Three Strikes

Penal Overkill In California?

The toughest criminal law in the land was the subject of a major U.S. Supreme Court case this year.

And the decision, which was announced months after 60 Minutes II first aired this feature last fall, was as deeply divided as the controversy surrounding the law itself.

California's three-strikes law says that if someone commits a third felony after committing two prior similar felonies, then the sentence is a mandatory 25 years to life.

In such a case, Leandro Andrade was given not one but two sentences of 25 years-to-life for stealing nine children's videotapes, including "Snow White," "Cinderella" and "Free Willie 2."

The tapes were worth $153.54, and lawyers for the state of California argue that the penalty is both correct and constitutional. But the other side argues that Andrade's punishment is cruel and unusual. Correspondent Dan Rather reports.


“I’m not a killer. I'm not a rapist. I'm really not a bad person once you get to know me,” says Leandro Andrade, a 44-year-old convict who may make legal history. “Do I deserve to be locked up for the rest of my life, because a certain judge feels that's what he deserves?”

Under his sentence, Andrade will be 87 before being eligible for parole.

“I understand what I did was wrong. I knew I had to be punished. Now, you have to pay for that crime, for the mistakes that you make in life," says Andrade. "But I wasn’t aware that for that little mistake I was going to receive a 25-to-life sentence.”

Was it a just sentence? “For a petty theft, it carries, maximum three years,” says Andrade. “That’s what I believe I should be doing for petty theft ... because I didn’t kill anybody. I didn’t hurt anybody."

In November 1995, Andrade, a U.S. Army veteran and lifelong heroin addict, says he wanted videotapes as Christmas gifts for his nieces. So he went to a Kmart, and a couple of weeks later, visited another Kmart store down the road. He tried to steal the videos and was caught by security guards at both stores.

“On the way out of the store, they approached me. And they asked me if I had any concealed tapes,” he says. “And I said yes. I didn’t argue with them. I didn’t fight with them or anything else.”

Andrade was sentenced to life in prison. It happened because California is the only state where a misdemeanor crime can be made into a third strike. They call it a “wobbler”: So long as the first two crimes were clearly felonies, then a third crime – be it stealing a bike or a pizza, as happened to others, or videos, can send a person to prison for 25 years to life.

Andrade got the 25 years doubled for two cases of shoplifting, which became his third and fourth strikes under California’s law. His first two strikes were for home burglaries that were committed back in 1983. Neither involved violence. In fact, Andrade didn't carry a weapon with him for either burglary.


Violence was on the minds of California voters when they overwhelmingly passed the three strikes law in 1994. The law’s passage was triggered by the vicious murder of Polly Klass, 12, who was snatched from her home, raped and strangled to death by a drifter named Richard Allan Davis. Davis had a long and violent criminal record, and officials like Sen. Dianne Feinstein were strong supporters of the law.

Today, more than half the states have some kind of three strikes law. But California is the toughest law in place. “The law was about putting the Richard Allan Davises behind bars for life, not the shoplifters,” says Erwin Chemerinsky, Andrade’s lawyer.

So what constitutional issue is involved in this case?

“The eighth amendment to the constitution prohibits cruel and unusual punishment. For at least a century, the Supreme Court has said that grossly disproportionate penalties violate the cruel-and-unusual-punishment clause," says Chemerinsky, a law professor at the University of Southern California. "If any punishment is grossly disproportionate, it's stealing $150 worth of video tapes and getting 50 years to life in prison.”

However, the state of California disagrees. “It's not cruel and unusual because we are not punishing him for what upfront might appear to be a minor crime, the theft of the video tapes. We are punishing him for failing to heed the lessons of his prior history,” says Grover Merritt, the California prosecutor leading the fight to keep Andrade in prison.

Merritt points out that Andrade has a long list of crimes on his rap sheet: “He's been a thief, he's been a burglar, he's crept into people's homes. He's dealt marijuana in sufficient quantity to get arrested and prosecuted by the federal government twice. He escaped from a federal prison. And after that, he still committed a petty theft in Orange County, and then he came here to steal from our Kmarts.”

But none of Andrade’s crimes were violent, and under the law, a third strike can only be called if the first two strikes were for similar crimes. In this case, Andrade's downfall was committing a handful of burglaries back in 1983.

When he takes his case before the real justices, Chemerinsky will not be arguing that the three strikes law is unconstitutional – just Andrade’s sentence.

“It's when it becomes 50 years in prison that it's undesirable. I mean, there's an irrationality to California law. If Andrade’s prior offenses had been rape and murder, the most he could have received as a sentence for stealing videotapes was a year in jail," says Chemerinsky. "But because the prior crimes had been property offenses, he got 50 years in prison. That's just irrational."

Andrade is doing his time at Tehachapi Prison, and he has lots of company. More than 7,000 California convicts have been struck out and over half of them have been convicted of non-violent crimes.

Three others that had substance abuse addictions and lengthy criminal records are Robert James, Darren Stokes and Greg Pierson.

Pierson’s third strike was for possession of stolen property. James was locked up for petty theft -- shoplifting some food and beer from a supermarket. And Stokes’ was in for possession of narcotics: “I got three life sentences for it."

"They should take into consideration the severity of the crime ... if they could be helped or not," says Pierson. "Because basically they're just throwing away the key on us."

Their only key to opening the prison doors is Andrade. If Andrade wins, hundreds of California's non-violent three strikers could go free on the grounds their punishments are also cruel and unusual. But if Andrade loses, most will never see the outside of the prison walls.


But three strikers have people rooting for them. They call themselves FACTS -- Families Against California’s Three Strikes. Their earlier efforts to amend the three strikes law have failed, and even politicians sympathetic to their side don’t want to appear soft on crime.

Now, they are hoping that the Supreme Court will help them by ruling for Andrade. But Merritt says their prayers deserve to go unanswered: “This is an individual for whom three strikes was designed and this is an individual who deserves to have had the full weight of it dropped on him.”

"It is designed to be a street sweeping statute," adds Merritt. "You want to get people who have murders and robberies and rapes and burglaries in their backgrounds before somebody gets murdered or burglarized or raped or robbed.”

But even jurors who found Andrade guilty don't agree with his sentence, which was imposed by a judge at a separate hearing. In fact, Deborah Freeman one of two forepersons on the Andrade jury, didn't even know the sentence before 60 Minutes II contacted her.

"There are people in prison that have committed murder that are serving less years than this man is for selling videotapes," says Freeman. "I mean, it's ludicrous."

And, for the first time, jury foreperson Bridget George heard what the sentence was during this interview: "I was pretty shocked," says George, who believes that only Andrade deserves a Supreme Court review. "First to life is just incredibly out of this world for me for this particular crime."

"I think that it is cruel and unusual punishment, 50 to life, for stealing videotapes," adds Freeman.

In the end, the only opinions that matter are those of the nine justices of the Supreme Court. And 60 Minutes II asked for predictions:

"I'm very confident that we're going to win it," says Andrade.

"I think there are six possible justices who might be willing to say this sentence violates the Constitution," says Chemerinsky.

"I had a law professor who used to say, 'I'd rather be a jockey than a bookie,'" says Merritt. "That having been said, I would not be surprised to see 5-4, 6-3, something like that."

Until then, the lives and futures of convicts like Leandro Andrade hang on this single case.

"If I lose, Andrade's earliest possible parole date is the year 2046, when he's 87 years old," says Chemerinsky. “I can't help but keep in mind if I lose, then it's doubtful that there's going to be any successful challenges to the three strikes law.”

Merritt, however, has less sympathy. "You would never want to see anybody get 50-to-life," says Merritt. "But I think the criminal history at this point, greatly outweighs any sympathy I might have for him.”

The Supreme Court decision was as close and conflict-ridden as nine justices can get: 5 to 4 against Andrade and upholding the three strikes law.
  • David Kohn

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