Ewing v. California

538 U.S. 11

Case Year: 2003

Case Ruling: 5-4, Affirmed

Opinion Justice: O'Connor

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Kennedy, Rehnquist, Scalia, Thomas


1st Concurring Opinion

Author: Scalia

Joiner(s): Thomas, Alito

1st Dissenting Opinion

Author: Breyer

Joiner(s): Stevens, Souter, Ginsburg

2nd Concurring Opinion

Author: Thomas


2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


On March 3, 1993, members of the California state legislature introduced Assembly Bill 971, the initial version of what would later become the three strikes law. When a legislative committee defeated the bill, some members of the public were so outraged that they began a voter initiative to add Proposition 184, which was based loosely on the bill, to the ballot in the November 1994 general election.

In October 1993, while Proposition 184 was pending, a twelve-year-old girl, Polly Klaas, was abducted at a slumber party at her home in Petaluma, California, and murdered. Her killer, Richard Allen Davis, had a criminal history that included two prior kidnapping convictions. He had served only half of his most recent sentence (sixteen years for kidnapping, assault, and burglary). Had Davis served his entire sentence, he would still have been in prison on the day he kidnapped Polly Klaas.

The young girl's murder generated substantial support for the three strikes legislation. The California state legislature passed the law by wide margins and the governor signed it in March 1994. Nine months later, on November 8, California voters approved Proposition 184 by a margin of 72 percent to 28 percent. With this vote, California became the second state to enact a three strikes law. In 1993 voters in Washington State approved a three strikes law, by a margin of 3 to 1. Then, between 1993 and 1995, twenty-four states and the U.S. government enacted three strikes laws.

These laws are intended to protect the public safety by increasing the prison terms for repeat felons. In most, as the term "three strikes and you're out" suggests, previously convicted felons are sentenced to twenty-five years to life for a third felony. But features of laws vary from state to state--with some observers suggesting that California's is particularly "strict." For one thing, unlike in other states, the crime triggering the third strike need not be a violent felony; any third felony can trigger application of the law. Second, certain types of crimes, known as "wobblers," may be classified as either felonies or misdemeanors depending on the defendant's prior record. For a prior felon, a charge of shoplifting, a misdemeanor, can be prosecuted as a felony and, accordingly, become a third strike.

It is up to California prosecutors to charge a wobbler as either a felony or a misdemeanor. In the case of Gary Ewing they decided on the former. On parole from a nine-year prison term, Ewing walked into a store in Los Angeles County in March 2000. He walked out with three golf clubs, priced at $399 apiece, hidden in his pants leg. An employee, whose suspicions were aroused when he saw Ewing limping out of the store, called the police, who arrested Ewing in the parking lot.

Because grand theft--the crime of which Ewing was accused--is a wobbler under California law, the prosecutors could have charged him with a misdemeanor. But they did not; they instead charged him with one count of felony grand theft. Ewing had been convicted previously of four serious or violent felonies for three burglaries and a robbery.

After he was convicted of the grand theft offense, Ewing asked the court to reduce the conviction to a misdemeanor so as to avoid a three strikes sentence. Under California law, the judge has the power to take this step; that is, courts have discretion to reduce a wobbler charged as a felony to a misdemeanor to avoid imposing a three strikes sentence. But the judge determined that the grand theft should remain a felony. 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 twenty-five years to life.

Ewing appealed, claiming that his sentence of twenty-five years to life for theft was grossly disproportionate to his crime under the Eighth Amendment's cruel and unusual punishment clause. The California courts rejected his claim, and Ewing filed a petition with the U.S. Supreme Court.

By the time the Supreme Court granted his request for review, Ewing's case had generated severe criticism of California's law, as well as its fair share of support. Critics charged that the law works in a racially biased way; in particular, that blacks are "struck out" far more often than whites. Some also argued that because three-strikes cases are much more likely to go to trial than to be plea bargained, they will cause congestion in the legal system and cost taxpayers an exorbitant amount of money. The American Civil Liberties Union, for example, estimates that trials can cost $50,000, whereas a plea bargain runs only about $600. Supporters of the law, on the other hand, claimed that the benefits well outweigh potential costs. For example, they argued that the California law has resulted in a significant decrease in crime. To substantiate this argument, they pointed to data from the U.S. Justice Department showing that crime in California declined 45 percent between 1991 and 2000, compared to the national average of 30 percent.



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. . . . The Eighth Amendment, which forbids cruel and unusual punishments, contains a "narrow proportionality principle" that "applies to noncapital sentences.". . .

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." Id.

Applying these factors in Solem, we struck down the defendant's sentence of life without parole. . . . Eight years after Solem, we grappled with the proportionality issue again in Harmelin [ v. Michigan, 1991]. Harmelin was not a recidivism case, but rather involved a first-time offender convicted of possessing 672 grams of cocaine. He was sentenced to life in prison without possibility of parole. 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." He would thus have declined to apply gross disproportionality principles except in reviewing capital sentences.

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." He then identified four principles of proportionality review--"the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors"--that "inform the final one: The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are 'grossly disproportionate' to the crime." JUSTICE KENNEDY's concurrence also stated that Solem "did not mandate" comparative analysis "within and between jurisdictions."

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. . . .

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.

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.

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. To the contrary, our cases establish that "States have a valid interest in deterring and segregating habitual criminals."

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. In particular, released property offenders like Ewing had higher recidivism rates than those released after committing violent, drug, or public-order offenses. Approximately 73 percent of the property offenders released in 1994 were arrested again within three years, compared to approximately 61 percent of the violent offenders, 62 percent of the public-order offenders, and 66 percent of the drug offenders.

In 1996, when the Sacramento Bee studied 233 three strikes offenders in California, it found that they had an aggregate of 1,165 prior felony convictions, an average of 5 apiece. The prior convictions included 322 robberies and 262 burglaries. About 84 percent of the 233 three strikes offenders had been convicted of at least one violent crime. Ibid. In all, they were responsible for 17 homicides, 7 attempted slayings, and 91 sexual assaults and child molestations. The Sacramento Beeconcluded, based on its investigation, that "[i]n the vast majority of the cases, regardless of the third strike, the [three strikes] law is snaring [the] long-term habitual offenders with multiple felony convictions. . . ."

The State's interest in deterring crime also lends some support to the three strikes law. We have long viewed both incapacitation and deterrence as rationales for recidivism statutes. . . .

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. It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons "advance[s] the goals of [its] criminal justice system in any substantial way."

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 . . . 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. . . .

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. Ewing has been convicted of numerous misdemeanor and felony offenses, served nine separate terms of incarceration, and committed most of his crimes while on probation or parole. His prior "strikes" were serious felonies including robbery and three residential burglaries. 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. The State of California "was entitled to place upon [Ewing] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State." Ewing's is not "the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Harmelin (KENNEDY, J., concurring in part and concurring in judgment).

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.

It is so ordered.


In my concurring 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 [1983]--that the Eighth Amendment contains a narrow proportionality principle--if I felt I could intelligently apply it. . . . I cannot.


I agree with JUSTICE SCALIA's view that the proportionality test announced in Solem v. Helm (1983) 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.


The plurality applies JUSTICE KENNEDY's analytical framework in Harmelin [ v. Michigan, 1991]. 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. . . .

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

As to California itself . . . 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. Moreover, California, which has moved toward a real-time sentencing system (where the statutory punishment approximates the time served), still punishes far less harshly those who have engaged in far more serious conduct. It imposes, for example, upon nonrecidivists guilty of arson causing great bodily injury a maximum sentence of nine years in prison, (prison term of 5, 7, or 9 years for arson that causes great bodily injury); it imposes upon those guilty of voluntary manslaughter a maximum sentence of 11 years (prison term of 3, 6, or 11 years for voluntary manslaughter). It reserves the sentence that it here imposes upon (former-burglar-now-golf-club-thief) Ewing, for nonrecidivist, first-degree murderers. ([S]entence of 25 years to life for first-degree murder).

As to other jurisdictions, we know the following: The United States, bound by the federal Sentencing Guidelines, would impose upon a recidivist, such as Ewing, a sentence that, in any ordinary case, would not exceed 18 months in prison. The Guidelines, based in part upon a study of some 40,000 actual federal sentences, reserve a Ewing-type sentence for Ewing-type recidivists who currently commit such crimes as murder; air piracy; robbery (involving the discharge of a firearm, serious bodily injury, and about $1 million); drug offenses involving more than, for example, 20 pounds of heroin; aggravated theft of more than $100 million; and other similar offenses. The Guidelines reserve 10 years of real prison time (with good time)--less than 40 percent of Ewing's sentence--for Ewing-type recidivists who go on to commit, for instance, voluntary manslaughter; aggravated assault with a firearm (causing serious bodily injury and motivated by money); kidnaping; . . . and other similar offenses. Ewing also would not have been subject to the federal "three strikes" law for which grand theft is not a triggering offense. . . .

The upshot is that comparison of other sentencing practices, both in other jurisdictions and in California at other times (or in respect to other crimes), validates what an initial threshold examination suggested. 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.

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. . . . 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.

A case-by-case approach can nonetheless offer guidance through example. Ewing's sentence is, at a minimum, 2 to 3 times the length of sentences that other jurisdictions would impose in similar circumstances. That sentence itself is sufficiently long to require a typical offender to spend virtually all the remainder of his active life in prison. These and the other factors that I have discussed, along with the questions that I have asked along the way, should help to identify "gross disproportionality" in a fairly objective way--at the outer bounds of sentencing.

In sum, even if I accept for present purposes the plurality's analytical framework, Ewing's sentence (life imprisonment with a minimum term of 25 years) is grossly disproportionate to the triggering offense conduct--stealing three golf clubs''Ewing's recidivism notwithstanding.

For these reasons, I dissent.