Criminal

Ewing v. California
CHAPTER 3: Defining Criminal Conduct the Elements of Just Punishment; p. 190-197
C. Proportionality
NAME:
FACTS:

Ewing v. California, 538 U.S. 11 (2003), Supreme Court of the U.S.

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PROCEDURE:

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(State of California) v. (Ewing); s criminal history:

1984 (age 22) theft
1988- Sept. 1993 4 other offenses (burglary, battery, possession of
drug paraphernalia, possession of firearm)
Oct.-Nov. 1993 (over 5 weeks) 3 burglaries, 1 robbery; sentenced to
116 months
10 months later on parole in 1999, stole 3 golf clubs valued at $399/club
CA charged under Three Strikes and Youre Out (3S) Law; asking
reduction to misdemeanor
Trial court sentenced under three strikes law to 25 years to life for felony
grand theft
CA Court of Appeal affirmed
CA Supreme Court denied s petition for review
SCOTUS grant certiorari

ISSUE:

Substantive Issue(s)
1. Is life sentencing for repeat felons under California 3S law
unconstitutionally disproportionate w.r.t. 8th Amendment (prohibiting cruel
and unusual punishment)?
a. Considerations for proportionality review?

HOLDING:

No. (OConnor, Rehnquist, Kennedy); Concurring (Scalia, Thomas)

REASONING:

Rule: (8th A. Proportionality review)

a) Solem v. Helm: Proportionality violation determination factors: (i) gravity of
the offense and harshness of the penalty, (ii) sentences imposed on other
criminals in same jurisdiction, (iii) sentences imposed for same crime in
other jurisidictions
b) Harmelin v. Michigan [Narrow Proportionality & 4 Principles of
Proportionality Review for Noncapital Sentences]: (i) primacy of
legislature, (ii) the variety of legitimate penological schemes, (iii) the
nature of our federal system, (iv) requirement that proportionality review
be guided by objective factors 8th A. does not require strict
proportionality between crime and sentence, forbids only extreme
sentences that are grossly disproportionate to crime
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(Policy) California has reasonable basis for 3S to further penological goals,

rational legislative judgment of 3S as deliberate policy choice w/ re:
recidivism and deterrence
criminal record property offenders have higher recidivism rates, state
rational legislative judgment that repeat offenders should be incapacitated
(public-safety interest)

Criminal
DISPOSITION:

Affirmed.

DISSENT (or)
CONCURRING:

Concur (Scalia, Thomas):

o Proportionality tied to retribution; public-safety interest has nothing to do
principle of proportionality, means majority decision is evaluating policy
o 8th A. has nothing to do with guaranteeing proportionality; proportionality
separate from cruel and unusual
o Dissent in Harmelin states proportionality requirement was an aspect of our
death penalty jurisprudence, rather than a generalizable aspect of the 8 th A.
law
Dissent (Breyer, Stevens, Souter, Ginsburg):
o Gross Disproportionality comparative analysis: to validate/invalidate (a)
length of prison term, (b) sentence-triggering criminal conduct, (c) offenders
criminal history
compared w/ Solem and Rummel cases; extreme, thus invalidates
Ewing sentence extreme even under federal Sentencing Guidelines
(would be < 18 mo.)
o CA 3S includes crimes against person, crimes create danger of physical harm,
drug crimes; does not even include serious crimes against property
Retribution as issue was not raised
In terms of deterrence, sentencing is overkill

NOTES:

Rule: (CA 3S Law) 1 prior serious or violent felony conviction = 2 times the term
provided as punishment; 2+ prior felony convictions = indeterminate term of life
imprisonment; certain offenses are wobblers and can be classified as either
felonies or misdemeanors
o Amended in 2012 CA 3S Law nonviolent crimes for drug, firearm and sex
offense related crimes
Rule: (8th Amendment) Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
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Plurality: simple or absolute majority

Ambit: scope, extent, bounds
Recidivism: persons relapse into criminal behavior, often after person
receives sanctions or undergoes intervention for a previous crime
Culpability: responsibility for fault or wrong
Utilitarian v. Retribution:
Retributive: Backward looking; attribute importance to offenders past
behavior and blameworthiness of behavior. Punishment is justified bc
ppl deserve it
Utilitarian: Forward looking; seeks to justify punishment on basis of good
consequences it is expected to produce in future. Control crime via
deterrence, incapacitation, and rehabilitation. Justification lies in the
useful purposes that punishment serves