0:00:00.0 S?: We'll hear argument now in number 016978, Gary Albert Ewing v. California.

0:00:10.6 Leon: What's up, guys? This is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about Ewing v. California. In this case, Ewing claimed that California's three-strikes law violates the Eighth Amendment's cruel and unusual clause.

0:00:27.4 S?: State-wide, the majority of third-strike charges have been for non-violent and non-serious crimes. The law allows prosecutors some discretion in their handling of such cases. Prosecutors could either disregard prior convictions or file lesser charges, but in Los Angeles, they are vigorously enforcing the three-strikes law.

0:00:48.3 Leon: The Court rejected Ewing's Eighth Amendment claim and allowed the sentence of 25 years to life to stand. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:05.4 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left our liberties frayed and fading, like a set of Nazi linens at a billionaire's dinner party. I'm Peter, I'm here with Michael.

0:01:23.8 Michael: Hey, everybody.

0:01:23.9 Peter: And Rhiannon.

0:01:24.1 Rhiannon: Not so shiny anymore, huh?

0:01:25.9 Peter: Once again, we are behind the news cycle, but we've probably gone long enough without mentioning the controversies swirling around Clarence Thomas, who A, appears to have not disclosed some gifts from his billionaire friend, and then also B, that billionaire friend has a lot of Nazi memorabilia.

0:01:55.9 Michael: That's right.

0:01:56.4 Rhiannon: It's quite a bit, yeah.

0:01:57.8 Michael: It's a lot, yeah.

0:01:58.9 Peter: More than you'd want someone to have. If I went to one of your houses and there was a ton of Nazi stuff, I don't think there's anything you could tell me where I'd be like, "Oh, that's your reason?"

0:02:12.0 Rhiannon: "That's an explanation, right?" Right, yeah. No, and it's not just... We're not just talking about a stamp, you know, "Oh, my grandfather when he fought in Germany, he brought home like this envelope, that had whatever on," you know, whatever, guy's fucking signature.

0:02:31.0 Michael: He pulled a medal or whatever off a dead Nazi.

0:02:33.0 Rhiannon: Exactly, no, no, no, no, no. We're talking about napkins with Nazi insignia, with swastikas, we are talking about portraits, we are talking about statues, we are talking about signed copies of Mein Kampf.

0:02:50.3 Michael: Hitler's original paintings.

0:02:52.7 Peter: He went to the original signing in Berlin of Mein Kampf.

0:03:01.2 Michael: No certificate of authenticity necessary.

0:03:06.0 Rhiannon: This guy fucking sucks, bro, and he's just financing Clarence Thomas's social life. He's on yachts with him, he's on vacation with him, they're flying in private jets.

0:03:17.1 Peter: All we want is for some creepy leftist billionaire to just do this for us. Can't we get a comparable treatment? I don't need planes. I'll take a Honda Accord.

0:03:29.9 Rhiannon: Yeah, yeah, absolutely. I'll take a gift card to the best steakhouse in Austin.

0:03:36.6 Peter: I'll take a Sephora discount for my wife.

0:03:42.0 Rhiannon: For the wife.

0:03:42.1 Michael: Don't need a private yacht, I'll go on a Disney cruise. I'm not above it.

0:03:45.2 Peter: Yeah, absolutely.

0:03:45.7 Rhiannon: You know how thrilled I would be if I just got a shopping spree at the mall?

0:03:52.7 Peter: We don't need to be financed by a billionaire. If someone is worth $1.3 million, they can absolutely take care of us, that is enough to meet our needs.

0:04:01.6 Rhiannon: You have so much to give me.

0:04:03.7 Peter: Today's case...

0:04:07.2 Rhiannon: Let's get on with the fucking podcast we do, I guess.

0:04:10.9 Peter: As we have to grind out a living. Today's case is Ewing v. California. This is a case about three-strikes laws. Three-strikes laws were a "tough on crime" policy that generally allow for severe punishments if a person is convicted of three separate felonies. In 1994, California passed its own three-strikes law, full title, I believe, the three-strikes and you're out law.

0:04:42.8 Rhiannon: Yeah, that's right.

0:04:43.6 Peter: Nice. Which would result in a sentence of 25 years to life, when a person was convicted of their third felony offense. In the year 2000, a man named Gary Ewing stole three golf clubs from a pro shop. However, because he had several felonies on his record, his sentence for stealing those golf clubs was 25 years to life. He challenged the sentence saying that it was so disproportionate to the crime that it constituted a cruel and unusual punishment under the Eighth Amendment, but the Supreme Court in a 5-4 decision says No, actually, it is fine.

0:05:28.1 Rhiannon: All good.

0:05:29.4 Michael: Actually, I'm going to be a little pedant. This was actually a 3-2-4 decision. I think this is our first plurality opinion, or maybe our second. There were five people obviously who were like, Yeah, this is fine, but they didn't really agree as to why.

0:05:47.2 Rhiannon: Yeah, it's a weird one. So let's talk about just three-strikes laws in general, kind of set the stage for how this law gets passed in California, and then What happens to Mr. Ewing. So three-strikes laws are also known as habitual offender laws, sometimes persistent offender, prior offender laws. Basically, generally, they mean that someone who commits a third offense after committing two previous offenses gets a harsher punishment, harsher sentencing range on that third time. Three-strikes and you're out, self-explanatory, right?

0:06:21.7 Peter: Yeah, and you know that you're a serious person when you are building your public policy on important issues around a sports metaphor in full, such that the lives of actual human beings are subject to the whims of what happens in baseball.

0:06:44.4 Rhiannon: Yeah, good work, everybody. So in general, in most places, we're talking about felony offenses, right, if you've committed two felonies before your third felony conviction is going to come with a harsher punishment than the felony would have had if you didn't have that prior criminal history. Sometimes this means the mandatory minimum is higher, sometimes this is a mandatory life sentence. Habitual offender laws have been around in the US for a long time. There are examples from the Prohibition era when the seat of Michigan gave life sentences to people who had multiple convictions for illegal alcohol production. New York has a long-standing "felony repeat offender" law, which was at one point found unconstitutional and then it was reinstated.

0:07:29.6 Rhiannon: I'll give an example, a modern day real-time, this law exists right now from Texas, because I know about this law, and it actually does not have the harshest possible sentencing scheme on its habitual offender statute here in Texas, but it is insane and hopefully the example kind of draws this out. But again, this is a law today in Texas. So Texas does its version of the three-strikes law based on three prison trips, it's not just a felony conviction, but a felony conviction for which you did prison time, you went to prison for it.

0:08:05.2 Rhiannon: So here's an example. A third-degree felony in Texas typically carries with it a possible sentence of 2 to 10 years in prison. So say you commit a third-degree felony, let's say it's tampering with evidence, tampering with evidence is a third-degree felony in Texas. Say you go to prison for two years on that, you got the minimum prison sentence. Now say you got out of prison and six years after that you're convicted of stealing livestock. Stealing livestock in Texas is also a third-degree felony. Punishment is 2 to 10 years, the two cows you stole that happened to be from the county judge, so they're really mad about it, and you get three years in prison.

0:08:44.9 Rhiannon: Now you've done two prison sentences, so on your third felony, it could be a third-degree low-level felony again, which typically carries that 2 to 10 years, but on that third felony in Texas, that is going to be 25 to life, your minimum prison sentence is 25 years. So let's say it's drugs, let's say it's fraudulent use of a debit card, both of those can be third-degree felonies, 25 to life on that third prison trip.

0:09:16.9 Rhiannon: So there are laws like this all over the country, and in fact, between 1993 and about 1998 or so, 23 states and the federal government adopted some form of three-strikes and you're out laws, and they did this to target so-called repeat offenders. There's a New Jersey law on the books. A person convicted of a more serious violent crime who has been convicted of two or more crimes that were committed on prior and separate occasions shall be sentenced to a term of life imprisonment by the court with no eligibility for parole, that's a particularly harsh one, that's life without parole in New Jersey on your third serious felony conviction.

0:09:58.5 Rhiannon: So this case does come out of California, and California had arguably the harshest and most broad three-strikes law in the country for a while. Three-strikes in California began in 1994 when California voters enacted three-strikes and you're out. This happened after 18-year-old Kimber Reynolds was tragically shot and killed during an attempted purse snatching. Both of the assailants involved in that shooting had long criminal records, and Kimber's father Mike Reynolds was enraged when one of them received a nine-year sentence as part of a plea bargain.

0:10:34.0 Rhiannon: Mike Reynolds went on a grief-fueled crusade. He told media that Kimber's attackers would get out of prison before the Reynolds family was finished paying for her funeral. He accused the state of California of being a uninvited conspirator, and he was incredibly harsh and cruel in his view of people who commit multiple offenses. He said: "They're little more than animals, they look like people, but they're not. The unfortunate thing is they're preying on us, we have to get them out so the rest of us can go on living." A few months later, after 12-year-old Polly Klaas was kidnapped and murdered, Mike Reynolds appeared at a press conference with the California AG, where the attorney general announced support for the three-strikes law.

0:11:20.8 Peter: I wanted to note here that what's happening here is that you're having these serious crimes committed by people who might not have committed serious crimes before, but they committed a string of lower level crimes. So what someone like Mike Reynolds is saying is that was enough information to know that they are engaged in anti-social behavior or something like that.

0:11:46.2 Michael: These are irrevocably broken people.

0:11:49.0 Peter: Right. And we should just get them off the streets before they commit the serious crime. I do think it's worth stepping back and realizing that this is some Minority Report shit that they are trying to accomplish here. Literally saying, Well, these people will eventually commit a serious crime, so we should get them off the streets before they do it.

0:12:18.9 Michael: Yeah. To say nothing of the fact that they might be learning to commit serious crimes in their various stops in prison.

0:12:26.6 Rhiannon: Right. Or are the victim of serious crime, right.

0:12:27.3 Michael: While they're in there, yeah.

0:12:28.7 Rhiannon: At the time this case, the Supreme Court case, was decided, the law in California meant that a life sentence was imposed for almost any crime, no matter how minor, if the defendant had two prior convictions for crimes that were defined as serious or violent. And there was a broad definition of what counted as serious or violent, like many felony offenses that didn't include the use of a weapon still counted as serious and violent. Juvenile offenses could also count against you for the three-strikes law in California. Even though it was meant to, according to the legislative history, even though it was meant to "keep murderers, rapists and child molesters behind bars where they belong," today more than half of the people sentenced under California's three-strikes law are serving sentences for non-violent crimes.

0:13:18.4 Rhiannon: This is according to the Three-Strikes Project at Stanford Law. The Three-Strikes Project has represented individuals who have been given life sentences in California for offenses including stealing a dollar in loose change from a parked car, possessing less than a gram of narcotics, and attempting to break into a soup kitchen. Important to note, before the three-strikes law was adopted in California, the state already had life without parole sentences for serious repeat felons, so the chief impact of the law has been to imprison way more people for far less serious offenses.

0:13:58.2 Rhiannon: And of course what happens any time you expand the reach of the carceral system is that you are sucking up and disappearing more poor people and people of color. Statistics from the California Department of Corrections show that over 45% of people sentenced under the three-strikes law in California are Black. They also show that a disproportionate number of disabled people and people with mental illness are sentenced under the three-strikes law. And just to add one more point, adding a little bit of judicial ethical controversy into the mix, at least into the story about how this law was passed, and then we'll get into the specific facts of this case, but just looks like maybe the week before voters in California voted on the three-strikes law, it was revealed that a high-ranking state appellate court justice, Judge James Ardaiz of the Fifth District Court of Appeal based in Fresno, California, Ardaiz had helped Mike Reynolds draft the three-strikes law.

0:15:07.8 Rhiannon: This is a judge who would be sitting on cases in which people would be sentenced under the three-strikes law. This is in many minds, a violation of judicial ethics that you would help draft a bill, help write the law that then you would be ruling on later. Many judges spoke out, said that judge Ardaiz should absolutely be recusing himself from those cases, so yeah, just to add that into the mix. Mike Reynolds had some judges on his side, not just in terms of their views of the efficacy or importance or need for something as cruel as the three-strikes law, but literally sort of materially aiding him, helping him literally draft the bill.

0:16:00.3 Peter: I just want to flag that the purpose of keeping murderers, rapists and child molesters behind bars is distinctly not what the law does. Like if you want to keep murderers behind bars, then when someone is convicted of murder, you increase their sentence. What this is doing is assuming that people who commit three low-level offenses are murderers or rapists or child molesters, despite the fact that you don't have any evidence that they are. That's the point of this law.

0:16:35.0 Michael: In order to keep rapists behind bars, somebody who walks out of a golf pro shop...

0:16:41.2 Peter: Well, let's not get ahead of ourselves.

0:16:44.8 Rhiannon: Right, right. No, exactly. So let's get into it. This case is the story of Gary Ewing and what the State of California did to Mr. Ewing with its three-strikes law. So Gary Ewing was 38 years old in the year 2000, when he walked into the pro shop of a golf course and stole three golf clubs in the leg of his pants. An employee called the police after watching Mr. Ewing walk out with a limp and he was walking towards the parking lot instead of walking towards the golf course where he said he was headed, so the employee had some suspicion. Police come, they arrest him.

0:17:16.9 Rhiannon: Mr. Ewing was charged with felony theft in excess of $400, that is not a violent felony, that is not a serious felony, but he had a criminal record. Felony theft in this amount at the time in California carried a maximum three-year prison sentence, but of course, really sadly in Mr. Ewing's case, he had previously been convicted of theft and burglary, with his last conviction occurring maybe seven or eight years before this incident. Knowing he was facing a possible life sentence, Mr. Ewing and his attorney in court asked the judge to treat the new felony as a misdemeanor or to strike one of his prior felony convictions, which both of those things were allowed under the law at the time.

0:18:01.1 Rhiannon: They told the judge that all of Mr. Ewing's offenses had been drug-related, that he had battled addiction his entire life, he had never received assistance or treatment for those drug problems. In addition, Mr. Ewing was battling full-blown AIDS at the time. At the time of the trial, complications from AIDS had caused him to go blind in one eye, he was losing vision in the other. He addressed the court directly, he told the judge at sentencing: "I would just like to beg the mercy of the court, asking that any sentence I be given be suspended, and I'm given a chance in a drug rehab to get my life together. I don't have very long, and the little time I do have left to live, I want to do something, make myself better."

0:18:43.2 Rhiannon: The judge declined to use that discretion to strike any of the prior felony convictions or to treat this offense as a misdemeanor under the law, and he was sentenced to 25 years to life. Note that this is a life sentence with parole eligibility after 25 years. You have to serve at least 25 years before you're even eligible for parole. So Mr. Ewing and his attorneys challenged that sentence up to the Supreme Court, arguing that it was a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.

0:19:20.0 Peter: Right, so it might make sense to introduce a debate about the Eighth Amendment that was raging at the time. The Eighth Amendment, of course, prohibits cruel and unusual punishment. What exactly that means is a matter of debate, and there is a question of whether it includes disproportionate punishment, punishment that is not proportionate to the crime. The basic contours of this are that liberals have often said that it does refer to proportionality, and conservatives, or at least some conservatives, have said that it does not. And so the fundamental question here is whether the Eighth Amendment's prohibition on cruel and unusual punishment means that punishments can be unconstitutional if they are disproportionate to the crime, and then if so, how do you measure proportionality and how does it apply to this case?

0:20:18.7 Rhiannon: Yeah, and we should say in the death penalty context, the Supreme Court has been a little bit more specific about this. In a case called Coker, the Supreme Court said punishment in terms of the death penalty does have to be proportional to the crime. Sentencing somebody to death can't be for an offense that doesn't warrant that level of punishment.

0:20:40.6 Peter: Right. Which is why, for example, it is no longer constitutional to execute someone for sexual assault.

0:20:48.7 Rhiannon: Exactly.

0:20:48.8 Peter: Now, getting into the opinion, the opinion is written by Sandra Day O'Connor. It is a plurality opinion, so only Rehnquist and Kennedy join. Scalia and Thomas agree in the conclusion, but not in the reasoning. So we've mentioned many times that conservatives often start criminal procedure opinions with like a gory recounting of the crime, hoping to deprive the reader of any sympathy that they might have for the defendant whose rights they are, without a question, about to strip away. But here, there is no brutal crime, only a hilarious Benny Hill-style circumstance where this man walks straight-legged out of a pro shop and is immediately caught. The funniest crime.

0:21:38.4 Rhiannon: The definition of petty theft, right?

0:21:41.9 Peter: It would have been funny 50 years ago. It'll be funny in 50 years watching a man put a golf club in his pants and try to walk.

0:21:48.8 Michael: It does feel like a bit like Dan Aykroyd tried to pull in Trading Places or something, right?

0:21:54.8 Rhiannon: Yeah, it feels like a joke, it feels like a skit.

0:21:57.0 Peter: So O'Connor starts off instead by describing the kidnap and murder of Kimber Reynolds, the case that Rhi just mentioned that resulted in a public outcry that ultimately led to the creation of the California three-strikes law. Usually, the Court would not talk about a totally separate and materially irrelevant crime that led to the creation of the law that the guy is being convicted under, but presumably O'Connor wanted to raise the stakes a little bit, right.

0:22:29.1 Rhiannon: Yeah. Stealing the golf clubs isn't really enough, yeah.

0:22:31.1 Peter: Like, this is what could happen. One day we will look back on this moment where we didn't bury this guy under the jail for stealing three golf clubs with regret unless we act now. So moving on to the proportionality concept, she says that the Eighth Amendment contains a narrow proportionality principle, meaning that to some degree, the Eighth Amendment means that the punishment must fit the crime. What the Court says is that under the case law, a punishment need not be rigidly tailored to fit the crime, but it cannot be grossly disproportionate to the crime.

0:23:12.3 Peter: She starts to talk about three-strikes laws generally, she says that they are relatively new, but then she starts to talk about the importance of deferring to legislatures on important issues such as this, which of course is what the justices do when they really want to uphold the law in question. This is a matter of such importance that we must defer to the legislature. This isn't like three years prior when we struck down the Violence Against Women Act in US v. Morrison, for example, this is serious stuff.

0:23:48.6 Michael: These are the same five justices in majority who ignored the legislature in Castle Rock v. Gonzales.

0:23:54.3 Rhiannon: Absolutely, absolutely.

0:23:56.0 Peter: She then talks about how recidivism, meaning repeat offenses, repeat offenders, is a serious public policy concern. She says, Look, it's not our job as judges to figure out what the best policy is, although then she also lists out some evidence that it is a good policy in her mind, like she's just talking about how recidivism went down in California following the passage of the law...

0:24:20.5 Michael: Shocking.

0:24:21.1 Peter: Which I didn't look into, but the passage of the law was in 1994, so right before the largest drop in crime in American history. But whatever, okay.

0:24:27.8 Rhiannon: Okay, yeah, I looked at some reports that all said that the decline in crime as well as the decline in recidivism in California were all happening on trend anyway, like this trend was happening before the three-strikes law was passed in California, and the three-strikes law did not have an effect on that.

0:24:46.9 Peter: Yeah, so maybe read a graph some time, you fucking old bag. Alright. Then she gets to the specific analysis of Ewing's crime here, which is where the argument really starts to fall apart, 'cause it's easier to defend aggressive laws against repeat offenders in the abstract than it is to justify giving a guy 25 to life for stealing three golf clubs. She says, and I quote: "Ewing incorrectly frames the issue. The gravity of his offense was not merely shoplifting three golf clubs. Rather, Ewing was convicted of felony grand theft for stealing nearly $1200 worth of merchandise after previously having been convicted of at least two violent or serious felonies." So how was this framing incorrect?

0:25:39.5 Rhiannon: Right? Like you just framed it up, exactly...

0:25:43.9 Peter: All you did was just add words, but like he said, shoplifting three golf clubs. You want to tell me that that's not correct, right? That that's not correct. His framing was incorrect. He said that he just stole a car, but what he actually committed was grand theft auto. It's like an objectively correct description of what happened. Now, it's also worth noting that the most on-point precedent in this case is probably a case called Solem v. Helm. This is a case where a guy tried to cash a $100 check from a fake bank account in South Dakota, but because South Dakota had an aggressive anti-recidivism statute, he was sentenced to life in prison because it was like his seventh crime or something.

0:26:35.1 Peter: The court, and this was in the early '80s, threw that out, they said it was too disproportionate to the crime, they said that the crime was "one of the most passive felonies" a person could commit. O'Connor specifically says that stealing three golf clubs is not in the same category, but she doesn't really explain why not.

0:27:01.1 Michael: It's not like he pulled a gun on the cashier or something.

0:27:04.0 Peter: No, right, the guy who wrote a fake check was non-violently stealing from the bank. This guy is non-violently stealing from a golf pro shop, which is funnier.

0:27:16.9 Michael: And practically a bank.

0:27:19.0 Peter: Right, there's no threat of violence in either case. The only distinction that she points out is that this theft was for $1200. The fake check was for $100, so that was in 1979. I looked it up. That adjusts to $237 in year 2000 dollars. So if you are trying to pull a thread of logic out from the court's reasoning here...

0:27:45.4 Rhiannon: Harrowing.

0:27:46.2 Peter: They seem to be implying that somewhere between stealing $237 and stealing $1200, there's an unidentified line where you can risk life in prison. That is the fundamental logic of this opinion, so very good.

0:28:05.8 Rhiannon: Awesome.

0:28:08.2 Peter: I think it is time for a quick break. Alright, we are back.

0:28:15.7 Michael: Scalia and Thomas both disagree with the reasoning of the plurality opinion, but do agree with its conclusion, which is that these three-strikes laws are okay. So Scalia writes this concurrence where he says, Look, in my personal opinion, there is no proportionality requirement within the Eighth Amendment. The way I see it is, the cruel and unusual restriction forbids certain types of punishment, but in terms of measuring years of a prison sentence or whatever and trying to calibrate the severity of a punishment to the severity of a crime is just something that courts aren't supposed to do, and it's just not a part of this analysis whatsoever.

0:29:02.2 Michael: But, he says, nonetheless, as Peter mentioned, there is this case, Solem v. Helm, and he's like, I might be persuaded that based on stare decisis cases that we have to apply our decisions principally to nonetheless, just agree that there is a proportionality requirement, if, he says, if I believed I could actually figure out a good way to apply it. And then he explains why the plurality opinion is very badly applying the proportionality requirement here, because there's no universe in which you could say that this is a proportional sentence at all. Doesn't come to the conclusion then that stare decisis would demand that this law be struck down. Instead, he says, We should fuck stare decisis and...

0:29:56.8 Peter: He says, overturn that case.

0:29:58.9 Michael: Yeah, exactly.

0:30:00.0 Rhiannon: Yeah, and I think a really interesting thing to point out about Scalia's concurrence here, part of his main argument is like the Eighth Amendment prohibits certain types of punishment, right, but that is incongruent with Scalia's own views on what the Eighth Amendment allows in terms of kinds of punishment. He believes the Eighth Amendment allows the death penalty, for instance, there isn't a punishment that Scalia has ever said is off-limits for the Eighth Amendment. He said in death penalty opinions that at the time the Constitution was written, punishments including being tarred and feathered were allowed, being quartered were allowed, he's cool with those too, so it's completely ridiculous.

0:30:45.3 Michael: Yeah, but nobody ever tried the blood eagle and...

0:30:51.5 Rhiannon: I don't want to know, don't tell me, actually.

0:30:56.0 Peter: I do want to point out that his opinion here stems back to a dissent he wrote in a case called Harmelin v. Michigan, which we will eventually cover one day, where he sort of lays out his originalist analysis for why the idea that the punishment must fit the crime is not part of our Constitution, it was just based on this sort of half-baked analysis of what people thought cruel and unusual meant in 1791, and imagining that he can pinpoint precisely that like, Oh, it doesn't include proportionality. His main argument was basically like, Well, if they wanted it to include proportionality, they could have used the term or something similar, but they didn't, so we should assume that they were purposefully excluding it.

0:31:41.5 Peter: So they also didn't specify that it does refer to modes of punishment. But whatever. The thing about interpreting the Constitution is that you can either admit that your role is to be a fallible human being, interpreting broad and vaguely written principles, and proceed from there, or you can pretend to that the ghost of the Founding Fathers whispered to you at night, and you know exactly what this stuff all means.

0:32:10.7 Michael: Right. The dissent he's calling back to was half-baked, and this concurrence is somewhat half-baked. And he alludes to this sort of reasoning where in our jurisprudence, we sort of justify punishment on three different philosophical grounds. One is incapacitation, taking someone who's a danger to themselves or others away from the rest of society where they can't hurt people, except of course other prisoners; one is deterrence, making sure that people are scared of getting caught and therefore won't commit crimes; and one is retribution, which is just sort of like somebody's been wronged, and so the person who did that wronging should face some sort of penalty.

0:33:02.8 Michael: And he says basically, Look, proportionality makes sense for retribution. Your retribution should be proportional to the crime you committed, but that for incapacitation and deterrence, it doesn't make as much sense, like if you're calibrating your punishment just right for deterrence, that might be totally out of whack for retribution. And I think there's something to that, but it's not quite what he thinks.

0:33:33.5 Rhiannon: Right.

0:33:33.8 Michael: I don't know if we want to get into it now or just flag it for discussion later, but...

0:33:37.6 Peter: Yeah, I do think it's interesting, because he's sort of admitting that you cannot create a science of this, and yet he's still trying to do it.

0:33:47.2 Michael: Yeah, and we'll talk later about deterrence and incapacitation, and so just keep this in back of mind when we get back to those discussions. Thomas has a very funny concurrence where he says, Yeah, I agree with Justice Scalia that there is no proportionality requirement in the Eighth Amendment, but I couldn't join his concurrence because I could not be persuaded to abide by stare decisis under any circumstances and honor Solem v. Helm.

0:34:23.6 Peter: Yeah, good for him.

0:34:25.9 Michael: That's it. By the way, Scalia said he could maybe in some circumstances be persuaded to follow our precedent, not me.

0:34:32.0 Rhiannon: Just FYI, yeah.

0:34:34.2 Michael: Just FYI. Writing separately, just... Everybody knows, not me. Very classic Thomas [0:34:40.3] ____.

0:34:41.3 Rhiannon: Yeah. Idiosyncratic till the end, right? Okay, so moving on to the dissent, there are two dissents in this case, one by Justice Stevens, one by Justice Breyer. Both of them are okay. We use the word milquetoast a lot. These are a couple of milquetoast dissents.

0:35:01.6 Peter: They don't have a sharp theory of the Eighth Amendment, because I think why the conservatives, or at least this is why like Scalia and Thomas have won hearts and minds in academia on this, because at least you could sum up their theory of it in two sentences, you know?

0:35:19.2 Rhiannon: Right. Yeah, so Stevens in his dissent is primarily talking about this idea of proportionality, and he's saying, Look, of course, the Eighth Amendment is inclusive of a proportionality determination that judges can and absolutely should be doing. He points out like that before the imposition of sentencing guidelines and mandatory minimums in the US, judges had almost exclusive broad discretion to sentence defendants, and by and large, they did that by analyzing proportionality, like does the punishment fit the crime?

0:35:52.6 Rhiannon: And he also argues that a proportionality principle ensures that other things are taken into account when determining punishment beyond just incapacitation. You're taking into account deterrence, you're taking into account rehabilitation, right, all of those sort of various reasons for punishment are really taken out of the equation, taken off the table when we don't do a proportionality analysis. And he says: "I think it clear that the Eighth Amendment's prohibition of cruel and unusual punishment expresses a broad and basic proportionality principle that takes into account all of the justifications for penal sanctions. It is this broad proportionality principle that would preclude reliance on any of the justifications for punishment to support, for example, a life sentence for overtime parking."

0:36:40.1 Rhiannon: So he's making an obvious example here, something where a life sentence would obviously not fit the crime, and drawing the parallel that this case is just like that, right, a life sentence for stealing three golf clubs does not make sense because it is wildly disproportionate to the offense, to the conduct, right. And so it's like, Yeah, fine, I agree. But I agree, I strongly agree, right?

0:37:12.2 Peter: Yeah. No, he's... Right, and I think what he's almost trying to do is be like, if this were another type of case and not like the type of guy that Scalia et al believe should be off the streets, but if it was just like, Yeah, walking down the left side of the sidewalk is now life in prison, and then you just scoop someone up, what does the conservative analysis of the Constitution have to say about that?

0:37:39.1 Rhiannon: Exactly.

0:37:40.2 Peter: Is the answer nothing, because if so, what's the fucking point? Like what Scalia is saying is like, Oh, what this means is like you can't punish someone by like putting them in a vat full of needles, right. Like some shit like that. But he's somehow excluding punishments that are cruel and unusual in the context of the crime. And I don't know, it's so obvious that I think Stevens and Breyer both sort of like swing and miss because they can't quite articulate why it's so obvious.

0:38:20.1 Michael: Right. It's just like Scalia as someone who made his entire name on plain meaning of the text sort of thing, and what a normal person, a regular Joe would think reading the Constitution, how in the world could cruel and unusual not include some sort of reference to the crime itself.

0:38:45.2 Rhiannon: That's what I'm saying. Just say it's fucking cruel. Just say, it's fucking cool, right? They go through the details of the case. They say this man has committed so many fucking crimes and this woman years before was fucking murdered brutally, go through the facts. Say he has AIDS, right? He's been addicted to drugs his entire fucking life, he's never gotten support from society, not once. He stole three fucking golf clubs, you are sending him to life in prison. Fucking say it. It doesn't make any sense...

0:39:17.1 Michael: Right. We're sending him to death in prison.

0:39:18.8 Rhiannon: Right. He is going to die now in prison. Just say it. It doesn't make sense to do this fucking three-factor test, which is what fucking Breyer does in a second.

0:39:27.3 Michael: It's fucking cruel.

0:39:29.2 Rhiannon: So let's talk about Breyer. So Breyer's dissent, maybe even more milquetoast than fucking Stevens, Breyer kind of starts off with like giving them parts of the argument, like, yep, recidivism, that's a problem. Shoplifting, that is a problem in our society.

0:39:52.3 Peter: You ever go to the pro shop and the three clubs that you want aren't there, and you're like, What happened? And they're like, someone put that in their pants and walked out, because the penalty is only three years in prison and not 25 to life.

0:40:10.1 Rhiannon: It's so stupid. But he says, this sentence is an outlier and it is unique in its disproportionality, so we should be reviewing this.

0:40:20.2 Michael: An outlier and unique. Let's use the most fucking antiseptic clinical language possible.

0:40:28.5 Peter: It's an outlier, it's unique, it's... What's another word that's maybe in the Eighth Amendment?

0:40:36.6 Rhiannon: Exactly. So he does like this fucking three-factor test. He says you have to consider, one, the length of the sentence, two, the criminal conduct that triggered the sentence, and three, the person's criminal history. So Breyer says: "Outside the California three-strikes context, Ewing's recidivist sentence is virtually unique in its harshness for his offense of conviction, and by a considerable degree." Thank you.

0:41:06.2 Peter: Why did he need to separately... I was reading both of these dissents, and I was like, did we really need two of these? I felt like we needed one, tops. I want to talk about something that is barely mentioned by the Court here, even though in my view, it looms large, and part of the reason it's barely mentioned is because the liberals have completely conceded on it.

0:41:29.9 Peter: If you are a person who from time to time watches a procedural drama, you might be asking yourself whether punishing people based on their past crimes violates the principle of double jeopardy. Double jeopardy is the idea that no person can be convicted twice for the same offense, and it is explicitly forbidden by the Fifth Amendment. So there is a question of whether punishing someone more harshly for a crime based on the fact that they've committed other crimes in the past violates this principle, which is a big deal, because even outside of three-strikes laws, laws like Rhi mentioned, laws allowing for harsher punishments for repeat offenders are ubiquitous across the country.

0:42:19.8 Peter: The Supreme Court has for many, many years, rejected the idea that these types of punishments violate double jeopardy. They have held that the double jeopardy clause of the Constitution protects only against multiple punishments for the same offense, but that this type of thing isn't punishing someone twice for the same offense, it's punishing them more for the second offense based on the existence of the first offense.

0:42:48.3 Rhiannon: Right. Distinction without a difference.

0:42:53.4 Peter: The threads of this logic are a bit thinly woven, to use a metaphor. If the double jeopardy clause protects you from being prosecuted twice for the same crime, but you can just end run around it by functionally prosecuting them a second time at a later date, then you're not really protected from being prosecuted twice, are you? So substantively unaddressed here is that even putting aside the Eighth Amendment, if you dig through the layers of bullshit that the Supreme Court has heaped atop of the Constitution's protections for criminal defendants for over a century, there's probably a second constitutional violation here, and the only reason it's not really being talked about is because if anyone started talking about whether repeat offenders can be punished more and whether that violates the Constitution, that would up-end the aggressive carceral systems of every single state in this country.

0:43:53.1 Michael: Yeah, that's right. So I want to talk a little bit about deterrence and reasons we have punishment. So O'Connor starts her opinion, literally the beginning of her analysis, she says California's three-strikes law reflects a shift in the state's sentencing policies towards incapacitating and deterring repeat offenders who threaten the public safety. Now, as I mentioned, later on, Scalia will say basically that incapacitation and deterrence are both reasons, constitutionally permitted reasons, for the state to punish someone, and rationales for punishment that don't comfortably fit with the proportionality requirement. And I don't think that's true.

0:44:43.1 Michael: For one thing, we now have a wealth of social science research that shows that longer sentences do not meaningfully increase deterrence. This is just something that is just known. This is something that you can read about on the Department of Justice's websites. They recognize this, like the federal government.

0:45:07.8 Peter: But if that's true, why does America have the lowest crime rates in the world? I hate criminal justice debates to some degree because it's like fucking obviously, we have the worst system in the world.

0:45:24.2 Rhiannon: Objectively, by every metric.

0:45:28.9 Peter: There is no metric. We shouldn't have to have these fucking philosophical debates about this shit. The system sucks.

0:45:34.3 Rhiannon: Right. It's not working.

0:45:40.2 Michael: So what the study show is that it's not even the likelihood of being caught, it's perceptions of the likelihood of being caught. It's what people understand. Their likelihood of getting away with the crime is like the biggest thing for deterring crime is convincing them they won't get away with it, and that's true if it's a light sentence or a heavy sentence that they're expecting, which is another way of saying that people don't do complicated risk analyses where they're like, Well, there's a 7% chance I'll get caught, but if I do get caught then it's 30 years, so my risk is more like 2.7 years in prison I think I'm carrying, if I do this. People don't do that, they're just like, I'm not going to get caught, or I think I'm going to get caught, I'm not going to try that. That's really it, that's where it stops and ends.

0:46:35.1 Peter: Its likelihood and immediacy is what the scholars always say is whether you might quickly get snapped up and caught, and that's really it. It's actually crazy how little of a deterrent effect harsher sentences have, and it feels irrational, but it's just true.

0:46:53.5 Michael: Yeah, but are we really expecting people to know the ins and outs of sentencing guidelines and which different jurisdictions they might be subject to if they take this crime across state lines and how that might change their...

0:47:09.6 Rhiannon: Exposure.

0:47:11.4 Peter: Right, where like all of the extra charges that might be tossed at them by an aggressive prosecutor.

0:47:17.1 Michael: Right, right.

0:47:17.4 Rhiannon: Yeah, and not to mention that the likelihood of future crime being committed, this is this looming problem of recidivism, is actually like a contributing factor is how long you've been punished, how long you have been held incarcerated, how long you have been surveilled on probation or paroled by the state, because all of that time spent in prison is not time that you are learning to do better for yourself, that you are gaining resources for building a better life. You are experiencing violence, the state is enacting violence on you every single day, you are living with violence around you constantly, and so the likelihood of somebody committing future crime is not decreased by the amount of time that they spend inside a violent carceral system.

0:48:11.6 Peter: Right, and your ability to make a viable living once you exit prison is of course inhibited.

0:48:16.3 Michael: Right, and the other thing is incapacitation also, we have good information on this as well, which is that one of the biggest predictors of future likelihood of crime is just how old someone is. People age out of crime very quickly, I think it's like 35 or something, it's like people start to very quickly age out of crime, and especially violent crime, the crime that we're supposedly worried about here with the three-strikes laws. So incapacitation has very easy ways to think about things in proportion. If you are incapacitating someone for 30 years past the likely point that they'll be involved in crime, that's not proportional.

0:49:04.1 Michael: If you're incapacitating someone till they're 65, that's not proportional to any crime, really. We have data on this, this is analyses that policymakers can do, but it's analyses that judges can do. So like Scalia's just full of shit, the majority is just full of shit, and this law is bullshit. There's no philosophizing yourself into believing that this is justified, it's not. And on any standard of review, this should fail, even the most basic bitch, rational basis for view of the law, this should fail. It should. It doesn't meet any of its purported stated aims.

0:49:51.5 Rhiannon: Rational basis review is basic bitch level scrutiny. I like it.

0:49:57.4 Michael: That's right.

0:50:00.6 Peter: Yeah. I don't want to say the same thing too many times, but I do want to reiterate, like the purpose of this is to punish these people for a crime that they have not committed. That is the stated pose of the law is like we think these people are likely to commit severe crimes in the future, so we're going to punish them for it now. If you extrapolate that, you are genuinely punishing people for crimes they didn't commit, which should go without saying that is not constitutional.

0:50:29.7 Michael: You're somehow both punishing them again for a crime that you've already punished them for, and violating the double jeopardy clause, while also punishing them for crimes they have not yet committed, because you've basically made a judgment.

0:50:44.2 Peter: The only thing you're not punishing them for is the crime that they actually committed.

0:50:48.4 Michael: Right. You made a judgment about who they are and what they are. And as Rhiannon said earlier, it is less than human and animal, not someone worthy of real protection.

0:50:58.8 Peter: And this is why all of criminal law eventually devolve into good boy, bad boy theory.

0:51:05.3 Michael: I knew it.

0:51:06.3 Rhiannon: Here it comes.

0:51:06.9 Michael: I knew we were going to get there sometime.

0:51:10.5 Peter: They are designated bad boys in the eyes of the Supreme Court, and so it doesn't matter if you put them away for 25 years.

0:51:16.3 Rhiannon: Yeah, talking about society's bad boys, it's I think a discussion about who we scapegoat as a society, right? This law is passed in California in the 1990s, at a time when there was constant media coverage of crime, especially violent crime. There was dramatization, there was sensationalist news coverage, and there were conservative and liberal arguments that excessive leniency of the criminal system was a threat to public safety. And the general public, by a wide margin, agreed that sentences were too low. This law, the three-strikes law in California, was passed by voters by a wide margin. It had a lot of support in the public.

0:51:57.1 Rhiannon: You know, crime was an extremely salient political issue at the time. The idea of victims' rights and victims' advocacy groups gained political power and media attention. This is all happening in a context where we as a society are deciding that the problems that we're facing are about bad guys, bad guys that need to be punished harshly, right, bad guys that need to be disappeared.

0:52:25.7 Peter: Yeah, not good guys who just love to collect things, who just love history.

0:52:31.9 Michael: That's right.

0:52:31.9 Rhiannon: Right. That just want to have napkins on the dinner table.

0:52:38.1 Peter: Enjoy having successful friends.

0:52:43.2 Rhiannon: And this scapegoating of poor people, people of color who commit crimes and are disproportionately targeted, arrested, prosecuted for those crimes, and then receive disproportionately high sentences, it's something we've said time and again, but worth reiterating here, I think, that the Supreme Court doesn't have anything to say about it, when it does have lots to say about proportionality in other situations. The Supreme Court, courts across the country, have imposed limits, for example, on punitive damages in state civil cases. There's a feeling there, a strong legal argument, that overly high punitive damages in a civil case, that that's unjust, that that's disproportionate. They bring their law and economic theories to it, they bring their judicial efficiency, they bring the cost to the taxpayer, all of those arguments, right, they bring fairness into it, and they don't have anything to say for a poor person, a poor, sick person who has been failed by every system society has set up for them.

0:54:00.3 Rhiannon: They don't have anything to say for the prison system, for the punishment system to also have failed them and to also disappear them. We should say that Gary Ewing did die in prison in 2012, about 12 years after he was imprisoned for stealing three golf clubs, and I wanted to talk about this weird thing that Justice Kennedy started doing after this opinion. Justice Kennedy, he's in the plurality here, like he agrees. But Justice Kennedy, after this case, started calling for reform of mandatory minimums and harsh sentencing schemes, including the three-strikes law in California.

0:54:40.1 Rhiannon: Starting in the mid-90s through the early 2000s, he called for the repeal of mandatory minimum sentences, he called out the "remarkable scale of incarceration" in the United States and how much it costs. He said at an ADA convening that "courts may conclude the legislature is permitted to choose long sentences, but that does not mean long sentences are wise or just. Few misconceptions about the government are more mischievous than the idea that a policy is sound simply because a court finds it permissible. A court decision does not excuse the political branches or the public from responsibility for unjust laws." I'm sorry, but what was this guy smoking? Like he's in the plurality.

0:55:24.1 Peter: Bro, you literally could have joined the dissenters and this law would not exist anymore.

0:55:31.2 Rhiannon: Exactly. You could have said that this was cruel and unusual to Gary Ewing and it wouldn't be happening anymore.

0:55:38.0 Peter: But he valiantly stood by his principles.

0:55:41.0 Rhiannon: Right, but instead you're giving speeches about it.

0:55:44.0 Michael: It's sick, but it's not cruel and unusual.

0:55:48.2 Peter: Right, it's sick but it's not cruel. Yeah. I want to see the spectrum of cool to cruel, and somewhere in the middle is sick, I guess. Yeah. That's a piece of shit.

0:55:57.8 Rhiannon: It's just bizarre, it's just bizarre where they pick and choose on their scale of unfairness, right?

0:56:06.0 Peter: Yeah. Probably got a couple of Brennan Center invites out of that, so.

0:56:10.4 Rhiannon: For sure. Yeah, good for him.

0:56:12.5 Peter: Congrats.

0:56:19.8 Peter: Alright, next week, we're going to dive into the Clarence Thomas situation, talk about whether this was illegal and also, what is corruption? Follow us on Twitter @fivefourpod, subscribe to our Patreon, patreon.com/fivefourpod to support us and get ad-free and premium episodes. We also just put our premium catalog onto Apple podcasts, so if you do not fuck with Patreon, you can head over to apple.co/fivefourpod and get our premium episodes there. We'll see you next week.

0:57:02.6 Michael: Bye.

0:57:03.0 Rhiannon: Bye.

0:57:06.2 Michael: 5-4 presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

0:57:36.9 Peter: [0:57:37.0] ____ text me. Okay. It's pictures of the cat.

[laughter]

0:57:45.4 Peter: I was like, it must be important. She rarely texts me when I'm on.

0:57:49.8 Rhiannon: Rachel, I say leave it in.