Jewish World Review March 13, 2003 / 9 Adar II, 5763

Terry Eastland

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Justices show right restraint in ruling on anti-crime measures | Last week, the Supreme Court acted as it often should - with restraint.

It did so in four cases involving crime-control policies adopted by three states. In two of the cases, the court refused to strike down a California law that sends repeat offenders to prison for life. In the other two cases, it declined to find fault with Alaska and Connecticut laws that alert the public to sex offenders who have been released from prison.

In all four cases, the court refused to say the laws under scrutiny conflicted with some provision or other of the Constitution. Thus did the court restrain itself.

Restraint, of course, must be justified. Indeed, if a court neglects to strike down a law that conflicts with the Constitution, it has failed in its judicial duty. But in the four cases last week, the court lacked a constitutional provision or principle that would have required it to nullify the challenged laws. It rightly was restrained. In fact, it would have abused its power had it not held back.

The California law requires terms of at least 25 years for defendants convicted of any felony who previously had been convicted of two "serious" or "violent" crimes. Because the statute makes the third conviction so decisive for the defendant's future, it has been called the "three strikes and you're out" law.

California adopted its three-strikes law in 1994. Today, 25 states have similar measures. Their common purpose is to ensure that habitual offenders receive the toughest sentence available.

Predictably, the challenges to the California law came from defendants who had been struck out. They sought to argue the call against them by challenging the rule under which it had been made, their specific complaint being that the rule - the three-strikes law - violates the Eighth Amendment's prohibition on cruel and unusual punishment.

The "third strike" against the defendants involved seemingly minor offenses. In one case, a man convicted of stealing three golf clubs worth $1,200 was sentenced to 25 years without parole. In the other, a man convicted of stealing videotapes from a Kmart got 50 years without parole.

The argument in each case was that the sentence was so grossly disproportionate to the offense as to constitute cruel and unusual punishment. Yet as the court recognized, a three-strikes sentence can't be judged simply by focusing on the triggering offense.

After all, a strikeout is what the law reserves for defendants with a history of felony recidivism. And in each case, the defendant wasn't a petty thief but someone with a long, serious criminal record. Once you consider those records, the sentences don't seem so disproportionate. Which is why the court declined to hold the law unconstitutional.

The court also didn't say the law is necessarily a good one. Justice Sandra Day O'Connor noted that Californians continue to debate the law's wisdom. Its cost efficiency has been doubted, as has its effectiveness in reaching its goals. But those properly are matters for the California legislature to take up.

As Justice O'Connor wrote, "We do not sit as a 'superlegislature' to second-guess [its] policy choices. It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons advances the goal of its criminal justice system."

As for the sex offender notification laws in Alaska and Connecticut, also known as Megan's laws, they require offenders to register with authorities and provide their name, address and a photo. That information then is posted on a Web site.

In the Alaska case, former offenders complained that the registration requirement is retroactive punishment prohibited by the Constitution's ex post facto clause. Yet the point of the registration, as the court pointed out, isn't to punish the offender yet again but to inform the public. No constitutional violation there.

In the Connecticut case, the court rejected the argument, based on constitutional due process, that before posting data about offenders on the Web, the state must give them a chance to demonstrate at a hearing that they aren't dangerous. The court correctly observed that no such hearings are necessary because the law includes individuals in the registry by reason of their conviction, not on account of any "future dangerousness."

Once again, there was no constitutional violation. And once again, there was justified restraint. At least in the four cases decided last week, the court exercised its power as it should have, leaving the states ample room to make rational policy choices.

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JWR contributor Terry Eastland is is publisher of The Weekly Standard.Comment by clicking here.

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© 2002, Terry Eastland