The Supreme Court found that California’s Three Strikes Law does not violate the Eighth Amendment. But what about the prohibition against ex post facto laws? One of the arguments for the law is that criminals aren’t being punished solely for the third strike, but for their entire history of repeated offenses. But if someone faces a punishment for acts performed prior to that punishment being established, isn’t that ex post facto?
Three strikes laws punish you for something you may do in the present (committing a third felony with two felonies on your record), not adding a penalty for doing something that wasn’t a crime back when you did it.
It doesn’t count as ex post facto.
I agree with Balron.
You cannot do anything to avoid being convicted for an ex post facto law. To avoid a 3rd strike conviction all you have to do is not commit a third crime.
Well, there are points to be made both ways (and yes, the Eighth Amendment would tie into the argument, even if SCOTUS doesn’t see it as automatically applicable).
First, the law as adopted applies to all people: commit and be convicted of three felonies, and you’re toast. Second, the penalty is prescribed on the basis of one’s having committed a third felony.
The question IMHO reduces to: would the prescribed penalty be excessive if the legislature were to impose it for that crime in the absence of previous convictions? If so, then it is both ex post facto and excessive under the Eighth, since it would not be a legitimate (if extreme throw-the-book-at) punishment for that crime taken alone. SCOTUS holds that it is not – that it is within the legislature and courts’ reasonable grounds for making judgments to impose a penalty for a crime that takes into account previous convictions.
Bottom line, then, is that the legislature has the unquestioned power to have made the maximum sentence for the individual crime in question that imposed by the third-strike law. If it chooses to exercise that power only in cases where the convicted defendant has been previously convicted of two felonies, it is within its reasonable grounds in so acting.
I would presume that there are still grounds for challenging such a conviction – e.g., if a person commits a minimal non-violent felony. (I am contemplating New York’s burglary law, which is in essence defined as “criminal trespass with the intention of committing any other crime” – and picturing a man, say, entering the house of a family member without explicit consent to make an annoyance phone call due to his anger – technically burglary under NY law!) Where the penalty imposed by the three-strikes law would be clearly excessive for the crime – and this is admittedly a matter of judicial interpretation – it might be challenged as ex post facto and violative of the Eighth, since it imposes a penalty not justified by the crime on the basis of past crimes.
As a parallel, also under New York law, DWI is a misdemeanor. But DWI with a previous DWI conviction is a felony. (This is as of 1997; if the law has changed, please post a correction, New York dopers!)
Where I’m going with this is that under current SCOTUS doctrine, it’s reasonable for a legislature to set, and a court to impose, any given sentence for a felonious crime, presumably within the court’s notion of “reasonable.” Aggravating and ameliorating circumstances are nearly always provided for in sentencing guidelines. For a crime’s punishment to “kick up” to a higher level on the basis of the circumstances surrounding it is a legitimate step, generally held to be “just” by most people. What the court said, in effect, is that previous felony convictions are among the “circumstances” that may be considered.
There may be the occasional set of circumstances where a given crime is given a disproportionate punishment thanks to the three-strikes law. These would IMHO be exceptions to the present precedent, and would be dealt with in future cases.
But doesn’t past conviction typically come into play when sentencing? First time offenders often get off with no or minimal sentencing and multiple offenders get more punishment.
John Mace,it’s my understanding that, without a three strikes type law, a prior record can be considered but the sentence cannot go beyond the maximum for the crime(s) committed.
With California’s three strikes law, the person can be given a sentence far beyond what would be normal for the specific crime. Something that normally carries a maximum sentence of five years carries a twenty-five year (to life) if it’s your third strike. Please note that, while actively opposed to the three strikes law (as written), IANAL.
Peace-DESK
What if a law was passed saying that anyone who sold tobacco to anyone under the age of twenty one in the last five years is barred from selling any tobacco? To avoid being convicted under this law, all you have to do is not sell tobacco. Would that be ex post facto?
Something else to consider: while the justice system tries to avoid fals convictions, they are inevitable. If I am falsely convicted of petty theft, it would be an annoyance, but it probably wouldn’t be that big of a deal. But if someone with two strikes is falsely convicted, they can get a life sentence. If the government is going to sentence someone to spending the rest of their life worrying about being convicted of shoplifting, shouldn’t they let them know before they commit the crime?
Polycarp
[qoute]SCOTUS holds that it is not – that it is within the legislature and courts’ reasonable grounds for making judgments to impose a penalty for a crime that takes into account previous convictions.
[/quote]
So you are saying that by declaring this not to be cruel with priors, SCOTUS is declaring it not to be cruel without priors? Am I understanding you correctly?
Again, IANAL, but I don’t see that as being any different. As you pointed out, all you had to do was not sell tobacco. It’s not the PAST action that has been declared illegal (it already was illegal), but a FUTURE action.
An ex post facto law makes a PAST action illegal. Similar to the recent SCotUS decision that the statute of limmitation on sex offenders cannot be changed so that it affects PAST offenders without any future action on their parts.
I don’t think you’d have an ex post facto claim, but you might have a Due Process claim.
TheRyan: To respond to your question, IANACL, but that’s how I’m reading them. (As I noted above, that raises the question of whether a punishment that would be excessive without priors remains excessive with.)
John Mace: Far be it from me to try to second-guess TheRyan on what he means, but I took the thrust of his question to be that people who had been convicted of felonies prior to the passage of the three-strikes law (and presumably had served their sentences, thus paying the penalty for their crimes) would now be subject to severer penalties, not on the basis of their present crime, but on the basis of crimes committed prior to the law which imposes severer penalties on those with prior convictions. Ergo, they are being punished more harshly on the basis of a law not in place at the time they committed and were convicted of the earlier crimes – which sounds suspiciously ex post facto.
If I understand you correctly, you are saying that an ex post facto law or applies to criminal sanctions. If the government decides that it doesn’t want people doing X and applies santion Y to those that do X, even those that did X before this decision was made, that’s just fine as long as the government does not refer to X as a “crime” nor Y as a “sentence”. Is that a correct presentation of your views?
Consider the following two situations:
A. In 2004 the governmment decides that no child should eat fast food, and passes law stating such. Every parent who fed their child fast food after 1994 is charged under this law, and fined $100.
B. In 2004 the governmment decides that no child should eat fast food, and passes law stating such. Every parent who fed their child fast food after 1994 is reprimanded and has the tax allowance for that child reduced by $100.
Are either/both of these situations ex post facto?
Ryan: I don’t understand your first paragraph. It’s probably my fault, not yours. But I’m sure a real lawyer could explain this whole deal better than I have. Do you see any distinction between saying that A) we suddenly decide X is illegal and would try to punish you for doing X before it was illegal and B) We suddenly decide that X, which has always been illegal, will have a heavier sentence in the future if you commited similar crimes in the past.
As for the 2 scenarios I would say both are ex post facto because in both cases the parents are punished solely for something they did before the law was enacted. And nothing they do after the law was enacted has any bearing on the punishment meeted out.
Polycarp: We really need a lawyer to weigh in on this, but I still see a distinction between passing a law and punishing someone for something they did before the law was pased, and changing the sentencing for crimes one commits in the future based on your criminal record. Aren’t sentencing guidlines changed all the time, and don’t they reflect past crimes? This has never been considered ex post facto. I see where there is some similarity, but there is still a distinct difference. In a true ex post facto situation, there is absolutely nothing you can do to avoid being punished since the actual crime was committed before the law was passed. In the three strikes case, you simply have to not commit any future crimes and you will not be punished. Surely those two situations are different. No?
The ex post facto prohibition may not be evaded by giving a civil form to a measure that is essentially criminal. BURGESS v. SALMON, 97 U.S. 381 (1878)
Suppose such a law is passed in State X next month. Now, suppose Dimwit 1 has committed three felonies, the last one being committed a year ago. Suppose Dimwit 2 commits his third felony a month after the Three Strikes law is passed.
Dimwit 1 probably could not be sentenced under that law, since at the time the third felony was committed, there was no such law. Dimwit 2 COULD be sentenced under that law, since he had the option to not commit that third felony after the law was passed.
My point was that the government was essentially punising someone for doing something before the law was passed. Suppose that a person who sold tobacco before the law was passed were charged with a crime, was convicted, and as a sentence was prohibited from selling tobacco to anyone? From a practical point of view, this would be identical to me previous hypothetical. Would you have a problem with this?
Yes, but not much. Especially when the crime is being transformed from a misdeamor to a felony; as far as the sixth amendment is concerned, a misdeamor is not even a crime. The implicit requirement of the ex post facto prohibition is that the ogvernment must give fair warning before punishing someone for something. Simply making the public aware that an action violates a law is not sufficient to satisfy that requirement. There’s a law against having large stickers on your back car window. Does the fact that the law already exist mean that the government can make this a felony, and put people in prison for violating this before it was made a felony?
If that’s the issue, I can easily word it otherwise. How about “if the parent fails to reduce the amount of exemptions they are claiming by $100, they shall be fine $1000”? My point is that being allowed to sell tobacco, especially if it part of your livelihood, is a loss. And nothing someone does after the law is enacted has any bearing on that loss.
Minor correction here- an annoying phone call would probably be harassment- which is not a crime under NY law, only a violation.
BTW, the bump-up doesn’t apply only to DWI. There are plenty of offenses ( offhand I can think of stalking, menacing and criminall possession of a weapon) in NY in which prior convictions for particular crimes will cause a new offense to go from a Class B misdemeanor to a Class A, or from a misdemeanor to a felony, or to a Class E felony to a Class D, etc.
I don’t know how Californias’s three strikes law is written, but NY’s sentencing scheme has a sentencing range for each felony offense, a separate sentencing range for each non-violent felony committed by a person with a prior felony conviction, another for when the second felony is violent but the first wasn’t, another for when both convictions were violent felonies, another for a third felony conviction, and yet another for a third violent felony conviction. In a scheme like that, which is the normal sentence?