24

“Three Strikes” Laws

Another common “tough on crime” position during the 1990s was concern over recidivism, or former felons leaving prison only to commit more crimes. The increasingly conservative political climate that led to a Republican surge in both Congress and state legislatures in 1994 also led to many states passing laws that more harshly punished repeat offenders (though some states such as Texas had sentencing regimes that preceded this wave). These laws dramatically increased the sentence for the commission of a third felony, and, referencing baseball as a convenient analogy for voters, were referred to as “three-strikes” laws, i.e. “three strikes and you’re out.”

Naturally, states varied in their three-strikes frameworks. Most states required that at least one of the three felonies committed be a “serious” felony—though again, what counted as “serious” varied from state to state (many, but not all, defined “serious” as including an act of violence). The additional punishment for the third strike was harsh, starting at a minimum sentence of 20 to 25 years and ranging up to a life sentence.

Eighth Amendment concerns regarding proportionality arose in cases where either the third strike was a relatively minor felony, or where all three felonies were nonviolent or relatively minor crimes. In such cases, the convicted party would receive a sentence much harsher than what their sentencing would merit had they committed the third crime as a first offender. Was it constitutional to increase punishment in this fashion?

The Supreme Court had already heard two cases considering the constitutionality of these sentencing regimes prior to the 1990s wave of three-strikes laws. In Rummel v. Estelle (1980), a closely divided Court found that Rummel’s punishment—a life sentence for the commission of three minor nonviolent felonies (credit card and check fraud)—did not violate the Eighth Amendment. Importantly, Rummel’s life sentence actually made him eligible for parole after twelve years, assuming good behavior. Three years later, in Solem v. Helm (1983), the Court made a 5-4 decision in the other direction, striking down a life sentence for Helm, whose triggering felony had also been writing bad checks. Here, the life sentence was an actual life sentence (without parole), which likely led Justice Powell to change his vote. Together, these two cases showed there was no stable majority over how (or whether) to assess proportionality outside the death penalty context, a division continued in 1991 in Harmelin (see above).

While consensus on the proper method of interpreting the Eighth Amendment in non-capital cases would remain elusive, the Court’s 2003 same-day rulings in Ewing v. California (below) and the companion case Lockyer v. Andrade made clear that deference towards state legislatures and reluctance to strike down long prison terms would remain the Court’s approach going forward. Ewing had been charged and convicted for stealing three golf clubs from a local course. The theft made him subject to California’s three-strikes law, which was the toughest such law in the country at the time. Ewing—who had previous convictions for robbery and burglary and was on parole—requested that the trial judge reduce the felony to a misdemeanor. The judge denied the request, and Ewing was given a mandatory sentence of 25 years to life. Ewing appealed, arguing the sentence was grossly disproportionate under the Eighth Amendment.

Ewing v. California

538 U.S. 11 (2003)

Facts: A serial offender, Ewing was convicted of stealing golf clubs. Ewing’s theft made him eligible for California’s three-strikes sentencing enhancement, which would require a sentence of 25 years to life. After the trial judge refused to reduce the conviction to a misdemeanor, Ewing appealed the sentence, arguing it was grossly disproportionate and violated the Eighth Amendment. The state appeals court rejected the claim, and the California Supreme Court declined to hear the case.

Question: Did Ewing’s sentence violate the Eighth Amendment?

Vote: No, 5-4

For the Court: Justice O’Connor

Concurring in the judgment: Justice Scalia

Concurring in the judgment: Justice Thomas

Dissenting opinion: Justice Stevens

Dissenting opinion: Justice Breyer

JUSTICE O’CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and JUSTICE KENNEDY join.

In this case, we decide whether the Eighth Amendment prohibits the State of California from sentencing a repeat felon to a prison term of 25 years to life under the State’s “Three Strikes and You’re Out” law.

I

A

California’s three strikes law reflects a shift in the State’s sentencing policies toward incapacitating and deterring repeat offenders who threaten the public safety. The law was designed “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” …

On October 1, 1993, while Proposition 184 was circulating, 12-year-old Polly Klaas was kidnaped from her home in Petaluma, California. Her admitted killer, Richard Allen Davis, had a long criminal history that included two prior kidnapping convictions. Davis had served only half of his most recent sentence (16 years for kidnapping, assault, and burglary). Had Davis served his entire sentence, he would still have been in prison on the day that Polly Klaas was kidnapped…

Polly Klaas’ murder galvanized support for the three strikes initiative. Within days, Proposition 184 was on its way to becoming the fastest qualifying initiative in California history…

B

California’s current three strikes law consists of two virtually identical statutory schemes “designed to increase the prison terms of repeat felons.” When a defendant is convicted of a felony, and he has previously been convicted of one or more prior felonies defined as “serious” or “violent,” sentencing is conducted pursuant to the three strikes law…

If the defendant has one prior “serious” or “violent” felony conviction, he must be sentenced to “twice the term otherwise provided as punishment for the current felony conviction.” If the defendant has two or more prior “serious” or “violent” felony convictions, he must receive “an indeterminate term of life imprisonment.” Defendants sentenced to life under the three strikes law become eligible for parole on a date calculated by reference to a “minimum term,” which is the greater of (a) three times the term otherwise provided for the current conviction, (b) 25 years, or (c) the term determined by the court pursuant to § 1170 for the underlying conviction, including any enhancements…

Under California law, certain offenses may be classified as either felonies or misdemeanors. These crimes are known as “wobblers.” …

In California, prosecutors may exercise their discretion to charge a “wobbler” as either a felony or a misdemeanor. Likewise, California trial courts have discretion to reduce a “wobbler” charged as a felony to a misdemeanor either before preliminary examination or at sentencing to avoid imposing a three strikes sentence…

Thus, trial courts may avoid imposing a three strikes sentence in two ways: first, by reducing “wobblers” to misdemeanors (which do not qualify as triggering offenses), and second, by vacating allegations of prior “serious” or “violent” felony convictions.

C

On parole from a 9-year prison term, petitioner Gary Ewing walked into the pro shop of the EI Segundo Golf Course in Los Angeles County on March 12, 2000. He walked out with three golf clubs, priced at $399 apiece, concealed in his pants leg. A shop employee, whose suspicions were aroused when he observed Ewing limp out of the pro shop, telephoned the police. The police apprehended Ewing in the parking lot.

Ewing is no stranger to the criminal justice system. In 1984, at the age of 22, he pleaded guilty to theft. The court sentenced him to six months in jail (suspended), three years’ probation, and a $300 fine. In 1988, he was convicted of felony grand theft auto and sentenced to one year in jail and three years’ probation. After Ewing completed probation, however, the sentencing court reduced the crime to a misdemeanor, permitted Ewing to withdraw his guilty plea, and dismissed the case. In 1990, he was convicted of petty theft with a prior and sentenced to 60 days in the county jail and three years’ probation. In 1992, Ewing was convicted of battery and sentenced to 30 days in the county jail and two years’ summary probation. One month later, he was convicted of theft and sentenced to 10 days in the county jail and 12 months’ probation. In January 1993, Ewing was convicted of burglary and sentenced to 60 days in the county jail and one year’s summary probation. In February 1993, he was convicted of possessing drug paraphernalia and sentenced to six months in the county jail and three years’ probation. In July 1993, he was convicted of appropriating lost property and sentenced to 10 days in the county jail and two years’ summary probation. In September 1993, he was convicted of unlawfully possessing a firearm and trespassing and sentenced to 30 days in the county jail and one year’s probation.

In October and November 1993, Ewing committed three burglaries and one robbery at a Long Beach, California, apartment complex over a 5-week period. He awakened one of his victims, asleep on her living room sofa, as he tried to disconnect her video cassette recorder from the television in that room. When she screamed, Ewing ran out the front door. On another occasion, Ewing accosted a victim in the mailroom of the apartment complex. Ewing claimed to have a gun and ordered the victim to hand over his wallet. When the victim resisted, Ewing produced a knife and forced the victim back to the apartment itself. While Ewing rifled through the bedroom, the victim fled the apartment screaming for help. Ewing absconded with the victim’s money and credit cards.

On December 9, 1993, Ewing was arrested on the premises of the apartment complex for trespassing and lying to a police officer. The knife used in the robbery and a glass cocaine pipe were later found in the back seat of the patrol car used to transport Ewing to the police station. A jury convicted Ewing of first-degree robbery and three counts of residential burglary. Sentenced to nine years and eight months in prison, Ewing was paroled in 1999.

Only 10 months later, Ewing stole the golf clubs at issue in this case. He was charged with, and ultimately convicted of, one count of felony grand theft of personal property in excess of $400…

At the sentencing hearing, Ewing asked the court to reduce the conviction for grand theft, a “wobbler” under California law, to a misdemeanor so as to avoid a three strikes sentence. Ewing also asked the trial court to exercise its discretion to dismiss the allegations of some or all of his prior serious or violent felony convictions, again for purposes of avoiding a three strikes sentence…

In the end, the trial judge determined that the grand theft should remain a felony. The court also ruled that the four prior strikes for the three burglaries and the robbery in Long Beach should stand. As a newly convicted felon with two or more “serious” or “violent” felony convictions in his past, Ewing was sentenced under the three strikes law to 25 years to life…

II

A

The Eighth Amendment, which forbids cruel and unusual punishments, contains a “narrow proportionality principle” that “applies to noncapital sentences.” Harmelin v. Michigan (1991); Weems v. United States (1910); Robinson v. California (1962). We have most recently addressed the proportionality principle as applied to terms of years in a series of cases beginning with Rummel v. Estelle.

In Rummel, we held that it did not violate the Eighth Amendment for a State to sentence a three-time offender to life in prison with the possibility of parole. Like Ewing, Rummel was sentenced to a lengthy prison term under a recidivism statute. Rummel’s two prior offenses were a 1964 felony for “fraudulent use of a credit card to obtain $80 worth of goods or services,” and a 1969 felony conviction for “passing a forged check in the amount of $28.36.” His triggering offense was a conviction for felony theft: “obtaining $120.75 by false pretenses.”

This Court ruled that “[h]aving twice imprisoned him for felonies, Texas was entitled to place upon Rummel the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State.”  The recidivism statute “is nothing more than a societal decision that when such a person commits yet another felony, he should be subjected to the admittedly serious penalty of incarceration for life, subject only to the State’s judgment as to whether to grant him parole.”  We noted that this Court “has on occasion stated that the Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime.” But “[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.” …

Three years after Rummel, in Solem v. Helm (1983), we held that the Eighth Amendment prohibited “a life sentence without possibility of parole for a seventh nonviolent felony.” The triggering offense in Solem was “uttering a ‘no account’ check for $100.”  We specifically stated that the Eighth Amendment’s ban on cruel and unusual punishments “prohibits … sentences that are disproportionate to the crime committed,” and that the “constitutional principle of proportionality has been recognized explicitly in this Court for almost a century.”  The Solem Court then explained that three factors may be relevant to a determination of whether a sentence is so disproportionate that it violates the Eighth Amendment: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.”

Applying these factors in Solem, we struck down the defendant’s sentence of life without parole. We specifically noted the contrast between that sentence and the sentence in Rummel, pursuant to which the defendant was eligible for parole…

Eight years after Solem, we grappled with the proportionality issue again in Harmelin…  A majority of the Court rejected Harmelin’s claim that his sentence was so grossly disproportionate that it violated the Eighth Amendment. The Court, however, could not agree on why his proportionality argument failed. JUSTICE SCALIA, joined by THE CHIEF JUSTICE, wrote that the proportionality principle was “an aspect of our death penalty jurisprudence, rather than a generalizable aspect of Eighth Amendment law.” … JUSTICE KENNEDY, joined by two other Members of the Court, concurred in part and concurred in the judgment. JUSTICE KENNEDY specifically recognized that “[t]he Eighth Amendment proportionality principle also applies to noncapital sentences.” …

The proportionality principles in our cases distilled in JUSTICE KENNEDY’S concurrence guide our application of the Eighth Amendment in the new context that we are called upon to consider.

B

… between 1993 and 1995, three strikes laws effected a sea change in criminal sentencing throughout the Nation. These laws responded to widespread public concerns about crime by targeting the class of offenders who pose the greatest threat to public safety: career criminals…

Throughout the States, legislatures enacting three strikes laws made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional approaches to punishment, must be isolated from society in order to protect the public safety. Though three strikes laws may be relatively new, our tradition of deferring to state legislatures in making and implementing such important policy decisions is longstanding…

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. Nothing in the Eighth Amendment prohibits California from making that choice… Recidivism has long been recognized as a legitimate basis for increased punishment…

California’s justification is no pretext. Recidivism is a serious public safety concern in California and throughout the Nation. According to a recent report, approximately 67 percent of former inmates released from state prisons were charged with at least one “serious” new crime within three years of their release…

The State’s interest in deterring crime also lends some support to the three strikes law… Four years after the passage of California’s three strikes law, the recidivism rate of parolees returned to prison for the commission of a new crime dropped by nearly 25 percent…

To be sure, California’s three strikes law has sparked controversy. Critics have doubted the law’s wisdom, cost efficiency, and effectiveness in reaching its goals. This criticism is appropriately directed at the legislature, which has primary responsibility for making the difficult policy choices that underlie any criminal sentencing scheme. We do not sit as a “superlegislature” to second-guess these policy choices…

III

Against this backdrop, we consider Ewing’s claim that his three strikes sentence of 25 years to life is unconstitutionally disproportionate to his offense of “shoplifting three golf clubs.” We first address the gravity of the offense compared to the harshness of the penalty. At the threshold, we note that Ewing incorrectly frames the issue. The gravity of his offense was not merely “shoplifting three golf clubs.” Rather, Ewing was convicted of felony grand theft for stealing nearly $1,200 worth of merchandise after previously having been convicted of at least two “violent” or “serious” felonies…

That grand theft is a “wobbler” under California law is of no moment. Though California courts have discretion to reduce a felony grand theft charge to a misdemeanor, it remains a felony for all purposes “unless and until the trial court imposes a misdemeanor sentence.” … In Ewing’s case, however, the trial judge justifiably exercised her discretion not to extend such lenient treatment given Ewing’s long criminal history.

In weighing the gravity of Ewing’s offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature’s choice of sanctions… To give full effect to the State’s choice of this legitimate penological goal, our proportionality review of Ewing’s sentence must take that goal into account.

Ewing’s sentence is justified by the State’s public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record… To be sure, Ewing’s sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated… We hold that Ewing’s sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the three strikes law, is not grossly disproportionate and therefore does not violate the Eighth Amendment’s prohibition on cruel and unusual punishments. The judgment of the California Court of Appeal is affirmed.

JUSTICE SCALIA, concurring in the judgment.

In my opinion in Harmelin v. Michigan (1991), I concluded that 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.” Out of respect for the principle of stare decisis, I might nonetheless accept the contrary holding of Solem v. Helm, that the Eighth Amendment contains a narrow proportionality principle-if I felt I could intelligently apply it. This case demonstrates why I cannot.

Proportionality—the notion that the punishment should fit the crime—is inherently a concept tied to the penological goal of retribution… 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” … That acknowledgment having been made, it no longer suffices merely to assess “the gravity of the offense compared to the harshness of the penalty,” 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. Having completed that step (by a discussion which, in all fairness, does not convincingly establish that 25-years-to-life is a “proportionate” punishment for stealing three golf clubs), the plurality must then add an analysis to show that “Ewing’s sentence is justified by the State’s public-safety interest in incapacitating and deterring recidivist felons.”

Which indeed it is—though why that has anything to do with the principle of proportionality is a mystery. Perhaps the plurality should revise its terminology, so that what it reads into the Eighth Amendment is … 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…

JUSTICE THOMAS, concurring in the judgment.

I agree with JUSTICE SCALIA’S view that the proportionality test announced in Solem v. Helm, is incapable of judicial application. Even were Solem’s test perfectly clear, however, I would not feel compelled by stare decisis to apply it. In my view, the Cruel and Unusual Punishments Clause of the Eighth Amendment contains no proportionality principle…

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.

JUSTICE BREYER has cogently explained why the sentence imposed in this case is both cruel and unusual. The concurrences prompt this separate writing to emphasize that proportionality review is not only capable of judicial application but also required by the Eighth Amendment…

[The Eighth Amendment states] “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Faithful to the Amendment’s text, this Court has held that the Constitution directs judges to apply their best judgment in determining the proportionality of fines, and other forms of punishment, including the imposition of a death sentence. It “would be anomalous indeed” to suggest that the Eighth Amendment makes proportionality review applicable in the context of bail and fines but not in the context of other forms of punishment, such as imprisonment. Rather, by broadly prohibiting excessive sanctions, the Eighth Amendment directs judges to exercise their wise judgment in assessing the proportionality of all forms of punishment.

The absence of a black-letter rule does not disable judges from exercising their discretion in construing the outer limits on sentencing authority that the Eighth Amendment imposes. After all, judges are “constantly called upon to draw … lines in a variety of contexts,” and to exercise their judgment to give meaning to the Constitution’s broadly phrased protections…

… I think it clear that the Eighth Amendment’s prohibition of “cruel and unusual punishments” expresses a broad and basic proportionality principle that takes into account all of the justifications for penal sanctions. It is this broad proportionality principle that would preclude reliance on any of the justifications for punishment to support, for example, a life sentence for overtime parking…

JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE GINSBURG join, dissenting.

The constitutional question is whether the “three strikes” sentence imposed by California upon repeat offender Gary Ewing is “grossly disproportionate” to his crime.  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. The offender has a criminal history that includes four felony convictions arising out of three separate burglaries (one armed).  In Solem v. Helm (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.

I

This Court’s precedent sets forth a framework for analyzing Ewing’s Eighth Amendment claim. The Eighth Amendment forbids, as “cruel and unusual punishments,” prison terms (including terms of years) that are “grossly disproportionate.” In applying the “gross disproportionality” principle, courts must keep in mind that “legislative policy” will primarily determine the appropriateness of a punishment’s “severity,” and hence defer to such legislative policy judgments. If courts properly respect those judgments, they will find that the sentence fails the test only in rare instances. And they will only “rarely” find it necessary to “engage in extended analysis” before rejecting a claim that a sentence is “grossly disproportionate.”

The plurality applies JUSTICE KENNEDY’S analytical framework in Harmelin. And, for present purposes, I will consider Ewing’s Eighth Amendment claim on those terms. To implement this approach, courts faced with a “gross disproportionality” claim must first make “a threshold comparison of the crime committed and the sentence imposed.” If a claim crosses that threshold-itself a rare occurrence-then the court should compare the sentence at issue to other sentences “imposed on other criminals” in the same, or in other, jurisdictions. The comparative analysis will “validate” or invalidate “an initial judgment that a sentence is grossly disproportionate to a crime.”

I recognize the warnings implicit in the Court’s frequent repetition of words such as “rare.” Nonetheless I believe that the case before us is a “rare” case-one in which a court can say with reasonable confidence that the punishment is “grossly disproportionate” to the crime.

II

Ewing’s claim crosses the gross disproportionality “threshold.” First, precedent makes clear that Ewing’s sentence raises a serious disproportionality question. Ewing is a recidivist. Hence the two cases most directly in point are those in which the Court considered the constitutionality of recidivist sentencing: Rummel and Solem. Ewing’s claim falls between these two cases. It is stronger than the claim presented in Rummel, where the Court upheld a recidivist’s sentence as constitutional. It is weaker than the claim presented in Solem, where the Court struck down a recidivist sentence as unconstitutional…

Overall, the comparison places Ewing’s sentence well within the twilight zone between Solem and Rummel–a zone where the argument for unconstitutionality is substantial, where the cases themselves cannot determine the constitutional outcome.

Second, Ewing’s sentence on its face imposes one of the most severe punishments available upon a recidivist who subsequently engaged in one of the less serious forms of criminal conduct… the sentence triggering behavior here ranks well toward the bottom of the criminal conduct scale.

… Nor is there evidence presented here that the law enforcement community believes lengthy prison terms necessary adequately to deter shoplifting. To the contrary, well-publicized instances of shoplifting suggest that the offense is often punished without any prison sentence at all. On the other hand, shoplifting is a frequently committed crime; but “frequency,” standing alone, cannot make a critical difference. Otherwise traffic offenses would warrant even more serious punishment.

This case, of course, involves shoplifting engaged in by a recidivist. One might argue that any crime committed by a recidivist is a serious crime potentially warranting a 25-year sentence. But this Court rejected that view in Solem, and in Harmelin, with the recognition that “no penalty is per se constitutional.” …  Our cases make clear that, in cases involving recidivist offenders, we must focus upon “the [offense] that triggers the life sentence,” with recidivism playing a “relevant,” but not necessarily determinative, role…  And here, as I have said, that offense is among the less serious, while the punishment is among the most serious.

Third, some objective evidence suggests that many experienced judges would consider Ewing’s sentence disproportionately harsh. The United States Sentencing Commission … does not include shoplifting (or similar theft-related offenses) among the crimes that might trigger especially long sentences for recidivists… nor did Congress include such offenses among triggering crimes…

III

Believing Ewing’s argument a strong one, sufficient to pass the threshold, I turn to the comparative analysis.

A comparison of Ewing’s sentence with other sentences requires answers to two questions. First, how would other jurisdictions (or California at other times, i.e., without the three strikes penalty) punish the same offense conduct? Second, upon what other conduct would other jurisdictions (or California) impose the same prison term? Moreover, since hypothetical punishment is beside the point, the relevant prison time, for comparative purposes, is real prison time, i.e., the time that an offender must actually serve…

As to California itself, we know the following: First, between the end of World War II and 1994 (when California enacted the three strikes law), no one like Ewing could have served more than 10 years in prison…

Second, statistics suggest that recidivists of all sorts convicted during that same time period in California served a small fraction of Ewing’s real-time sentence. On average, recidivists served three to four additional (recidivist-related) years in prison, with 90 percent serving less than an additional real seven to eight years…

Third, we know that California has reserved, and still reserves, Ewing-type prison time, i.e., at least 25 real years in prison, for criminals convicted of crimes far worse than was Ewing’s. Statistics for the years 1945 to 1981, for example, indicate that typical (nonrecidivist) male first-degree murderers served between 10 and 15 real years in prison, with 90 percent of all such murderers serving less than 20 real years… It imposes, for example, upon nonrecidivists guilty of arson causing great bodily injury a maximum sentence of nine years in prison; it imposes upon those guilty of voluntary manslaughter a maximum sentence of 11 years. It reserves the sentence that it here imposes upon (former-burglar-now-golf-club-thief) Ewing for nonrecidivist, first-degree murderers…

Given the information available, given the state and federal parties’ ability to provide additional contrary data, and given their failure to do so, we can assume for constitutional purposes that the following statement is true: 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.

IV

This is not the end of the matter. California sentenced Ewing pursuant to its “three strikes” law. That law represents a deliberate effort to provide stricter punishments for recidivists… And, it is important to consider whether special criminal justice concerns related to California’s three strikes policy might justify including Ewing’s theft within the class of triggering criminal conduct (thereby imposing a severe punishment), even if Ewing’s sentence would otherwise seem disproportionately harsh.

I can find no such special criminal justice concerns that might justify this sentence. The most obvious potential justification for bringing Ewing’s theft within the ambit of the statute is administrative. California must draw some kind of workable line between conduct that will trigger, and conduct that will not trigger, a “three strikes” sentence. “But the fact that a line has to be drawn somewhere does not justify its being drawn anywhere.” 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.

The administrative line that the statute draws separates “felonies” from “misdemeanors.” Those words suggest a graduated difference in degree. But an examination of how California applies these labels in practice to criminal conduct suggests that the offenses do not necessarily reflect those differences… Indeed, California uses those words in a way unrelated to the seriousness of offense conduct in a set of criminal statutes called “wobblers,” one of which is at issue in this case…

The result of importing this kind of distinction into California’s three strikes statute is a series of anomalies. One anomaly concerns the seriousness of the triggering behavior. “Wobbler” statutes cover a wide variety of criminal behavior, ranging from assault with a deadly weapon, vehicular manslaughter, and money laundering, to the defacement of property with graffiti, or stealing more than $100 worth of chickens, nuts, or avocados. Some of this behavior is obviously less serious, even if engaged in twice, than other criminal conduct that California statutes classify as pure misdemeanors, such as reckless driving, the use of force or threat of force to interfere with another’s civil rights, selling poisoned alcohol, child neglect, and manufacturing or selling false government documents with the intent to conceal true citizenship.

Another anomaly concerns temporal order. An offender whose triggering crime is his third crime likely will not fall within the ambit of the three strikes statute provided that (a) his first crime was chicken theft worth more than $100, and (b) he subsequently graduated to more serious crimes, say, crimes of violence. That is because such chicken theft, when a first offense, will likely be considered a misdemeanor. A similar offender likely will fall within the scope of the three strikes statute, however, if such chicken theft was his third crime. That is because such chicken theft, as a third offense, will likely be treated as a felony…

There is no obvious reason why the statute could not enumerate, consistent with its purposes, the relevant triggering crimes…

Neither do I see any other way in which inclusion of Ewing’s conduct (as a “triggering crime”) would further a significant criminal justice objective. One might argue that those who commit several property crimes should receive long terms of imprisonment in order to “incapacitate” them, i.e., to prevent them from committing further crimes in the future. But that is not the object of this particular three strikes statute. Rather, as the plurality says, California seeks “to reduce serious and violent crime.” …

The upshot is that, in my view, the State cannot find in its three strikes law a special criminal justice need sufficient to rescue a sentence that other relevant considerations indicate is unconstitutional.

V

JUSTICE SCALIA and JUSTICE THOMAS argue that we should not review for gross disproportionality a sentence to a term of years. Otherwise, we make it too difficult for legislators and sentencing judges to determine just when their sentencing laws and practices pass constitutional muster.

I concede that a bright-line rule would give legislators and sentencing judges more guidance. But application of the Eighth Amendment to a sentence of a term of years requires a case-by-case approach. And, in my view, like that of the plurality, meaningful enforcement of the Eighth Amendment demands that application-even if only at sentencing’s outer bounds…