. 1983, 1-25 http://laws.lp.findlaw.com/US (November 12, 2010).
Walsh, Jennifer E. 2004. Tough for Whom? How Prosecutors and Judges Use Their Discretion to Promote Justice under the California Three-Strikes Law. Los Angeles: Henry Salvatori Center Monograph, New Series, No. 4, School of Criminal Justice and Criminalistics, California State University, Los Angeles and Henry Salvatori Center, Claremeont McKenna College.
 For instance, Senator Newton Russel stated that “I don’t think we have a choice” in regard to the passage of the original assembly bill 971. (Markel 1996, 3 of 38).
 This statute specifically provided that a defendant’s second strike would constitute a doubling of her sentencing term. On the third strike, which does not have to be a felony offense, he will be sentenced to either three times the term or twenty-five yers, whichever is greater. (Ibid 1996, 4 of 38).
 Jesus Romero’s prior strikes were attempted residential burglary and a completed burglary of a dwelling.
 Particularly those who murdered Polly Klass and Amber Reynolds. Individuals with a long history of violent crimes.
 So much so that Father Allen McCoy, the priest in question, requested that the judge not sentence Taylor to such a lengthy prison term, noting that the defendant was a peaceful man.
 Weems’s punishment was particularly gruesome. The case itself was a challenge from the Phillipine. The defendant was charged with falsifying a public document which was punishable by a process known as candena temporal. This process included mandatory hard labor, a twelve year imprisonment, being constantly chained at the ankle and wrist, and the removal of your basic parental, marital, and civil rights. (Rummel v. Estelle 1980, 4 of 23)