Monday, October 28, 2002

Supreme Court Next up for discussion and prediction: Tuesday Nov. 5 brings two cases that ask whether LONG sentences for minor offenses under California's 3 strikes law are unconstitutional under the Eighth Amendment. This post will be LONG too, but I hope it will be worth it to you.

Ewing v. California, coming on direct appeal from the state courts, involves a guy who tried to steal some golf clubs (c. $1200 worth, according to what I've seen) after having prior convictions for burglary and robbery. He got a sentence of 25 years to life. The state supreme court's decision is apparently not published. Lockyer v. Andrade, coming up on the State's petition for review of the Ninth Circuit's grant of habeas corpus relief, involves a guy who stole 9 videotapes from K-Mart and got – get this – life in jail without the possibility of parole for at least 50 years because he had some prior non-violent felony convictions. The Ninth Circuit ruled in Andrade's favor (pdf file, opinion by the brilliant and nice Judge Paez).

These cases are a good example of the truth of something I read just the other day, in a fascinating book called Courting Justice: Gay Men and Lesbians v. the Supreme Court by Joyce Murdoch & Deb Price. Justice Douglas told the story that when he first went on the Court, Chief Justice Hughes said to him,

"Justice Douglas, you must remember one thing. At the constitutional level where we work, 90 percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections."

So now, whenever anybody accuses me of being a cynic about Supreme Court decisionmaking, I'll just footnote Hughes, C.J.

But there is not only emotion in these cases, there is also a relevant – though conflicting and messy – series of Supreme Court precedents. Start with Rummel v. Estelle (1980), upholding a life sentence with possibility of parole after 12 years for a guy with prior convictions who cheated somebody out of $120. Then comes Hutto v. Davis (1982), upholding 40 years for 9 oz. of pot. Looking bad for Ewing and Andrade, huh? But then comes Solem v. Helm (1983), holding unconstitutional a sentence of life without parole for a guy, with prior convictions, who was convicted of passing a bad check.

So by this point in 1983 – thanks to these three 5-4 (or practically so, in the case of Hutto v. Davis) decisions – the law is impenetrable. It looks like maybe the rule is "life without parole for a non-violent offense is too much, but anything short of that is ok". And the Justices are always divided as to what the underlying doctrine here is: can the courts review a sentence to see whether it's "proportionate" to the crime, in the courts' view? or not? It would have been nice if the Court had cleared up this mess in Harmelin v. Michigan (1991) but instead they just made it worse. There was no majority opinion in Harmelin, Rehnquist, C.J. and Scalia, J. said, in effect, "all criminals lose. no constitutional review of felony sentences for proportionality." O'Connor, Kennedy, and Souter, JJ., say "some very very narrow constitutional review of sentences for proportionality, but life without parole for 650 grams of coke is ok by us." Four justices, of whom Justice Stevens is the only one left on the Court, dissented from the upholding of that sentence.

So where are we? Let's take Ewing first. We know, from some non-precedential musings about the denial of cert in a case a few years ago, that the four quasi-liberal justices think that there's a serious constitutional question here. Assume that they are for reversal, then; this is just a working assumption and as you will see it makes no difference to the outcome of my prediction. We know – not to a dead certainty, but pretty well – that Chief Justice Rehnquist and Justice Scalia think that this review of length of sentences is no business of the courts; and it's a good guess that Justice Thomas will join them in this view. So you've got 3 for affirmance. Now you are seeing, again, why they say that Justice O'Connor (and to some extent Justice Kennedy) are the swing votes on this Court. So what will Justice O'Connor think? Here are our clues: she was among the dissenters in Solem, who would have upheld life without parole for passing a bad check, and she also joined Justice Kennedy's opinion in Harmelin saying that review for proportionality is very limited and deferential. If life without parole for a bad check was ok in 1983 – and if she hasn't changed her mind very much since 1983, and Harmelin suggests that she may have just a little, but probably not very much – then Justice O'Connor will vote to "ding" Ewing, and Justice Kennedy probably will too based on his opinion in Harmelin, and so Ewing loses. Therefore I say AFFIRM in Ewing

What about Andrade? In one sense, his case is stronger than Ewing's, because he got a longer sentence for more piddly crimes, and crimes that were right on the cusp between misdemeanor and felony. (As Judge Paez's Ninth Circuit opinion described it, these sometimes-felony-sometimes-misdemeanor crimes are called "wobblers" in California.). This not-quite-felony nature of the crimes could have made the difference for Justice O'Connor, if this case were coming up on direct review. But there are a couple of wrinkles in Andrade that make it hard to get to affirmance. First, there's a question as to whether Andrade's notice of appeal was timely, when he appealed from the District Court to the Ninth Circuit; and if it wasn't, then he loses here. And, perhaps even more importantly, because his case is on habeas corpus review, the stringent (I would say "horrible") recent statutory limitations on federal habeas review come into play, such that he can win only if the state court decision was not just wrong but also an unreasonable application of clearly established U.S. Supreme Court precedent, which means something like "obviously wrong". My best guess is that, based on one or both of these points, Justices Kennedy and O'Connor will vote to REVERSE in Andrade along with the Chief and Scalia and Thomas, JJ. (Note: under the rules I've made for myself, "vacate" and "reverse" are the same in terms of my predictions; so "vacated on account of the appellate jurisdiction problem" would count as a correct guess on my part). In short, both defendants will lose. But the law will still be a mess, with a significant chance of no majority opinion that 5 justices agree on in either case.

posted by sam 12:10 PM 0 comments

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