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.
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