Adjusting the 'Third Strike'

How tough can states get with repeat criminals before running into constitutional barriers – specifically the Eighth Amendment's ban on "cruel and unusual punishment"?

The US Supreme Court has decided to tackle that question. It agreed to hear two cases springing from California's "three-strikes" law, which imposes a life sentence on people convicted of three felonies.

The point at issue is whether government can impose a severe punishment for a habit of crime, and not just one crime.

Half the states have three-strikes laws, but only California's allows the third crime to be a minor one, such as shoplifting, and not a felony. In one of the cases the court will hear, a man with prior robbery convictions was given 50 years to life for stealing $153 in videotapes from two Kmarts.

Last November, a lower federal court found, reasonably, that this sentence was "grossly disproportionate" to the crime, in violation of the Eighth Amendment. There's no certainty the Supreme Court itself will agree. But these cases will surely generate a lively debate between liberals, open to the "cruel and unusual punishment" plea, and conservatives who favor wide discretion for states in their efforts to fight crime with tough sentences. Arguments will be heard next fall.

Meanwhile, Californians themselves will also get into the act. State lawmakers who oppose the current three-strikes law are pushing for legislation to specify that the "strikes" be serious or violent felonies. A similar measure may be on the November ballot if enough signatures are gathered.

Laws to get individuals who repeatedly commit serious crimes off the streets have been an effective crime-fighting tool. But California goes too far in rounding up petty criminals as well, driving up prison costs and offending concepts of fairness and appropriate sentencing.

If the state's voters or legislators can make the needed adjustments quicker than the courts, all the better.