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Crime and Punishment, and Punishment
by Douglas Savage
22 April 2003

On March 5 the Supreme Court upheld California's three strikes law.  George Will described the decision as a victory for federalism.   He was wrong.

Gary Ewing was on parole in California when he stole three golf clubs, each worth $399. Because of four prior convictions for burglary and robbery, Ewing was sentenced under California’s three strikes law to 25-years-to-life in prison. On March 5, 2003, the United States Supreme Court upheld the sentence. Five of nine Justices ruled that Ewing’s sentence did not offend the Eighth Amendment’s prohibition against "cruel and unusual punishments."

Conservative columnist George F. Will in Newsweek on March 17, 2003, described the vote as a "5-4" decision against Mr. Ewing’s appeal. But to an eye less tainted by ideology, the actual vote was 3-2-4.

George Will argued that, "Given the fact of federalism, and the federalist ethic of broad respect for states’ differing policy choices, it is difficult to see the pertinence of the dissenters’ data showing that most other states would impose lesser punishments on criminals similar to Ewing ...". Had Mr. Will grasped that the apparently 5-4 ruling was really a 3-2-4 ruling, he would have understood that only three of the five, more conservative Justices in the five-Justice majority relied partly upon federalism principles.

Justice O’Connor wrote the opinion of the three-Justice plurality within the five-Justice majority. These three Justices agreed that the Eighth Amendment requires an examination of a criminal penalty’s proportionality to the crime committed. She wrote that fitting the crime to the time does allow states to have their own public policies about criminal justice. "When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime ... Recidivism has long been recognized as a legitimate basis for increased punishment."

Justice O’Connor wrote that her ruling in favor of the California law was based upon "the state’s public-safety interest." The three-Justice plurality decided that federalism allows states to experiment with criminal law as they see fit, but only so long as such experiments in sentencing passed what Justice O’Connor called "a narrow proportionality" test. George Will argued in his Newsweek column that the five-Justice majority stood for federalism. He was wrong. Only the three-Justice, O’Connor plurality in Ewing vs. California really stands for the proposition that states may experiment with anti-recidivist, criminal sentences which reflect what Justice O’Connor called "a deliberate policy choice." Only three out of nine Justices ruled, in part, on the basis of federalism. Three of nine Justices is not a majority.

Mr. Justice Scalia wrote his own opinion in which he, too, sided with the State of California. Forming the two-vote minority within the five-vote majority, Justice Scalia was joined by Mr. Justice Thomas. Scalia rejected Justice O’Connor’s deference to state, public-safety policy. He makes short work of dismissing the public safety analysis: "[T]he plurality is not applying law but evaluating policy."

If Mr. Justice Scalia is correct that the three-Justice plurality is simply examining and agreeing with California public safety policy and that the O’Connor plurality did indeed apply a proportionality test to Ewing’s sentence, then George Will must be wrong: this decision is not primarily about federalism at all. Justice Scalia is burdened with one of the most brilliant minds ever to reside within a Justice of the United States Supreme Court. Because his remarkable intellect is often undisciplined, his Court writings can carry a whiff of arrogance, even rudeness. In Ewing v. California, Scalia writes that "the game is up" on the O’Connor plurality’s idle, lip service to any proportionality analysis the instant those three Justices put public policy on the same judicial scale as proportionality.

Justice Scalia only sided with the O’Connor plurality because he believes the Eighth Amendment has nothing to do with sentences fitting their crimes. "[T]he Eighth Amendment’s prohibition of ‘cruel and unusual punishments’ [is] aimed at excluding only certain modes of punishment, and [is] not a ‘guarantee against disproportionate sentences.’" Scalia was quoting from his earlier Supreme Court opinion issued in 1991. Since long imprisonments are not expressly prohibited by the Eighth Amendment, Scalia joined the O’Connor plurality only so far as it upheld California’s three-strikes statute. Like Scalia, Justice Thomas upheld California’s statute since he believes that "the Eighth Amendment contains no proportionality principle."

Therefore, the five-Justice majority could not agree as to why Gary Ewing should stay in prison until the year 2025. And only three of nine Justices couched their opinions in terms of federalism.

Four Justices dissented -- "the four most liberal" -- George Will called them. Justice Stevens, a dissenter, wrote that, "proportionality review is not only capable of judicial application but [is] also required by the Eighth Amendment." The O’Connor plurality sounds as if it would agree. "The Eighth Amendment," Stevens argued, "directs judges to exercise their wise judgment in assessing the proportionality of all forms of punishment."

George Will noted that at least 7,000 inmates in California are serving hard time under that state’s three-strikes law. And, he notes, perhaps with a measure of true Conservative pride: "The third offenses committed by 344 of those inmates were petty thefts."

The instinct of a Conservative is to preserve the near holy writ of our Constitution, and to defend it from time to time against assaults by judges and by mobs inflamed with the passion of the day. It is easy to forget that the Eighth Amendment within our Bill of Rights prohibits more than cruel and unusual punishments. Perhaps Conservatives need to read the entire Eighth Amendment, perhaps more than once: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Is it not interesting that excessive money fines expressly violate the Eighth Amendment, but there is no elaboration at all about "cruel and unusual punishments?" That lack of precision split the Ewing Court almost down the middle. Should the Justices of the republic’s highest court feel free to apply their own epoch’s sense of fairness to defining the limits of "cruel and unusual?" Conservatives would argue, No. Liberals would ask, Is that not why judges sit on courts of last resort, and why the Framers created such courts to protect each and every one of us?

Douglas Savage practiced law in Canton, Ohio, for 24 years. He has published six novels and seven nonfiction books. His nonfiction texts are about the Civil War.

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