By Francis X. Rocca on 10.31.02 @ 12:10AM
Where taking a five-finger discount can get you 50 to life.
Steve Martin's proposal for getting tough on crime -- "death
penalty for parking violations" -- was an absurdist gag when he
made it a quarter-century ago. Today it could be a politician's
campaign promise. And in at least one state of the Union, you can
already get life in prison for shoplifting.
Under California's "three-strikes-you're-out" law, a felony
committed by someone with two serious felony convictions on his
record rates a mandatory punishment of 25 years to life. That might
sound reasonable when you think of crimes such as rape, murder and
armed robbery.
How about stealing videotapes? You'd expect the Golden State to
be protective of its huge entertainment industry, yet even Jack
Valenti would probably agree that's going too far.
In 1995
Leandro Andrade was arrested for walking out of a Kmart with
five video cassettes he had failed to pay for. Released on bail, he
was caught two weeks later stealing four more such tapes from
another Kmart.
Petty theft, which is what Andrade committed, is ordinarily a
misdemeanor. But under the California penal code, such a theft can
be "enhanced"
to a felony if the culprit was "previously convicted of and served
a term for burglary or other specified crimes." Andrade had three
convictions for residential burglary. And since he ripped off the
videos in two visits, the thefts rated two consecutive terms of at
least 25 years each -- meaning no parole until he's nearly 90.
I am not a lawyer, and so not qualified to say whether Andrade's
sentence violates the Eighth Amendment's ban on "cruel and unusual
punishment," as his lawyers will maintain and the State of
California will attempt to refute when the U.S. Supreme Court hears
arguments in the case next week. It's not the Constitution but
common sense that tells me the sentence is an outrage.
According to the California Corrections Department, there are
about 350 people in the state's prisons doing life for petty
crimes. The judges who sentenced them could have waived the
three-strikes law but chose not to do so. So these aren't cases of
people falling through the system's cracks. Prosecutors and judges
who knew exactly what they were doing inflicted punishments that
might have given Draco pause.
According to a California deputy attorney general named Douglas
Danzig: "A person who commits a serious or violent felony on two or
more occasions and who subsequently commits another felony offense,
albeit not a serious or violent one, poses a significant danger to
society such that he or she must be imprisoned for no less than 25
years to life."
More striking than the harshness of this statement is its
presumptuousness. It's the language of social engineering, not
justice. No doubt studies have shown that Andrade and his
ilk are apt to strike again. Yet only a purely instrumental view of
the criminal justice system -- as a means for keeping the streets
safe at all costs -- can justify weighing a crime so differently
according to who commits it.
Whatever happened to the idea of paying one's debt to society?
Under the "three-strikes" laws, convicts run up a tab they can
never clear. (And by the way, why is it always three strikes, and
not two or four or six? That smacks of superstition more than
jurisprudence. Or is it merely love of baseball?)
Leandro Andrade is hardly the most likely candidate for model
citizen. In addition to burglary, he's been convicted of
transporting marijuana and escaping from federal prison. If set
free, he might well keep the police and courts busy for the rest of
his life. In that case, he should pay again and again. But surely
not even the wisest judge could set his punishment ahead of
time.
topics:
Constitution, Law, Supreme Court
