Reaction paper for Legal Phil-2: Ewing v. California (2003)

On the Role of Prior Criminal History and State’s Interest in Proportionality

Introduction

In this reaction paper, I am going to discuss the following question: whether prior history of criminals should be taken into account when we consider whether the punishments upon them are disproportional. My point is that it shouldn’t. I will base my discussion mainly on Ewing.[1] So, let’s lay out some details of it first.

1. Recap of Ewing

On March 12, 2000, Gary Ewing, was arrested for shoplifting three golf clubs. At the time, Ewing was on parole from a 9-year jail term for convictions in three burglaries and one robbery. Under California's three strikes law (hereinafter TS), another felony conviction would require a sentence of 25 years to life. The golf clubs shoplifting was classified as a felony by the trial court. During sentencing, Ewing requested to reduce his shoplifting to a misdemeanor which would not be sentenced under TS. The judge declined. On appeal, Ewing argued the sentence of 25 years to life was grossly disproportionate to the crime and therefore a violation of his Eighth Amendment (hereinafter 8A) right against cruel and unusual punishments.[2] The court, reasoning that TS served the state's legitimate interests, rejected this claim. Finally, Ewing filed a petition to the Supreme Court of the United States where the Court affirmed the prior decision.

In the present case, the major question presented is whether Ewing’s sentence is grossly disproportionate to his criminal activity.

Justice O’Connor, joined by Justice Kennedy, concluded that it was not and therefore did not violate 8A’s prohibition on cruel and unusual punishments.[3] The major reasons were as follows:

The Court sticked with the interpretation founded in Justice Kennedy’s concurrence in Harmelin[4] that 8A didn’t require strict proportionality between crime and sentence but forbad only extreme sentences that were “grossly disproportionate” to the crime.[5]

In weighing Ewing’s gravity of his offense (the shoplifting of three golf clubs), both his current felony and his long history of felony recidivism (herein after prior history) are to be taken into account. This would increase the gravity of Ewing’s offense, which would in turn makes the sentence not “grossly disproportionate”. Moreover, the sentence is also justified by the State’s public-safety interest (herein after State’s interest) in incapacitating and deterring recidivist felons.[6]

2. My reaction

Basically, in deciding whether Ewing’s sentence under TS is constitutional, the Court relied on prior history to increase the gravity of his offense and State’s interest to further justify the sentence. In the following, I am going to argue that both prior history and State’s interest shouldn’t be taken into account when considering the proportionality of the offense and the sentence. I will proceed by asking two questions.

2.1 The role of State’s interest in proportionality

The first question to ask is how to understand the role of the State’s interest in proportionality. There are two different ways to understand this. One way is understanding State’s interest as altering the threshold of being “gross”, which seems to be suggested by Justice Scalia in his concurrance that the Court when doing this, they also commit to “the unstated proposition that all punishment should reasonably pursue the multiple purposes of the criminal law” which are “the State’s public-safety interest.”[7] Due to this understanding, the State’s interest doesn’t increase the gravity of the offense but still justifies Ewing’s sentence although the sentence could be itself grossly disproportional to the offense if State’s interest is not taken into account. Just as Scalia rightly put, the Court seems not to apply law but make an ethical judgment.[8] To make it clear, the ethical judgment seems to be that the State’s interest should somehow outweigh the individual criminal’s interest in getting proportionate sentence. I don’t think this ethical judgment can be well-argued in a legal way. For one thing, this reading makes the Court’s reasoning fly in the face of 8A. The purpose of 8A is just prevent the State’s or federal government to infringe the individual’s right. For another, making ethical judgment should not be a legitimate way to reach a decision in court.

Another way to understand the Court’s reliance on State’s interest is that the State’s interest increases the gravity of the offense. This sounds more compatible with 8A’s spirit. If the gravity of the offense could be increased in this way a lot, then Ewing’s sentence would not be grossly disproportionate[9]. However, if we understand the gravity of an offense as the actual harm done to the community, then I simply cannot see how State’s interest can increase the actual harm of an offense. For State’s interest is a normative issue while actual harm is a factual issue, which means regardless of State’s interest, the actual harm remains the same. For example, the harm of shoplifting three golf clubs cannot be increased to robbing a bank no matter how State’s interest varies.

2.2 The role of prior history in proportionality

The next question is why and how prior history increases the gravity of Ewing’s offense. The question can be equal to how the harm that the offense can cause to the community is increased by prior history since the gravity is roughly harm.

One answer why prior history should be taken into account could be this: recidivists are more likely to commit more crimes in the future. So, prior history can indicate the potential harm that a criminal will cause in the future. More severe and longer prior history simply mean more overall harm that will be caused by the criminals.

The above answer seems to assume an inference from the inclination to commit more crime or potential harm to actually committing more crime or actual harm. I don’t find this inference compelling since the criminals might well stop if certain situations take place, e.g., they find a job through the help of some organizations that aim to help recidivists (e.g., RED)[10], or they simply decide to recycle bottles from the street to make a living rather than through illegal means.

Even if potentiality in criminal activity should be considered into the harm part, it is hard to evaluate the potential harm they could cause. This renders the question how prior history increases the gravity of an offense indeterminate. Take Ewing’s case for example, he was already 38 years old with a lot of chronic illnesses when he was sentenced, how much potential harm could he still do if he had not been sentenced life? Without definite answer to this question, the sentence seems to be capricious indeed.

In sum, it is a fallacy of reasoning that we take prior history into account. And even if we should, how to work out a precise procedure to determine the jail terms of the recidivists doesn’t seem clear. Moreover, the State’s interest seems to be too subjective to justify the proportionality between a sentence and the gravity of an offense. All these suggest that taking the prior history and State’s interest into weighing the gravity or harm of an offense is unworkable. As we have seen in Scalia’s opinion in Dobbs, if a rule is unworkable, it should be overruled.[11]

I think my point on the unworkable part is also captured by Breyer J. in his dissent. He suggests that jurisdiction of TS about whether a criminal activity can count as a third strike is pretty capricious as we can see from many cases in California.[12]

3. A brief ending

Just another brief comment before I end this reaction paper. I think in Ewing, just like in Dobbs, the Court tried to make decision in an anti-federalist spirit that it restricted the federal protection to certain rights and give more power back to the states’ legislatures and judiciaries.[13],[14] I think the states’ legislature and judiciary gaining more power on these rights can somehow make the country more diverse. Whether this diversity is good or bad in the long run remains unclear.

[1] Ewing vs. California, 538 U.S. 11 (2003).

[2] U.S. CONST. amend. Ⅷ.

[3] Ewing, 538 U.S. at 19-29.

[4] Harmelin v. Michigan, 501 U. S. 957, 996-997.

[5] Ewing, 538 U.S. at 19-22.

[6] Id. at 26-29.

[7] Ewing, 538 U.S. at 43 (Scalia J., concurring).

[8] Id.

[9] Yet another way to understand it could be that the sentence could be decreased by the State’s interest. This is not likely since the jail term of the sentence remains the same regardless of the State’s interest.

[10] RED is a non-profit organization that educates recidivists and help them to re-enter community and get a job. The introduction of RED can be found here at https://stoprecidivism.org/.

[11] Dobbs v. Jackson Women's Health Organization, 597 U.S. _ (2022), at 56–62.

[12] Ewing, 538 U.S. at 58-62 (Breyer, J., dissenting).

[13] Id.

[14] Dobbs, 597 U.S. _ (2022).