The Story of Ewing v. California: Three Strikes Laws and the Limits of the Eighth Amendment Proportionality Review

Abstract

In 1994 California enacted the nation's harshest three strikes law. Under this law, any felony can serve as a third strike, and conviction of a third strike requires a mandatory prison sentence of 25 years to life. In Ewing v. California, 538 U.S. 11 (2003), the Supreme Court held that sending a drug addict who shoplifted three golf clubs to prison for 25 years to life under the three strikes law did not violate the cruel and unusual punishment clause of the Eighth Amendment.

The chapter for the forthcoming Criminal Law Stories tells the story of the Ewing case, describing Gary Ewing’s life, the crime that became his third strike, and each stage of his case. It describes all of the players and brings to life the oral argument and the Supreme Court’s opinion.

This chapter also explores three questions: First, why did California law impose such a draconian sentence for such a minor offense? The chapter tells the story of the voter initiative that enacted the three strikes laws, the unsuccessful efforts to amend the law, and it describes the way the law has been enforced by California’s elected district attorneys and construed by its courts.

Second, why wasn't such a sentence prohibited by the cruel and unusual punishment clause? The chapter reviews the Supreme Court’s prior Eighth Amendment cases and analyzes the majority and dissenting opinions in Ewing. The chapter concludes with a discussion of the question what limits -- if any -- the Eighth Amendment imposes on the state's authority to replace policies based on rehabilitation, retribution, and individualized sentencing with a policy that seeks to protect society by incapacitating recidivists.

Keywords: three strikes, Ewing, criminal law, sentencing