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(cross-posted at Calitics)

This is a major, if tentative, victory for criminal justice reform advocates.

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.

This case represented the unintended consequence of three-strikes carried out to its most ridiculous extreme.  28 to life for registering, but not at the right time of year?  Nuts.  This isn't a crime in 11 states, and the maximum sentence allowed by customary law in California is three years.

In case the "tough on crime" absolutists start shieking about "activist liberal judges" overturning the will of the people, consider who wrote this opinion: Jay Bybee.  Nominated by George W. Bush Jay Bybee.  Writer of the fucking torture memo Jay Bybee.  Even a guy who justified the torture of prisoners considers this cruel and unusual punishment.  There is no indication whether or not Jerry Brown would carry this to an appeal, but considering the opinion of this very conservative jurist, I would imagine the US Supreme Court would at least potentially rule the same way, although they struck down a similar challenge to three strikes in 2003 on a 5-4 vote.  Put it this way, I don't see Bybee as more conservative than Anthony Kennedy.

This does not invalidate three strikes entirely, but it certainly gives a ray of hope to those locked up for a minor third crime to challenge their sentencing.  And it provides a framework to show how unjust and counter-productive these stringent mandatory sentences are.  Three strikes is more of a symptom than the entire problem - the legislature has approved over 1,000 higher sentences in the past 30 years.  But this is an important start, to end the tyranny of "tough on crime" absolutism that has contributed to busting the state budget and making this the worst state in the union when it comes to the corrections system.

Originally posted to dday on Tue Dec 30, 2008 at 08:00 PM PST.

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