Ewing v. California

EWING v. CALIFORNIA 01-6978. Argued No. November 2002 Decided March 2003 J., announced the O’Connor, judgment the Court and delivered an J., opinion, Rehnquist, which J., Kennedy, C. and J., joined. Scalia, post, J., Thomas, p. and post, p. filed opinions concurring J., Stevens, judgment. filed a dissenting opinion, Souter, in which Ginsburg, JJ., Breyer, joined, post, p. J., 32. Breyer, filed a dis- senting opinion, in Stevens, Souter, which JJ., Ginsburg, joined, 35. post, p. Quin Denvir, by of appointment the Court, 535 U. S. the cause

argued for petitioner. With him on the briefs were David M. Karyn Porter, H. Bucur, and Mark E. Haddad.

Donald DeE. Nicola, Deputy Attorney General Califor- nia, the argued cause With respondent. him on the brief Lockyer, were Bill Manuel M. Medeiros, General, Attorney State Solicitor General, Anderson, Robert R. Chief Assistant Pamela Hamanaka, General, Attorney C. Senior Assistant General, and Jaime L. Fuster, Attorney Jorstad, S. Kristofer and David Cook, C. Deputy Attorneys General. Assistant Attorney General the argued cause for Chertoff the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Deputy Olson, Solicitor General Dreeben, John P. Elwood, and Joel M. Gershowitz.*

* Falk, Donald M. Andrew H. Schapiro, and Mary Price filed a brief for Families Against Mandatory Minimums as amicus curiae urging reversal.

Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. H. Pryor, Jr., William Attorney Alabama, General of Nathan A. Forrester, General, Solicitor and B. Michael Billingsley, Dep- uty General, Solicitor and by the Attorneys General for their respective States as follows: Steve Indiana, Carter of Don Stenberg Nebraska, judgment of the the Court announced

Justice O’Connor opinion, in which The Chief and delivered an and Justice join. Kennedy Justice Eighth the Amendment case,

In this we decide whether sentencing repeat prohibits from State California to life under State’s to a term 25 felon law. You’re Out” “Three Strikes and r—< A in the three strikes law reflects a shift State’s California’s incapacitating deterring policies re- sentencing toward safety. public peat The law was who threaten offenders greater longer prison designed sentences and “to ensure felony punishment been who commit and have those felony previously of serious of- convicted and/or violent 1999). 667(b) (West fenses.” Penal Ann. On Cal. Code Assemblymen Bill 3, 1993, March California Jones Jim Assembly legislative Bill version Costa introduced strikes law. The As- of what would later become the three Safety only sembly defeated the bill Committee on Public sparked outrage over the defeat a voter Public weeks later. Proposition loosely bill, on the initiative to add based general in the November election. the ballot Proposition circulat- 1, 1993, while 184 was On October Polly ing, 12-year-old kidnaped Klaas was her home from killer, Her admitted Allen Petaluma, California. Richard long history prior criminal two had a that included Davis, only kidnaping Davis had served half of his convictions. John Oklahoma, Myers Hardy W. A. Drew Edmondson Oregon, of of L. Utah, Gregoire Christine O. of of Cornyn Mark Texas, of Shurtleff Hoke MacMillan of and for the Criminal Jus- Washington, Wyoming; Kent L. Scheidegger S. and Charles al. by tice Foundation et Legal Hobson. D. Merritt

Dennis L. Stout and Grover filed for the California a brief as amicus curias. Association Attorneys District (16 most recent sentence years for kidnaping, assault, and burglary). Had Davis served his entire sentence, he would prison still have been in day on the Polly Klaas was kidnaped.

Polly Klaas’ galvanized murder support for the three days, strikes initiative. Proposition Within 184 was on its way becoming qualifying fastest initiative in Califor- history. nia January On 3, sponsors 1994, Assembly of Bill resubmitted an amended version the bill of that con- to Proposition formed January 184. On Assembly 31,1994, passed Bill 971 the Assembly by margin. a 63 to 9 The Sen- passed by ate it a 29 to 7 margin on 3, March 1994. Gover- signed nor Pete Wilson the bill into law March 7, on 1994. approved California voters Proposition margin percent 72 to 28 on November 1994.

California thus became the second State to enact a three strikes law. In November 1993, the Washington voters of approved State their own three law, strikes Initiative by margin of 3 to 1. Dept. U. S. of Justice, National In stitute of Justice, J. Clark, J. Henry, Austin, & D. “Three Strikes and You’re A Out”: Legislation Review of State 1997)(hereinafter (Sept. Review Legislation). of State Be tween 1993 and 1995, 24 States and the Federal Government enacted three strikes Though laws. Ibid. the three strikes vary laws from they State to State, goal share a common protecting public safety by providing lengthy prison terms habitual felons.

B California’s current three law strikes consists of two virtu- ally statutory identical “designed schemes to increase the repeat terms of People felons.” Superior Court Diego San Cty. ex rel. Romero, 13 Cal. 4th 504, 917 P. 2d (1996)(Romero). 628, 630 When a defendant is convicted of a felony, and previously he has been convicted one or more prior felonies defined as “serious” or “violent” Cal. Penal §§ (West Code Ann. 2002), 667.5 and 1192.7 Supp. sentencing pursuant strikes is conducted to the three law. Prior con- charging alleged document, victions must be in the right jury prose- a to a defendant has determination prior beyond proved cution has convictions a reasonable (West 1985). § § 1025; doubt. prior

If the defendant has one “serious” or “violent” felony he be sentenced conviction, must to “twice the term provided punishment felony otherwise as for the current 667(e)(1) (West 1170.12(c)(1)(West 1999); § § conviction.” 2002). Supp. prior If the defendant has two or more “seri- felony ous” or he convictions, “violent” must receive “an in- 667(e)(2)(A) § imprisonment.” determinate term of life (West (West 1170.12(c)(2)(A) 2002). § 1999); Supp. Defend- ants sentenced to life under the three law strikes become eligible parole by on date a calculated reference to (a) a greater “minimum term,” which three times provided the term otherwise for the conviction, current (b) (c) years, the term determined the court §1170 pursuant underlying for the conviction, includ- §§667(e)(2)(A)(i)-(iii) (West ing any 1999); enhancements. 1170.12(c)(2)(A)(i)-(iii)(West 2002). §§ Supp. may law,

Under California offenses certain be classified as either felonies or These misdemeanors. crimes are known as “wobblers.” Some that would crimes otherwise be mis- demeanors become “wobblers” because of the defendant’s prior example, petty record. For theft, misdemeanor, a be- comes previously “wobbler” when the defendant has served a committing specified term theft-related (West (West §490 2002). §666 1999); crimes. Supp. Other grand crimes, such as regardless theft, are “wobblers” 489(b) (West 1999). prior defendant’s record. See Both types of “wobblers” are under the offenses only they law strikes when are treated as felonies. Under felony law, California presumptively a “wobbler” is felony except “remains a actually when the discretion is ex- ercised” to People make the crime a misdemeanor. v. Wil- liams, 27 220, 229, 163 Cal. 2d P. 2d (emphasis 692, 696 omitted). quotation and deleted internal marks prosecutors may California, In exercise their discretion to charge a felony as “wobbler” either a or a misdemeanor. Likewise, California trial courts have discretion to reduce charged a “wobbler” felony aas ato misdemeanor either preliminary before sentencing examination or at to avoid imposing a strikes three sentence. Penal Cal. Ann. Code 17(b)(1)(West §§17(b)(5), 1999);People Superior Court of Angeles Cty. Los Alvarez, ex rel. 968, 978, Cal. 4th (1997). 2d 1171, P. 1177-1178 exercising In this discretion, may the court consider “those factors that direct sen- similar tencing decisions,” such as “the nature and circumstances of the appreciation offense, the defendant’s of and attitude to- [and] ward general objectives offense,... of sentenc- Ibid, (internal ing.” omitted). quotation marks and citations California allegations trial courts can prior also vacate “serious” felony or “violent” by convictions, either on motion prosecution sponte. supra, Romero, sua at 529-530, 917 P. 2d, at In ruling 647-648. allega- whether to vacate prior felony tions of convictions, courts consider “in whether, light [the the nature and defendant’s] circumstances of present prior felonies and felony serious and/or violent particulars convictions, and the background, of his character, prospects, may the defendant be deemed outside the [three strikes’] spirit, scheme’s part.” People in whole or v. Williams, 17 Cal. 4th 148, 161, 429, P. 2d (1998). Thus, may trial imposing courts avoid a three strikes ways: by sentence reducing first, two “wobblers” (which to misdemeanors qualify do not as of- fenses), vacating allegations second, prior “serious” felony or “violent” convictions.

C parole 9-year On from a Gary petitioner term, Ewing pro shop Segundo walked into the El Golf Angeles County in Los on 2000. He

Course March apiece, golf priced clubs, with three con- walked out $399 suspicions pants leg. shop employee, A whose cealed his pro Ewing limp aroused when he observed out of the were shop, telephoned police. police apprehended Ewing The parking in the lot.

Ewing stranger justice system. In is no the criminal age pleaded guilty at the he The court theft. jail (suspended), years’ sentenced him to six months in probation, 1988, and a fine. In he of fel- was convicted $300 ony grand jail year theft auto and sentenced to one in and years’ probation. Ewing completed probation, three After sentencing however, the court reduced the crime to a mis- permitted Ewing guilty plea, demeanor, to withdraw his and petty 1990, dismissed the case. In he was convicted of theft prior days county jail with a and in sentenced to 60 the and years’ probation. Ewing three 1992, In was convicted of battery days county jail and to sentenced in the and two years’ summary probation. later, One month he con- was days county jail victed of theft and sentenced to 10 in the probation. January and 12 Ewing months’ In was con- burglary days county victed of and sentenced to 60 in the jail year’s summary probation. and one February In he possessing drug was paraphernalia convicted of and sen- county jail years’ tenced to six months in pro- the and three July bation. In appropriating 1993, he was convicted of lost property days and county jail sentenced to 10 in the and years’ summary probation. two September In he 1993, was unlawfully possessing convicted of trespassing a firearm and days county jail and sentenced to 30 the year’s and one probation.

In Ewing October and November committed three burglaries robbery Long and one at a Beach, California, apartment complex period. over a 5-week He one awakened asleep living his victims, on sofa, her room as to he tried disconnect her video cassette recorder from the television Ewing ran screamed, that room. When she out the front Ewing occasion, another accosted a victim in the door. On apartment complex. Ewing mailroom of the claimed have to gun and ordered the victim hand his to over wallet. When Ewing produced resisted, the victim a knife and forced the apartment Ewing victim back the itself. While rifled through apartment bedroom, the victim the the fled scream- help. ing Ewing money the absconded with victim’s and credit cards. Ewing premises 9,1993, December arrested the

On was on apartment complex trespassing lying and to a police robbery glass officer. The knife used in and pipe patrol cocaine were later found back in the seat of the transport Ewing police jury used to car station. A Ewing first-degree robbery convicted and counts burglary. eight residential Sentenced to nine prison, Ewing paroled months in was in 1999.

Only Ewing golf later, months stole clubs at issue charged ultimately in this case. was with, He convicted felony grand personal property of, one count of theft of (West Supp. excess of See Cal. Penal Code Ann. 484 $400. (West 2002); 1999). §489 required by As the three strikes prosecutor formally alleged, law, the and the trial court later Ewing found, that had previously been convicted of four seri- burglaries ous or violent felonies for the three and the rob- bery § Long apartment complex. 667(g) in the Beach (West 1170.12(e)(West 2002). § 1999); Supp. sentencing hearing, Ewing

At the asked the court to re- grand duce the theft, conviction a “wobbler” under Cali- fornia law, to a misdemeanor so as to avoid a three strikes 667(d)(1)(West 1170.12(b)(1) §§ 17(b), 1999); sentence. See (West 2002). Supp. Ewing also asked the trial court to exer- cise allegations its discretion dismiss the of some or all prior of his felony again serious or violent convictions, purposes avoiding a three strikes Romero, sentence. See 4th, Cal. at 529-531, 917 P. 2d, at 647-648. Before sen-

fencing Ewing, the trial court took note of his entire criminal history, parole including was on he fact he when argu- his committed latest offense. The court also heard plea Ewing from ments defense counsel and a from himself. judge grand end, In the the trial determined that the theft felony. should remain a The court also ruled that the four prior burglaries robbery strikes for the three and the Long newly Beach should stand. As a convicted felon with felony two more “serious” or “violent” convictions in his past, Ewing was sentenced under the three strikes law to 25 years to life.

The Appeal California unpublished Court of affirmed in an 2001). opinion. (Apr. No. Relying B143745 on our deci (1980), sion in Estelle, Rummel v. U. S. the court rejected Ewing’s grossly claim dispro that his sentence was portionate Eighth under the Amendment. sen Enhanced tences under recidivist like statutes the three law, strikes the court “legitimate goal” reasoned, serve the deterring incapacitating repeat and Supreme The offenders. Court California denied petition for review, we (2002). granted certiorari, 535 U. 969 S. We now affirm. II A Eighth The Amendment, which forbids cruel and unusual punishments, contains proportionality principle” “narrow “applies noncapital sentences.” Harmelin v. Michi- (1991) gan, 501 U. S. 996-997 concurring J., (Kennedy, part concurring judgment); cf. Weems v. United (1910); States, 217 U. S. 349, 371 Robinson v. California, U. S. (applying Eighth Amendment to the Amendment). States via the Fourteenth We have most re- cently addressed the proportionality principle applied as years terms of in a series of beginning cases with Rummel Estelle, supra. In Rummel, we held that it did Eighth not violate the Amendment for a to sentence State a three-time offender to prison possibility parole. life in with the Id., at 284-285. Ewing, Like Rummel was sentenced lengthy prison to a term under a recidivism prior statute. Rummel’s two offenses felony were a 1964 for “fraudulent use aof credit card to goods obtain worth of or services,” $80 felony and a 1969 “passing forged conviction for a check in the amount of Id., at 265. His $28.36.” offense was convic- felony “obtaining tion for pretenses.” $120.75 false theft — Id., at 266. “[hjaving This ruled Court imprisoned twice him for place felonies, Texas upon was entitled Rummel the onus simply bring one who is unable to his within conduct the prescribed by social norms the criminal law of the State.” Id., at 284. The recidivism nothing statute “is more than a societal decision person when such a yet commits an- felony, subjected other he should be admittedly to the seri- penalty ous subject only incarceration for life, to the judgment grant State’s as to parole.” whether to him Id., at We noted 278. that this Court “has on occasion stated Eighth prohibits that the imposition Amendment of a sen- grossly disproportionate tence that is severity to the “[ojutside Id., at crime.” But 271. capital context of punishment, challenges to proportionality successful particular exceedingly sentences have been Id., rare.” at Although 272. we proportionality stated that principle play “would . . . come example in the into extreme if a ... legislature parking felony made punishable by overtime imprisonment,” life id., 274, 11, n. we held that man- “the datory imposed upon life petitioner this does not punishment cruel constitute Eighth unusual under the and Fourteenth Amendments,” id., at 285. curiam),

In (per Davis, Hutto v. U. S. defendant was sentenced to two consecutive terms of 20 possession with intent to nine distribute marijuana

ounces of marijuana. and distribution of We held that such a sentence was “In short, constitutional: Rummel proposition stands for the that federal courts should be reluc- legislatively tant to review imprison- mandated terms of challenges ment, and that proportionality successful to the particular exceedingly sentences should be Id., rare.” at (citations omitted). quotation and internal marks years Three Rummel, after Helm, Solem 463 U. S. (1983), 277, 279 Eighth we prohib- held that the Amendment ited “a life sentence possibility parole without for sev- felony.” enth nonviolent The offense in Solem “uttering was a ‘no account’ Id., check for at $100.” 281. specifically We Eighth stated that the Amendment’s ban on cruel punishments and unusual “prohibits .. . sentences that disproportionate are to the crime committed,” and that the principle proportionality “constitutional recog- has been explicitly nized in this century.” Court for almost Id., at 284, 286. The explained Solem Court then that three fac- may tors be relevant to a determination of whether a sen- disproportionate tence is so it Eighth violates the “(i) gravity Amendment: of the offense and the harshness (ii) penalty; imposed the sentences on other criminals (iii) jurisdiction; the same imposed the sentences commission of the jurisdictions.” same crime other Id., at 292.

Applying these factors in Solem, we struck down the de fendant’s sentence parole. of life specifically without We noted the contrast between that sentence and the sentence pursuant in Rummel, to which eligible the defendant was parole. (“[T]he 463 U. S., 297; id., see also at 300 South Dakota system commutation fundamentally is different from parole system Rummel”). that was before inus Indeed, explicitly we “[Q]ur declined to overrule Rummel: conclusion today is not with inconsistent Rummel v. Estelle.” U. S., at (“[O]ur 303, 32; n. id., see also at 288, n. 13 decision entirely with prior including consistent this Court’s cases— Estelle”). Rummel v. Eight grappled proportion- Solem, after we with the ality again issue in Harmelin. Harmelin was not a recidi- vism but rather involved a case, first-time offender convicted grams possessing of of cocaine. He was sentenced to possibility parole. in majority life without of A of rejected the Court Harmelin’s claim that his was grossly disproportionate Eighth so that it violated the why agree Court, Amendment. The however, could not on proportionality argument his failed. Scalia, Justice joined by proportional- wrote that the Justice, The Chief ity principle aspect penalty jurispru- “an was of our death generalizable aspect Eighth dence, rather than a of Amend- law.” ment 501 U. at 994. He S. would thus declined have gross apply disproportionality principles to except in review- ing capital Ibid. sentences. joined by two other Members

Justice Kennedy, part Court, concurred in and judgment. concurred in the Kennedy specifically “[t]he recognized Eighth Justice proportionality principle applies noncap- Amendment also prin- Id., ital at He sentences.” 997. then identified four ciples proportionality primacy legis- review—“the of the variety legitimate penological lature, the schemes, system, requirement pro- nature of our federal portionality by objective guided be review factors”—that Eighth “inform the one: The Amendment final does not re- quire proportionality strict between crime and sentence. only ‘grossly Rather, it extreme sentences forbids that are disproportionate’ (citing Id., at to the crime.” Solem, Kennedy’s supra, at 288). concurrence also stated Justice comparative analysis that Solem not “did mandate” “within jurisdictions.” S., 501 U. between 1004-1005. proportionality principles in The our cases distilled Jus- Kennedy’s guide application our concurrence tice Eighth Amendment the new that we are called context upon to consider.

B many years, providing For most States have had laws sentencing repeat g., enhanced See, e. U. offenders. S. Dept. of Justice, Bureau of Assistance, Justice National As (1996). Sentencing sessment of Structured Yet between 1993 and change strikes three laws a sea effected sentencing throughout criminal the Nation.1 These laws re sponded widespread public about crime tar concerns geting the pose greatest class of offenders who threat to public safety: career criminals. As one of the chief archi tects of explained: California’s strikes law has “Three go beyond Strikes simply making was intended to sentences tougher. It was intended to be a effort to create focused sentencing policy judicial system that would use the to re duce serious and violent Ardaiz, crime.” California’s Three History, Strikes Expectations, Law: Consequences, 32 Mc (2000)(hereinafter Ardaiz). George L. 1, 12 Rev.

Throughout legislatures enacting States, the three strikes laws policy made a deliberate choice that individuals who repeatedly engaged have in serious or violent criminal be- havior, and whose conduct has not by been deterred more approaches punishment, conventional be must isolated society from protect in order to public the safety. Though may three strikes relatively laws be new, our tradition of deferring legislatures making state in and implementing important such policy longstanding. decisions is Weems, 217 S., U. at 379; Gore v. States, United 357 386, U. S. 393 1 It is hardly surprising that the relied upon statistics by Justice Breyer show that prior to the enactment of the “no law, three strikes one like Ewing could have served Post, 10 more than prison.” in added). at 43 (dissenting opinion) (emphasis Profound disappointment with the perceived lenity of criminal sentencing (especially for repeat fel ons) led to passage of three strikes laws in e. g., Re See, the first place. view of State Legislation 1.

25 (1958); Payne (1991); Tennessee, U. 808, 501 S. 824 Rum mel, 445 U. S., 274; at Solem, 463 S., 290; U. at Harmelin, S.,U. concurring part J., in and concur (Kennedy, ring judgment). in

Our legislative traditional policy deference to choices finds corollary in principle a the that Constitution “does not adoption any mandate penological theory.” one Id., at 999 concurring J., part in concurring judg- (Kennedy, ment). A variety can justifications, have a such incapacitation, as deterrence, retribution, or rehabilitation. 1 W. LaFave A. Scott, & Substantive 1.5, Criminal Law pp. 30-36 (explaining punishment). theories of Some or all of justifications may these play a role ain State’s sentencing Selecting sentencing scheme. rationales is generally policy choice to legislatures, made state be not federal courts. Legislature

When the California enacted the three strikes judgment law, it protecting public made that safety requires incapacitating already criminals who have been con- victed of at least one serious Nothing or violent crime. Eighth prohibits Amendment making California from contrary, choice. To the our cases establish “States have a valid deterring segregating interest (1992); habitual Raley, criminals.” Parke v. U. S. (1962) (“[T]he Oyler v. Boles, 368 U. S. constitution- ality practice inflicting penalties severer criminal upon habitual open offenders longer is no chal- to serious .

lenge”). long Recidivism has recognized legiti- been as a mate punishment. basis for increased See Almendarez- (1998) (recidivism Torres v. States, United 523 S.U. typical “is as sentencing might imagine”); factor as one (1995)(“In Witte v. States, United repeat- 515 U. S. 400 edly upholding such rejected statutes, recidivism we have jeopardy double challenges punish- because the enhanced imposed ment [is] for the later penalty offense ... ‘a stiffened for the latest crime, which is aggravated considered to be an

26 ” repetitive (quoting

offense Gryger because one’ Burke, (1948))). 334 U. 732 S. justification pretext.

California’s is no is a Recidivism se public safety throughout rious concern in California According report, Nation. approximately per to a recent 67 cent prisons of former inmates released from state were charged with at one “serious” new least crime within three Dept. of their Justice, release. See U. S. Bureau Langan Special Report: Statistics, Levin, Justice P. & D. (June 2002). p. Recidivism of Prisoners Released in particular, In property Ewing released offenders like had higher recidivism rates than those committing released after drug, public-order violent, Approxi Id., offenses. at 8. mately percent property of the offenders released in 1994 again years, compared were arrested within approx imately percent percent offenders, the violent of the public-order percent drug offenders, of the offend ers. Ibid.

In 1996, when the Sacramento Bee studied 233 three strikes they offenders in ag California, it found that had an gregate prior felony 1,165 average convictions, an 5of apiece. See Furillo, Three Strikes —The Verdict: Most Of Long fenders Have Criminal Histories, Sacramento Bee, p. prior Mar. 31, 1996, A1. The convictions included 322 rob burglaries. beries and 262 percent Ibid. About 84 of the 233 three strikes offenders had been convicted of at least one they violent crime. Ibid. responsible all, In were for 17 attempted slayings, homicides, and 91 sexual assaults and child molestations. Ibid. The concluded, Sacramento Bee investigation, “[i]n based on its majority the vast of the regardless cases, [three strikes] third strike, law [the] snaring long-term multiple habitual offenders with felony convictions . . ..” Ibid.

The State’s deterring interest crime also lends some support to the three long strikes law. We have both viewed incapacitation and deterrence as rationales for recidivism statute[’s] “[A] primary goals recidivist . . . to statutes: are repeat point and, at some offenders in life of one deter the enough repeatedly criminal commits offenses serious who segregate punished person felonies, be as from the society period Rummel, an extended rest of of time.” supra, after passage 284. Four of California’s parolees rate law, the three strikes recidivism returned to nearly dropped by commission of new crime percent. Dept. Justice, California Attor Office of the ney General, Impact “Three Strikes and You’re Out”—Its on System Years, the California Criminal Justice After Four (1998). dramatically: p. 10 Even more positive consequence “An unintended but of ‘Three impact parolees leaving has been the on Strikes’ parolees leaving More state. California are now parolees jurisdictions entering from state than other striking This California. turnaround started in 1994. parolees It was the first time more left the state than since 1976. This trend in entered has continued and parolees 1,000 1997 more than net left California.” Ibid. Erler, Crime, Punishment, also & and Romero: Janiskee Analysis Against

An California’s Three Strikes Case (“Prosecutors Duquesne 43, L. Rev. 45-46 Law, report they Angeles routinely them that ‘felons tell are Los they getting moving fear a second out of the state because ” (quoting Sanchez, offense’ or third strike for nonviolent Against Washing- Law, A “Three Strikes” Movement Builds A3)). p. Post, ton Feb. sparked law has con- sure, be three strikes

To California’s troversy. wisdom, law’s have doubted the cost- Critics reaching goals. g., efficiency, See, its e. effectiveness Democracy: Zimring, Hawkins, Kamin, & Punishment and (2001); Vitiello, and You’re Out California Three Strikes Rationality? We Return to Crim. Three Can J. Strikes: (1997). L. & C. This criticism appropriately di legislature, rected at the primary which has responsibility making policy the difficult any choices that underlie crim sentencing inal scheme. We do not sit “superlegisla- as a ture” second-guess policy these enough It is choices. the State of California has reasonable believing basis for that dramatically enhanced sentences for habitual felons “ad vance[s] goals [its] justice system criminal any sub way.” stantial Solem, 463 S., at U. 297, n. 22.III Against backdrop, this we consider claim that his three strikes sentence of 25 unconstitutionally life is disproportionate to his offense of “shoplifting golf three clubs.” Brief for Petitioner 6. We gravity first address the compared of the offense to the penalty. harshness of the At the threshold, Ewing we note incorrectly frames the gravity issue. The of his offense merely was not “shop- lifting golf clubs.” Rather, Ewing was convicted of felony grand theft stealing nearly for- $1,200 worth of mer- chandise previously after having been convicted of at least two “violent” or “serious” felonies. Even standing alone, Ewing’s theft should lightly. not be taken His crime was certainly not “one of the passive most person felonies a could (internal commit.” supra, Solem, at quotation marks omitted). To contrary, Supreme Court of California has noted the grand “seriousness” of theft in the context proportionality Lynch, review. See In re 3d 410, Cal. n. (1972). 503 P. 2d 921, 936, n. 20 $1,200 Theft of property felony is a under law, federal 18 U. S. C. in majority vast App. States. See B to Brief for Petitioner 21a. grand

That theft is a “wobbler” under California law is of no moment. Though California courts have discretion to reduce a felony grand charge theft to a misdemeanor, it re- felony mains a purposes all “unless and until the trial imposes court a misdemeanor sentence.” In re Anderson, 69 Cal. 2d 618, 626, (Tobriner, 447 P. 2d 117, J., concurring); generally see Epstein, B. Witkin & N. Califor (3d §73 2000). nia Criminal Law ed. purpose “The judge’s trial sentencing downgrade discretion” to certain fel “impose onies is to a misdemeanor those cases in which the rehabilitation the convicted defendant either require, does not adversely would be by, affected incar ceration in a state as a felon.” supra, Anderson, (Tobriner, 664-665, 447 2d, P. at 152 concurring). J., Under law, California the reduction is not based on the notion that “conceptually “wobbler” is a misdemeanor.” Necochea v. Superior Court, App. 23 Cal. Rptr. 1012, 1016, 3d 100 Cal. (1972). 693, 695 Rather, it is “intended to extend misde- meanant potential treatment to a felon.” Ewing’s Ibid. In case, judge however, the justifiably trial exercised her dis cretion not to extend such given lenient treatment Ewing’s long history. criminal

In weighing gravity Ewing’s place offense, we must on only the scales not his felony, current but long also his history felony Any recidivism. approach other would fail proper to accord policy deference to judgments find expression in legislature’s choice of impos- sanctions. In ing a three strikes sentence, the State’s interest is not merely punishing the offense of “trigger- conviction, or the ing” “[I]t offense: is in addition the dealing interest... in in a harsher manner by repeated with those who criminal acts have they shown that simply incapable are conforming to society norms of as by established its criminal law.” Rummel, 445 U. supra, S., 276; Solem, give at 296. To full effect to the legitimate State’s choice of penological this goal, proportionality our review of Ewing’s must goal take that into account.

Ewing’s justified by sentence is public-safety the State’s interest incapacitating deterring and felons, recidivist long, record.2

amply supported serious criminal his own Ewing misdemeanor and fel numerous has been convicted separate incarceration, ony terms of nine offenses, served pa probation or while on of his crimes and committed most including prior were serious felonies role. His “strikes” burglaries. Ew robbery sure, To be and three residential legis ing’s long But it reflects a rational sentence is a one. deference, that offenders who judgment, lative to entitled and who felonies continue have committed serious or violent incapacitated. of Cali commit The State felonies must be [Ewing] upon the onus of one place fornia “was entitled to simply bring social within the who is unable to his conduct prescribed by law of the Rum the criminal State.” norms Ewing’s supra, “the rare case in which mel, at 284. is not comparison the sen committed and threshold of the crime disproportion- gross imposed tence to an inference of leads ality.” Harmelin, J., concur S., 501 U. at 1005 (Kennedy, judgment). ring part concurring in prison, We hold that sentence of 25 life imposed felony grand for the theft under the three offense of grossly disproportionate law, strikes is not and therefore Eighth prohibition not violate the Amendment’s on does Breyer Justice argues including Ewing’s grand trig theft as a incapacita “property-crime-related justified offense cannot be on gering Post, tion grounds” because such crimes do not prior count as strikes. dealing repeat Ewing at 51. But the State’s interest with felons like explained, is not so limited. As we have the of the overarching objective to three strikes law is serious or offenders like prevent Ewing violent from repeating their criminal behavior. See Cal. Penal Code Ann. (“It 667(b) (West 1999) is the intent of the ... to en Legislature sure sentences and longer prison greater for those who com punishment felony mit a and been previously have convicted of serious and/or violent offenses”). felony The California Legislature therefore made a “deliber policy gravity ate decision ... the of new felony the should not be a determinative in ‘triggering’ factor the Three application of the Strikes Law.” Ardaiz 9. Neither the Eighth Amendment nor this prece Court’s legislative dent forecloses that choice. punishments.

cruel and unusual judgment The of the Cali- Appeal fornia Court of is affirmed.

It ordered. is so Scalia, Justice in the concurring judgment. my opinion Michigan,

In in Harmelin v. U. S. (1991), Eighth I concluded that the prohibition Amendment’s punishments” of “cruel and unusual excluding was at aimed only punishment, “guarantee certain modes of hot was a against disproportionate respect sentences.” ofOut for the principle of might decisis, stare I accept the con- nonetheless trary holding Helm, of Solem v. U. S. —that Eighth the Amendment a proportionality contains narrow principle I I intelligently felt could apply it. This case —if why demonstrates I cannot.

Proportionality punishment notion that the fit should —the inherently the concept crime—is penological tied to the goal “[I]t of speak retribution. becomes difficult even to in- telligently ‘proportionality,’ once deterrence rehabili- given significant tation are weight,” supra, Harmelin, at giving weight 989—not to mention to purpose the of Califor- nia’s incapacitation. three present strikes law: the case, In game up plurality once the has acknowledged that “the adoption Constitution any does mandate not penologi- one theory,” cal and that a variety justi- “sentence can have incapacitation, fications, such as deterrence, retribution, or (internal Ante, rehabilitation.” quotation at marks omit- ted). acknowledgment having That longer made, been it no merely suffices gravity “the assess offense com- pared penalty,” to the harshness of the ante, 28; that clas- (alone description sic proportionality principle of the and in quite itself policy-free, legal resistant analysis) now be- merely comes step inquiry, “first” Having ibid. completed step (by a discussion which, in all fairness, does not convincingly 25-years-to-life establish that “pro- ais portionate” punishment clubs), stealing golf

plurality analysis “Ewing’s must then an to show that add justified by public-safety sentence is the State’s interest in incapacitating deterring Ante, recidivist at felons.” 29. though why anything it

Which indeed that has to do is— principle proportionality mystery. with the Perhaps of ais plurality terminology, should revise its so what that it Eighth reads into the propo- Amendment is not the unstated punishment sition that all reasonably should be proportion- gravity ate to the the offense, but rather the unstated proposition punishment reasonably pursue all should multiple purposes of the criminal law. That formulation would it plurality ever, make clearer than course, that the applying is not evaluating law policy. but agree petitioner’s I Because sentence does not violate Eighth prohibition against Amendment’s cruel and un- punishments, usual judgment. I concur in the Justice Thomas, in the concurring judgment. agree

I with Justice proportional- view that the Scalia’s ity test announced in (1983), Helm, Solem v. 463 U. S. 277 Solem’,s incapable judicial is application. Even were test perfectly clear, however, I compelled would feel not stare apply decisis to my it. In view, the Cruel and Unusual Punishments Eighth Clause of the Amendment contains no proportionality principle. Michigan, See Harmelin v. J.). U. S. (opinion 966-985 Scalia, the plurality Because petitioner’s concludes that does not Eighth violate the prohibition Amendment’s on cruel punishments, and unusual judgment. I concur

Justice Stevens, with whom Justice Souter, Justice Breyer Ginsburg, and Justice join, dissenting. Breyer cogently explained why has

Justice the sentence imposed in this case both cruel and unusual.1 The eoncur- 1For “present purposes,” post, 53 (dissenting opinion), Justice Breyer applies the framework established by Harmelin v. Michigan, U. S. (1991), 1004-1005 in analyzing Ewing’s Eighth Amendment prompt separate writing emphasize pro- rences this to only portionality capable judicial application review not is required by Eighth but also the Amendment. Eighth succinctly prohibits

“The Amendment ‘excessive’ (2002); Virginia, sanctions.” Atkins v. 304, 311 U. S. see (“Excessive Const., also U. S. Arndt. 8 bail be shall not re imposed, quired, nor fines excessive nor cruel and unusual inflicted”). punishments Faithful the text, to Amendment’s this Court has held that the judges Constitution directs to apply judgment determining their proportionality best the g., Bajakajian, fines, see, e. United States v. 321, U. S. (1998), g., Boyle, see, e. bail, 334-336 v. Stack U. S.

(1951), punishment, including imposi and other forms of the g., tion of a death Georgia, sentence, see, e. Coker v. 433 U. S. (1977). 584, 592 suggest It “would be anomalous indeed” to Eighth that the proportionality Amendment makes review applicable in the context of bail and fines but not in the con punishment, text of other imprisonment. forms of such as (1983). by Helm, Solem v. broadly 277, 289 463 U. S. Rather, prohibiting Eighth sanctions, excessive the Amendment di judges rects judgment to exercise assessing their wise the proportionality punishment. of all forms of

The absence of a judges rule black-letter does not disable exercising from construing their discretion the outer sentencing authority limits on Eighth that the Amendment imposes. judges After “constantly all, upon are called to draw . variety . . lines in a id., of contexts,” judgment to give exercise meaning their to to the Consti- broadly phrased protections. tution’s example, For Due judges employ Process Clause directs proportionality re- Breyer claim. I with Justice agree sentence is grossly disproportionate even under Harmelin’s narrow proportionality frame However, Harmelin, work. it is not clear that this case is controlled which considered proportionality of a life imposed on a drug no offender who had prior Rather, felony convictions. the three-factor Helm, analysis established in Solem v. 277, 290-291 (1983), 463 U. S. which specifically addressed recidivist seems sentencing, directly point. more on in assessing constitutionality punitive

view damages case-by-case g., awards on a See, basis. e. BMW North (1996). America, Inc. Gore, 517 U. S. Also, although guarantees the Sixth Amendment criminal defend right speedy ants to a trial, the often courts are asked case-by-case to determine on a particular basis whether a delay constitutionally permissible g., Dog See, not. e. (1992).2 gett States, v. United 505 S. 647 U. Throughout history guideline most of the Nation’s —before sentencing prevalent became so and state trial —federal imposed

judges specific pursuant grants sentences of au- thority gave that them uncabined discretion within broad ranges. See K. Cabranes, Stith & J. Judging: Fear of Sen- (1998) (herein- tencing Guidelines the Federal Courts 9 (“From Cabranes) after Stith & beginning Repub- judges lic, federal were sentencing entrusted wide with discretion”); see also Mistretta v. States, United 488 U. S. (1989). 361, 364 It was not unheard for a of statute to au- thorize ranging year sentence from example. one to life, for g., (cit- (1894) See, e. Perley, State v. 427, 86 Me. 74, 30 A. 75 ing Maine robbery punishable by statute made impris- onment for any life or years); term of In re Southard, 298 (1941)(“The 75, 77, Mich. N. 298 W. 457 ‘robbery offense of punishable armed’ is by imprisonment any for life or term 2Numerous examples other be could given of situations in which courts —faced imprecise with commands —must make difficult decisions. g., e. Kyles See, v. Whitley, 514 (1995) S.U. (reviewing whether undis Fulminante, Arizona v. closed material); evidence (1991) was 499 U. S. 279 (considering whether confession and, so, was coerced if whether admission of the coerced confession Strickland v. Washington, error); was harmless (1984) 466 U. S. 668 (addressing whether defense counsel’s performance was deficient and whether any deficiency Darden v. prejudicial); was Wainwright, (1986) S. 168 U. (assessing prosecutorial whether miscon duct deprived trial); Christensen defendant of a fair County, Harris S.U. (SCALIA,J., concurring in part concurring in judgment) (addressing an agency’s whether construction of a statute “was ”). ‘reasonable’ exercising sentencing years”). judges discretion, In their employed wisely proportionality principle that took into justifications punishment namely, all of the for account — incapacitation, deterrence, retribution, and rehabilitation. & I Likewise, Stith Cabranes 14. think it clear Eighth prohibition Amendment’s of “cruel and unusual

punishments” expresses proportionality a broad and basic justifications principle that takes into account all of the for penal proportionality principle It sanctions. is this broad preclude any justifications on for that would reliance support, example, punishment to a life sentence over- parking. Estelle, time See Rummel v. S.U. (1980).

n. 11

Accordingly, respectfully I dissent. with whom Breyer, Stevens, Justice Justice Justice Ginsburg Souter, Justice join, dissenting. question

The constitutional is whether the “three strikes” imposed by upon repeat-offender Gary sentence California Ewing “grossly disproportionate” Ante, to his crime. (plurality opinion). at The amounts to 14, 30-31 years. sentence- a real term of least 25 The golf criminal conduct consists the theft priced ante, at a total of at 18. The of $1,197. clubs history felony criminal that includes four convic fender has a armed). (one separate burglaries arising tions out of three (1983), Helm, In 463 U. 277 the Ante, at 18-19. Solem S. grossly disproportionate longer sen Court found somewhat imposed on a recidivist offender for criminal tence my less view, was somewhat severe. In the conduct that determinative, are not and the should Court differences I reach same ultimate conclusion here. the precedent analyz- forth a

This sets framework Court’s Eighth Eighth ing Ewing’s claim. Amendment The Amend- punishments,” and as “cruel unusual forbids, ment 36 (including years) “grossly

terms dispropor terms that are supra, Lockyer Solem, tionate.” at 303; see v. Andrade, post, “gross at In applying disproportionality” the prin 71. ciple, keep “legislative courts must in mind policy” will primarily appropriateness punishment’s determine of a “severity,” legislative and hence defer to such policy judg ments. States, Gore v. United U. S. see 357 386, (1958); 393 Michigan, Harmelin v. 501 U. S. 957, (Kennedy, concurring part J., in concurring judgment); Solem, and in supra, at Estelle, Rummel v. U. S. 289-290; 263, 274-276 (1980); Weems v. States, United U. S. If (1910). properly courts respect judgments, they those will find that only sentence fails the test in rare Solem, instances. supra, at n. supra, 16; Harmelin, at 1004 (Kennedy, J., concurring part in concurring judgment); and in Rummel, (“[Successful supra, at challenges proportionality to the particular rare”). sentences exceedingly have been And they only “‘rarely’” will necessary find “‘engage it in analysis’” extended rejecting before a claim that a sentence “grossly disproportionate.” supra, Harmelin, at concurring J., part in concurring and judg (Kennedy, in ment) (quoting supra, Solem, at n. 16). plurality applies

The Kennedy’s analytical Justice framework in supra, Harmelin, (opinion at 1004-1005 con- curring part in concurring judgment). in Ante, at 23- present 24. And, purposes, I will consider Eighth Amendment claim on those ante, terms. But see at 32-33, 1 n. dissenting). implement To (Stevens, this J., approach, courts faced “gross with a disproportionality” claim must first make “a comparison threshold of the crime committed and the imposed.” supra, Harmelin, J., concurring part 1005 (Kennedy, concurring judgment). If a claim crosses that threshold —itself rare occurrence—then the compare court should sentence at issue to other “imposed sentences on other criminals” same, jurisdictions. or in other, supra, Solem, 290-291; Harmelin, 501 S., at U. 1005 (Kennedy, J., concurring in part and concurring in judgment). comparative The analy- sis will “validate” or invalidate “an initial judgment that a sentence grossly is disproportionate to a crime.” Ibid. recognize

I warnings implicit in the frequent Court’s repetition of words such as “rare.” Nonetheless I believe that the case us before is a “rare” case—one in which a court say can with reasonable confidence that punishment “grossly disproportionate” to the crime.

II Ewing’s claim gross crosses the disproportionality “threshold.” precedent First, makes clear raises serious disproportionality question. Ewing is a recidivist. Hence the two cases directly most point in are those which the Court considered the consti- tutionality of recidivist sentencing: Rummel and Solem. Ewing’s claim falls between these two cases. It is stronger than the presented claim in Rummel, where up- the Court held a recidivist’s sentence as constitutional. It is weaker than presented the claim Solem, where the Court struck down a recidivist sentence as unconstitutional.

Three kinds of sentence-related characteristics define relevant comparative (a) spectrum: the length term in real time, e., i. the time that the likely offender is actually (b) spend prison; the sentence-triggering crimi nal conduct, i. e., the offender’s actual behavior or other (c) offense-related circumstances; and the offender’s criminal history. supra, Rummel, at 265-266, 269, 276,278, 280- (using factors); these supra, Solem, (same). at 290-303 Cf. United States Sentencing Commission, Guidelines Man ual pt. (Nov. ch. A, 1987) intro., (USSG) n. 5 (empirical study of “summary reports of some 40,000 [and] convictions a sample of 10,000 augmented presentence reports” leads to (a) sentences primarily based upon offense characteristics (b) record); offender’s criminal p. id., see s. 3. (a) a sentence Rummel, held constitutional

In the Court parole imprisonment 10 to with available within life (b) by pretenses, obtaining years, false offense the $120 (c) felony prior by convic- an offender with two committed money). 263; (involving 445 U. S. small amounts of tions (a) Solem, a the unconstitutional ante, at 21. In Court held (b) parole, for the imprisonment without sentence life writing account, check on a bank nonexistent crime (c) $100 felony prior offender with convictions an six committed burglary). (including 277; ante, at 22-23. 463 U. S. three for pertinent comparative made the factors Which of the three constitutional difference? prior explain differ- factor, record,

The third cannot the prior Solem, ence. The offender’s record was worse long, in Rum- the the too than where Court found sentence upheld mel, where the the sentence. The second fac- Court explain tor, conduct, offense cannot the difference. The na- ture of actual the offense—viewed terms of the monetary the The loss—in two cases was about the same. explains one critical factor that the difference in the outcome length likely prison is the term measured real time. upheld sentence, In Rummel, where the the state Court sentencing parole offender, statute authorized for the Rum- (Pow- years. mel, at S., 280; id., after or 12 445 U. at 293 dissenting). ell, J., Solem, In where the Court struck down required sentence, the offender, Helm, spend prison. the rest of life in his present Now consider the third factor, case. The offender prior signifi e., characteristics —i. record—does not differ cantly Ewing’s prior here from that in Solem. record con prior felony (involving sists of four convictions three bur knife) glaries, prior one with with contrasted Helm’s six felony (including burglaries, though convictions none weapons). with factor, behavior, The second offense only worse degree. than Solem, that in but to a It would say be difficult to (shop that the actual behavior itself here lifting) differs significantly from that at issue in (pass Solem check) ing a bad inor Rummel (obtaining money through pretenses). false Rather the difference lies in the value of goods obtained. That difference, measured in terms of (loss the most relevant feature to the victim, i. e., wholesale value) adjusted for the irrelevant feature of inflation, (in values) comes down to about compared $379 here (in with in values) $100 Solem, or here $232 com pared with $120.75 in Rummel. See USSG §2B1.1, com 2(A)(i) (Nov. 2002) (loss ment., n. to victim properly meas goods ures value of taken); unlawfully Dept. U. S. Labor, Bureau of Labor Statistics, Inflation and Spend Consumer (Jan. ing, Inflation 2003), Calculator http://www.bls.gov (hereinafter Calculator). Inflation Alternatively, if one measures the inflation-adjusted value difference in terms of golf the clubs’ price, sticker it comes down to $505 here com pared to in $100 Solem, or $309 compared here to $120.75in Rummel. See Inflation Calculator.

The length difference in of the prison real term —the first, and critical, factor in Solem and considerably Rummel —is important. more Ewing’s sentence here amounts, in real terms, to at least parole without good-time cred- its. That considerably sentence is shorter than Helm’s sen- tence in Solem, which amounted, in real terms, to in life prison. Ewing’s Nonetheless prison real term is more than long twice as as the term at issue in Rummel, which in amounted, real terms, to at least years. 10 or And, Ewing’s (but sentence, unlike Rummel’s like Helm’s sentence Solem), in long enough is productive consume the remain- (It any der of almost offender’s life. means Ewing that him- seriously self, ill when age sentenced at likely 38, will die prison.) upshot The length that the of the real term —the explains factor that the Solem/Rummel difference in out- places Ewing closer to Solem than to Rummel, come— though greater the golf value of the clubs that Ewing stole direction. Rummel’s slightly in Ewing’s case back moves within well Ewing’s sentence places comparison Overall, the zone and Rummel —a twilight Solem zone between the substantial, unconstitutionality is argument the where the constitu- determine cannot the cases themselves where outcome. tional imposes one face on its

Second, who upon a recidivist available punishments severe most forms serious less the in one of engaged subsequently deny do not I 44-45. infra, conduct. See criminal tells us curiae amicus an which shoplifting, seriousness annually. Brief billion range of $30 in the retailers costs Curiae Amicus as Attorneys Association California District of the factors terms conduct But consider 27. or threat- caused “harm Solem—the this mentioned Court magnitude of society,” “absolute victim or ened to the atS., “culpability.” U. the offender’s crime,” and sentence- criteria, respect to all three In 292-293. the bottom toward well ranks triggering behavior here conduct scale. criminal the other urged us to consider has General

The Solicitor “ease commission, the “frequency” the crime’s of the criteria: the which degree to “the difficulty detection,” and of punishment.” differing may by amounts be deterred crime When 24-25. Curiae States as Amicus Brief United latter the at least terms these criteria —or in considered bottom ranks toward conduct also two—the shoplifting often crimes, say, drug Unlike, scale. pres- whose open customers place to other stores takes in help cameras, can along employees or store ence, with that of presented here evidence crime. is there to detect the Nor lengthy community believes the law that enforcement To the shoplifting. necessary deter adequately to terms suggest that shoplifting contrary, well-publicized instances at any prison sentence punished often without the offense is frequently com- shoplifting is a hand, the other all. On “frequency,” crime; mitted standing but alone, cannot make a critical difference. Otherwise traffic offenses would war- punishment. rant even serious more ease,

This of course, involves shoplifting by engaged in a might argue recidivist. One any that crime committed a potentially recidivist is serious crime warranting 25-year rejected sentence. But this Court that view Solem, in recognition Harmelin, in with the that penalty per “no is se supra, Solem, constitutional.” 290; at Harmelin, U. S., at concurring part 1001 (Kennedy, J., concurring judgment). Our cases make clear involving that, cases recidivist upon offenders, we [offense] must focus “the triggers the life sentence,” with playing recidivism a “rel- necessarily evant,” not but determinative, Solem, role. supra, 21; n. see Witte v. United States, 515 U. S. (1995) (the

402, 403 recidivist “punished only defendant is for the of conviction,” offense which “‘is considered to be aggravated an repetitive offense because a (quoting one’” (1948))). Gryger Burke, 334 U. S. And here, as I said, have among that offense is the less serious, while punishment among the most serious. Rummel, Cf. (overtime (Powell, S., dissenting) U. at 288 J., parking trigger violation cannot a life sentence even for a serious recidivist). objective

Third, suggests many some experi- evidence judges enced would consider dispropor- tionately The harsh. United Sentencing States Commission (having Sentencing based the federal primarily Guidelines upon ers) judges actually its of how review had sentenced offend- (or shoplifting

does not include similar theft-related of- fenses) among might trigger especially long crimes that (Nov. 2002) §4B1.1 sentences for recidivists, see USSG (Guideline offenders”); sentencing pt. for id., 1, “career ch. (sentences A, part intro., upon n. 5 based in Commission’s “summary reports review [and] of 40,000 of some convictions sample augmented presentence reports”); 10,000 see also among such offenses include did nor Congress at infra, near or “at sentences it when sought crimes triggering recidivists, S. Rep. certain maximum” statutory the sen- 994(h) § (requiring U. S. C. (1983); 98-225, No. p. crime where triggering maximum” the or near “at tence 3559(c) S. C. 18 U. related); or drug of “violence” crime under offenses “strike” or not among theft (grand see But at 45-46. infra, see law); strikes” “three federal of imprison- term “a substantial 994(i)(l) (requiring §C. U. S. ... more prior of two have “a history who for those ment” convictions”). felony that make clear circumstances these

Taken together, one. is a strong argument disproportionality” “gross Ewing’s If test. must pass “threshold” claim so, his That being A thresh- test? function be the would not, it what did sentences, arguably unconstitutional must permit old test sentences, to pass actually unconstitutional not only unconstitution- the arguments least where threshold —at that test A threshold ones. are unusually strong ality claim —even constitutional invalid ultimately every blocked but a determina- threshold test not be a ones —would strong failed test be a determinative tive And, it would test. information, sentencing of highly pertinent account take supra, Solem, at sentences, with other namely, comparison are particularly comparisons Sentencing 298-300. 291-292, review with proportionality because they provide important test threshold contrast, a objective way content. By subjective. highly constitutionality the assessment makes threshold would test course, so to transform And, of S., at 463 U. earlier this Court’s precedent. violate J., con- (Kennedy, supra, Harmelin, 291-292; in judgment). and concurring curring part n —<>—l one, sufficient strong argument Believing A analysis. to the threshold, comparative I turn pass comparison Ewing’s with sentence other re- sentences quires questions. answers to First, two how other would (or jurisdictions California at other e,, i. times, without penalty) three punish strikes the same conduct? offense upon Second, what other jurisdictions conduct would other (or California) impose prison the same term? Moreover, hypothetical since punishment point, is beside the the rele- prison vant comparative time, for purposes, prison is real time, e., i. the time an actually that offender must serve.

Sentencing light upon statutes often shed little real time. That is sentencing because normally laws set maxi- mum sentences, giving sentencing judge discretion to an choose actual sentence range, within broad and because many provide States good-time parole, per- credits and often mitting say, after, release one-third the sentence has been 33.20.010(a) e.g., served, see, § (2000); Alaska Stat. Conn. (1998). Gen. Stat. 18-7a statutory Thus, the is maximum rarely the imposed, imposed and the sentence rarely the sentence that is served. For part, the most parties’ briefs sentencing discuss Nonetheless, statutes. that along discussion, readily with other available informa- tion, my validates initial belief Ewing’s sentence, com- paratively speaking, is extreme.

As to itself, California following: we know the First, be (when tween the end of World War II and California enacted 15), the law, strikes ante, Ewing no one like could have served more than 10 prison. We know that for certain because the maximum sentence for crime of grand conviction, theft, was for period most of years. (West §§ Cal. Penal 1970); Code Ann. 484, 489 see Dept. Cal. Corrections, Offender Services, Information Administrative Services Division, Historical Data for Time by Served Male Felons Paroled from Institutions: (1982) (Table Through 10) (hereinafter p. 1981, 11 Historical Data for Felons), Time Served California Lodging of Peti (and tioner. From 1976to currently, application absent would Ewing-type offender penalty), a three strikes years. Cal. four a maximum sentence received have 667.5(b) (West (West § 1999), Supp. §489 Code Ann. Penal 2002). offender” “habitual that California’s And we know 1970) (b) (West 644(a), §§ grand apply theft. did not laws 1977). any of- (repealed that the time also know We years. likely 10 actually less than was far fender served the median time show that (other data This is because statistical theft) was actually grand auto theft than served for of that years, percent those convicted of all about two and 90 years. Historical Data three or four crime served less than 10). (Table by for Time California Felons Served suggest Second, that recidivists all sorts con- statistics a during period in served victed that same time California average, small fraction of real-time sentence. On (recidivist-related) additional recidivists served three four years prison, percent serving an addi- in less than with (Table 21). years. eight Id., tional real seven to at 22 Third, reserved, re- we know that has and still California years Ewing-type prison in serves, time, e., i. at least 25 real prison, for criminals convicted of crimes far worse than was Ewing’s. years example, for Statistics 1945to for typical.(nonrecidivist) first-degree indicate that male mur- years prison, derers served between 10 15 real in with percent serving all such murderers less 20 real than (Table 2). years. Id., at 3 has Moreover, California, which (where sentencing system moved toward a real-time served), statutory punishment approximates the time still punishes harshly engaged far less those who have in far more imposes, example, upon serious It conduct. for nonrecidi- guilty causing great bodily injury vists of arson a maximum years prison, sentence of nine in Ann. Cal. Penal Code 451(a) (West 1999) § (prison years term of 5, 7, or 9 for arson bodily great injury); imposes causes upon guilty it those voluntary manslaughter years, a maximum sentence of § (prison years term of voluntary 3, 6, or 11 man- reserves It the sentence that it here slaughter). imposes for non- upon (former-burglar-now-golf-club-thief) Ewing recidivist, 190(a) (West murderers. first-degree Supp. (sentence 2003) murder). of 25 to life for first-degree toAs other we know the The jurisdictions, following: States, bound Guidelines, United federal Sentencing a recidivist, would such as a sentence impose upon Ewing, that, case, would any ordinary not exceed 18 months §2Bl.l(a) (Nov. 1999) USSG of- prison. a base (assuming level of a criminal fense of VI, and no history mitigating id., ch. adjustments); A, Table. aggravating pt. Sentencing The Guidelines, based 40,000 part some upon study supra, actual federal sentences, see at 37, 41, reserve recidivists who cur- Ewing-type Ewing-type commit such crimes as rently murder, §2A1.2; air piracy, §2A5.1; firearm, of a robbery seri- (involving discharge ous and about million), bodily §2B3.1; $1 of- injury, drug than, fenses more heroin, 20 of involving example, pounds §2D1.1; § theft more than million, 2B1.1; aggravated $100 and other offenses. The Guidelines reserve 10 years .similar (with time) of real time than 40 prison good percent —less recidivists who sentence —for on to Ewing-type go commit, instance, §2A1.3; voluntary manslaughter, ag- with assault a firearm serious in- gravated (causing bodily and motivated by §2A2.2; §2A4.1; jury money), kidnaping, residential more million, than §2B2.1; $5 burglary involving offenses at least one of cocaine, 1.1; 2D drug involving pound and other offenses. also similar would not have Ewing been law, to the federal “three strikes” 18 U. S. subject C. § 3559(c), for which theft not a grand offense. infra,

With see 46-47, three not we do exceptions, have about before us information actual time served by offenders other know, States. We do how- Ewing-type ever, make the law would it for a legally impossible to serve more than offender Ewing-type years prison well courts, as as federal see jurisdictions, Appendix, infra, A, Part States, more than 15 4in other see years Ap- infra, B, Part in 4 pendix, and more than 20 additional years States, C, States, see Part In nine other Appendix, infra. might the law make it to a sentence legally possible impose more, see years D, Part Appendix, though infra — that fact itself, course, not mean that does have judges done But see actually so. this I page. say “might” infra because the law in five of the nine last mentioned States restricts to a term so sentencing judge’s ability impose that, with long it would amount to at least 25 parole, of actual D, Part imprisonment. Appendix, infra.

We also know that California, the United States, and other States case, California in this supporting in- despite every centive to find someone else like who will have to Ewing serve, or who served, has a real term actually any- where have approaching imposed come upon Ewing, up with precisely Brief for United States as examples. Amicus Curiae 28-29, n. 13. The Government points parte Ex Howington, (Ala. 622 So. 2d 896 1993), where an Alabama court sentenced an offender with three bur- prior convictions glary and two theft convictions to prior grand “life” for the theft of a tractor-trailer. The Government also State v. Heftel, points (S. 513 N. W. 2d 1994), where D. a South Dakota court an sentenced offender with seven prior felony convictions to 50 years’ for theft. And imprisonment the Government cites State, Sims Nev. 814 P. 2d 63 (1991), where a Nevada court sentenced defendant with three prior felony convictions armed and (including robbery) nine misdemeanor convictions to life without for the parole theft of a and purse wallet containing $476.

The first of these Howington, cases, is beside the point, for the offender was (as after 10 eligible parole Rummel), (as here). not 25 years §15-22-28(e) Ala. Code (West 1982). The second case, Heftel, is on factually point, but it is not on legally for the South point, Dakota courts did not consider the of the sentence. 513 N. W. constitutionality factually point 2d, Sims, case, 401. The third both on legally, Supreme (by for the Nevada and a vote Court 2) 3 to found the sentence I concede that constitutional. example single imposed a instance of similar sentence —a law, outside context of California’s strikes out prison population approaching a now individu two million Dept. Programs, of Justice, als. U. S. Office of Bu Justice (Jan. 2003), Statistics, reau Justice Prison Statistics (available http://www.ojp.usdoj.gov/bjs/prisons.htm in Clerk file). case Court’s upshot comparison sentencing prac- The is that of other jurisdictions tices, both in other and in California at other (or crimes), respect times to validates what an initial other suggested. threshold examination Given the information given ability parties’ pro- available, the state and federal to contrary given vide additional data, so, and their failure to do following we purposes can assume for constitutional that the statement is true: three strikes con- Outside California Ewing’s virtually unique text, recidivist in its sentence is harshness for conviction, his offense of a consider- degree. able

IV This is not the end of the matter. California sentenced Ewing pursuant repre- to its “three law. That law strikes” sents provide punishments deliberate effort to stricter (West 1999) 667(b) (“It recidivists. Cal. Penal Code Ann. is the Legislature longer intent to ... ensure greater punishment sentences and for those who commit a felony previously have been convicted of serious and/or felony offenses”); violent important ante, And, at 24. it is justice special consider whether criminal concerns related might justify California’s policy including three strikes Ewing’s theft within the criminal class of conduct (thereby imposing punishment), even if severe disproportionately sentence would otherwise seem harsh. pri- (noting “the 998-999, 1001 S., at Harmelin, 501 U. Cf. sentencing policy). making legislature” macy in of the justice concerns special I such criminal can find no jus- potential might justify most obvious this sentence. The of the the ambit bringing Ewing’s theft within tification for kind some draw California must statute is administrative. trigger, and con-' will line between conduct that of workable “But trigger, sentence. will not a “three strikes” duct that not does somewhere has to be drawn the fact that a line justify being anywhere.” Pearce v. Commis- drawn its (1942)(Frankfurter, dissenting). J., sioner, 315 U. S. be one objective seem to The statute’s administrative would separating serious, serious, more from less job par- does not do criminal conduct. Yet the statute ticularly well. separates the statute draws

The administrative line that Respondent Brief for “felonies” from “misdemeanors.” See (“The fundamentally, tradi- on relies, California statute felonies”). Those tional classifications of crimes as certain degree. suggest graduated But an ex- words in a difference practice applies amination these labels of how California suggests to criminal conduct do not that the offenses neces- sarily reflect those v. Wat- differences. United States (1976) (Marshall, dissenting) son, J., 423 U. 438-441 S. history, (felony/misdemeanor reflects not distinction often (“The logic); Rummel, S., at most casual review U. justice systems of the in the various criminal now force dividing felony 50 States of the Union the line shows that petty usually larceny, theft from on the value based line property markedly from one State taken, varies another”). way in a Indeed, those words un- California uses related to the seriousness of in a set of crimi- offense conduct “ ” nal ante, statutes called one of which ‘wobblers,’ see is at issue this case. classify

Most “wobbler” con- the same criminal statutes felony upon duct depending either as misdemeanor, or as a the actual Cal. Ann. punishment Penal Code imposed, 1999); ante, (b) (West 17(a), §§ 16-17, in which turn de- whether “the of the con- pends primarily rehabilitation upon (or victed defendant” either does or does not would “require” or would not “be in a affected “incarceration adversely by”) In Anderson, re state as a 2d felon.” 69 Cal.

664-665, 447 P. (Tobriner, J., 2d concurring ante, cases, at 29. In such the part dissenting part); turns the felony/misdemeanor classification primarily upon nature of the offender, not the seriousness of comparative the offender’s conduct.

A subset statutes, of theft “wobbler” the including “petty (West awith statute, § Cal. Penal Code Ann. 666 prior” Supp. Lockyer 2002), the case, crime in the defining companion post, Andrade, 63, authorizes the treatment of otherwise p. (West misdemeanor conduct, § Penal Ann. 490 see Cal. Code 1999), as a com- when offender has felony only previously mitted a crime. turns distinction property upon Again, offender, characteristics not the con- offense specific duct at issue.

The result of this kind of distinction into Cali- importing fornia’s three strikes is a anomalies. statute series of One anomaly concerns the seriousness of the behav- triggering ior. “Wobbler” statutes cover a wide of criminal be- variety havior, from §245, assault with a ranging deadly weapon, vehicular § 193(c)(1), and manslaughter, money laundering, § 186.10(a), to the defacement with property graffiti, (West 594(b)(2)(A) § 2002), or more than $100 Supp. stealing worth chickens, 487(b)(1)(A) (West nuts, § avocados, or (West 1999). §489 2003); Supp. Some of this behavior is ob- less viously serious, if twice, even other than engaged criminal conduct that California as statutes classify pure misdemeanors, such as reckless Ann. Cal. Veh. Code driving, (West §23103 23104(a) (West 2000) (reckless § 2003); Supp. driving the use or causing bodily of force threat injury), force to interfere with another’s civil Penal Code Cal. rights, (West §422.6

Ann. alcohol, §347b, 1999), selling poisoned § child false neglect, and manufacturing selling gov- ernment documents with intent true citizen- conceal 112(a) (West 2002). ship, Supp.

Another order. An offender anomaly concerns temporal not whose crime is crime will fall his third likely within the ambit of the three strikes statute provided (a) his crime was $100, chicken theft worth more than first (b) he crimes, to more serious subsequently graduated crimes of say, violence. That is theft, because such chicken when a offense, first will be considered misdemeanor. likely A similar offender will fall within the the likely scope three statute, strikes however, if such chicken theft was his third crime. That is theft, because such chicken as a third offense, will be treated a likely as felony.

A further anomaly concerns the offender’s record. criminal California’s “wobbler” theft statute, with a at “petty prior” Lockyer post, Andrade, issue in a 63, classifies p. petty theft as a if, if, but the “felony” has offender only prior record that includes at least one conviction for certain theft- related offenses. (West Cal. §666 Penal Code Ann. Supp. 2002). Thus a violent criminal who has committed two vio- lent offenses and then steals will not fall within the $200 ambit of the three strikes statute, for his record reveals prior property no similar similar offender will fall A crimes. within the the scope three strikes statute, however, if that offender, instead of committed having two violent previous crimes, has committed one violent previous crime and one previous theft. petty conduct (Ewing’s would have brought him within the realm of the theft petty to 1976 statute prior inflation.) but for

At the same time, it is difficult to find need to any strong define the lower as the boundary State has The done. three strikes statute itself, when “strikes,” defining prior simply lists the kinds of serious criminal conduct falls that within of a definition 667.5(c) § “strike.” “violent” felon- (listing 1192.7(e) (West ies); § 2003) felonies). Supp. (listing “serious” There no obvious reason the statute why not could enu- merate, consistent with its purposes, relevant crimes. Given that and possibility that given anomalies result from California’s chosen I do approach, not see how can California administrative grounds a sentence on justify as seriously disproportionate as See Parts Ewing’s. II supra. III,

Neither Ido see other any way which inclusion of (as conduct crime”) “triggering would further a criminal significant justice objective. One argue might those who commit property several crimes should receive terms of long imprisonment order to them, “incapacitate” i. e., to prevent them from further crimes in committing future. But that is not the of this object particular strikes statute. Rather, as the plurality California says, seeks “‘to reduce serious and violent Ante, crime.’” Ardaiz, (quoting California’s Three Strikes Law: History, Expectations, Consequences, L. Rev. McGeorge added)). (emphasis The statute’s definitions of both kinds of crime include crimes against the person, crimes create danger harm, physical g., See, e. Cal. crimes. drug Penal 667.5(c)(1) (West Code §Ann. 1192.7(c)(1) 2002), Supp. (West 2003) (murder Supp. or voluntary manslaughter); §667.5(c)(21) (West § 2002), 1192.7(c)(18) (West Supp. Supp. 2003) (first-degree 1192.7(c)(24) burglary); or (selling giving to sell or offering heroin or give minor). cocaine to a do They not include even serious crimes against property, such as obtaining large amounts of money, say, through theft, embezzlement, or fraud. Given the omission of vast catego- ries of property including grand (unarmed)— theft crimes — from the “strike” definition, one cannot on property- argue, incapacitation crime-related grounds, for inclusion of crime Ewing’s among triggers.

Nor do the criminal law remaining objectives rele- seem vant. No one argues Ewing’s inclusion within the ambit grounds

of the three strikes statute on of “retribution.” Rationality? Vitiello, Cf. Three Strikes: Can We Return to (1997)(California’s 395, 427 87 J. Crim. L. & C. three strikes “[hjabitual is] law, other offender statutes[, like not retribu- imprisonment “imposed tive” because the term without regard [the] culpability degree of the to the offender or behavior,” social harm caused offender’s and “has lit- offens[e]”). gravity tle to do with the of the For reasons previously in terms discussed, of “deterrence,” 25- year supra. III, term amounts to overkill. See Parts II and obviously point. up- And “rehabilitation” is beside the The my that, view, shot is in the State cannot find in its three justice special strikes law a criminal need sufficient to rescue a sentence that other relevant considerations indicate is unconstitutional.

V argue and Justice that we Justice Scalia Thomas gross disproportionality should not review for a sentence to years. a concurring Ante, term of judg- J., at 81 (Scalia, ment); ante, concurring at 32 judgment). (Thomas, J., legislators Otherwise, we make it too difficult for and sen- tencing judges just sentencing when determine their laws to. practices pass constitutional muster. bright-line

I give legislators concede that a rule would sentencing judges guidance. application more But Eighth years requires Amendment to a sentence of a term of case-by-ease approach. a And, view, like my that of the plurality, meaningful Eighth enforcement of Amend- application ment only sentencing’s demands that if at —even outer bounds. case-by-case approach guidance

A can offer nonetheless through example. Ewing’s is, minimum, sentence 2 to length jurisdictions 3 times the that other sentences would impose in similar circumstances. That itself is suf- ficiently long require typical spend virtually offender to all prison. the remainder of his active life These and the discussed, other factors that I have with the along questions I have asked the way, should along to help identify in a “gross disproportionality” fairly objective way —at outer bounds of sentencing. stun,

In even if I accept present purposes plurality’s (life analytical framework, sentence Ewing’s imprisonment awith minimum term of 25 years) grossly disproportion- ate to the offense stealing golf conduct — recidivism notwithstanding. clubs —

For these reasons, I dissent.

APPENDIX TO OPINION OF BREYER, J.

A as well Thirty-three jurisdictions, as the federal courts, have laws that would make it impossible offender to more than Ewing-type prison:1 Federal: 12 to 18 id., (Nov. §2B1.1 months. USSG 1999); ch. A, pt. Table. Sentencing

Alaska: three to five term years; of three presumptive Alaska §§ Stat. years. 12.55.125(e) (2000). 11.46.130(a)(1), (c), Arizona: four to six years; sentence of five presumptive years. §§ Ariz. Rev. Stat. 13-1802(E) Ann. 13-604(C), (West 2001).

Connecticut: to 10 years. §§53a- Conn. Gen. Stat. 35a(6), 53a-124(a)(2) (2001). 53a-40(j), not

Delaware: more than two years. Del. Ann., Code Tit. 840(d) §11, 4205(b)(7) (1995). 2000); § (Supp. Recidivist of- Buckingham fender not §4214; penalty applicable. State, (Del. 1984). 482 A. 2d 327

District Columbia: not more than 10 D. C. years. Code §22-3212(a) (West 2001). Ann. offender Recidivist penalty A-D, Throughout Appendix, penalties Parts listed for each jurisdic are tion those pertaining imprisonment any do not reflect possi ble fines or applicable other forms of penalties under laws jurisdiction.

54 22-1804a(c)(2) (West 2001) (amended § applicable.

not 2001). years.

Florida: not 10 more than Fla. Stat. Ann. (4)(a)(3) (West 2000) (amended §§775.084(l)(a), 2002); (West 812.014(c)(1) 2000). § 16-8-12(a)(1) §

Georgia: years. (1996); 10 Ga. Ann. Code 17-10-7(a) 1996). § (Supp. §§708-831(1)(b),

Hawaii: 20 months. Haw. Rev. Stat. 706- (7)(a) 2001). 606.5(1)(a)(iv), (Supp. years. §§ 1

Idaho: to 14 Idaho Code 18-2403, 18- 18-2408(2)(a) (1948-1997). 2407(b)(1), Recidivist/habitual' penalty offender prison, of five to life in §19-2514, “ likely applicable. general not has a Idaho rule that ‘convic tions day charged entered same in the same informa tion single should count as a purposes conviction for of estab ” lishing habitual offender Harrington, status.’ State v. 133 1999) Idaho 563, (App. 565, 990 P. 2d 144, 146 (quoting State v. Brandt, 110 Idaho 341, 344, 715 (App. P. 2d 1011, 1014 1986)). However, “the nature of the any convictions given situation must be examined to [this] make certain that general appropriate.” rule is Ibid. In case, this prior felony convictions stemmed from acts committed at the apartment complex, same and three of the four felonies were day committed within a other; of each the fourth offense was (Infor committed five App. weeks 6; earlier. See Tr. 45-46 (Cal. Ct.) (available mation, Super. Case No. NA018343-01 file)). Clerk Court’s ease A review of sug Idaho ease law gests factually distinguishable this case is from cases in which the Idaho courts gen have declined to adhere to the g., supra, eral rule. See, Brandt, e. at 348, 344, 715 P. 2d, at (three separately charged 1013, 1014 property offenses in volving separate homes different victims com “during period”); mitted a two-month Mace, State v. 2000) (unrelated 903, Idaho (App. 994 P. 2d I) (grand crimes theft and DU committed on different dates counties); Smith, different State 553, 560, Idaho 1989)

P. 2d (App. (separate distinguishable counties). on crimes committed different victims in different Illinois: two to Stat., §5/ five Ill. ch. 730, years. Comp. 5-8-1(a)(6) 5/16-1(b)(4). 2001); 720, § ch. Recidivist (Supp. (2000). 5/33B-1(a) § offender not penalty applicable. (with

Indiana: 18 months not more than 18 months added circumstances). 35-43-4-2(a) Ind. Code aggravating §35-50-2-7(a). (1993); Recidivist offender not penalty ap- (amended 2001). § See 35-50-2-8 plicable.

Iowa: three to five Iowa Code Ann. §§714.2(2), years. 902.9(5) (West (West 1994). 2002); §902.8 Supp.

Kansas: 9 to months. Kan. Stat. Ann. §§21-3701(b)(2), 21-4704(a) (1995). Recidivist offender not penalty applica- §21-4504(e)(3). ble. See 5 to 514.030(2) § Rev. Stat. Ann.

Kentucky: years. Ky. (Lexis 2002); (5) (Lexis §§ 532.060(2)(c), (d), 532.080(2), Supp. 1999).

Maine: less than one Me. Rev. year. Ann., 17-A, Stat. Tit. (West §362(4)(B) (West 2000) §353 1983); (amended Supp. §1252(2)(D) (West 2001); 2002). 1983 and Recidivist Supp. 1252(4-A) (West offender not § See penalty applicable. 2000) (amended 2001). Supp.

Massachusetts: more than not five Mass. Gen. years. §30(1) (West 2000). Laws, ch. Recidivist offender pen (West 1998); Common 279, §25 not See ch. alty applicable. Hall, wealth (1986). 466, 468, Mass. N. E. 2d Minnesota: not more than five 609.52, § Minn. Stat. years. 3(3)(a) (2002). subd. Recidivist offender not penalty applica- §609.1095, ble. See 2. subd. not more than five Miss. years. Code Ann.

Mississippi: (Lexis 1973-2000). 97-17-41(1)(a) § Recidivist offender pen §99-19-81. not See alty applicable. not more than five §

Nebraska: Stat. years. Neb. Rev. 28- 105(1) (2000 §28-518(2) (1995). Cum. Recidivist of- Supp.); §29-2221(1). fender not See penalty applicable. (in-

New Extended term of between 5 to Jersey: 10 years § stead of three to five N. J. Stat. Ann. 2C:43-6 (1995)), years, 2C:43-7(a)(4) § 2002), whether offense is treated as (Supp. theft, § 2C:20-2(b)(2)(a), §§2C:20-ll(b), (c)(2), shoplifting, even if because, felonies are as one regarded predi- crime, cate has been Ewing and sen- convicted separately tenced at least other crime for one which at least a 6- month sentence authorized, §2C:44-4(c) was §2C:44-3(a); (1995).

New Mexico: 30 months. N. M. §30-16- Stat. Ann. 20(B)(3) (1994); §31-18-15(A)(6) §31-18-17(B) (2000); (amended 2002).

New York: to four N. Y. Penal Law years. 70.06(3)(e) (West (West 1999). §155.30 1998); (with North Carolina: 4 to 25 months exact sentencing on range dependent details of offender’s criminal history). N. C. Gen. Stat. §§ 15A-1340.14, 14-72(a) 15A-1340.17(c), (d), (2001). Recidivist offender not penalty applicable. §§ 14-7.1, 14-7.6.

North Dakota: more not than 10 N. D. years. Cent. Code 12.1-23-05(2)(a) § (1997); §§ 12.1-32-09(1), (2)(c) (1997) (amended 2001).

Ohio: 6 to 12 months. Ohio Rev. Code Ann. §§ 2929.14(A)(5) (West 2913.02(B)(2), 2002). No Supp. gen- eral recidivist statute. not

Oregon: more than five Ore. years. Rev. Stat. §161.605 (1997); Rev. Ore. §§ Stat. Ann. 164.055(l)(a), (3) 1998). (Supp. No general recidivist statute.

Pennsylvania: not more (if than five no years more than one theft prior was “retail theft”); otherwise, not more than seven years. Pa. Stat. Ann., 1104(1) (Pur- §§ Tit. 1103(3), don 1998); §§ 3903(b), 3929(b)(l)(iii)-(iv) (Purdon 2002); Supp. (Purdon § 1983). Recidivist offender not penalty appli- cable. See 42 Pa. 9714(a)(1) § Cons. Stat. (1998).

Rhode Island: not more than 10 R. I. years. Gen. Laws 11-41-5(a) (2002). § Recidivist offender not penalty applica 12-19-21(a). § ble. See

South not Carolina: more than five S. years. C. Code Ann. §§ 16-13-30, 16-13-110(B)(2) (West 2001 Cum. Re- Supp.). cidivist offender not penalty § applicable. See 17-25-45. four §§39-14-105(3),

Tennessee: to eight years. Tenn. Code Ann. 106(a)(1), (c), 40-35-112(b)(4) (1997). 40-35- Utah: not more than five years. § Utah Code Ann. 76-3- 203(3) (1999) (amended § 2000); 76-6-412(l)(b)(i) (1999). Re- cidivist offender not penalty §76-3-203.5 See applicable. 2002). (Supp. not more than

Washington: (with 14 months sentenc- exact ing range on details dependent of offender score), Wash. Rev. §§ (2) Code 9A.56.040(l)(a), (2000); §§9.94A.510(1), 9.94A.515, (2003 9.94A.525 Supp. Pamphlet); maximum sentence of five years, §§9A.56.040(l)(a), 9A.20.021(l)(c) (2), (2000). Recidi- vist offender not penalty applicable. §§9.94A.030(27), (2003 § (2000); 9.94A.570 Supp. Pamphlet). 6-3-404(a)(i) more not

Wyoming: than years. § Stat. Wyo. Ann. (Mi 2001). Recidivist offender chie not penalty ap 6-10-201(a). plicable. See

B In four other States, a offender Ewing-type could not have received a sentence of more than 15 years prison:

Colorado: 4 “extraordinary cir- aggravating (e. g., cumstances” defendant on for another parole felony the time of commission of offense). Colo. Rev. §§ Stat. 18-l-105(l)(a)(V)(A), 18-l-105(9)(a)(II), 18-4- 401(2)(c) (2002). Recidivist offender not penalty applicable. See §§ (2) (2001). 16-13-101(f)(1.5),

Maryland: not more than 15 Md. Ann. Code, years. Art. 27, §342(f)(1) (1996) 2002). (repealed Recidivist offender not penalty applicable. § See 643B. not more than 15 H.

New N. Stat. years. Hampshire: 651:2(II)(a) (West 2002). §§637:ll(I)(a), Ann. Recidi- Supp. §651:6(I)(c). not vist offender See penalty applicable. (at not more than 11 the time of years Wisconsin: offense). 939.50(3)(e) (West § 2002); Ann. Wis. Stat. Supp. 943.20(3)(b) (West 1996) 2001). (amended §§939.62(l)(b), (2), Wisconsin amended relevant statutes so subsequently that a offender would be for a sen- only Ewing-type eligible §§ 939.51(3)(a), tence of to three See 943.20(3)(a), up years. 939.62(l)(a) (West 2003). And effective Supp. February such an offender for a eligible only up 939.62(l)(a). §§ 939.51(3)(a), two 943.20(3)(a), years. C In four additional States, a offender could not Ewing-type have been sentenced to more than’20 years prison: 3 to 20 §

Arkansas: Ark. Code Ann. 5-36- years. 103(b)(2)(A) (e)(1) (1997); §§ 5-4-501(a)(2)(D), (amended 2001). for after one-third Eligible parole serving (1987). § § sentence. (1997); 5-4-501 16-93-608

Missouri: not more than 20 Mo. Rev. Stat. years. §558.016(7X3) 570.030(3)(1) (2000) (amended 2002). (2000); Eligible after parole latest. years §558.011(4)(l)(c).

Texas: to 20 §§ Tex. Penal years. 12.33(a), Code Ann. 12.35(c)(2)(A) 31.03(e)(4)(D) §§ (1994); 12.42(a)(3), (Supp. 2003). after Eligible one-fourth of sen- parole serving tence. §508.145(f) 2003). Tex. Govt. Code Ann. (Supp. (or

Virginia: statutory of 1 to 20 range less than 12 months at the discretion of the or court bench jury following trial), Va. Code §Ann. 18.2-95 2002), but (Supp. discretionary sentencing guideline established ranges Sen- Virginia Commission, §§ tencing 17.1-805, 19.2-298.01 (2000), with a maximum of 6 years, months, to 15 7 months, see years, Criminal Virginia Commission, Sentencing Sentenc- Virginia Guidelines ing Manual, C Recommenda- Larceny —Section

59 (with (6th 2002) within Table ed. tion petitioner likely falling month, to 5 of 2 1 the years, discretionary guideline range 25). for Recidi- Brief Petitioner n. months, see years, (2000). not §See 19.2-297.1 vist offender penalty applicable. D might States, In nine other the law make it possible legally a of 25 or more a sentence Ewing-type impose upon But in five of those nine offender States,2 offender. be before 25 would parole-eligible years: Alabama: “life or term of not less than years.” any 13A-5-9(c)(2) (Lexis 13A-8-3(a), §§ 2002); § Ala. Code Supp. (c) (1994). one-third for after the lesser of parole Eligible (1995). 15-22-28(e) § the sentence or 10 years. a

Louisiana: courts have Louisiana could imposed of life without at the time of Ewing’s the possibility parole 14:2(4), §§ 14:67.10(B)(1), offense. La. Ann. (13)(y) Stat. (West (West (c)(iMii) 15:529.1(A)(l)(b)(ii) §§ and 2003); Supp. 1992) (amended 2001). that, Petitioner despite argues sentence, a Louisiana such statutory authority impose sentence, as courts would his life have scrutinized carefully with a had in other cases recidivists they charged involving 35-36, 29; nonviolent see Brief crime. Brief for n. Petitioner as Amicus Cu- for Families Minimums Against Mandatory Hayes, riae (La. State 24-25, 98-1526, 21; and n. App. p. a 6/25/99), life sentence So. 2d 303-304 (holding was a convicted excessive for defendant impermissibly conviction). theft $1,000, of over who had a robbery prior But see Brief 45-46, n. (contesting peti- Respondent tioner’s its amended recidivist Louisiana has argument). a statute to offense be violent require and that least felony, have at two violent offender prior convictions life sentence. La. Stat. felony to be eligible 2But see parole-eligibility provi discussion of sentencing relevant Dakota, Louisiana, Oklahoma, sions in page South this Michigan, infra and 60-61. 15:529.l(A)(l)(b)(ii) (West 2003). Supp.

Ann. Under cur- Ewing-type rent offender law, would face a sentence of 6% 15:529.1(A)(b)(i). 14:67.10(B)(1), §§ years. to 20 Michigan: “imprisonment for life for a term,” lesser §769.12(l)(a) (West 2000) (instead Comp. Mich. Laws Ann. of §769.12(l)(b), years,” petitioner “not than more 15 as con tends, see Brief Petitioner 34, 26; for n. Brief for Families Against Mandatory Mínimums as 16-17, Amicus Curiae 20), “punish 15, 22-23, n. n. because the offense is upon by imprisonment able a first conviction for a maximum (West 769.12(l)(a) 2000). § years term 5 more,” of or The larceny Ewing Michigan for which was convicted was, under felony punishable by imprisonment law, “a for not more than 750.356(3)(a) (West § 2002). years.” 5 Supp. Eligible for parole following minimum term sentencing judge. set (West §769.12(4) 2000). years. §45-6-

Montana: 5 to 100 Mont. Code Ann. 301(7)(b) (1999); 46-18-502(1) (2001). §§46-18-501, A Ewing-type subject offender would not have been mini- to a (as years mum term of 10 suggests, the State Brief 44) Respondent for Ewing because does not meet the re- §46-18-502(2) (must quirements of “persistent felony be a offender,” as defined in §46-18-501, at the time of the of- conviction). previous felony fender’s Reply Brief for Eligible parole Petitioner n. 18, 14. for after one-fourth of §46-23-201(2). the term. possibility

Nevada: parole,” “life without the of or “life possibility parole [after with serving] years,” of “a years, definite term of eligibility parole [after with for §§207.010(l)(b)(l)-{3) serving] years.” Nev. Rev. Stat. (1995). (at years not

Oklahoma: less than 20 time of offense). (West 51.1(B) 2000) § Stat., 21, Okla. Supp. Tit. (amended 51.1(C)(West § years 2001)); in 2001 life, to four (West 1991)(amended § 2001). Eligible parole for after 332.7(B) (West serving one-third of sentence. Tit. 2001). term of Thus, to a a sentence years up assuming supra, (as 60), to 100 at Montana, parole see years eligibil- could arise late as as after 33 ity years. life

South Dakota: maximum imprisonment, penalty §22-7-8 no with minimum Laws term. D. Codified S. 2002). §22-30A-17(l) (1998); for Eligible parole (Supp. §24-15-5(3) (1998). after one-half of sentence. serving Thus, to 100 sentence to a term up assuming years supra, (as 60), in Montana, see parole eligibility could arise as late as after 50 years. Ann., life,”

Vermont: to and Vt. Stat. Tit. “up including Angel State (1998), § 11 §2501; or not more than 10 years, ucci, (court 272, 289-290, 137 Vt. has 405 A. 2d discretion to sentence to the sentence that habitual offender alone). specified grand larceny Eligible parole (amended 2001). (2000) after six § months. Tit. 28, 501 West have Petitioner contends that he would Virginia: only been than 60 to a misdemeanor of not more subject 61-3A-3(a)(2) §§61-3A-1, days W. Va. Code shoplifting, (2000); Brief 31, However, for Petitioner n. 19, 33-34, n. 25. a with offender could have been Ewing-type grand charged Duncil, see State ex rel. Chadwell 643, v. 196 W. Va. larceny, (1996) 647-648, S. 2d has dis- E. 577-578 (prosecutor cretion to defendant with either charge grand shoplifting in the state larceny), felony punishable by imprisonment for 1 to (or, at the of the trial penitentiary discretion years §61-3-13(a). court, not more than 1 Under year jail). West habitual statute, offender a felon “twice be- Virginia’s fore convicted ... of crime confinement in a punishable by . . shall penitentiary.. be sentenced to . life . . [imprison- § ment],” 11—18(c), with after 15 parole years, eligibility 61— 62-12-13(c). Amicus curiae on behalf notes of petitioner that, in state-law light West existing Virginia precedents, courts “would not countenance a life without sentence of for 25 clubs.” possibility parole shoplifting golf Mínimums as Amicus Brief for Families Against Mandatory Barker, Curiae State v. 25-26 73, 74-75, 186 W. Va. (citing curiam); (per and State 410 S. E. 2d 712, 713-714 Deal, 142, 146-147, W. Va. E. 2d 230-231 S. (1987)). But see Brief for n. 11 Respondent (contesting that argument).

Case Details

Case Name: Ewing v. California

Court Name: Supreme Court of the United States

Date Published: Mar 5, 2003

Citation: 538 U.S. 11

Docket Number: 01-6978

Court Abbreviation: SCOTUS