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How our justices think

By Robert S. Sargent, Jr.
web posted March 17, 2003

The recent "three strikes and you're out" case, Ewing v. California, decided on March 5 by the Supreme Court, provides real insight into how our Supreme Court Justices think.

In the summary to the opinion, it said, "While on parole, petitioner Ewing was convicted of felony grand theft for stealing three golf clubs, worth $399 apiece. As required by the three strikes law, the prosecutor formally alleged, and the trial court found, that Ewing had been convicted previously of four serious or violent felonies." Ewing alleged that the sentence was "grossly disproportionate under the Eighth Amendment." The State Court of Appeal upheld the sentence, the State Supreme Court denied review, and the U.S. Supreme Court "Held: The judgment is affirmed."

The majority opinion was written by Justice O'Connor, and she "...concluded that Ewing's sentence is not grossly disproportionate and therefore does not violate the Eighth Amendment's prohibition on cruel and unusual punishments."

O'Connor wants to be constitutionally principled. We know of her interest in "states rights" as stated in the Tenth Amendment, so she says, "…this Court has a longstanding tradition of deferring to state legislatures in making and implementing such important policy decisions. The Constitution ‘does not mandate adoption of any one penological theory.' Any criticism of the law is appropriately directed at the legislature, which is primarily responsible for making the policy choices underlying any criminal sentencing scheme."

After shutting the door to judicial criticism of the state law, Justice O'Connor gets squeamish, and opens it up: She cites Justice Kennedy's opinion in Harmelin v. Michigan where he wrote: the "Eighth Amendment does not require strict proportionality between crime and sentence (but) forbids only extreme sentences that are ‘grossly disproportionate' to the crime." Now, if a sentence is "extreme," the Justices can, indeed, criticize the law. Since we don't know what "extreme" is, now she must explain why she doesn't believe it's extreme.

On page after page O'Connoe gives the history of Ewing's past crimes, why it's in the interest of California to have such a law, how the law isn't just dealing with stealing golf clubs, how the Eighth Amendment is applied to the states, and on and on, completely getting away from the Constitutional principle that policy issues are left to state legislatures. Essentially she is just saying that in her "opinion," the sentence in this case isn't "extreme."

One of the dissenting opinions was written by Justice Breyer and, of course, joined by Souter, Ginsburg, and Stevens.

Justice Breyer gives many examples of other states that had lesser sentences for the same kinds of crimes, proving California's crime is excessive. He then criticizes the law saying, "The statute's administrative objective would seem to be one of separating more serious , from less serious, triggering criminal conduct. Yet the statute does not do that job particularly well." Finally, "Ewing's 25-year term amounts to overkill." What does any of this analysis have to do with "applying the law?" How do state legislators write a law when Supreme Court Justices provide no guidelines? Breyer says, "A case-by-case approach can offer guidance through example." There is little difference in O'Connor's opinion and Breyer's. Just a matter of degree. If they don't like the law, they will overturn it. As The Washington Post, in an editorial discussing this case put it: "The result is that any prison sentence is lawful until a convict's prison term bothers five justices – instead of only four."

Now let's turn to Scalia (with Thomas concurring) who obviously did not concur in O'Connor's analysis, but concurred in the judgment: "The Eighth Amendment's prohibition of ‘cruel and unusual punishments' was aimed at excluding only certain modes of punishment, and was not a guarantee against disproportionate sentences….Perhaps the plurality should revise its terminology, so that it reads…the unstated proposition that all punishment should reasonably pursue the multiple purposes of the criminal law. That formulation would make it clearer than ever, of course, that the plurality is not applying law but evaluating policy." Exactly. Evaluating policy is not the role of Justices.

This case nicely shows the thinking of our Justices: We have the four liberal Justices forever making judgments based on their opinion of the law. We have O'Connor (and Kennedy) sometimes making judgments based on their opinion, but with more "conservative" results, and we have Scalia and Thomas (and sometimes Rehnquist) applying the law without passing judgment on the law. As President Bush appoints future judges, I hope for more Scalias and Thomases.

Robert S. Sargent, Jr. can be reached at rssjr@citcom.net.

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