This is an audio case brief of Ewing v. California, 538 U.S. 11 (2003). The audio brief provides a full case analysis. However a written summary of the case is provided below.

Table of Contents


Gary Ewing was no stranger to the criminal justice system. In 1984, at the age of 22, he pled guilty to theft.  The court sentenced him to a jail time of 6 months. The 6 months jail time was suspended and he was placed on probation for three years and fined $300.

In 1988, four years later, he was convicted of felony grand theft auto for which he was sentenced to a year in jail and three years of probation. After Ewing completed probation, the sentencing court reduced the crime which was initially a felony to a misdemeanor. This permitted Ewing to withdraw his guilty plea, and  the court dismissed his case.

But two years later, in 1990, Ewing again was convicted of  petty theft with a prior and sentenced to 60 days in the county jail and three years of probation.

And in 1992, Ewing was convicted of battery and sentenced to 30 days in the county jail and two years’ summary probation. One month later, he was convicted of theft and sentenced to 10 days in the county jail and 12 months’ probation.

In January 1993, Ewing was convicted of burglary and sentenced to 60 days in the county jail and one year’s summary probation. In February 1993, he was convicted of possessing drug paraphernalia and sentenced to six months in the county jail and three years’ probation.

A few months after that in July 1993, he was convicted of appropriating lost property and sentenced to 10 days in the county jail and two years’ summary probation. In September 1993, he was convicted of unlawfully possessing a firearm and trespassing and sentenced to 30 days in the county jail and one year’s probation.

In October and November 1993,  Ewing committed three burglaries and one robbery at a Long Beach, California, apartment complex over a 5-week period.

On one occasion, he awakened one of his victims, asleep on her living room sofa, as he tried to disconnect her video cassette recorder from the television in  that room. When she screamed, Ewing ran out the front door.

On another occasion, Ewing accosted a victim in the mailroom of the apartment complex. Ewing claimed to have a gun and ordered the victim to hand over his wallet. When the victim resisted, Ewing produced a knife and forced the victim back to the apartment itself. While Ewing rifled through the bedroom, the victim fled the apartment screaming for help. Ewing absconded with the victim’s money and credit cards.

And on December 9, 1993, Ewing was arrested on the premises of the apartment complex for trespassing and lying to a police officer. The knife used in the robbery and a glass cocaine pipe were later found in the back seat of the patrol car used to transport Ewing to the police station. A jury convicted Ewing of first-degree robbery and  three counts of residential burglary. He was sentenced to nine years and eight months in prison, Ewing was paroled in 1999.

And this brings us to Ewing’s final offense which is at issue in this case.

Ten months after he was paroled,  on March 12, 2000, Ewing walked into the pro shop of the El Segundo Golf  Course in Los Angeles County.  He walked out with three golf clubs, priced at $399 apiece, concealed in his pants leg. A shop employee, whose suspicions were aroused when he observed Ewing limp out of the pro shop, telephoned the police. The police apprehended Ewing in the parking lot.

For this offense, he was charged with, and ultimately convicted of, one count of felony grand theft of personal property in excess of $ 400. As required by the three strikes law of California, the prosecutor formally alleged, and the trial court later found, that Ewing had been convicted previously of four serious or violent felonies for the three burglaries and the robbery in the Long Beach apartment complex.


 California has a three strikes law which requires that, When a defendant is convicted of a felony, and he has previously been convicted of one or more prior felonies defined as “serious” or “violent,” sentencing  is conducted pursuant to the three strikes law. And under three strikes law, If the defendant has one prior “serious” or “violent” felony conviction, he must be sentenced to “twice the term otherwise provided as punishment for the current felony conviction.” And if the defendant has two or more prior “serious” or “violent” felony convictions, he must receive “an indeterminate term of life imprisonment.” Defendants with an indeterminate term of life imprisonment become eligible for parole on a date calculated by reference to a “minimum term,” which is the greater of (a) three times the term otherwise provided for the current conviction, (b)  25 years, or (c) the term determined by the court pursuant to § 1170 for the underlying conviction, including any enhancements.

Also under California law, certain offenses may be classified as either felonies or misdemeanors. These crimes are known as “wobblers.” Prosecutors may exercise their discretion to charge a “wobbler” as either a felony or a misdemeanor. Likewise, California trial courts have discretion to reduce a “wobbler” charged as a felony to a misdemeanor either before preliminary examination or at sentencing to avoid imposing a three strikes sentence.

At the sentencing hearing for his conviction of one count of felony grand theft of personal property in excess of $400, , Ewing asked the court to reduce the conviction for grand theft, which is a “wobbler” under California law, to a misdemeanor so as to avoid a three strikes sentence. He also asked the trial court to exercise its discretion to dismiss the allegations of some or all of his prior serious or violent felony convictions, again for purposes of avoiding a three strikes sentence.

After examination of Ewing’s criminal history, the trial judge determined that the grand theft should remain a felony. The court also ruled that the four prior strikes for the three burglaries and the robbery in Long Beach should stand. As a newly convicted felon with two or more “serious” or “violent” felony convictions in his past, Ewing was sentenced under the three strikes law to 25 years to life in prison.

Ewing found his sentence of 25 years to life for stealing three golf clubs at $399 a piece to be a violation of his eight amendment rights because the sentence was grossly disproportionate.


Issue for the Supreme Court was whether Ewing’s sentence of 25 years to life was grossly disproportionate so as to violate his 8th amendment right.


The eighth amendment forbids cruel and unusual punishment. It requires that the punishment fits the crime. It therefore prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime.

These three factors are considered determining whether a sentence is so disproportionate that it violates the Eighth Amendment;

  • the gravity of the offense and the harshness of the penalty;
  • the sentences imposed on other criminals in the same jurisdiction; and
  • the sentences imposed for commission of the same crime in other jurisdictions.

California’s three strikes law is a redivides state intended to deter repeat offenders.

Recidivism has long been recognized as a legitimate basis for increased punishment by the courts.


The gravity of Ewing’s offense is not just shoplifting three golf clubs. Ewing was convicted of felony grand theft for stealing nearly $ 1,200 worth of merchandise after previously having been convicted of at least two “violent” or “serious” felonies. His current offense is enhanced by his previous offenses. And the states interest with the three strikes law is not merely punishing the offense of conviction, or the “triggering” offense: “It is in addition the interest . . . in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.”

Ewing’s sentence is justified by the State’s public-safety interest in incapacitating and deterring recidivist felons, and  amply supported by his own long, serious criminal record Ewing has been convicted of numerous misdemeanor and felony offenses, served nine separate terms of incarceration, and committed most of his crimes while on probation or parole. His prior “strikes” were serious felonies including robbery and three residential burglaries. To be sure, Ewing’s sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated.


Ewing’s sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the three strikes law, is not grossly disproportionate and therefore does not violate the Eighth Amendment’s prohibition on  [*31]  cruel and unusual punishments.

Share on facebook
Share on twitter
Share on linkedin
Share on email
Share on print
Share on reddit
Share on whatsapp
Share on pinterest
Share on pocket