$11 theft gets three-strikes career criminal 25 years to life

By Nobel Johns

SANTA BARBARA, California (BNW) -
-While our country is planning to fight wars and rumors of wars, America needs to come to gripes with the injustice done to American citizens. If we as a nation will ever be successful in fighting terrorists abroad, we must deal with the injustice of the criminal justice system at home which is breeding home grown terrorists.

For example, who law enforcement officials call a career criminal was sentenced to 25 years to life in prison under California's three-strikes law for stealing $11 worth of wine, lip balm and breath freshener.

Superior Court Judge Frank Ochoa called Ronald Herrera, 57, one of the worst criminals to pass through his courtroom, and prosecutor Darryl Perlin said: "He's what the three-strikes law is all about."

Herrera's record lists 17 serious felonies, including a 1971 home-invasion robbery and rape of a woman and her 15-year-old daughter, the shooting of a police dispatcher, and six armed robberies in Virginia.

No doubt Herrera appears to be a bad guy, but not all the victims of the criminal justice system is like Herrera. Some are victims of the social ills that caused them to commit crime.

Herrera was sentenced Thursday for burglary and petty theft at a supermarket.

At trial, his lawyer said Herrera has a brain injury that made him forget to pay for the items.

California's three-strikes-you're-out law, passed in 1994, is the toughest in the nation, mandating 25 years to life for a felony committed by someone already convicted of two serious crimes.

The U.S. Supreme Court heard arguments earlier this month on whether such sentencing amounts to unconstitutionally cruel and unusual punishment.

The nation's highest court is taking up a tough "three strikes" sentencing law.

Tuesday, the U.S. Supreme Court heard two California cases involving men who received steep prison sentences for relatively minor thefts.

Justices questioned whether a California law mandating harsh sentences for three-time felons amounted to cruel and unusual punishment when it applied to the men's latest crimes -- the theft of videotapes in one case and the theft of golf clubs in the other.

California's law, a novel idea when enacted eight years ago, provides for mandatory prison terms of 25 years to life for career criminals convicted for the third time of a felony. But under the law, offenses such as petty theft and shoplifting can put offenders with prior criminal records behind bars for life. That's because those misdemeanors can be upgraded to felonies if the accused has two prior felony convictions for the same type of crime.

Leandro Andrade was given two consecutive 25-years-to-life sentences in 1995 for stealing videotapes in two southern California stores. While in most cases the crimes would have been tried as misdemeanors, Andrade's prior felony burglary convictions turned them into felonies, his third "strikes."

A federal appeals court found the sentence "grossly disproportionate," violating the Eighth Amendment's ban against cruel and unusual punishment. State officials then appealed to the U.S. Supreme Court.

Unfair treatment?

In Tuesday's arguments, Andrade's attorney, Erwin Chemerinsky, told the justices his client had been treated unfairly under the law. "No other state would impose this kind of sentence," Chemerinsky said.

But State's Attorney Douglas Danzig said Andrade's prior record of theft and burglary "demonstrated beyond any doubt he is a habitual offender" which he said was the intent of the California law.

In the other case, Gary Ewing is serving 25 years to life for stealing golf clubs from a Los Angeles country club. The prosecutor had the option of charging Ewing with a misdemeanor but chose to try the case as a felony, citing his prior criminal record. The California Supreme Court had rejected Ewing's appeal of his sentence. His lawyer said Ewing has AIDS and expects to die soon.

Justice Antonin Scalia called Ewing "a very good candidate for that [three strikes] law," and "precisely the kind of person you want to get off the streets."

Ewing's public defender, Quin Denvir, disagreed. "There are limits to how much aggravating factors shoplifting three golf clubs can be," he said.

Popular law

The "three-strikes" law passed in 1994, after a voter referendum got 71 percent support. The ballot measure was prompted by the 1993 abduction-murder of 12-year-old Polly Klaas in Petaluma. The killer, Richard Allen Davis, was a twice-convicted kidnapper who had been on parole after serving only half of a 16-year prison term for the second kidnapping. Davis remains on California's death row.

Supporters of the measure hoped the tough sentencing law would send a message to career criminals and give so-called "lenient" judges less discretion in sentencing.

Opponents say violent crime has not been reduced because of the law, and that crimes normally prosecuted as misdemeanors should be not be allowed to put a person away for life in prison. They claim about 350 prisoners are currently in the same situation as Andrade and Ewing.

The total number of three-strike criminals in California prisons has grown to about 7,100, with the law requiring them to serve their full sentences without parole.

The Supreme Court in the 1980s split on the issue of life sentences for minor, non-violent felonies, in cases in Texas and South Dakota. In 1991, justices upheld a life sentence for a Michigan man with no prior criminal record accused of possessing 1.5 pounds of cocaine.

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