SENTENCING REPEAT OFFENDERS: "Three Strikes" Laws Lead to Injustice, But What Is the Best Alternative?

Last month, the Supreme Court heard oral argument in the case of Lockyer v. Andrade, in which an offender has challenged California's notorious "three strikes law" as unconstitutional. The "three strikes" law is the nation's most severe sentencing statute. It is being challenged as imposing "cruel and unusual punishment" in violation of the Eighth Amendment. As always, the policy issues are more interesting than the legal arguments.

The case arose when Leandro Andrade was sentenced to two consecutive twenty-five year terms of imprisonment, without possibility of parole for stealing $150 worth of videotapes from two stores. No wonder Andrade's case was chosen by opponents of the law to test its constitutionality.

Andrade had prior convictions: three burglaries from the early 1980's. As a result, under California law, prosecutors had a choice whether to charge him with misdemeanors, which would have resulted in a one-year jail sentence, or felonies, "petty thefts with a prior."

Last week, however, brought a case that seemed to suggest that California's laws may not be too extreme after all. On Friday, a California judge imposed a similar sentence on Ronald Herrera, who had tried to make off with $11 worth of goods from a minimart.

Andrade is no choirboy, but Herrera is positively devilish. In the early seventies, he broke into the home of a woman and raped her. Then he raped her fifteen-year-old daughter. Then he escaped from the Oxnard jail and made his way to Virginia. While there, he pulled off a string of armed minimart robberies; during one, he shot a police officer. After he was released from prison in Virginia, he was returned to California to serve the remainder of his time. He was released a few years before his current troubles.

What do Andrade's and Herrera's cases say about how we should sentence our repeat offenders - especially when they commit relatively petty crimes?

Sentencing: The Basics

Gilbert and Sullivan's Mikado, a mythical Japanese jurist, stated the first principle of sentencing: "to make the punishment fit the crime." In legalese, we call this proportionality. It is a concept that forms part of the jurisprudence of the Eighth Amendment.

Murderers serve longer sentences than thieves, because murder is universally regarded as worse than stealing. And if thievery were generally punished as harshly as murder, a proportionality issue would arise.

But proportionality is only the first principle of sentencing. The second focuses on the criminal, not the crime. All things being equal, when someone is convicted of robbery, he will be punished more harshly if he has a history of prior crime.

That, in itself, is not an issue, constitutional or otherwise: All courts recognize, and the Supreme Court has repeatedly ruled, that states and judges have greater flexibility in sentencing recidivists than they do in sentencing first time offenders.

Indeterminate and Guideline Sentencing

The first and most common is for the legislature to set a range - say, zero to ten years for robbery - and leave it up to the judge to decide where, within the range, a defendant will actually be sentenced. In making this decision, the judge will consider a host of factors, including the defendant's history of criminality.

The federal government has, since the mid-1980s, done something different. There, judges are bound by the Federal Sentencing Guidelines, a complex set of rules that cabin the judge's discretion. The guidelines try to account with precision for the actual crime the defendant committed (called the offense level) and his criminal history.

Under the Sentencing Guidelines, your offense level goes up if, for instance, you used a gun. Your criminal history 'score' goes up if you previously committed a crime and served time. As these levels and scores increase, so does your sentence, in tightly defined increments.

Consider, for example, two convicts. One is a unarmed robber with no record. The other is a second-time armed robber. The former will have both a lower offense level and a lower criminal history score, and thus will receive a correspondingly lower sentence.

Mandatory Minimums, Including The Three Strikes Law

Grafted awkwardly onto both of these systems are so-called mandatory minimums, of which the California three strikes law is an example. Mandatory minimums require a judge to impose no less than a specific sentence, irrespective of what any other part of the criminal code says about a specific crime. They are the trump cards of the statutory system, which no other statute can beat.

In the 1970s, most sentences were "indeterminate" - say, five to fifteen years - and the inmate's actual release date was determined by a parole board. But penological developments, along with public alarm over rising crime, especially the inner city crack wars of the mid-1980s, fostered more structured sentencing regimes. Besides, getting tough turns out to be easy: criminals are not exactly an influential constituency.

The wave crested, unsurprisingly, in California. Passed as a ballot initiative in 1994, the three strikes law provides that anyone who has committed two prior "serious" or "violent" felonies, and then commits any third felony, will be sentenced to at least twenty-five years without possibility of parole. (Note that the third strike need not itself be serious or violent - leading to the Andrade and Herrera cases of long sentences triggered by minor third crimes.)

Prosecutors have sometimes gotten around the law by simply refusing to offer evidence of the prior felonies, if such evidence would lead to a sentence they believed would be too harsh. Nevertheless, there is no question that California's prison population has grown as a direct result of the new law.

Both Andrade and Herrera are, as a result of the three strikes law, subject to much longer sentences that the petty theft statutes provide. But they are not remotely comparable men: one is a small-time criminal with a couple of old burglaries; the other is a predator, with a history of violence, sexual assaults, and armed offenses, and seems incapable of living alongside the rest of us without breaking the law.

What's needed here is a sense of proportion for both the criminal and the crime. Herrera has proven himself to be far more dangerous than Andrade. He has also, unlike Andrade, proven to be incorrigible.

Herrera has forced us, again and again, to go through the time, trouble, and expense of telling him that he has to live by our rules, or face consequences. He apparently doesn't care. The price of his criminal history is a heightened obligation to lead a blameless life. Civilized society is a bargain; if you break it too many times, we have the right to say you've simply opted out.

So how can Herrera and Andrade each be treated fairly? The answer may lie in expanding the sentencing range for even petty crimes. But sentencing at the higher end of the range should be tethered to the particulars of a defendant's criminal history, rather than being subject to a judge's free-floating discretion. The federal guidelines' incremental approach to the role of criminal history in sentencing should be the model.

Here's how it would work: Suppose the sentencing range for petty theft went to, say, ten years. The court would not have the power to impose a sentence like that on a first or even a second-time offender. But the flip side is that the court would be required to sentence someone like Herrera at the top of the range. No court should have the power to give a man like Herrera a break.

Such a system would properly account for Herrera's history of lawlessness by recognizing that as your criminal record grows, it should play a correspondingly larger role in your sentencing, even for petty crimes. Still, the differences between Herrera and Andrade are real, in a way the three strikes law ignores. An approach that is tied more closely to a defendant's actual criminal history, rather than one that - like California's - makes a vast leap from a few petty crimes to life in prison, would be more just than the current options.

None of these approaches is perfect. The Federal Sentencing Guidelines themselves have come in for an enormous amount of criticism, some of it just. But it is easy to forget the shocking disparities in federal sentences that prompted the Guidelines - and indeed, the shocking disparities than we still tolerate every day in most state courthouses. Paying greater attention to making the punishment fit not just the crime, but the criminal, is a good place to start.