Those of you who read this column on a regular basis know that I am not a fan of the “three strikes” law.  In early November of 2001, there was good news for people who feel as I do.  For the first time, a court ruled at the federal appeals level that our three strikes law constitutes cruel and unusual punishment when a sentence is “grossly disproportionate to a crime.”

This ruling stemmed out of a case involving Leandro Andrade, who stole $150.00 worth of video tapes.  Mr. Andrade had the requisite number of prior convictions, and the three strikes law kicked in.  That led to a FIFTY YEAR PRISON SENTENCE for $150.00 worth of video tapes, which has been overturned. 


There are approximately 3,000 defendants and/or inmates in our state who may be affected by this ruling.  That assumes the ruling is not appealed to the United States Supreme Court or if it is so appealed, it is upheld.  This ruling requires “proportionality” with regard to sentencing, and it may well lead to a number of motions pertaining to previously decided cases where the punishment does not appear to fit the crime. 


According to the Public Defender’s Office in Los Angeles, every case which finds a defendant sentenced to a lengthy prison sentence for a non-serious or non-violent offense, may well be reviewed. 


There are forty states that increase sentences for those who have prior convictions.  In California the law requires the Court to impose a sentence of twenty-five years to life if any felony is committed by a defendant with two prior serious or violent felony convictions.  Writing for the Court, Justice Richard Paez wrote that the Court’s decision does not wipe out California’s three strikes law; however, it does limit it in circumstances such as that of Mr. Andrade.


Will this case make it to the United States Supreme Court?  In 1999, the Court refused to hear an appeal regarding a three strikes case in which an individual was sentenced to twenty-five years to life for stealing a bottle of vitamins.  Is the Court in a different mood now?  It would seem that video tapes and vitamins are pretty much in the same league.  It has been posited that the United States Supreme Court did not take the vitamin case because they wanted other state courts and federal appellate courts to study these issues first and issue their own hopefully well-reasoned rulings.


Well, a number of decisions have come forth since the vitamin case in 1999, and Judge Paez, joined by Chief Justice Mary Schroeder, who joined in his opinion, have laid down the gauntlet. 


I hope the United States Supreme Court takes this case on appeal, and decides that the three strikes law should apply to people who commit serious or violent felonies if they have two or more prior convictions, but should not be applied to people stealing vitamins or video tapes.  I’ve always thought this was one of the major flaws of this law.  Why is it that the first two strikes, or convictions, have to be serious or violent felonies, however, the third one can be any type of felony at all?  That didn’t make sense to me when the law was passed, and it doesn’t make sense to me now.  Let the United States Supreme Court modify the law to apply it in cases where the third conviction is for something violent or serious, but not for a case such as this.



Charlie Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger, Danis & Grover, and a psychotherapist at the Foothill Centre for Personal and Family Development.  Mr. Unger writes a bimonthly column on legal and psychological issues.  He can be reached at