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Any assessment of the proportionality of Ewing's sentence must begin with his lengthy criminal record. California has a vital interest in punishing recidivists more severely than first-time offenders, and Ewing's record demonstrates that he is a dangerous career criminal. Because incapacitating the defendant is the only effective way to end his one-man crime wave, Ewing's sentence is not grossly disproportionate to his desert.
Society must be allowed to punish repeat offenders more severely. Recidivist statutes are an attempt to diminish crime by concentrating resources on those who pose the greatest danger to society.
"The purpose of a recidivist statute such as that involved here is not to simplify the task of prosecutors, judges, or juries. Its primary goals are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time." Rummel v.Estelle, 445 U. S. 263, 284 (1980).
Therefore, "recidivism . . . . --prior commission of a serious crime--is as typical a sentencing factor as one might imagine."Almendarez-Torres v. United States, 523 U. S. 224, 230 (1998). This Court does not have to agree with the philosophy behind the three strikes law to uphold Ewing's sentence. See Spencer v. Texas, 385 U. S. 554, 568-569 (1967). However, an appreciation of the considerable analytical strength behind California's law reinforces the deference that should be paid to Ewing's sentence.
Recidivist statutes like the three strikes law are sensible. Increasing the penalty for subsequent crimes may deter some of those who were not deterred by the initial penalty. Those who are beyond deterrence and repeatedly commit crimes should be incapacitated for a lengthy time in order to protect society. Arguments to the contrary are counterintuitive. See Janiskee & Erler, Crime, Punishment, andRomero: An Analysis of the Case Against California's Three Strikes Law, 39 Duq. L. Rev. 43, 43 (2000).
Statistical evaluation of claims regarding criminal justice is inherently difficult. Data can be difficult to collect. The processing of individuals from suspects into convicted criminal is long and complex. Courts, police, and prosecutorial agencies are not designed to generate easily collected and quantified data. Even when relevant figures are found, drawing conclusions can be difficult. For instance, it is difficult to separate cause from effect when examining the connection between crime rates and incarceration rates. "Increased incarceration is likely to reduce the amount of crime but there is also little question that increases in crime will translate into larger prison populations." Levitt, The Effect of Prison Overcrowding Litigation, 109 Q. J. Econ. 319, 322 (1996). This is known as "simultaneity bias." Ibid. It can also be very difficult to separate the many factors that can influence the crime rate such as weather, demographics, gang wars over the crack cocaine trade, changes in other laws, or changes in prosecutorial emphasis. Since the effects of the many variables cannot be easily separated, measuring the deterrent or incapacitation effect of the three strikes law or similar measures is imprecise at best.
However, there is still statistical support for three strikes' effect on reducing crime. The three strikes law took effect in March 1994. From 1995 to 1998 California's homicide rate declined at an annual rate of 13.36%. From 1992 through 1994 the rate of change for the homicide rate was increased by 1.57%. See Janiskee & Erler, 39 Duq. L. Rev., at 53, 69. These results are statistically significant at the 99.5% level of probability. See id., at 53-54. The violent crime figures tell a similar story. Over the same periods, the violent crime index fell 8.66% annually in the post-three strikes period and, declined only .50% pre-three strikes. See id., at 53. Once again, this was significant at a 99.5% level. See ibid. The pre-three strikes total crime rate fell 2.35%, but the post-three strikes total crime rate fell 8.39%. See id., at 52, 67. Although the nationwide crime rate also fell during this period, California's rate fell much faster. See Jones, Why the Three Strikes Law is Working in California, 11 Stan. L. & Pol'y Rev. 23, 24 (1999).
Such figures cannot conclusively prove that three strikes reduces crime, but they do not have to since the state does not have the burden of proving the efficacy of its punishment. See Rummel v. Estelle, 445 U. S. 263, 285 (1980) (within the discretion of the punishing jurisdiction). These figures reinforce the conclusion that the state has a valid basis for believing that the sentence advances the goals of the criminal justice system in a substantial way, cf. Solem v. Helm, 463 U. S. 277, 297, n. 22 (1983), which is all that is necessary given the deference due to the legislature.
Three strikes also stands upon a solid theoretical foundation. Numerous studies have examined chronic offenders. "These studies consistently show that offender samples can be subdivided into a low-frequency category (comprised of a large number of 'occasional' offenders) versus a high-frequency category (comprised of a small number of chronic offenders)." R. Wright, In Defense of Prisons 108 (1994). The results are similar whether derived from studies of the arrest records of age-group cohorts, see id., at 109-111 (summarizing studies), or from the self-reported offenses of prisoners. See id., at 111-112 (summarizing research). The estimates may vary from 5% of a cohort being responsible for 75% of all felonies, see L. Shannon, Criminal Career Continuity 217 (1988), or 32% of all offenders being responsible for 82% of total crime index arrests, see M. Wolfgang, T. Thornberry, & R. Figlio, From Boy to Man, from Delinquency to Crime 201 (1987), but in every case a relative handful of offenders are responsible for much crime. Even among recidivists there are chronic offenders. A study of those rearrested within three years of leaving prison in 1994 found that while offenders with 35 or more arrests over their careers were only 12% of the sample, they were responsible for 34.4% of all arrests of recidivists, nearly triple their proportionate share. See Langan & Levin, Bureau of Justice Statistics, Recidivism of Prisoners in 1994, p. 5 (2002) (table 4).
Recidivism figures reflect this reality. The single best prediction of future criminality is a lengthy criminal history. Thus one study found that "after the third arrest there is an approximately 80 percent chance that subsequent arrests will follow." Wolfgang, Thornberry, & Figlio, supra, at 85. Similarly, the Bureau of Justice Statistics study found that while 40% of those with 1 prior arrest were arrested within three years of their release, 70.3% of those with 7-10 priors, 79.1% of those with 11-15 priors, and 82.1% of those with 16 or more priors were rearrested within three years of their release. See Langan & Levin, supra, at 10 (table 12). Another study tried to replicate the predictive powers of the three strikes law. It examined 73 Canadian offenders who would have qualified for the three strikes penalty and examined their criminal history after release. Under a conservative estimate that tracked only those who had committed the Canadian equivalent of three violent felonies under the three strikes law, the study found that less than one-third of these criminals did not commit any more violent offenses after their release from prison. See Burt, et al., Three Strikes and You're Out: An Investigation of False Positive Rates Using a Canadian Sample, 64 Fed. Probation 3, 4 (June 2000). This figure was considered a conservative estimate of the three strikes "false positive" rate, see ibid., a figure it found distressingly high. See id., at 5. However, since the study could only count those offenses for which the offenders were caught, the harm caused by these recidivists is likely to be much higher than the authors' estimate.
Any total even remotely close to this figure more than justifies the three strikes approach. A one-third "false positive" rate means two-thirds of the sample did commit one or more violent felonies after release. If someone has a long criminal history, stands convicted of a felony, and has even a 50% chance of subsequently committing a violent felony, then lengthy incarceration is not just acceptable, it is imperative. The Constitution allows states to punish or otherwise limit freedom on the basis of future dangerousness. See United Statesv. Salerno, 481 U. S. 739, 748-749, 755 (1987); Jurek v. Texas, 428 U. S. 262, 274-275 (1976). Three strikes simply continues this trend, one that has been followed in various forms by Congress and 24 states. See Clark, Austin, & Henry, "Three Strikes and You're Out": A Review of State Legislation, NIJ Research in Brief, p. 1 (Sept. 1997).
There is also substantial anecdotal support for the initiative. In the three years following the initiative there was a substantial exodus of parolees. See Ardaiz, California's Three Strikes Law: History, Expectations, Consequences, 32 McGeorge L. Rev. 1, 29 (2000); see also Janiskee & Erler, supra, 39 Duq. L. Rev., at 45-46. "Gregory Gaines, a two-strike parolee from Folsom Prison remarked upon his release that 'a lot of people' at Folsom are frightened by the Three Strikes law. Gaines said, 'I've flipped 100 percent, it's a brand new me, mainly because of the law. It's going to keep me working, keep my attitude adjusted.' " Janiskee & Erler, 39 Duq. L. Rev., at 45. The District Attorney for Kern County, California, "related that 'I go to prisons and do classes for inmates on "three strikes." There is no other topic of conversation within institutions other than the impact of this statute. "Am I a two-striker? Am I three-striker? What if you've got one of these, is that a strike?" And they're intently interested in it. Many of them are talking about moving out of the state.' " Id., at 46.
There are reports that are critical of three strikes' impact on crime. See, e.g., F. Zimring, S. Kamin, & G. Hawkins, Crime & Punishment in California: The Impact of Three Strikes and You're Out (1999); Beres & Griffith, Did "Three Strikes" Cause the Recent Drop in California Crime? An Analysis of the California Attorney General's Report, 32 Loy. L.A. L. Rev. 101 (1998), but they do not prove the case against three strikes. The Zimring study is crippled by severely flawed methodology, such as examining arrest rates so soon after the initiative went into effect. This meant that many of the arrests examined in the study had to be for crimes committed before the three strikes law. See Janiskee & Erler, 39 Duq. L. Rev., at 46-51 (listing criticisms). Analyzing crime rates for the first few years of the initiative cannot measure three strikes incapacitative effect because those serving sentences during this period would still be in prison even without the three strikes enhancement. Any incapacitative effect will be measured over time as three strikes starts to extend the sentences. Cf. Kessler & Levitt, Using Sentence Enhancements to Distinguish Between Deterrence and Incapacitation, 42 J. L. & Econ. 343, 359 (1999) (describing this effect with respect to sentence enhancements under California's Proposition 8). The Beres and Thompson article is only a "not proven" verdict on three strikes, concluding that "there is no evidence that Three Strikes played an important role in the drop in the crime rate." 32 Loy. L.A. L. Rev., at 102. This conclusion, if true, but see supra, at 19, has limited relevance to the Eighth Amendment debate. A state does not have to prove the efficacy of any punitive measure, let alone undertake the prohibitively difficult task of showing that any single measure was by itself responsible for a staggering drop in the crime rate.
Three strikes was a controversial measure within the academic community, and amicus will not try to address every article or study hostile to the measure. "The underlying assumption of this [Zimring's] study--and all similar statistical studies--is that the abstract world of probability is more reliable as a basis for public policy than experience and common sense. It is as if some pre-Socratic philosopher--perhaps Heraclitus-- were to put forth the paradox that probability is Being." Janiskee & Erler, 39 Duq. L. Rev., at 43 (footnote omitted). Data, theory, and experience all support the common sense idea behind three strikes, that hardcore recidivist felons should be punished much more severely when they continue to commit felonies.
The three strikes law is part of a long tradition of recidivist laws. The individual states and Congress will differ on how to define and punish recidivists, but that is their right. "Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction." Rummel, 445 U. S., at 285. California has made that choice and it had good reasons for doing so. A look at the facts of Ewing's case demonstrates the wisdom of the decision.
Ewing's case is not one of the "exceedingly rare" examples of a grossly disproportionate prison sentence. Cf. Rummel, 445 U. S., at 272. His criminal career is long, varied, and serious. Before his current felony conviction, the defendant had suffered a first-degree robbery conviction, and three separate residential burglary convictions. See App. to Pet. for Cert. 24. He had "suffered nine convictions, some of which were misdemeanors from 1988 through 1993 when he was imprisoned for the robbery and burglary offenses." See App. to Pet. for Cert. 25. His current offense was committed nine months after his release from prison for the robbery and burglary offenses. See App. to Pet. for Cert. 25.
Ewing is a one-man crime wave--he cannot or will not stop offending. Parole and probation seem to have no effect on him, and he was not deterred by his prison sentences. He is a chronic offender who has left society no alternative but to incapacitate him in order to protect itself.
The propriety of Ewing's sentence is reinforced by the facts of this Court's more recent proportionality cases. Ewing's sentence compares favorably to either of the recidivist cases, Rummel and Solem. Solem, the only modern case to strike down a prison sentence on Eighth Amendment grounds, involved a longer sentence for a less culpable defendant. Although Ewing's sentence is long, 25 years to life is still less than Helm's life without possibility of parole. See 463 U. S., at 279. Ewing's current crime, grand theft, is also more severe than the crime for which Helm was sentenced to life, "uttering a 'no account' check for $100." Id., at 281.
More importantly, Ewing's criminal record is much more severe than Helm's. Although Helm's prior felonies outnumbered Ewing's by six to four, Ewing's are considerably more severe. Unlike Helm's comparatively minor third-degree burglary convictions, see ante, at 16, Ewing's burglaries are residential. See App. to Pet. for Cert., at 24. (5) Residential burglary is a much more serious matter than the third-degree, commercial burglary of Solem.
The common law had considered burglary to be a very serious offense because of the "abundant terror" of the crime, and the high risk of violence if the burglar is caught in the act by the occupants. See 4 W. Blackstone, Commentaries 223 (1st ed. 1769). At common law, burglary was limited to residential entries at night. See id., at 224-225. While the three strikes law does not distinguish between day and night residential burglaries, this crime still causes significantly more harm, and carries much more danger than the third-degree burglaries of Solem.
California courts have consistently recognized that public safety, not protection from trespass or theft, is the essential rationale for its burglary laws.
"Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation--the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety." People v. Gauze, 15 Cal. 3d 709, 715, 542 P. 2d 1365, 1368 (1975) (internal quotations omitted); accord People v. Montoya, 7 Cal. 4th 1027, 1042, 874 P. 2d 903, 911-912 (1994).
Burglary is serious because it takes advantage of our sense of security in our home. See Ardaiz, 32 McGeorge L. Rev., at 18. "It is not just entry into a residence to commit theft. It includes entry to commit assault, rape, robbery, or any number of other felonies. Just ask anybody who has been burglarized whether they have a greater or lesser sense of security after the crime. Ask them whether they continued to feel safe in their home." Ibid.
Some victims were asked. A survey of English burglary victims found that "65 per cent of the victims interviewed 4 to 10 weeks after the event said it was still having some effect on their lives." Maguire, The Impact of Burglary Upon Victims, 20 Brit. J. Criminology 261, 264 (1980). The lingering effects were most commonly "a general feeling of unease or insecurity and a tendency to keep thinking about the burglary." Ibid. Women were more vulnerable, being more likely to have strongly adverse reactions than men. See id., at 263. A burglary victim "frequently engages in interactions where a consistent theme is voiced: people, especially kids, can't be trusted, and a victim can't expect much help from law enforcement or from insurance companies. Stated in an extreme form, it is a threatening world over which one has little control." Paap, Being Burglarized: An Account of Victimization, 6 Victimology 297, 301 (1981).
Burglary is also a very difficult crime to solve. In 2000, only 13.9% of burglaries known to police were cleared by arrests, as opposed to rates of 56.9% for aggravated assault or 63.1% for murder and "nonnegligent" manslaughter. See U. S. Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 2001, p. 383 (2002) (Table 4.19). When combined with the considerable distress that comes from being burglarized, victims are understandably frustrated. See Hawkins, Evaluating the Residential Burglary Victim's Attitude Toward Police, 52 The Police Chief 33, 33 (Dec. 1986). This can only decrease public support for law enforcement. See id., at 33-34. While improved victim relations can alleviate some of this, see id., at 34, burglary still harms the public's perception of law enforcement. When such an invasive crime is so rarely solved, the perception of public safety is rightly diminished.
Burglary is also deemed a violent felony under §1402 of subtitle I of the Armed Career Criminal Act of 1986. See 18 U. S. C. §924;Taylor v. United States, 495 U. S. 575, 578 (1990). This statute provides a sentence enhancement of a defendant convicted of unlawfully possessing a firearm, see 18 U. S. C. §922(g), who has three or more prior convictions for "a violent felony or a serious drug offense . . . ." See 18 U. S. C. §924(e)(1). "Violent felony" specifically includes burglary. Id., subd. (e)(1)(B)(ii). In Taylor, the defendant claimed that his two prior convictions for second-degree burglary under Missouri law should not count as violent felonies "because they did not involve 'conduct that presents a serious potential risk of physical injury to another,' under §924(e)(2)(B)(ii)." 495 U. S., at 579. Because the statute did not define burglary, the Court had to ascertain what Congress meant for that term to cover. See id., at 580.
After reviewing the history of the statute and its predecessor, see id., at 581-587, this Court came to several conclusions. "First, . . . Congress focused its efforts on career offenders--those who commit a large number of fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at least a potential threat of harm to persons." Id., at 587-588. Congress appreciated the risk of a violent confrontation caused by the burglar's intrusion. See id., at 588. Congress thus concluded that those burglaries "punishable by imprisonment for more than a year constituted a category of crimes that shared this potential for violence and that were likely to be committed by career criminals." Ibid. Therefore, the Court rejected petitioner's contention that Congress only included a subclass of burglaries that were either "especially dangerous" or fit the common law definition. See id., at 598. Instead, the Court adopted the "generic" modern definition of burglary "an unlawful or unprivileged entry into, or remaining in, a building or other structure with intent to commit a crime." Ibid.
The three strikes burglary is much more severe, being limited to residential burglaries, and requiring an intent to commit larceny or a felony. See supra, at 25, n. 5; Cal. Penal Code §459. Residential burglary is a serious matter. It carries a real risk of danger and involves the violation of one's most personal space. It is thus very traumatic for the victims and can undermine police authority. California is justified in treating multiple prior convictions of this crime very severely.
Any doubt about Ewing's record is erased by his robbery conviction. See App. to Pet. for Cert. 24. California defines robbery traditionally, as the "taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force of fear." Cal. Penal Code §211. Ewing's propensity for violence is further demonstrated by his battery and possession of a firearm and by the fact that two of his "strikes" "were violent and involved the use of a weapon." See App. to Pet. for Cert. 28. Ewing's extensive criminal record outside his strikes is also relevant to his sentence. California courts have the authority to avoid a three strikes enhancement by dismissing one or more of the prior "strikes" in the interest of justice. See Peoplev.Williams, 17 Cal. 4th 148, 161, 948 P. 2d 429, 437 (1998). Since one's criminal record outside of the strikes would be relevant to this decision, it is also relevant to the Eighth Amendment analysis of any three strikes sentence.
Ewing is much more dangerous than Helm, and received a less severe sentence. While he received a potentially longer sentence than Rummel, Ewing is considerably more dangerous. See Rummel, supra, 445 U. S., at 265-266 (Rummel's nonviolent record). Given the strength of California's interest in incapacitating chronic offenders and Ewing's serious and violent record, his sentence was not grossly disproportionate to his culpability.
The decision of the California Court of Appeal for the Second Appellate District should be affirmed.
July, 2002
Respectfully submitted,
Charles L. Hobson
Attorney for Amici Curiae
Criminal Justice Legal Foundation
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5. Only residential burglaries qualify as prior "strikes" under the three strikes law. See Cal. Penal Code §§1170.12(b)(1), 1192.7(c)(18) (first
degree), 460(a) (first degree=residential).