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Monday, March 10, 2003
You are the Weakest Link...Goodbye

The Supreme Court has upheld California's infamous three-strikes law. I remember talking to Karsten once and remarking that it most likely wasn't fair in so far as one could steal three packs of gum and be locked away for life. Well, an interesting debate occurred among the Court, which has led me to reconsider my opinion a bit. The first comes in this New York Times article which provides a summary of the majority and dissenting opinions. This quote is from the majority opinion, penned by O'Connor: "Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution "does not mandate adoption of any one penological theory." A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation. Some or all of these justifications may play a role in a state's sentencing scheme. Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts."

Breyer maintains in dissent " The constitutional question is whether the “three strikes” sentence imposed by California upon repeat-offender Gary Ewing is “grossly disproportionate” to his crime. Ante, at 1, 18 (plurality opinion). The sentence amounts to a real prison term of at least 25 years. The sentence-triggering criminal conduct consists of the theft of three golf clubs priced at a total of $1,197. See ante, at 5. The offender has a criminal history that includes four felony convictions arising out of three separate burglaries (one armed). Ante, at 5—6. In Solem v. Helm, 463 U.S. 277 (1983), the Court found grossly disproportionate a somewhat longer sentence imposed on a recidivist offender for triggering criminal conduct that was somewhat less severe. In my view, the differences are not determinative, and the Court should reach the same ultimate conclusion here...Outside the California three-strikes context, Ewing's recidivist sentence is virtually unique in its harshness for his offense of conviction, and by a considerable degree."

Scalia in his concurrence notes "Proportionality–the notion that the punishment should fit the crime–is inherently a concept tied to the penological goal of retribution. “[I]t becomes difficult even to speak intelligently of ‘proportionality,’ once deterrence and rehabilitation are given significant weight,” Harmelin, supra, at 989–not to mention giving weight to the purpose of California’s three strikes law: incapacitation. In the present case, the game is up once the plurality has acknowledged that “the Constitution does not mandate adoption of any one penological theory,” and that a “sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation.” Ante, at 12 (internal quotation marks omitted). That acknowledgment having been made, it no longer suffices merely to assess “the gravity of the offense compared to the harshness of the penalty,” ante, at 15; that classic description of the proportionality principle (alone and in itself quite resistant to policy-free, legal analysis) now becomes merely the “first” step of the inquiry, ibid."

The debate hinges on whether harsher standards for repeat offenders violates the prohibitions on cruel and unusual punishments in the Eighth Amendment. My question is this: should a punishment be 'proportionate' to a crime? Or can justice consider other factors like deterrence and rehabilitation when decided the punishment? I am hoping that Free Dartmouth will chime in.