Is 'Three Strikes' law cruel and unusual?

A man is convicted of shoplifting $153 worth of children's videos in California. He is a heroin addict with prior convictions for marijuana trafficking, prison escape, burglary, and petty theft.

Petty theft, such as shoplifting, is usually a misdemeanor, punishable by a fine or up to six months in jail. But under California's "Three Strikes and You Are Out" law, subsequent convictions for petty theft can also count as the third strike.

What is an appropriate sentence under California's Three Strikes law for the man who tried to filch nine tapes, including "Cinderella," "Snow White," and "Free Willie 2"?

Fifty years to life in prison.

Tuesday, the US Supreme Court is considering whether Leandro Andrade's prison sentence amounts to cruel and unusual punishment in violation of the Eighth Amendment. The case, one of the most important of the term, will take a close look at mandatory-minimum sentencing measures that emerged as a key component of get-tough-on-crime efforts in the '80s and early '90s.

If the justices decide the sentences in question are unconstitutionally harsh, that could spark appeals of tough sentences across the country. On the other hand, if the court upholds the sentences, that could effectively dash the hopes of defendants who have been sentenced this way.

Mr. Andrade's case and that of a companion case involving another convicted shoplifter, Gary Ewing, will also examine to what extent appeals-court judges must grant deference to harsh sentencing schemes enacted by state lawmakers and local voters.

In answering that question, the justices may also clarify when mandatory minimum sentences are too harsh to survive constitutional scrutiny.

Lawyers for Andrade say his prison sentence is "grossly disproportionate" to the crime he committed and thus violates constitutional protections.

"The offense was minor but the punishment was enormous," Erwin Chemerinsky, a University of Southern California Law School professor representing Andrade, writes in his brief to the court. "Only first degree murder and a few other violent crimes would receive a sentence greater than Andrade's punishment."

California Attorney General Bill Lockyer says Andrade's 50-years-to-life prison sentence wasn't meted out exclusively as punishment for the shoplifting charge. He says it is an effort through the Three Strikes law to hold repeat offenders accountable for ongoing criminal careers.

"In a sort of alarmist fashion, [Andrade] argues that what California has done is tantamount to making overtime parking punishable by life imprisonment," Mr. Lockyer writes in his brief. "His assertion ignores his felony recidivism."

Lockyer adds, "At some point a state must be able to isolate an habitual criminal from society for long periods of time."

California's Three Strikes law was passed in 1994 both by the state Legislature and through a referendum known as Proposition 184. The effort was sparked by public outrage following the abduction and murder of 12-year-old Polly Klaas by a twice-convicted kidnapper on parole.

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