Ewing v. California

JUSTICE O'CONNOR.

In this case, we decide whether the Eighth Amendment prohibits the State of California from sentencing a repeat felon to a prison term of 25 years to life under the State's "Three Strikes and You're Out" law.

I

A

California's three strikes law reflects a shift in the State's sentencing policies toward incapacitating and deterring repeat offenders who threaten the public safety. The law was designed "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." . . .

Though the three strikes laws vary from State to State, they share a common goal of protecting the public safety by providing lengthy prison terms for habitual felons.

B

California's current three strikes law consists of two virtually identical statutory schemes "designed to increase the prison terms of repeat felons." When a defendant is convicted of a felony, and he has previously been convicted of one or more prior felonies defined as "serious" or "violent" in Cal. Penal Code Ann. Sec.s 667.5 and 1192.7, sentencing is conducted pursuant to the three strikes law. Prior convictions must be alleged in the charging document, and the defendant has a right to a jury determination that the prosecution has proved the prior convictions beyond a reasonable doubt.

If the defendant has one prior "serious" or "violent" felony conviction, he must be sentenced to "twice the term otherwise provided as punishment for the current felony conviction." If the defendant has two or more prior "serious" or "violent" felony convictions, he must receive "an indeterminate term of life imprisonment." Defendants sentenced to life under the three strikes law become eligible for parole on a date calculated by reference to a "minimum term," which is the greater of (a) three times the term otherwise provided for the current conviction, (b) 25 years, or (c) the term determined by the court pursuant to Sec. 1170 for the underlying conviction, including any enhancements.

Under California law, certain offenses may be classified as either felonies or misdemeanors. These crimes are known as "wobblers." Some crimes that would otherwise be misdemeanors become "wobblers" because of the defendant's prior record. For example, petty theft, a misdemeanor, becomes a "wobbler" when the defendant has previously served a prison term for committing specified theft-related crimes. Other crimes, such as grand theft, are "wobblers" regardless of the defendant's prior record. Both types of "wobblers" are triggering offenses under the three strikes law only when they are treated as felonies. Under California law, a "wobbler" is presumptively a felony and "remains a felony except when the discretion is actually exercised" to make the crime a misdemeanor. . . .

C

On parole from a 9-year prison term, petitioner Gary Ewing walked into the pro shop of the El Segundo Golf Course in Los Angeles County on March 12, 2000. He walked out with three golf clubs, priced at $ 399 apiece, concealed in his pants leg. A shop employee, whose suspicions were aroused when he observed Ewing limp out of the pro shop, telephoned the police. The police apprehended Ewing in the parking lot.

Ewing is no stranger to the criminal justice system. In 1984, at the age of 22, he pleaded guilty to theft. The court sentenced him to six months in jail (suspended), three years' probation, and a $ 300 fine. In 1988, he was convicted of felony grand theft auto and sentenced to one year in jail and three years' probation. After Ewing completed probation, however, the sentencing court reduced the crime to a misdemeanor, permitted Ewing to withdraw his guilty plea, and dismissed the case. In 1990, he was convicted of petty theft with a prior and sentenced to 60 days in the county jail and three years' probation. In 1992, Ewing was convicted of battery and sentenced to 30 days in the county jail and two years' summary probation. One month later, he was convicted of theft and sentenced to 10 days in the county jail and 12 months' probation. In January 1993, Ewing was convicted of burglary and sentenced to 60 days in the county jail and one year's summary probation. In February 1993, he was convicted of possessing drug paraphernalia and sentenced to six months in the county jail and three years' probation. In July 1993, he was convicted of appropriating lost property and sentenced to 10 days in the county jail and two years' summary probation. In September 1993, he was convicted of unlawfully possessing a firearm and trespassing and sentenced to 30 days in the county jail and one year's probation.

In October and November 1993, Ewing committed three burglaries and one robbery at a Long Beach, California, apartment complex over a 5-week period. He awakened one of his victims, asleep on her living room sofa, as he tried to disconnect her video cassette recorder from the television in that room. When she screamed, Ewing ran out the front door. On another occasion, Ewing accosted a victim in the mailroom of the apartment complex. Ewing claimed to have a gun and ordered the victim to hand over his wallet. When the victim resisted, Ewing produced a knife and forced the victim back to the apartment itself. While Ewing rifled through the bedroom, the victim fled the apartment screaming for help. Ewing absconded with the victim's money and credit cards.

On December 9, 1993, Ewing was arrested on the premises of the apartment complex for trespassing and lying to a police officer. The knife used in the robbery and a glass cocaine pipe were later found in the back seat of the patrol car used to transport Ewing to the police station. A jury convicted Ewing of first-degree robbery and three counts of residential burglary. Sentenced to nine years and eight months in prison, Ewing was paroled in 1999.

Only 10 months later, Ewing stole the golf clubs at issue in this case. He was charged with, and ultimately convicted of, one count of felony grand theft of personal property in excess of $ 400. . . . As required by the three strikes law, the prosecutor formally alleged, and the trial court later found, that Ewing had been convicted previously of four serious or violent felonies for the three burglaries and the robbery in the Long Beach apartment complex. . . .

At the sentencing hearing, Ewing asked the court to reduce the conviction for grand theft, a "wobbler" under California law, to a misdemeanor so as to avoid a three strikes sentence. . . . Ewing also asked the trial court to exercise its discretion to dismiss the allegations of some or all of his prior serious or violent felony convictions, again for purposes of avoiding a three strikes sentence. . . . Before sentencing Ewing, the trial court took note of his entire criminal history, including the fact that he was on parole when he committed his latest offense. The court also heard arguments from defense counsel and a plea from Ewing himself.

In the end, the trial judge determined that the grand theft should remain a felony. The court also ruled that the four prior strikes for the three burglaries and the robbery in Long Beach should stand. As a newly convicted felon with two or more "serious" or "violent" felony convictions in his past, Ewing was sentenced under the three strikes law to 25 years to life.

. . .

II

A

The Eighth Amendment, which forbids cruel and unusual punishments, contains a "narrow proportionality principle" that "applies to noncapital sentences." We have most recently addressed the proportionality principle as applied to terms of years in a series of cases beginning with Rummel v. Estelle. . . .

In Rummel, we held that it did not violate the Eighth Amendment for a State to sentence a three-time offender to life in prison with the possibility of parole. Like Ewing, Rummel was sentenced to a lengthy prison term under a recidivism statute. Rummel's two prior offenses were a 1964 felony for "fraudulent use of a credit card to obtain $ 80 worth of goods or services," and a 1969 felony conviction for "passing a forged check in the amount of $ 28.36." His triggering offense was a conviction for felony theft -- "obtaining $ 120.75 by false pretenses."

This Court ruled that "having twice imprisoned him for felonies, Texas was entitled to place upon Rummel the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State." The recidivism statute "is nothing more than a societal decision that when such a person commits yet another felony, he should be subjected to the admittedly serious penalty of incarceration for life, subject only to the State's judgment as to whether to grant him parole." We noted that this Court "has on occasion stated that the Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime." But "outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." Although we stated that the proportionality principle "would . . . come into play in the extreme example . . . if a legislature made overtime parking a felony punishable by life imprisonment," we held that "the mandatory life sentence imposed upon this petitioner does not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments." . . .

Three years after Rummel, in Solem v. Helm, we held that the Eighth Amendment prohibited "a life sentence without possibility of parole for a seventh nonviolent felony." The triggering offense in Solem was "uttering a 'no account' check for $ 100." We specifically stated that the Eighth Amendment's ban on cruel and unusual punishments "prohibits . . . sentences that are disproportionate to the crime committed," and that the "constitutional principle of proportionality has been recognized explicitly in this Court for almost a century." The Solem Court then explained that three factors may be relevant to a determination of whether a sentence is so disproportionate that it violates the Eighth Amendment: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions."

Applying these factors in Solem, we struck down the defendant's sentence of life without parole. We specifically noted the contrast between that sentence and the sentence in Rummel, pursuant to which the defendant was eligible for parole. Indeed, we explicitly declined to overrule Rummel: "Our conclusion today is not inconsistent with Rummel v. Estelle."

Eight years after Solem, we grappled with the proportionality issue again in Harmelin. . . . Harmelin was not a recidivism case, but rather involved a first-time offender convicted of possessing 672 grams of cocaine. He was sentenced to life in prison without possibility of parole. A majority of the Court rejected Harmelin's claim that his sentence was so grossly disproportionate that it violated the Eighth Amendment. The Court, however, could not agree on why his proportionality argument failed. JUSTICE SCALIA, joined by THE CHIEF JUSTICE, wrote that the proportionality principle was "an aspect of our death penalty jurisprudence, rather than a generalizable aspect of Eighth Amendment law." He would thus have declined to apply gross disproportionality principles except in reviewing capital sentences.

JUSTICE KENNEDY, joined by two other Members of the Court, concurred in part and concurred in the judgment. JUSTICE KENNEDY specifically recognized that "the Eighth Amendment proportionality principle also applies to noncapital sentences." He then identified four principles of proportionality review -- "the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors" -- that "inform the final one: The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are 'grossly disproportionate' to the crime." JUSTICE KENNEDY's concurrence also stated that Solem "did not mandate" comparative analysis "within and between jurisdictions."

The proportionality principles in our cases distilled in JUSTICE KENNEDY's concurrence guide our application of the Eighth Amendment in the new context that we are called upon to consider.

B

For many years, most States have had laws providing for enhanced sentencing of repeat offenders. . . . Yet between 1993 and 1995, three strikes laws effected a sea change in criminal sentencing throughout the Nation. [FOOTNOTE 1] These laws responded to widespread public concerns about crime by targeting the class of offenders who pose the greatest threat to public safety: career criminals. As one of the chief architects of California's three strikes law has explained: "Three Strikes was intended to go beyond simply making sentences tougher. It was intended to be a focused effort to create a sentencing policy that would use the judicial system to reduce serious and violent crime."

=====FOOTNOTE 1=====
It is hardly surprising that the statistics relied upon by JUSTICE BREYER show that prior to the enactment of the three strikes law, "no one like Ewing could have served more than 10 years in prison." Post, at 9 (dissenting opinion). Profound disappointment with the perceived lenity of criminal sentencing (especially for repeat felons) led to passage of three strikes laws in the first place. See, e.g., Review of State Legislation 1.
=====End Footnote=====

Throughout the States, legislatures enacting three strikes laws made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional approaches to punishment, must be isolated from society in order to protect the public safety. Though three strikes laws may be relatively new, our tradition of deferring to state legislatures in making and implementing such important policy decisions is longstanding. . . .

Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution "does not mandate adoption of any one penological theory." A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation. . . . Some or all of these justifications may play a role in a State's sentencing scheme. Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts.

When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice. To the contrary, our cases establish that "States have a valid interest in deterring and segregating habitual criminals." . . . Recidivism has long been recognized as a legitimate basis for increased punishment. . . .

The State's interest in deterring crime also lends some support to the three strikes law. We have long viewed both incapacitation and deterrence as rationales for recidivism statutes: "[A] recidivist statute['s] . . . primary goals are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time." Four years after the passage of California's three strikes law, the recidivism rate of parolees returned to prison for the commission of a new crime dropped by nearly 25 percent. Even more dramatically:

"an unintended but positive consequence of 'Three Strikes' has been the impact on parolees leaving the state. More California parolees are now leaving the state than parolees from other jurisdictions entering California. This striking turnaround started in 1994. It was the first time more parolees left the state than entered since 1976. This trend has continued and in 1997 more than 1,000 net parolees left California."

. . .

To be sure, California's three strikes law has sparked controversy. Critics have doubted the law's wisdom, cost-efficiency, and effectiveness in reaching its goals. . . . This criticism is appropriately directed at the legislature, which has primary responsibility for making the difficult policy choices that underlie any criminal sentencing scheme. We do not sit as a "superlegislature" to second-guess these 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 goals of [its] criminal justice system in any substantial way."

III

Against this backdrop, we consider Ewing's claim that his three strikes sentence of 25 years to life is unconstitutionally disproportionate to his offense of "shoplifting three golf clubs." We first address the gravity of the offense compared to the harshness of the penalty. At the threshold, we note that 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 $ 1,200 worth of merchandise after previously having been convicted of at least two "violent" or "serious" felonies. Even standing alone, Ewing's theft should not be taken lightly. His crime was certainly not "one of the most passive felonies a person could commit." To the contrary, the Supreme Court of California has noted the "seriousness" of grand theft in the context of proportionality review. . . .

That grand theft is a "wobbler" under California law is of no moment. Though California courts have discretion to reduce a felony grand theft charge to a misdemeanor, it remains a felony for all purposes "unless and until the trial court imposes a misdemeanor sentence." "The purpose of the trial judge's sentencing discretion" to downgrade certain felonies is to "impose a misdemeanor sentence in those cases in which the rehabilitation of the convicted defendant either does not require or would be adversely affected by, incarceration in a state prison as a felon." Under California law, the reduction is not based on the notion that a "wobbler" is "conceptually a misdemeanor." Rather, it is "intended to extend misdemeanant treatment to a potential felon." In Ewing's case, however, the trial judge justifiably exercised her discretion not to extend such lenient treatment given Ewing's long criminal history.

In weighing the gravity of Ewing's offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature's choice of sanctions. In imposing a three strikes sentence, the State's interest is not merely punishing the offense of conviction, or the "triggering" offense: "It is in addition the interest . . . in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law." . . . To give full effect to the State's choice of this legitimate penological goal, our proportionality review of Ewing's sentence must take that goal into account.

Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record. . . .

We hold that Ewing's sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the three strikes law, is not grossly disproportionate and therefore does not violate the Eighth Amendment's prohibition on cruel and unusual punishments. The judgment of the California Court of Appeal is affirmed.

It is so ordered.


JUSTICE SCALIA, concurring in the judgment.

In my concurring opinion in Harmelin v. Michigan, I concluded that the Eighth Amendment's prohibition of "cruel and unusual punishments" was aimed at excluding only certain modes of punishment, and was not a "guarantee against disproportionate sentences." Out of respect for the principle of stare decisis, I might nonetheless accept the contrary holding of Solem v. Helm -- that the Eighth Amendment contains a narrow proportionality principle -- if I felt I could intelligently apply it. This case demonstrates why I cannot.

Proportionality -- the notion that the punishment should fit the crime -- is inherently a concept tied to the penological goal of retribution. "It becomes difficult even to speak intelligently of 'proportionality,' once deterrence and rehabilitation are given significant weight," not to mention giving weight to the purpose of California's three strikes law: incapacitation. In the present case, the game is up once the plurality has acknowledged that "the Constitution does not mandate adoption of any one penological theory," and that a "sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation." That acknowledgment having been made, it no longer suffices merely to assess "the gravity of the offense compared to the harshness of the penalty"; that classic description of the proportionality principle . . . now becomes merely the "first" step of the inquiry. Having completed that step (by a discussion which, in all fairness, does not convincingly establish that 25-years-to-life is a "proportionate" punishment for stealing three golf clubs), the plurality must then add an analysis to show that "Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons."

Which indeed it is -- though why that has anything to do with the principle of proportionality is a mystery. Perhaps the plurality should revise its terminology, so that what it reads into the Eighth Amendment is not the unstated proposition that all punishment should be reasonably proportionate to the gravity of the offense, but rather the unstated proposition that all punishment should reasonably pursue the multiple purposes of the criminal law. That formulation would make it clearer than ever, of course, that the plurality is not applying law but evaluating policy.

Because I agree that petitioner's sentence does not violate the Eighth Amendment's prohibition against cruel and unusual punishments, I concur in the judgment.


JUSTICE THOMAS, concurring in the judgment.

. . . In my view, the Cruel and Unusual Punishments Clause of the Eighth Amendment contains no proportionality principle.


JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG and JUSTICE BREYER join, dissenting.

. . .

I

The plurality applies JUSTICE KENNEDY's analytical framework in Harmelin. And, for present purposes, I will consider Ewing's Eighth Amendment claim on those terms. To implement this approach, courts faced with a "gross disproportionality" claim must first make "a threshold comparison of the crime committed and the sentence imposed." If a claim crosses that threshold -- itself a rare occurrence -- then the court should compare the sentence at issue to other sentences "imposed on other criminals" in the same, or in other, jurisdictions. The comparative analysis will "validate" or invalidate "an initial judgment that a sentence is grossly disproportionate to a crime."

I recognize the warnings implicit in the Court's frequent repetition of words such as "rare." Nonetheless I believe that the case before us is a "rare" case -- one in which a court can say with reasonable confidence that the punishment is "grossly disproportionate" to the crime.

II

Ewing's claim crosses the gross disproportionality "threshold." First, precedent makes clear that Ewing's sentence raises a serious disproportionality question. Ewing is a recidivist. Hence the two cases most directly in point are those in which the Court considered the constitutionality of recidivist sentencing: Rummel and Solem. Ewing's claim falls between these two cases. It is stronger than the claim presented in Rummel, where the Court upheld a recidivist's sentence as constitutional. It is weaker than the claim presented in Solem, where the Court struck down a recidivist sentence as unconstitutional.

Three kinds of sentence-related characteristics define the relevant comparative spectrum: (a) the length of the prison term in real time, i.e., the time that the offender is likely actually to spend in prison; (b) the sentence-triggering criminal conduct, i.e., the offender's actual behavior or other offense-related circumstances; and (c) the offender's criminal history. . . .

In Rummel, the Court held constitutional (a) a sentence of life imprisonment with parole available within 10 to 12 years, (b) for the offense of obtaining $ 120 by false pretenses, (c) committed by an offender with two prior felony convictions (involving small amounts of money). In Solem, the Court held unconstitutional (a) a sentence of life imprisonment without parole, (b) for the crime of writing a $ 100 check on a nonexistent bank account, (c) committed by an offender with six prior felony convictions (including three for burglary). Which of the three pertinent comparative factors made the constitutional difference?

The third factor, prior record, cannot explain the difference. The offender's prior record was worse in Solem, where the Court found the sentence too long, than in Rummel, where the Court upheld the sentence. The second factor, offense conduct, cannot explain the difference. The nature of the triggering offense -- viewed in terms of the actual monetary loss -- in the two cases was about the same. The one critical factor that explains the difference in the outcome is the length of the likely prison term measured in real time. In Rummel, where the Court upheld the sentence, the state sentencing statute authorized parole for the offender, Rummel, after 10 or 12 years. In Solem, where the Court struck down the sentence, the sentence required the offender, Helm, to spend the rest of his life in prison.

Now consider the present case. The third factor, offender characteristics -- i.e., prior record -- does not differ significantly here from that in Solem. Ewing's prior record consists of four prior felony convictions (involving three burglaries, one with a knife) contrasted with Helm's six prior felony convictions (including three burglaries, though none with weapons). The second factor, offense behavior, is worse than that in Solem, but only to a degree. It would be difficult to say that the actual behavior itself here (shoplifting) differs significantly from that at issue in Solem (passing a bad check) or in Rummel (obtaining money through false pretenses). Rather the difference lies in the value of the goods obtained. That difference, measured in terms of the most relevant feature (loss to the victim, i.e., wholesale value) and adjusted for the irrelevant feature of inflation, comes down (in 1979 values) to about $ 379 here compared with $ 100 in Solem, or (in 1973 values) to $ 232 here compared with $ 120.75 in Rummel. . . . Alternatively, if one measures the inflation-adjusted value difference in terms of the golf clubs' sticker price, it comes down to $ 505 here compared to $ 100 in Solem, or $ 309 here compared to $ 120.75 in Rummel.

The difference in length of the real prison term -- the first, and critical, factor in Solem and Rummel -- is considerably more important. Ewing's sentence here amounts, in real terms, to at least 25 years without parole or good-time credits. That sentence is considerably shorter than Helm's sentence in Solem, which amounted, in real terms, to life in prison. Nonetheless Ewing's real prison term is more than twice as long as the term at issue in Rummel, which amounted, in real terms, to at least 10 or 12 years. And, Ewing's sentence, unlike Rummel's (but like Helm's sentence in Solem), is long enough to consume the productive remainder of almost any offender's life. (It means that Ewing himself, seriously ill when sentenced at age 38, will likely die in prison.)

The upshot is that the length of the real prison term -- the factor that explains the Solem/Rummel difference in outcome -- places Ewing closer to Solem than to Rummel, though the greater value of the golf clubs that Ewing stole moves Ewing's case back slightly in Rummel's direction. Overall, the comparison places Ewing's sentence well within the twilight zone between Solem and Rummel -- a zone where the argument for unconstitutionality is substantial, where the cases themselves cannot determine the constitutional outcome.

Second, Ewing's sentence on its face imposes one of the most severe punishments available upon a recidivist who subsequently engaged in one of the less serious forms of criminal conduct. See infra, at 10-12. I do not deny the seriousness of shoplifting, which an amicus curiae tells us costs retailers in the range of $ 30 billion annually. Brief for California District Attorneys Association as Amicus Curiae 27. But consider that conduct in terms of the factors that this Court mentioned in Solem -- the "harm caused or threatened to the victim or society," the "absolute magnitude of the crime," and the offender's "culpability." In respect to all three criteria, the sentence-triggering behavior here ranks well toward the bottom of the criminal conduct scale. . . .

This case, of course, involves shoplifting engaged in by a recidivist. One might argue that any crime committed by a recidivist is a serious crime potentially warranting a 25-year sentence. But this Court rejected that view in Solem, and in Harmelin, with the recognition that "no penalty is per se constitutional." Our cases make clear that, in cases involving recidivist offenders, we must focus upon "the [offense] that triggers the life sentence," with recidivism playing a "relevant," but not necessarily determinative, role. . . . And here, as I have said, that offense is among the less serious, while the punishment is among the most serious.

Third, some objective evidence suggests that many experienced judges would consider Ewing's sentence disproportionately harsh. The United States Sentencing Commission (having based the federal Sentencing Guidelines primarily upon its review of how judges had actually sentenced offenders) does not include shoplifting (or similar theft-related offenses) among the crimes that might trigger especially long sentences for recidivists . . .

Taken together, these three circumstances make clear that Ewing's "gross disproportionality" argument is a strong one. That being so, his claim must pass the "threshold" test. If it did not, what would be the function of the test? A threshold test must permit arguably unconstitutional sentences, not only actually unconstitutional sentences, to pass the threshold -- at least where the arguments for unconstitutionality are unusually strong ones. A threshold test that blocked every ultimately invalid constitutional claim -- even strong ones -- would not be a threshold test but a determinative test. And, it would be a determinative test that failed to take account of highly pertinent sentencing information, namely, comparison with other sentences. Sentencing comparisons are particularly important because they provide proportionality review with objective content. By way of contrast, a threshold test makes the assessment of constitutionality highly subjective. And, of course, so to transform that threshold test would violate this Court's earlier precedent.

III

Believing Ewing's argument a strong one, sufficient to pass the threshold, I turn to the comparative analysis. A comparison of Ewing's sentence with other sentences requires answers to two questions. First, how would other jurisdictions (or California at other times, i.e., without the three strikes penalty) punish the same offense conduct? Second, upon what other conduct would other jurisdictions (or California) impose the same prison term? Moreover, since hypothetical punishment is beside the point, the relevant prison time, for comparative purposes, is real prison time, i.e., the time that an offender must actually serve. . . .

As to California itself, we know the following: First, between the end of World War II and 1994 (when California enacted the three strikes law, ante, at 2), no one like Ewing could have served more than 10 years in prison. We know that for certain because the maximum sentence for Ewing's crime of conviction, grand theft, was for most of that period 10 years. . . .

Second, statistics suggest that recidivists of all sorts convicted during that same time period in California served a small fraction of Ewing's real-time sentence. On average, recidivists served three to four additional (recidivist-related) years in prison, with 90 percent serving less than an additional real seven to eight years.

Third, we know that California has reserved, and still reserves, Ewing-type prison time, i.e., at least 25 real years in prison, for criminals convicted of crimes far worse than was Ewing's. Statistics for the years 1945 to 1981, for example, indicate that typical (nonrecidivist) male first-degree murderers served between 10 and 15 real years in prison, with 90 percent of all such murderers serving less than 20 real years. Moreover, California, which has moved toward a real-time sentencing system (where the statutory punishment approximates the time served), still punishes far less harshly those who have engaged in far more serious conduct. It imposes, for example, upon nonrecidivists guilty of arson causing great bodily injury a maximum sentence of nine years in prison. . . . It reserves the sentence that it here imposes upon (former-burglar-now-golf-club-thief) Ewing, for nonrecidivist, first-degree murderers. . . .

As to other jurisdictions, we know the following: The United States, bound by the federal Sentencing Guidelines, would impose upon a recidivist, such as Ewing, a sentence that, in any ordinary case, would not exceed 18 months in prison. . . . The Guidelines reserve 10 years of real prison time (with good time) -- less than 40 percent of Ewing's sentence -- for Ewing-type recidivists who go on to commit, for instance, voluntary manslaughter; aggravated assault with a firearm; kidnaping; residential burglary involving more than $ 5 million; drug offenses involving at least one pound of cocaine; and other similar offenses. Ewing also would not have been subject to the federal "three strikes" law, for which grand theft is not a triggering offense. . . .

The upshot is that comparison of other sentencing practices, both in other jurisdictions and in California at other times (or in respect to other crimes), validates what an initial threshold examination suggested. Given the information available, given the state and federal parties' ability to provide additional contrary data, and given their failure to do so, we can assume for constitutional purposes that the following statement is true: 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.

IV

This is not the end of the matter. California sentenced Ewing pursuant to its "three strikes" law. That law represents a deliberate effort to provide stricter punishments for recidivists. And, it is important to consider whether special criminal justice concerns related to California's three strikes policy might justify including Ewing's theft within the class of triggering criminal conduct (thereby imposing a severe punishment), even if Ewing's sentence would otherwise seem disproportionately harsh.

I can find no such special criminal justice concerns that might justify this sentence. The most obvious potential justification for bringing Ewing's theft within the ambit of the statute is administrative. California must draw some kind of workable line between conduct that will trigger, and conduct that will not trigger, a "three strikes" sentence. "But the fact that a line has to be drawn somewhere does not justify its being drawn anywhere." The statute's administrative objective would seem to be one of separating more serious, from less serious, triggering criminal conduct. Yet the statute does not do that job particularly well.

The administrative line that the statute draws separates "felonies" from "misdemeanors." Those words suggest a graduated difference in degree. But an examination of how California applies these labels in practice to criminal conduct suggests that the offenses do not necessarily reflect those differences. . . . Indeed, California uses those words in a way unrelated to the seriousness of offense conduct in a set of criminal statutes called "wobblers," one of which is at issue in this case. . .

The result of importing this kind of distinction into California's three strikes statute is a series of anomalies. One anomaly concerns the seriousness of the triggering behavior. "Wobbler" statutes cover a wide variety of criminal behavior, ranging from assault with a deadly weapon, vehicular manslaughter, and money laundering, to the defacement of property with graffiti, or stealing more than $ 100 worth of chickens, nuts, or avocados. Some of this behavior is obviously less serious, even if engaged in twice, than other criminal conduct that California statutes classify as pure misdemeanors, such as reckless driving, the use of force or threat of force to interfere with another's civil rights, selling poisoned alcohol, child neglect, and manufacturing or selling false government documents with the intent to conceal true citizenship. . . .

Neither do I see any other way in which inclusion of Ewing's conduct (as a "triggering crime") would further a significant criminal justice objective. One might argue that those who commit several property crimes should receive long terms of imprisonment in order to "incapacitate" them, i.e., to prevent them from committing further crimes in the future. But that is not the object of this particular three strikes statute. Rather, as the plurality says, California seeks "'to reduce serious and violent crime.'" The statute's definitions of both kinds of crime include crimes against the person, crimes that create danger of physical harm, and drug crimes. . . . They do not include even serious crimes against property, such as obtaining large amounts of money, say, through theft, embezzlement, or fraud. Given the omission of vast categories of property crimes -- including grand theft (unarmed) -- from the "strike" definition, one cannot argue, on property-crime-related incapacitation grounds, for inclusion of Ewing's crime among the triggers.

Nor do the remaining criminal law objectives seem relevant. No one argues for Ewing's inclusion within the ambit of the three strikes statute on grounds of "retribution." For reasons previously discussed, in terms of "deterrence," Ewing's 25-year term amounts to overkill. And "rehabilitation" is obviously beside the point. The upshot is that, in my view, the State cannot find in its three strikes law a special criminal justice need sufficient to rescue a sentence that other relevant considerations indicate is unconstitutional. . . .