"And yer out!"

The Supreme Court recently upheld California's Three-Strikes Law. (3 strikes and you're out - on one's third conviction for a felony and certain classes of 'serious misdemeanors,' there is a mandatory sentence for 25 years to life.) This has gotten most of my law school, including many of the professors, into a (mild) uproar, evinced mostly by indignation, disgust, and a certain amount of good-natured and not-so-good-natured derision of the Supreme Court.

I can't help but think that the reaction is, in some ways, a knee-jerk response. That's not to say that the intuition is incorrect - I tend to agree; the three-strikes-law is a crude and blunt instrument unworthy of the sanction of law. What disturbs me is that here, at one of the nation's top-ten law schools, that the opinions I've heard scarcely scratch the surface of any sort of analysis, impassioned or dispassionate; they're reactionary. And we're the people who're supposed to be thinking about this stuff.

The Three-Strikes Law entered codification here in California shortly after the trial of Richard Allen Davis, a disgusting and entirely morally defunct, beastly predator who had kidnapped and murdered Polly Klaas, whose age hadn't even reached the double digits at the time. Davis not only failed to show any remorse; he smiled and grinned on camera and gave liberal doses of the double-deuce to the television cameras, in full defiance of the stature of the legal system and in unwholesome spite towards the rise of public outrage. Any sentence short of death was probably too good for this animal, and enough of the state apparently agreed, to the point that they voted in the Three-Strikes Law in the heat of righteous passion. If I recall correctly, many people were quoted as suggesting that torture, perhaps, should be made legal again. How frighteningly like the Roman Mob we remain, in our modern and information-driven age.

But with the Supreme Court's ruling, not more than a week ago, all I hear now is outrage, that the Supreme Court would even dare to uphold a statute that is so clearly unconstitutional. The poster children of the inherent injustice of the three-strikes law: Gary Ewing, ill with AIDS, who was sentenced 25 to life for stealing three golf clubs from a country club, petty theft; and Leandro Andrade, sentenced to 50 years for stealing four videotapes.

Outrageous. Grossly Disproportionate. Unconscionable and flagrant disregard for the 8th Amendment's ban against 'cruel and unusual punishment.' Yes, indeed, 25 to life is cruel and unusual punishment for stealing three golf clubs, and 50 years is entirely out of proportion to the value of four stolen videotapes (well, assuming that they're four relatively ordinary videotapes.) These were the cases brought before the Supreme Court; as such, their outcomes have shocked and violated our sense of fair play, and our faith in the sanctity of our Constitutional rights. It's barely short of the ancient practice of punishing theft by amputation of the thief's hands. This is the angle much of the media seems to take on it, anyway.

Yes, this is ridiculous. But before we start grabbing torches and kindling for the great Witch Roast, let's think for a moment about our relationship to our courts, and especially the Supreme Court.

The judicial system is often criticized for yielding verdicts so narrow as to hardly clarify or define the law in any substantive way. Judges are painted as being too timid and too gutless to make wider, more sweeping verdicts based on the 'common sense' of the ordinary citizen, creating a morass of tiny rules circumscribing only tight sets of ridiculously specific fact patterns. In response, scholarship and judicial opinion alike often cite the need for 'Legislative Deference,' reminding anyone who'll listen of the fact that the Legislature makes the law, and the courts only purport to interpret it much of the time; that if the country wants change, it is up to the Vote and up to the State; it is not the purpose of the courts to make our laws, only to generate the common law as necessary to patch the gaps that riddle the words of our codes and statutes.

"Courts work on a 'molecular' scale; vast sweeping declarations of law are not the ambit of the judicial system."

"It is better to let ten guilty men go free than to wrongly convict one innocent man."

Standard maxims in legal scholarship. We prefer to err on the side of caution. The Supreme Court makes what appears to be a sweeping decision, however, and all of a sudden, our criticism of the courts' conservative habits vanishes and we demand the opposite of them. "Topple the Three-Strikes-Law! It's Unconstitutional!" Sure it is, but it's not wholly inconsistent with past rulings the court has made about the sovereignty of the state's ability to define crime. Patterson v. New York and Mullaney v. Wilbur discuss instances where the Supreme Court gives deference to State statutes. The State, after all, has much of the power to decide what constitutes a crime in its jurisdiction and what does not. (Look at Nevada for a moment, if you need an example.) California had decided - no, in a sense, many of us had decided - that the commission of three felonies in any shape, form, or combination was itself a crime punishable by 25 years to life. We made this rule: "3 crimes = a 4th, separate crime." We were within our rights... subject to 'obvious constitutional limitations,' of course. That's what Patterson said, anyway. The Court seems to be saying that there are some mistakes it won't fix for us - namely, those which are our job to fix for ourselves; how dare we impose our views on a Three-Strikes Law upon another state in the nation?

The problem with the Three-Strikes Law is not so much that the Supreme Court was wrong in letting us have our 'way,' even if it was a way chosen in a moment of justifiable outrage. The problem is that situations like the two outlined in the recent decision reveal it for what it is - too blunt an instrument. It lacks surgical precision. You can't use a broadsword to excise cancers and expect not out to cut out innocent flesh. One of the motivations behind the Three-Strikes Law is the fifty-yard rule: to deter illicit behavior by proscribing a circle of 'possibly bad' behavior around it wide enough to keep people from even taking the risk. Looking at it from the Richard Allen Davis view, the Three-Strikes Law is a fifty-yard rule. Looking at it from the Ewing and Andrade view, it's a 50-mile law, inflicting more harm on society than good. (Note, however, that even a 50 mile rule was not enough to keep these dimwits from doing that they did. That's one reason why the law is ineffective in many situations, wide proscriptions notwithstanding.) This is the dividing line that the rule fails to capture; it is a bad law because it punishes in excess, and violates the intuition behind the legal maxims listed above.

There is something behind the Three-Strikes Law that probably has the bearing of a good rule; that repeat offenders are bad human beings who need to be rehabilitated or contained lest they continue to wrongfully and maliciously assail, wound, and victimize the innocent members of society. The Three-Strikes Law was passed in part because the punishments for many felonies simply weren't serious enough; an offender knew what he was in for, knew the price he'd pay, and was apparently okay with it. The same old punishment simply didn't have any bite on a hardened criminal.

Even as relatively law-abiding citizens, most of us are familiar with the concept on a lighter scale and do not object to it; too many speeding tickets, and your license gets revoked. The first ticket is just a slap on the wrist. A second ticket carries a sterner warning, both from the DMV and your insurance company. Keep it up, and the state shakes its head and tells you that you shouldn't be on the road. We don't generally complain about that. We find it fair. It makes sense that a 'repeat offender' may need to be corralled for the moment, that the threat of a more weighty, permanent punishment is necessary to keep people more in line; what else would deter a chronic speeder who has all the money he needs to pay for the speeding tickets? What right does a road maniac have to endanger the rest of us on the highways simply because he's rich enough to pay for the privilege? The idea of ramping up the penalty doesn't seem so unreasonable.

But in many instances of criminal law, this principle is not applied. In Smallwood v. State, the accused was an HIV-positive ex-convict who knew about his status, who knew that AIDS is deadly, and who had been told that it was imperative that, if he were ever to engage in sexual intercourse, that he use a condom lest he infect his partners. This son of a bitch promptly went out and raped three separate women. His evil ass was dragged into court and he was charged with three counts of 2nd degree murder. He was acquitted of all three; the court determined that, not only was he merely motivated by the desire to rape, and not the desire to murder, but that even considering that he knowlingly raped these women knowing that there were a chance that he'd infect them - the likelihood in each case was not enough to uphold a conviction.

In other words, the murder counts were dismissed because, individually and separately, the probability of infection and subsequent death by AIDS was not significant enough.

We argued this one in class; if the chance of infection were 50%, infection was as likely as not. We took it that this meant: a 50% chance would generally not be enough to prove knowledge of murderous consequences beyond a reasonable doubt. I was particularly upset; the fact that he'd done this three times in a row raised the overall probability of infecting at least one of his victims to 87.5%. If it were me, I'd have convicted this guy of one count of 2nd degree murder or attempted murder, and even that's rounding down from the expected number of infections, 1.5. But because the court viewed each crime as separate, and not reflective upon or relevant to each other, it decided that none of these three incidents would amount to a conviction. It is for reasons such as this that I think that crimes should not be viewed in clean, padded rooms wholly separate from one another; they are all a part of the same person, as surely as Mother Teresa's saintliness is greater than any one individual act of kindness she performed in her life.

The Three-Strikes Law is heavy-handed, not even-handed. But the result in Smallwood is no less vile to me.

But how are we ever to come up with a better rule, if all we are ruled by is passion? Passion and thought, in equal parts. Justice must be devoid of neither.