Erwin Chemerinsky - The Conservative Assault on the Constitution

ALSO BY ERWIN CHEMERINSKY

Empowering Government:
Federalism for the 21st Century

Criminal Procedure (with Laurie Levenson)

Constitutional Law

Constitutional Law: Principles and Policies

Federal Jurisdiction

Interpreting the Constitution

Copyright 2010 by Erwin Chemerinsky

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Library of Congress Cataloging-in-Publication Data
Chemerinsky, Erwin.
The conservative assault on the constitution / Erwin Chemerinsky. 1st ed.
p. cm.
Includes bibliographical references and index.
ISBN-13: 978-1-4165-7468-2
ISBN-10: 1-4165-7468-9
ISBN-13: 978-1-4516-0635-5 (ebook)
1. Constitutional lawUnited States. I. Title.
KF4550.C426 2010
342.73dc22
2010027864

To my wife, Catherine.
Her support and encouragement made this book possible;
her love makes every day a joy.

of the United States ever had been sentenced to life in prisonwhich is effectively what Andrades sentence amounts tofor shoplifting before California adopted its three-strikes law. The Eighth Amendment to the Constitution prohibits cruel and unusual punishment. Surely life in prison for shoplifting is cruel and it ought to be unusual.

Yet, as I stood before the United States Supreme Court justices on a Tuesday morning in November 2002 to argue that Andrades sentence was unconstitutional, I knew that the odds were against me. Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas already were on record expressing the view that the length of a persons sentence never could be challenged under the cruel and unusual punishment clause of the Eighth Amendment. Nothing that I could say could change their minds.

President Ronald Reagan and they were far more likely to side with the conservatives than with the liberals, especially in cases involving criminal defendants.

As I wrote the brief for the Supreme Court and prepared for the oral argument, I thought that I could not have a stronger set of facts for arguing that a sentence was unconstitutional. before my argument in the Supreme Court, on November 4, 1995, Leandro Andradea nine-year army veteran and father of threewas caught shoplifting five childrens videotapes ( Snow White, Casper, The Fox and the Hound, The Pebble and the Penguin, and Batman Forever ), worth a total of $84.70, from a Kmart store in Ontario, California. The stores loss prevention officer observed Andrades actions and Andrade was stopped, the videotapes confiscated, and he was arrested for shoplifting.

Just two weeks later, on November 18, Andrade went to a different Kmart, in Montclair, California, and was caught shoplifting four childrens videotapes ( Free Willy 2, Cinderella, The Santa Clause, and Little Women ) worth $68.84. Again Andrade was observed on store video cameras, he was stopped by security officers, the videotapes were confiscated, and Andrade was arrested for shoplifting.

Andrades reason for stealing the videotapes never was clear. He maintained that the videos were to be gifts for his nieces and nephews. The state contended that he meant to sell them and buy drugs. Andrade had become a heroin addict while serving in the army and had long struggled with addiction.

I never asked him why he stole the videotapes. At trial, before a jury, it might matter in making him seem more sympathetic. But I became his lawyer on appeal, in the federal court of appeals and then the Supreme Court, where the issue was solely about whether his sentence was constitutional. Besides, the reason for his crimes doesnt matter under the law. Stealing $153 worth of videotapes generally is regarded as the crime of petty theft, a misdemeanor under California law. caught shoplifting twice in California faces a maximum sentence of one year in jail, six months for each crime.

California law, however, provides that petty theft can be charged as a felony if the defendant has previously been convicted of a property crime. This is titled the offense of petty theft with a prior. When someone with a prior property conviction gets caught shoplifting, the district attorneys office in that county decides whether to charge the person with the misdemeanor of petty theft or with the felony of petty theft with a prior.

When Andrade got out of the army he committed a series of relatively minor property crimes, including some other shoplifting. His most serious offenses were in 1983, twelve years before he was caught stealing from the Kmart stores, when he committed three residential burglaries on the same day. He was unarmed and nobody was home at any of the houses when he broke into them. He was caught and convicted of the burglaries. He was sentenced to two and a half years in prison, which he served. Unfortunately, the time in prison did not cure his heroin addiction; drug treatment programs are lacking in Californias prisons and prisons across the country.

Because of those three residential burglaries that occurred more than a decade earlier, Andrades stealing of the videotapes from the Kmarts was charged as the crime of petty theft with a prior. Ironically, if Andrades prior crimes had been rape and murder, his maximum sentence for stealing the videotapes would have been one year in jail; petty theft with a prior requires that the previous conviction be for a property offense.

is punishable by three years in prison. The way Californias sentencing structure works, two counts of petty theft with a prior is punishable by a maximum of three years and eight months in prison. If that had been his sentence, he would have received a significant punishment for stealing $153 worth of videotapes.

But felonies, but the third strike can be any felony; it need not be a serious or violent one. About half the states in the country have three-strikes laws, but California is alone in not requiring that the third strike be a serious or violent crime. The campaign for the initiative focused on how a young girl, Polly Klaas, had been kidnapped and murdered by Richard Allen Davis, a man who was free on probation despite several prior convictions for violent crimes. All of the publicity surrounding the initiative emphasized the need to keep violent criminals locked up. None of the newspaper editorials about the initiative or the mailings sent to voters about it mentioned the possibility that it could be applied when the third strike was a minor offense such as shoplifting or possession of a small amount of drugs. There is no indication that Californias voters realized this aspect of the initiative.