U.S. Supreme Court Justice Anthony Kennedy would have no idea that Gary Ewing died on Aug. 24, and probably wouldn't care. But Kennedy had a direct hand in Ewing's life and his fate.
Ewing was the small-time criminal who etched himself into the law books on March 5, 2003, when the U.S. Supreme Court upheld California's "three-strikes" law and his sentence of 25 years to life for stealing three Callaway golf clubs.
Ewing turned from precedent to footnote when, at age 49, he died of pneumonia and colon cancer at San Joaquin General Hospital, guarded 24 hours a day by correctional officers. In his final years, Ewing was blind, had AIDS, needed a wheelchair, and was imprisoned at California Medical Facility, the state prison at Vacaville.
His death comes as Californians decide Proposition 36, which would alter the three-strikes law so that repeat offenders who commit minor crimes would do prison time, but not life. Ewing's crime, his life behind bars and the cost of his death illustrate why three strikes should be changed.
As he so often does, Kennedy cast the swing vote in Ewing v. California, the 5-4 decision that upheld the most punitive three-strikes law in the nation.
"To be sure, Ewing's sentence is a long one," then-Justice Sandra Day O'Connor wrote in the decision joined by Kennedy. "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."
Today, 9,000 of California's 133,000 inmates are serving three-strikes sentences of 25 years to life. Most richly deserve their punishment. But the law authorizes life sentences for recidivists who commit any felony on their third strike, no matter how minor, no matter that the crime might have been stealing three golf clubs.
The ninth of 12 children, Ewing grew up in Ohio and in Watts. A sister, Hera L. Ewing of Los Angeles, told me he was an accomplished chef before his life went askew.
He smoked crack and had a rap sheet that included four burglaries, a robbery in which he brandished a knife, two prison stretches, and many misdemeanor convictions. Whatever his transgressions, he never injured anyone.
On March 12, 2000, he entered an El Segundo golf course pro shop and stuffed the three golf clubs down his pants, hardly the heist of the century. As he limped away, the clerk called the cops.
Based on the clubs' price of $1,197, he was charged with grand theft.
"We loved him dearly," Hera Ewing said. "In his right mind, none of that stuff ever would have been happened."
By February 2010, Kennedy apparently came to doubt three strikes. Speaking at Pepperdine Law School, he bemoaned lengthy sentences, and called it "sick" that the California Correctional Peace Officers Association had been among the law's sponsors.
The union that represents prison officers contributed $100,000 to the original 1994 three-strikes initiative, and spent $1.29 million to defeat a failed 2004 initiative that sought to soften the law. This year, however, the union is focused on other issues, and is neutral on Proposition 36.
In May 2011, Kennedy went further, writing the decision requiring that California reduce prison population by 40,000 inmates, and noting that for years, "medical and mental health care provided by California's prisons has fallen short of minimum constitutional requirements."
When Ewing became blind, he requested a lower bunk. Perhaps because of the crowding that Kennedy decried, Ewing's request was pending when he fell from a top bunk, causing an injury that required he use a wheelchair.
Even if Proposition 36 was law when he stole the Callaways, Ewing would have served time. Attorney Michael Romano, who oversees a three-strikes defense clinic at Stanford Law School and is a leading proponent of the initiative, said Ewing would have faced eight years in prison under Proposition 36.
The California Department of Corrections and Rehabilitation wouldn't release the cost of Ewing's care, citing federal privacy law.
But treating colon cancer runs into the hundreds of thousands of dollars. The department reserves 25 beds at the hospital where Ewing died, and assigns 30 officers to the ward, at a cost of $2.7 million a year. Inmates are watched full time, even those who are blind, cannot walk and are dying of cancer.
Ewing is one of 614 three-strikers who have died behind bars. If he had been released, the federal government would have shared the cost of his care.
Voters need to set priorities. Public safety is paramount. But nothing is served by requiring a man who stole three golf clubs, was blind and couldn't walk, to die under 24-hour guard. I have to think that Justice Kennedy would agree.