‘Three strikes and you’re out’ is no game

Last week the Supreme Court decided Ewing v. California in a holding that, although not unusual for this Supreme Court, certainly was cruel. Citing deference to state powers of self-regulation and leaning heavily on the cane of recidivism, the Supreme Court upheld California’s imprisonment of Gary Ewing. His appeals exhausted, Ewing will serve 25 years to life for the theft of three golf clubs.

By upholding California’s draconian sentence the Supreme Court eviscerated any meaning from the Eighth Amendment. The ruling should be condemned and the outcome held up as an example of the problems of inflexible mandatory sentencing.

California passed its infamous, “Three Strikes and You’re Out” policy in the midst of a visceral public outcry. Alarmed by the problem of recidivism, California passed a referendum in 1994 mandating that repeat felons be sentenced to an indeterminate term to life. Such was the law by which California prosecuted Ewing.

Ewing had a previous record. He had been convicted previously of crimes against property and the unlawful possession of a handgun. However, his crimes were relatively minor: mostly small-time burglaries with punishments of 10 days to six months in prison. Under California’s punishment of repeat offenders, however, Ewing’s most recent offense – a $1,200 theft – netted him 25 years to life.

In its analysis of Ewing’s sentence, the Supreme Court relied heavily on California’s interest in preventing recidivism. The danger of “repeat offenders” took on a life of its own and the Supreme Court completely lost view of the scope of the crimes ‘in toto.’ It is true states do not want the same individuals repeating the same crimes. However, the aggregation of repeat petty thefts does not equate to an individual as dangerous to society as an individual who has committed one or more serious crimes.

The answer might be there is no adequate punishment to prevent recidivism: Only treatment, counseling and monitoring are true safeguards against relapse. Yet even if there was no safeguard, the state of California does not have the right to trample on the liberty of any of its citizens.