Golden Gate University Law Review


Renee Ross


A large majority of states have enacted recidivist statutes requiring increased punishment for repeat offenders. California's controversial recidivist statute, the Three Strikes and You're Out Law (the Three Strikes Law), was approved by ballot initiative and enacted by the state legislature in 1994. Defendants have challenged the constitutionality of sentences under habitual offender statutes for at least twenty years. In Harmelin v. Helm, the United States Supreme Court addressed the constitutionality of a life sentence without the possibility of parole for a first time drug offender convicted of possession of 650 grams of cocaine. Justice Kennedy's concurrence in Harmelin set forth a three-part gross proportionality analysis to be applied to sentences imposed upon non-violent recidivists challenged under the Eighth Amendment's clause prohibiting cruel and unusual punishment. In Andrade v. Attorney General,s the United States Court of Appeals for the Ninth Circuit applied Justice Kennedy's Harmelin analysis to a life sentence without the possibility of parole for fifty years, imposed under the Three Strikes Law on a non-violent recidivist who stole nine videotapes worth under $200 on two separate occasions.