The third conviction could serve as the third strike for California's anti-recidivism statute, thereby triggering a minimum 25-year sentence. Andrade was convicted of both counts of petty theft and was sentenced to two consecutive terms of 25 years to life in prison. After exhausting his appeals in the California legal system, Andrade filed a petition for habeas corpus, arguing his sentence violated the Eighth Amendment prohibition against cruel and unusual punishment because it was disproportional to the underlying crime. The United States District Court for the Central District of California rejected Andrade's petition, but the Ninth Circuit agreed with Andrade on appeal. The State of California sought review of the Ninth Circuit's decision, and the Supreme Court ultimately resolved the dispute in favor of the state. Basically, the Court announced that it was not enough for a state court to err when applying an anti-recidivism statute; instead, without using those words, the Court almost suggest that a lower court would have to act with malice in order to make a defendant eligible for habeas review. What this decision makes clear is that there is no type of constitutional protection for repeat felons. Not only has the Court sanctioned states' abilities to impose enhanced sentences on repeat offenders, but it has also sanctioned states' rights to have jurors determine the severity of a crime. One would imagine that a person's punishment would be determined solely by looking at the crime. However, mandatory punishments have fallen into disfavor. The whole reasoning behind degrees of murder has been to establish the level of criminal culpability that a defendant had when taking a human life. Moreover, in Gregg v. Georgia, 428 U.S. 153 (1976), the Supreme Court approved Georgia's death penalty statutes, which permitted juries to impose the death penalty after convicting a defendant, if they found the presence of one or more aggravating factors. Aggravating factors could include things such as the prior or simultaneous commission of another crime, killing for money, or killing a government official (428 U.S. 156). However, what is the most interesting is that the perceived level of depravity or evil of the crime could be considered by the jury, absent any other evidence of extraneous criminality.

How and why did society become so convinced of the entrenched criminality of convicted felons? While it may seem like an assumption that has existed throughout time, the reality is that the idea of the born criminal really only began to really take shape in the early 19th century, with its strong emphasis on social Darwinism. Social Darwinism suggested that "in the struggle between strong and weak, the fittest survive, procreate, and pass on their traits and (superior) characteristics" (Winfree and Abadinsky, 2003, p.34). Social Darwinists did not necessarily distinguish between individuals and groups or countries. One of the things suggested by Social Darwinists is that criminality was genetic, which would make rehabilitation difficult, if not impossible. Moreover, if criminality was genetic, then it stood to reason that some races were more likely to engage in criminal behavior than other races. It should come as no surprise that, in the United States, which was confronting a changing relationship between the races at the turn of the century, Social Darwinism was considered a good, scientific explanation for continuing disparity between the races. Even today, some people argue that African-Americans are incarcerated in disproportionate numbers because they offend in disproportionate numbers. However, Social Darwinism was used by the Nazis to justify extermination of the Jews, and not only discouraged its use in social sciences, but also discouraged many people from examining genetic links for criminality for many years (Weiler, 2007, p.4391).

While it is probably apparent that most convicts are not the types of monsters that one associates with criminals who cannot be rehabilitated, it is equally obvious that some criminals are almost certainly beyond rehabilitation. Take, for example, the phenomenon of serial killers. Of violent and dangerous felons, serial killers, who tend to kill multiple people who lack any prior relationship to the killer, are probably the most frightening and dangerous-seeming group, despite the fact that one is much more likely to be murdered by a friend or family member than by a serial killer. However, the very fact that these killers murder for enjoyment or to fulfill some type of psychological need, separates them from the more average felon.

There are stories about people killing for enjoyment that predate modern times. Vlad Tepes and Elizabeth Bathory are only two of the historical mass murderers that might be considered serial killers in modern times. Moreover, because only recently have accurate record keeping and criminal investigation made it easier to identify where and when serial killers are active, if not necessarily to apprehend those killers. This study of serial killers has taken them outside of the realm of the criminally insane, where it is highly likely serial killers lurked for several centuries prior to the serial killers coming to the...

What the studies have revealed is that there does seem to be some commonality to serial killers. "Identified serial killers usually turn out to be white males of above-average intelligence who begin killing in their twenties or thirties" (Vronsky, p.8). Moreover, serial killers generally appear very normal. Between murders they hold down jobs, maintain relationships, and otherwise maintain a facade of normalcy. Ted Bundy was a rape crisis counselor; John Wayne Gacy volunteered as a clown at a children's hospital (Vronsky, p.5,7). The very fact that these killers can so easily blend into society and are often so charismatic places them among the most frightening of criminals and has given the public the perception that they will always reoffend.
However, the reality is that not all serial killers will reoffend. "Serial killers sometimes do burn out, and depending on the personality of the individual they either allow themselves to be captured, commit suicide, or cease killing on their own and quietly fade away back to where they came from" (Vronsky, p.17). That being said, there is some truth to the notion that serial killers are unstoppable killing machines, because, when captured in the middle of an incomplete killing phase, it seems that serial killers will reoffend at the first opportunity. Arthur Shawcross served 14 years for the murder of two children, was released, and killed 11 women in the 21 months between his release from prison and his apprehension for those crimes (Vronsky, p.17). Richard Biegenwald served 17 years for murder, and committed at least seven additional victims in the eight years between his release and apprehension (Vronsky, p.17). Peter Woodcock killed two children, was confined to a psychiatric facility for over 30 years, and the first time he received a temporary pass to leave the facility, killed and then sodomized a fellow inmate; he then turned himself into the police for the crime (Vronsky, p.17). Looking at the above examples, it becomes difficult to escape Vronsky's conclusion that "serial killing appears to be incurable: Time or prison does not relieve the need that serial killers feel for murder- only killing does" (Vronsky, p.17).

In fact, Joel Norris was one of the first experts to write a comprehensive book about serial killers. Of course, other criminologists and behavioralists had described individual cases of serial killers, but Norris was among the first to describe serial killing as a disease. What he concluded is that serial killers have a combination of symptoms pointing to serial killing as a disease (Norris, 1988, p.36). There is certainly not consensus in this among the experts. On the contrary, many experts believe that serial killers may suffer from other mental disorders, such as sociopathology, psychopathology, schizophrenia, bi-polar disorder, or depression, but that the mental disorders merely contribute to the disease. Regardless of how one labels it, serial killers tend to exhibit a set of disease-like symptoms. Most of them respond well during incarceration, but will revert to violence if released; many have experienced trauma to the head and possible brain injury; most were abused as children; most do not fear social consequences; most do not learn from punishment; most have an ill-defined sense of self, most refuse to accept personal responsibility for their actions; almost all of them react spontaneously to violence; many of them have grandiose views of themselves; and many abuse drugs or alcohol (Norris, 1988, p.37-42). Some of these traits, such as drug and alcohol abuse, are treatable. Other factors, such as the receipt of a head injury, have no curative treatment.

With serial killers, even if they could be rehabilitated, it would be hard to use them as examples for arguments for rehabilitation because of the severity of their crimes. However, what about the in-between criminals? There are literally hundreds of thousands of criminals who have done more than committed an isolated felony and who seem undaunted by the consequences of their crimes, but whose antisocial behavior does not rise to the level of the serial killer. Many…