Ewing v. California
Encyclopedia
Ewing v. California, , is one of two cases upholding a sentence imposed under California's three strikes law
against a challenge that it constituted cruel and unusual punishment in violation of the Eighth Amendment
. As in its prior decision in Harmelin v. Michigan
, , the Court could not agree on the precise reasoning for upholding the sentence. Nevertheless, with the decision in Ewing and the companion case Lockyer v. Andrade
, , the Court effectively foreclosed criminal defendants from arguing that their noncapital sentences were disproportional to the crime they had committed.
Ewing was represented in the Supreme Court by Quin Denvir. The Attorney General of California argued for the State of California
. Michael Chertoff
argued on behalf of the United States
as amicus curiae
.
of the El Segundo Golf Course in El Segundo, California
. He slipped them down the leg of his pants, and a shop employee called the police when he noticed Ewing limping out of the pro shop.
Ewing was charged with and convicted of felony grand theft of personal property. Under California law, felony grand theft is a "wobbler," meaning that both the prosecutor and the trial judge have discretion to reduce the seriousness of the crime to a misdemeanor. Although Ewing asked the trial court to exercise its discretion in this way, thus making him ineligible for sentencing under the three strikes law, the trial judge declined to do so. Ewing's extensive criminal history did not persuade the judge to be lenient in this regard.
Ewing committed his first crime in 1984 when he was 22 years old. He pleaded guilty to theft, and received a six-month suspended sentence. In 1988 he was convicted of felony grand theft auto and sentenced to a year in jail and three years' probation. In 1990, he was convicted of petty theft and sentenced to 60 days in jail and three years' probation. In 1992, he was convicted of battery and sentenced to 30 days in jail. In the first nine months of 1993 he was convicted of burglary, possession of drug paraphernalia, appropriating lost property, unlawful possession of a firearm, and trespassing. In October and November 1993, he committed his most serious crimes to date—a string of burglaries and robbery at apartment complexes in Long Beach, California, where he made off with money, electronics, and credit cards. In December 1993 he was arrested on the premises of another Long Beach apartment complex, where police found a knife used in the prior robbery, along with a glass cocaine pipe, on his person. He was convicted this time of one count of first-degree robbery and three counts of residential burglary, and sentenced to nine years in prison. He was paroled in 1999, ten months before he stole the golf clubs from the pro shop in El Segundo. At sentencing on the golf club theft, the judge used the 1993 burglaries and robbery to impose the 25-to-life sentence under California's three strikes law.
Ewing appealed his conviction to the California Court of Appeal, which rejected his challenge that the 25-year sentence was grossly disproportional to the crime. The California Supreme Court denied review.
wrote an opinion for herself, Chief Justice Rehnquist
, and Justice Kennedy
. Under the Eighth Amendment, a narrow proportionality principle applies to noncapital sentences. Before Ewing, the Court had from time to time examined lengthy sentences imposed for relatively minor crimes. In Rummel v. Estelle
, , the Court upheld a life sentence for obtaining $120.75 by false pretenses imposed on a three-time offender under Texas's recidivist statute. In Solem v. Helm
, , the Court struck down a life without parole sentence imposed on a defendant who had committed a seventh nonviolent felony. Most recently, in Harmelin v. Michigan
, , the Court upheld a life without parole sentence imposed on a first-time offender convicted of possession more than 650 grams of cocaine. Against this backdrop of case law, O'Connor recited that the gross disproportionality principle contained in the Eighth Amendment would require striking down only an extreme noncapital sentence, such as a life sentence for overtime parking.
Three-strikes laws, O'Connor observed, represented a new trend in criminal sentencing. "These laws respond[] to widespread public concerns about crime by targeting the class of offenders who pose the greatest threat to public safety: career criminals." Such laws were a "deliberate policy choice" on the part of legislatures to isolate those who have "repeatedly engaged in serious or violent criminal behavior" from the rest of society in order to protect public safety. For O'Connor, the desire to punish repeat criminals more harshly was "no pretext" for the legitimate policy choice that the three-strikes law implemented. Such laws serve the valid penological goals of incapacitation and deterrence. Although California's three-strikes law may have generated some controversy, "we do not sit as a superlegislature to second-guess" the policy choices made by particular states. "It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons advances the goals of its criminal justice system in any substantial way."
Ewing's crime was not simply that of stealing three golf clubs—it was stealing three golf clubs after being convicted of two violent or serious felonies. "In weighing the gravity of Ewing's offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature's choice of sanctions." Ewing's sentence might be long, but it "reflects a rational judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated." For this reason, O'Connor reasoned that Ewing's 25-years-to-life sentence did not violate the Eighth Amendment.
Justice Scalia
was willing to accept that the Eighth Amendment contained a gross disproportionality requirement "if I felt I could intelligently apply it." However, because a criminal sentence can have many justifications—not simply retribution, a goal to which proportionality is inherently linked—it became impossible to intelligently apply a proportionality requirement to noncapital sentences. Even so, Justice Scalia concurred in the judgment that Ewing's sentence was constitutional.
Justice Thomas
believed that the Eighth Amendment contained no proportionality principle at all, and thus concurred in the judgment.
explained that a proportionality principle for noncapital sentences was compatible with the Eighth Amendment. After all, judges must determine the proportionality of fines
, bail
, and death sentences
. There should be no reason why these lesser and greater forms of punishment should be subject to a proportionality requirement, but not the length of a prison sentence.
Judges have historically exercised much discretion in criminal sentencing. Much of this discretion had been conferred by legislatures, who fixed criminal penalties over very broad ranges. "It was not unheard of for a statute to authorize a sentence ranging from one year to life, for example." In order to exercise this discretion, judges had to take into account all the goals of punishment in fixing a proportional sentence. There was no reason for Stevens that the Eighth Amendment could not do this work. "I think it clear that the Eighth Amendment's prohibition of cruel and unusual punishments expresses a broad and basic proportionality principle that takes into account all of the justifications for penal sanctions."
Justice Breyer
conceded that successful proportionality challenges to criminal sentences should be rare, but argued that Ewing's sentence could be successfully challenged as disproportional. For Breyer, three characteristics of a sentence bear on whether it is proportional: the length of the sentence in real time, the conduct that triggered the sentence, and the offender's criminal history. Although Ewing was a recidivist, his present crime was not violent, and so he should not have been sentenced as harshly as a recidivist who had committed yet another violent crime. The experience of some federal judges, as described by data aggregated by the United States Sentencing Commission, suggested that Ewing would not have been treated so harshly under federal sentencing law. Finally, the fact that Ewing's sentence would have been the same if he had been convicted of a truly violent crime like rape or murder suggested it was too harsh a sentence for a shoplifter, even a recidivist shoplifter like Ewing. "Outside the California three strikes context, Ewing's recidivist sentence is virtually unique in its harshness for his offense of conviction, and by a considerable degree."
Three strikes law
Three strikes laws)"are statutes enacted by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. These statutes became...
against a challenge that it constituted cruel and unusual punishment in violation of the Eighth Amendment
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
. As in its prior decision in Harmelin v. Michigan
Harmelin v. Michigan
Harmelin v. Michigan, 501 U.S. 957 , was a case decided by the Supreme Court of the United States under the Eighth Amendment to the United States Constitution...
, , the Court could not agree on the precise reasoning for upholding the sentence. Nevertheless, with the decision in Ewing and the companion case Lockyer v. Andrade
Lockyer v. Andrade
Lockyer v. Andrade, , decided the same day as Ewing v. California, held that there would be no relief by means of a petition for a writ of habeas corpus from a sentence imposed under California's three strikes law as a violation of the Eighth Amendment's prohibition of cruel and unusual...
, , the Court effectively foreclosed criminal defendants from arguing that their noncapital sentences were disproportional to the crime they had committed.
Ewing was represented in the Supreme Court by Quin Denvir. The Attorney General of California argued for the State of California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
. Michael Chertoff
Michael Chertoff
Michael Chertoff was the second United States Secretary of Homeland Security under President George W. Bush and co-author of the USA PATRIOT Act. He previously served as a judge on the United States Court of Appeals for the Third Circuit, as a federal prosecutor, and as assistant U.S. Attorney...
argued on behalf of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
as amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
.
Facts
Viewed separately from his criminal history, the crime Gary Ewing committed in this case is relatively benign. In 2000 he stole three golf clubs worth $399 each from the pro shopPro shop
A pro shop is a sporting-goods shop within a public or private-membership amateur sporting activities facility of some kind, most commonly a golf course, where it will typically be located in the country club building...
of the El Segundo Golf Course in El Segundo, California
El Segundo, California
El Segundo is a city in Los Angeles County, California, United States. Located on the Santa Monica Bay, it was incorporated on January 18, 1917, and is one of the Beach Cities of Los Angeles County and part of the South Bay Cities Council of Governments...
. He slipped them down the leg of his pants, and a shop employee called the police when he noticed Ewing limping out of the pro shop.
Ewing was charged with and convicted of felony grand theft of personal property. Under California law, felony grand theft is a "wobbler," meaning that both the prosecutor and the trial judge have discretion to reduce the seriousness of the crime to a misdemeanor. Although Ewing asked the trial court to exercise its discretion in this way, thus making him ineligible for sentencing under the three strikes law, the trial judge declined to do so. Ewing's extensive criminal history did not persuade the judge to be lenient in this regard.
Ewing committed his first crime in 1984 when he was 22 years old. He pleaded guilty to theft, and received a six-month suspended sentence. In 1988 he was convicted of felony grand theft auto and sentenced to a year in jail and three years' probation. In 1990, he was convicted of petty theft and sentenced to 60 days in jail and three years' probation. In 1992, he was convicted of battery and sentenced to 30 days in jail. In the first nine months of 1993 he was convicted of burglary, possession of drug paraphernalia, appropriating lost property, unlawful possession of a firearm, and trespassing. In October and November 1993, he committed his most serious crimes to date—a string of burglaries and robbery at apartment complexes in Long Beach, California, where he made off with money, electronics, and credit cards. In December 1993 he was arrested on the premises of another Long Beach apartment complex, where police found a knife used in the prior robbery, along with a glass cocaine pipe, on his person. He was convicted this time of one count of first-degree robbery and three counts of residential burglary, and sentenced to nine years in prison. He was paroled in 1999, ten months before he stole the golf clubs from the pro shop in El Segundo. At sentencing on the golf club theft, the judge used the 1993 burglaries and robbery to impose the 25-to-life sentence under California's three strikes law.
Ewing appealed his conviction to the California Court of Appeal, which rejected his challenge that the 25-year sentence was grossly disproportional to the crime. The California Supreme Court denied review.
Plurality decision
Justice O'ConnorSandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
wrote an opinion for herself, Chief Justice Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
, and Justice Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
. Under the Eighth Amendment, a narrow proportionality principle applies to noncapital sentences. Before Ewing, the Court had from time to time examined lengthy sentences imposed for relatively minor crimes. In Rummel v. Estelle
Rummel v. Estelle
Rummel v. Estelle 445 U.S. 263 is a United States Supreme Court case in which the Court upheld a life sentence with the possibility of parole for William James Rummel for a felony fraud crime amounting to $120.75...
, , the Court upheld a life sentence for obtaining $120.75 by false pretenses imposed on a three-time offender under Texas's recidivist statute. In Solem v. Helm
Solem v. Helm
Solem v. Helm, , was a United States Supreme Court case concerned with the scope of the Eighth Amendment protection from cruel and unusual punishment. Mr. Helm, who had written a check from a fictitious account and had reached his seventh nonviolent felony conviction since 1964, received a...
, , the Court struck down a life without parole sentence imposed on a defendant who had committed a seventh nonviolent felony. Most recently, in Harmelin v. Michigan
Harmelin v. Michigan
Harmelin v. Michigan, 501 U.S. 957 , was a case decided by the Supreme Court of the United States under the Eighth Amendment to the United States Constitution...
, , the Court upheld a life without parole sentence imposed on a first-time offender convicted of possession more than 650 grams of cocaine. Against this backdrop of case law, O'Connor recited that the gross disproportionality principle contained in the Eighth Amendment would require striking down only an extreme noncapital sentence, such as a life sentence for overtime parking.
Three-strikes laws, O'Connor observed, represented a new trend in criminal sentencing. "These laws respond[] to widespread public concerns about crime by targeting the class of offenders who pose the greatest threat to public safety: career criminals." Such laws were a "deliberate policy choice" on the part of legislatures to isolate those who have "repeatedly engaged in serious or violent criminal behavior" from the rest of society in order to protect public safety. For O'Connor, the desire to punish repeat criminals more harshly was "no pretext" for the legitimate policy choice that the three-strikes law implemented. Such laws serve the valid penological goals of incapacitation and deterrence. Although California's three-strikes law may have generated some controversy, "we do not sit as a superlegislature to second-guess" the policy choices made by particular states. "It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons advances the goals of its criminal justice system in any substantial way."
Ewing's crime was not simply that of stealing three golf clubs—it was stealing three golf clubs after being convicted of two violent or serious felonies. "In weighing the gravity of Ewing's offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature's choice of sanctions." Ewing's sentence might be long, but it "reflects a rational judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated." For this reason, O'Connor reasoned that Ewing's 25-years-to-life sentence did not violate the Eighth Amendment.
Justice Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
was willing to accept that the Eighth Amendment contained a gross disproportionality requirement "if I felt I could intelligently apply it." However, because a criminal sentence can have many justifications—not simply retribution, a goal to which proportionality is inherently linked—it became impossible to intelligently apply a proportionality requirement to noncapital sentences. Even so, Justice Scalia concurred in the judgment that Ewing's sentence was constitutional.
Justice Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
believed that the Eighth Amendment contained no proportionality principle at all, and thus concurred in the judgment.
Dissents
Justice StevensJohn Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
explained that a proportionality principle for noncapital sentences was compatible with the Eighth Amendment. After all, judges must determine the proportionality of fines
United States v. Bajakajian
United States v. Bajakajian, , is a case decided by the Supreme Court of the United States regarding the Excessive Fines clause of the Eighth Amendment...
, bail
Stack v. Boyle
Stack v. Boyle, 342 U.S. 1 , was a United States Supreme Court case involving the arrest of members of the Communist Party who were charged with conspiring to violate the Smith Act. The case regards the Eighth Amendment issue of excessive bail....
, and death sentences
Coker v. Georgia
Coker v. Georgia, , held that the Eighth Amendment to the United States Constitution forbade the death penalty for the crime of rape of a woman.-Facts:...
. There should be no reason why these lesser and greater forms of punishment should be subject to a proportionality requirement, but not the length of a prison sentence.
Judges have historically exercised much discretion in criminal sentencing. Much of this discretion had been conferred by legislatures, who fixed criminal penalties over very broad ranges. "It was not unheard of for a statute to authorize a sentence ranging from one year to life, for example." In order to exercise this discretion, judges had to take into account all the goals of punishment in fixing a proportional sentence. There was no reason for Stevens that the Eighth Amendment could not do this work. "I think it clear that the Eighth Amendment's prohibition of cruel and unusual punishments expresses a broad and basic proportionality principle that takes into account all of the justifications for penal sanctions."
Justice Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
conceded that successful proportionality challenges to criminal sentences should be rare, but argued that Ewing's sentence could be successfully challenged as disproportional. For Breyer, three characteristics of a sentence bear on whether it is proportional: the length of the sentence in real time, the conduct that triggered the sentence, and the offender's criminal history. Although Ewing was a recidivist, his present crime was not violent, and so he should not have been sentenced as harshly as a recidivist who had committed yet another violent crime. The experience of some federal judges, as described by data aggregated by the United States Sentencing Commission, suggested that Ewing would not have been treated so harshly under federal sentencing law. Finally, the fact that Ewing's sentence would have been the same if he had been convicted of a truly violent crime like rape or murder suggested it was too harsh a sentence for a shoplifter, even a recidivist shoplifter like Ewing. "Outside the California three strikes context, Ewing's recidivist sentence is virtually unique in its harshness for his offense of conviction, and by a considerable degree."
See also
External links
- Text of the opinion from findlaw.com
- Slip opinion, supremecourt.gov
- Text from LII, Cornell University
- Amicus brief of the Criminal Justice Legal Foundation
- Collection of documents from the American Bar Association
- Audio of oral argument -- OYEZ project, Northwestern University
- Transcript of oral argument
- Witkin project on California law
- Press release of ACLU