“The sentencing of Mr. Andrade to fifty years for shoplifting – when his prior strikes were nonviolent burglaries – is a violation of a bedrock principle that is part of our constitutional system,” said Alan Schlosser, Legal Director of the ACLU of Northern California and co-counsel in the case. “The state is not free to impose harsh and excessive sentences that violate basic principles of decency, humanity and common sense.”

The case, Lockyer v. Andrade, 01-1127, is the first Supreme Court challenge to the application of what has come to be known as the “three strikes” law. Andrade will be argued in tandem with another case, Ewing v. California, 01-6978, in which Gary Ewing received 25 years to life for stealing $1,200 worth of golf clubs.
“It is completely irrational to put someone in prison for life for shoplifting,” said Erwin Chemerinsky, a University of Southern California law professor who is arguing the case on behalf of his client, Leandro Andrade. The ACLU’s national office and its California affiliates are serving as co-counsel.

“This is a man who has never committed a violent crime,” Chemerinsky said of his client. “At worst, he might try to steal Snow White again.”

Passed in 1994, California’s law—the harshest of its kind in the nation -- requires a prison term of 25 years to life for anyone convicted of a third felony after two previous serious or violent felony convictions. But Andrade and Ewing, as well as hundreds of others, are nonviolent criminals whose previous sentences were for burglary and petty theft. California is the only state in the country that allows such stiff punishment for a minor, nonviolent “third strike.”

Today’s argument focuses on whether a potential life sentence for petty theft under the “three strikes” law constitutes “cruel and unusual” punishment.

In November 2001, the Ninth Circuit Court of Appeals overturned Andrade’s 50-year sentence, agreeing with his claim that it was cruel and unusual punishment in violation of the federal Constitution’s Eighth Amendment. In its’ ruling, the Ninth Circuit majority said Andrade’s sentence was “grossly disproportionate to his two misdemeanor offenses, even when we consider his history of nonviolent offenses.”

Consistent with the Ninth Circuit’s ruling, Chemerinsky noted that the case before the Court does not address the three strikes law in general, but only as applied to Andrade’s case, where a conviction for petty theft led to a life sentence with a possibility of parole after a minimum of 50 years. According to Steven R. Shapiro, Legal Director of the national ACLU, studies show that the law is not only unfair but also ineffective at preventing crime. A recent report by the Sentencing Project, a Washington-based policy group, concludes that the law has not contributed to the reduction of crime in California to any significant extent—contrary to the claims of the law’s supporters.

The study also shows that California’s “three strikes” law has increased the number and severity of sentences for nonviolent offenders, who now make up two-thirds of the state’s second and third “strike” sentences.

Attorneys in the case are Erwin Chemerinsky of the Univ. of Southern California Law School; Steve Shapiro of the national ACLU; Mark D. Rosenbaum and Daniel P. Tokaji of the ACLU of Southern California; Alan L. Schlosser of the ACLU of Northern California; Jordan C. Budd of the ACLU of San Diego and Imperial Counties; and volunteer attorney Paul Hoffman of Schonbrun, DeSimone, Seplow, Harris & Hoffman of Venice, CA.