Lockyer V. Andrade - Dissenting Opinion

Dissenting Opinion

Justice David Souter protested that Andrade's criminal history and triggering offenses were less severe than those of the defendant in Ewing, yet Andrade received a harsher sentence. He argued that the sentence in this case was indistinguishable from that in Solem, and thus required the Court to grant relief. "Andrade, like the defendant in Solem, was a repeat offender who committed theft of trifling value, some $150, and their criminal records are comparable, including burglary (though Andrade's were residential), with no violent crimes or crimes against the person." Because Andrade was 37 at the time of the offenses in this case, the 50-years-to-life sentence was effectively life without parole. The only way Souter could distinguish the sentence in this case and the sentence in Solem was "to reject the practical equivalence of a life sentence without parole and one with parole eligibility at 87".

Moreover, the fact that California's three-strikes law embodied one penological theory — the theory of incapacitation — facilitated judicial review of sentences imposed under it with reference to the requirements of the Eighth Amendment. The incapacitation theory could not, Souter argued, justify sentencing a person to 25 more years in prison for an identical, trifling crime committed two weeks after the first. "Since the defendant's condition has not changed between the two closely related thefts, the incapacitation penalty is not open to the simple arithmetic of multiplying the punishment by two, without resulting in gross disproportion even under the State's chosen benchmark". For Souter, the sentence in this case presented one of those rare cases that the Eighth Amendment allowed the Court to set it aside.