Criminal Justice

What would you think a suitable punishment would be for shoplifting $153 worth of videos? A hefty fine? Probation? Community service?

Five members of the United States' supreme court and the governor of California, Gray Davis, believe that the appropriate sentence for this offence is 50 years.

Last week, the supreme court, by a majority of five to four, decided that 50 years for stealing $153 worth of videos was not a "cruel and unusual punishment" for Leandro Andrade, a heroin addict, who had stolen such videos as Cinderella and Free Willy as presents for his children.

Andrade, who has no convictions for violence, was jailed for 50 years in 1995 at the age of 37, because he had committed three felonies and, under California's "three strikes" law, was thus eligible for a minimum sentence of 25 years.

Because the videos had been stolen in different acts of shoplifting separated by two weeks, the sentence was doubled. The supreme court represented his final legal hope of being free before his death.

The members of the court who voted this way were Sandra Day O'Connor, chief justice William Rehnquist, Anthony Kennedy, Atonin Scalia and Clarence Thomas. Scalia and Thomas went so far as to say that they could not conceive of a prison sentence that was "cruel and unusual."

When their decision was announced, it was welcomed by Governor Davis, a Democrat who once had aspirations for the presidency, as being a "good day for California."

In years to come, people will look back at this judgment, and the way in which it was greeted by Governor Davis, in much the way that we now look back on the hanging of people for stealing a sheep and the self-serving ways in which it was justified by judges and politicians at the time.

In Nigeria, we are rightly appalled by a sentence of death by stoning for adultery. Many are horrified by the punishment and amputation of limbs for theft in Saudi Arabia. But jailing someone for ever for shoplifting - which is what the supreme court and Governor Davis have endorsed - exhibits the same sense of casual sadism.

There are 333 similar cases of life sentences now being served in California for non-violent petty theft. A further 650 people are serving such sentences for the possession of small quantities of drugs.

This Monday, there was a meeting in south central Los Angeles of families, friends and supporters of people jailed under the three strikes law. Some of them had been at Leandro Andrade's supreme court hearing and said that the majority members had made it clear they had little interest in the case. According to one of those present, Clarence Thomas appeared so bored by the procedure that he "almost had his feet up on the desk".

Some of the families had maintained a flicker of hope that any court that took an oath to uphold justice would have to acknowledge that 50 years for minor shoplifting could not be anything other than cruel and unusual.

Another group present, Families to Amend California's Three Strikes (FACTS, at www.facts1.com), had already resigned themselves to the fact that the law - "this unholy law", as one FACTS member described it - will have to be changed at the ballot box or in the legislature. Assemblywoman Jackie Goldberg has been trying to amend the law in the state legislature so that it does not apply to non-violent minor offences, but with little success so far.

Few other politicians have the guts to risk being called soft on crime. To this end, a campaign is already under way to get the 600,000 or so signatures in California that will amend the law via a proposition in 2004, and to gather the money that such a campaign will need. Campaigns are expensive, as Governor Davis knows: the prison guards' union, an enthusiastic supporter of the three strikes law that helps to keep them gainfully employed, bankrolled his gubernatorial campaign to the tune of $2m. It must reckon it money well spent.

But it is worth going back to why this law was introduced. It was brought in because of the horrific abduction and murder of a girl called Polly Klaas, by a violent multiple offender who should not have been on the streets. In the understandable outrage that followed the killing, the law was passed.

It was never intended to be used to lock up non-violent minor offenders. Which is why one of the most vocal and prominent supporters of the campaign to amend the law is Polly Klaas's grandfather, Joe Klaas. It is sad that neither the majority side of the supreme court nor the governor's office has been able to attract people of similar courage and compassion.