U.S. 9th. Circuit rules three-strikes sentence unconstitutional


The U.S. 9th Circuit Court of Appeals says a 28-years-to-life penalty for a sex offender who failed to register at the appropriate time is cruel and unusual punishment. .

By Carol J. Williams  L.A. Times  December 30, 2008

California’s three-strikes sentencing law suffered a blow Tuesday when a federal appeals court struck down as unconstitutional a 28-years-to-life sentence for a sex offender who failed to register with local police at the correct time of year.

The U.S. 9th Circuit Court of Appeals sent the case of Cecilio Gonzalez back to federal district court in Los Angeles for resentencing after finding his 2001 penalty constituted cruel and unusual punishment, which is prohibited by the 8th Amendment.

Gonzalez’s harsh sentence was grossly disproportionate to his “entirely passive, harmless and technical violation of the registration law,” the appeals court said.

The California Penal Code requires a sex offender to register whereabouts annually within five working days of an ex-convict’s birthday. Gonzalez had registered in Los Angeles County in May 2000 and confirmed his address a year later, meeting the yearly requirement but violating the deadline of his Feb. 24 birthday.

“This is not a case where my client failed to register. He failed to update his address information that was still good,” said Gia Kim, the federal public defender who argued Gonzalez’s case to the appeals court.

Registration infractions carry a maximum three-year sentence in California, and Gonzalez’s oversight wouldn’t even qualify as a crime in at least 11 states, wrote Circuit Judge Jay S. Bybee, one of the court’s more conservative judges.

Bybee also pointed out that Gonzalez, who has already been in prison for more than seven years for this third felony conviction, was facing substantially more severe punishment than that imposed in California for far more serious crimes, such as second-degree murder.

It was unclear how much significance Tuesday’s ruling would have for others sentenced to long terms for minor third offenses.

“It does show that the courts are willing to reject really outrageously long sentences for very technical offenses,” Kim said. “The opinion focused on the fact that this was a crime of omission and a crime of very little moral culpability.”

The state attorney general’s office declined to comment on the ruling or say whether it would be appealed, said Christine Gasparac, press secretary for Atty. Gen. Jerry Brown.

Efforts to ease the three-strikes rule have largely failed. The U.S. Supreme Court ruled in two challenges in March 2003 that it was a state legislature’s right to determine how best to deter criminal recidivism.

“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,” former Justice Sandra Day O’Connor wrote for the 5-4 majority in upholding 25-years-to-life sentences for the two men whose respective third-strike offenses involved shoplifting golf clubs and video tapes.

California voters approved a 2000 ballot initiative that provides drug treatment instead of life imprisonment for most third strikes involving drug possession. But voters spurned an initiative four years ago that would have required the third felony to be violent or serious to justify a harsh sentence.

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