Criminal

Ewing v. California

CHAPTER 3: Defining Criminal Conduct – the Elements of Just Punishment; p. 190-197C. Proportionality

NAME: Ewing v. California, 538 U.S. 11 (2003), Supreme Court of the U.S.

FACTS: o π (State of California) v. ∆ (Ewing); ∆’s criminal history: 1984 (age 22) theft 1988- Sept. 1993 – 4 other offenses (burglary, battery, possession of drug paraphernalia,

possession of firearm) Oct.-Nov. 1993 (over 5 weeks) – 3 burglaries, 1 robbery; sentenced to 116 months

o 10 months later on parole in 1999, stole 3 golf clubs valued at $399/clubo CA charged under “Three Strikes and You’re Out” (3S) Law; ∆ asking reduction to misdemeanor

PROCEDURE: o Trial court sentenced ∆ under three strikes law to 25 years to life for felony grand thefto CA Court of Appeal affirmedo CA Supreme Court denied ∆’s petition for reviewo SCOTUS grant ∆ certiorari

ISSUE: Substantive Issue(s)1. Is life sentencing for repeat felons under California 3S law unconstitutionally

disproportionate w.r.t. 8th Amendment (prohibiting “cruel and unusual punishment”)?a. Considerations for proportionality review?

HOLDING: No. (O’Connor, Rehnquist, Kennedy); Concurring (Scalia, Thomas)

REASONING: Rule: (8th A. Proportionality review) a) Solem v. Helm: Proportionality violation determination factors: (i) gravity of the offense and

harshness of the penalty, (ii) sentences imposed on other criminals in same jurisdiction, (iii) sentences imposed for same crime in other jurisidictions

b) Harmelin v. Michigan [“Narrow Proportionality” & “4 Principles of Proportionality Review for Noncapital Sentences”]: (i) primacy of legislature, (ii) the variety of legitimate penological schemes, (iii) the nature of our federal system, (iv) requirement that proportionality review be guided by objective factors 8 th A. does not require strict proportionality between crime and sentence, forbids only extreme sentences that are “grossly disproportionate” to crime

o (Policy) California has reasonable basis for 3S to further penological goals, rational legislative judgment of 3S as deliberate policy choice w/ re: recidivism and deterrence

o ∆ criminal record property offenders have higher recidivism rates, state rational legislative judgment that repeat offenders should be incapacitated (public-safety interest)

DISPOSITION: Affirmed.

DISSENT (or) CONCURRING:

Concur (Scalia, Thomas):o Proportionality tied to retribution; “public-safety interest” has nothing to do principle of

proportionality, means majority decision is evaluating policyo 8th A. has nothing to do with guaranteeing proportionality; proportionality separate from “cruel

Criminal

and unusual”o Dissent in Harmelin states proportionality requirement was “an aspect of our death penalty

jurisprudence, rather than a generalizable aspect of the 8th A. law”

Dissent (Breyer, Stevens, Souter, Ginsburg):o “Gross Disproportionality” comparative analysis: to validate/invalidate (a) length of prison term,

(b) sentence-triggering criminal conduct, (c) offender’s criminal history compared w/ Solem and Rummel cases; extreme, thus invalidates Ewing sentence extreme even under federal Sentencing Guidelines (would be < 18 mo.)

o CA 3S includes crimes against person, crimes create danger of physical harm, drug crimes; does not even include serious crimes against property

Retribution as issue was not raised In terms of “deterrence”, sentencing is overkill

NOTES: Rule: (CA 3S Law) 1 prior serious or violent felony conviction = 2 times the term provided as punishment; 2+ prior felony convictions = indeterminate term of life imprisonment; certain offenses are “wobblers” and can be classified as either felonies or misdemeanorso Amended in 2012 CA 3S Law nonviolent crimes for drug, firearm and sex offense related crimes

Rule: (8th Amendment) Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

o Plurality: simple or absolute majorityo Ambit: scope, extent, boundso Recidivism: person’s relapse into criminal behavior, often after person receives sanctions or

undergoes intervention for a previous crimeo Culpability: responsibility for fault or wrongo Utilitarian v. Retribution:

Retributive: Backward looking; attribute importance to offender’s past behavior and blameworthiness of behavior. “Punishment is justified bc ppl deserve it”

Utilitarian: Forward looking; seeks to justify punishment on basis of good consequences it is expected to produce in future. Control crime via deterrence, incapacitation, and rehabilitation. “Justification lies in the useful purposes that punishment serves”