*1 Appellant, BULT, Petitioner Justin LEAPLEY, Warden
Walter Penitentiary, Appellee.
Dakota State Nesson, Butler of Butler and Michael J. 17914. No. Falls, appellant. for Sioux Dakota. Supreme of South Court Gen., Smith, Barnett, Atty. Mark Mark Pierre, Gen., Atty. appellee. Asst. for January 1993. on Briefs Considered 20, 1993. Decided Oct. MILLER, Chief Justice. Rehearing Denied Nov.
ACTION
(Bult)
Lloyd
juryA
convicted
Bult
Justin
22-19-1,
kidnapping,
and sexual
SDCL
fifteen,
22-
with a child under
contact
imprison
He was sentenced to life
22-7.
and to a
ment on the
conviction
year
on the sexual
concurrent ten
sentence
Judge
contact conviction
Circuit Court
unanimously
Eugene L. Martin. This Court
convictions;
regard
no issues
affirmed Bult’s
ap
ing
were raised on direct
the sentence
Bult,
FACTS allega- dispute the factual Bult does not them and supported which tions and evidence We summarize to his conviction. led statement of offense from our facts of the Bult, supra. facts p.m. on years ago at 5:10 Over eleven Bult, year eighteen September senior, screaming high forced old school tricy- five-year-old girl off of her crying away He drove and into his automobile. cle According to the speed. high rate of victim, field to a corn drove *2 down, age previous country he held her removed cause of his and his lack of where convictions, clothes, felony put good his wienie” in conscience and her and “tried Defendant, -laying was on the seat. At fair to the I don’t believe [sic] her while she p.m. afternoon the victim’s mother we can ask for it and we do not ask for it. 5:35 that yard daughter screaming in the heard her attorney long peniten- Bult’s believed questioned hap- her about what had and tiary purpose sentence would serve little and pened. urged remedial treatment. initially being implicated Bult denied but said, The trial court addressed Bult and investigators later admitted to that he ab- part, sentencing that it him im- was to life attempted ducted the victim and to have sex prisonment because: sign con- with her. He refused written Jury you The crimes that the has found trial, testified, all fession. At Bult denied guilty very of are serious and ones which charges, presented alibi witnesses. generate very any by if compassion jury guilty verdicts. reached anybody. I think that one must make an your particular effort to balance interests SENTENCING against public the interests of the that sentencing At the trial court had the bene- easy thing is not an to do. And this is not presentence report. According fit of a easy thing an for me to do. But report, January Bult was born 1964. reading type done some about by parents He was raised his natural and felt Jury crimes that are of the nature that the good except that he had á for childhood says you ability committed and the of some parents times that his were drunk. people to treat the individual who has com- Bult’s criminal record involved incident problem mitted those crimes. The that alleged adjudicated you keep arson 1975. He was running is the chance of into 16, 1975, delinquent placed on October repeating those crimes themselves vir- probation on indefinite which terminated on personality tue of the or whatever of the September December 1975. person On who committed the And I crimes. ninety placed day Bult was on a thought great diversion about this matter deal and program because of a referral as a child in things [sic] that concerns me most is supervision alleging need of that he awas repeating the chance of and the fact that I runaway beyond parental control. This society don’t that feel should have to suffer terminated on November repeating the risk of this offense itself again., Educationally, Bult the twelfth grade. Academically student, poor he was a HABEAS CORPUS problem temper. exacerbated his short
Despite ability, his low academic he never application In his for a writ of habeas day tardy missed a and was never for three corpus Bult that contended the life sentence years. With individualized educational in- parole infringed improve- struction he showed considerable right his constitutional to be free from self-concept although ment the area of addition, punishment. cruel and unusual developed social skills had not as dramatical- presented Bult the court with information ly- regarding impris- the sentences of inmates oned in the South Dakota At urged the state the trial impose court to a substantial sentence but did not ask that Bult be sentenced to life The habeas court concluded that while age due to his lack severe, not, Bult’s sentence was it was previous felony convictions.1 The state told facts, light of all the so excessive or cruel as part: the trial disapproval to meet the and condemnation of going generally And the is not Mr. State ask that the conscience and reason of men imprisoned Bult be for life. I think be- or of court. It concluded the sen- twenty year bargain 1. We plea note the state offered which Bult declined. II, N.W.2d at 827. review.” Weiker of Bult for the risk
tencing court’s concern
Helm,
by the
463 U.S. at
was confirmed
See also
offense
repeating the
Task Force on
OF Id., at 779. 472 N.W.2d AND VIOLATES STATE OF PAROLE commonly accepted goals pun PROHIBITIONS AGAINST FEDERAL 1) retribution, 2) deterrence, are ishment AND PUNISHMENT? CRUEL UNUSUAL 3) general, and rehabili individual and both whether appeal, we first determine “On Gregg Georgia, 428 U.S. 96 tation. v. or is the conscience’ the sentence ‘shocks We it to the crime that so a life sentence without recognized that while Eighth Amendment ‘within activates the retribution, deters the convict parole extracts jurisdiction’ proportionality and without crime, him from committing removes from Lykken, 484 N.W.2d tests.” State v. street, felons on notice puts would-be the Basker, (S.D.1992); v. State recidivism, complete high penalty of the (S.D.1991). Accord State N.W.2d ly goal the of rehabilitation. eschews (S.D. Andrews, 76, 82-83 v. 393 N.W.2d (S.D.1983). Weiker, 342 N.W.2d v. II, 1986); Weiker [State Weiker] [823] at “Absent Weiker, supra, we noted that a life severity only by capi- so excessive duration is exceeded sentence which is sentence acknowledged of the we punishment. that it shocks the conscience tal While imposition Dakota that it is well settled are cases where that there meritorious, re statutory limits is not parole sentence within a life sentence Holloway, 482 N.W.2d viewable on natively, review of a sentence determined disproportionate to the crime. State 1992); sentence 879; (S.D.1985) crime, Weiker we will appeal.” the sentence was [in manifestly disproportionate II, (citing Janssen, light of the only engage in extensive cases). where we Lykken, 306, 310-311 371 N.W.2d gravity of the Stated at 827. manifestly have first alter “If we cautioned: public ry of much more serious rehabilitation reason of their structiveness of the criminal law [T]hey right n safety are rare to ever n render irrelevant brutality and should involve the moral again be set require in vindication of n that the offender n or calculated offenses underpinnings [*] free. a histo- goal of forfeit n de- strongly, recommend to penalty] ... But even more offense and harshness of life the maximum trial court that in Helm other two factors listed then the only in such cases imposed in the same imposed on others [sentence sentence from the facts can determine jurisdictions] where it jurisdiction be other previous con- and the principal offense require focused and extensive come more addition, unlikely to rehabilitation. there was no rehabilitation is so victions that any prior from consideration sen- evidence of sexual offenses or sexu- removed to be society disfunctionality de- tencing; that the interests of al which would lead to the kept incorrigible convict be off the that Bult was an crim- mand that conclusion life; of his and that incapable for the rest inal of rehabilitation. streets through legislature, society, speaking Bult to life clearly that the offense or mandated kidnap- without the malignant are so involved offenses beyond ping the trial court went the facts of is the ade- lifetime of incarceration case, the contained in the information quate retribution. report, prosecutor’s presentence rec- Weiker, at 12. supra, 342 N.W.2d record, a life ommendation. Based *4 kidnapping, of a Class Bult was convicted possibility parole sentence without the of for contact with a child under felony, and sexual eighteen year this old defendant shocks the fifteen, felony. Dakota a The South Class generally conscience of men and of this broad discretion Legislature gave trial courts Court. severity determining of the sentence Finally presented corpus Bult the habeas convicted of each crime that a defendant court with all available information concern- statutory carries receives. Neither crime ing serving penitentia- in the individuals time penitentiary sentence. The maxi- minimum ry for a conviction of Because of penitentiary sentence for kid- mum Class our conclusion that Bult’s sentence shocks napping life without the conscience, the need to determine wheth- maximum sen- of while the er the sentence is so 4 sexual contact was ten tence for Class Eighth crime as to activate Amendment 22-22-7, years imprisonment. 22-19- portionality review is obviated.2 We Bult 22-6-1. The trial court sentenced judgment observe that this data validates our maximum sentence for each that a life sentence in Bult’s case shocks the apparent It is from its remarks conviction. distinguished conscience. Bult’s case is from sentencing court at Bult’s that the trial be- presented the cases life terms for where any person committing the crimes lieved that imposed youth, were Bult’s beyond rehabilita- Bult was convicted was convictions, significant prior lack of and the tion. bodily fact that he did not inflict substantial minimize or trivialize the seri- We do not injury deadly weapon. or use a attempted abduction ousness of Bult’s resentencing Reversed and remanded for However, five-year-old girl. rape this proceedings. destructive, crime, although brutal and does rendering not a level rehabilitation rise to WUEST, SABERS, AMUNDSON, irrelevant. Bult did return the child her JJ., concur. shortly after the abduction. Fortu- home nately, raped, the victim was not nor did she HENDERSON, J., specially. concurs injury. physical sustain substantial HENDERSON, (specially concur- Justice addition, that at the the record reveals ring). year eighteen time of offense the old decision, history upon hearing this Bult’s criminal consisted of two Based Court’s juvenile appropriate brushes with the law he before the trial which while was resentencing hearing, period probation in a brief would amount to a resulted process must at- ninety day program. and a diversion While should now be held. Due given learning self-image petitioner being he with the a full had disabilities and tend problems counseling opportunity prove resulted in his rehabilitative worth. one-on-one positive amenability hearing granted meaning- in a changes, reflecting a fact This must be Supreme Michigan, Harmelin v. Whether the Amendment even encom States Court. U.S.-, passes proportionality principle non-capital question cases United has been called into Co-op.Bldg. questions chiatric treatment? These Daugaard Baltic must be ful manner. Ass’n, Supply probed resentencing for answers so 1984) Connecticut, (quoting Boddie knowledgeable petitioner’s court about 780, 786, 28 L.Ed.2d Judge mind and conduct. Erickson is a for- (1971)). 113, 119 Attorney mer Assistant General. He served on the Board of Pardons and Pa- Huron, place in These offenses took roles. These were of dedication and Dakota, county Beadle which is the seat of Martin, judge, able effort. As a circuit court County. Judge Both herein, Erickson, Finding habeas court he judge, Judge the habeas found relief, corpus penal denied habeas chamber Fact # 14 that South Dakota’s who “state County beyond It is the Beadle Courthouse. inadequate facilities have evaluation and epi- that this was a sensational cavil to note programs, perpe- treatment which results in Huron, community spawning sode being trators who are still at risk to re-offend feelings high Truly, strong emotion. released, supervision.” often without Obvi- For, indeed, a 5 this is understandable. alia, ously, weighed heavily inter in-his tricycle year-old girl was abducted from her concluding decision in should year-old and taken to a cornfield where an 18 finding, Judge be denied relief. In so Erick- high contact school senior had sexual judicial son took note of the Governor’s Task *5 Thirty body. her little minutes later she was Report. Force on the Children’s Justice neighborhood. Although no returned to her preceding dissertation leads me to found, penetration evidence of the testi- 22-22-1.3 SDCL which calls extra infor- fying physician noted scratches and marks on law, mation on a sex offender. This new neck, thigh, Additionally, and her chest. 1992, Legislature in enacted our State girl’s genitalia area was red and some- July took effect on 1992. Said law By any what swollen. norm within civilized vides as follows: society, dastardly act. it was Any person convicted of a violation listed place Sep- criminal This scenario took * §in 22-22-1.2 have in his shall included 15, 1982; 3, 1983, petitioner on June tember investigation presentence report an assess to was sentenced life following in ment which shall include the on a conviction and to a history; formation: the offender’s sexual ten-year concurrent sentence on sexual intellectual, func adaptive and academic write, I contact conviction. As of the time functioning; tioning; social and emotional Penitentiary petitioner in the has been legal history; previous treatment previous period years. court for a of ten So far as the selection; history; to the com victim risk concerned, system is until this Habeas Cor- munity; options recom and treatment heard, filed, pus appealed, action was mended. jurisdic- petitioner has been under sole resen- my opinion, In it is evident that the government, tion of the executive branch of be, and, may particularly, regula- tencing judge, whomsoever he or she most the rules and Penitentiary Implicit the execu- tion of the State the above criteria. must consider government. tive branch would be the the consideration mitigating petitioner. If there are record troubling years gone So—ten that should now be consid- circumstances questions pervade my spirit. What has he 22-22-1.4, ered, re- pursuant to with SDCL taught he learned? What has been offense, the trial court spect to the sexual penitentiary? spirit it now con- state His —is -writing. A enter its factual basis should system value does he trite? What kind of pursuant now be entered new sentence will during years, have? And these ten what of im- majority opinion; a sentence to life girl? in her teens. the little She now majority parole, prisonment, without her fears? What of her memories? And holds, general- men the conscience of “shocks required psychological treatment? Has she psy- ly and of this Court.” petitioner undergone he And the —has * age. ten with children under minimum for sexual con- tact This refers to sentences any mitigation produced by petitioner.
I
further venture
new sen-
A
would
judge
tencing trial
should now hear this case.
state victim’s assistance
office
court ser-
Robin,
great
See
States v.
553 F.2d
11 vices officer
United
would be
aid to the
(2nd Cir.1977)
that “...
judge
plausible legal
wherein
advised
to arrive at a
may
reassignment
judge
another
be
advis-
conclusion. Under the dictate of State v.
futility
(S.D.1989),
Wolff,
able in order to avoid ‘an exercise
As
wonder —who determines
options”
what
those “treatment
are? A
Reed,
the record revealed that he had a
psychologist?
Court Services Officer? A
A history
being sexually
abused as a child
psychiatrist?
After ten
of incarcera-
sexually
and later
abused small children.
tion,
profile
one would believe that a mental
place
Vindictiveness has no
in resentenc
indispensable
to a sound
Smith,
ing.
See Alabama v.
490 U.S.
that,
believe,
sentence. And
would
expert, appointed by the trial
to look
ease,
one,
When a
up
such as this
ends
awith
year-old
into this 28
mind. He
man’s
is no reversal,
a trial
should reassess the
longer
connection,
teenager.
re-
*6
original sentence, using objective criteria to
fer
1to Corinthians 13:11: “When I
awas
just
arrive at a
year,
sentence. Earlier this
child,
child,
thought
I talked like a
I
like a
40-year
this Court
probation
affirmed
sen
child, I reasoned like a child. When I be-
year-old
tence for a 17
lad who held his
man, put
ways
came a
I
childish
behind me.”
classmates in
biggest
terror in one of the
unknown,
It
judiciary,
is
at least to the
high
Dakota,
schools in
High
Stevens
years
effect ten
of
has had
Rapid
Harris,
in
City.
School
See State v.
upon
petitioner.
619
Harris was
Underlying
resentencing
process
guilty
found
of
kidnapping,
one count of
one
be,
upon
should
as reflected
damage
Weik-
count of intentional
property
to
er,
(S.D.1983)
(Weiker I):
(shooting up
a classroom with classmates
(1)
(2)
therein),
Retribution
Deterrence and
Reha-
aggravated
three counts of
as
adopted
bilitation.
by
point
These criteria were
I
sault.
this ease out to illustrate the
Gregg Georgia,
Harris,
Court from
disparity
428 U.S.
sentencing.
of
I con
96 S.Ct.
A
affirming
curred on
on the merits of the case
(sentence)
judgment
considered
should con-
40-year probation,
but dissented to the
be
sider the
sentence,
victim and determination
lieving
should be
that it
illegal
citing
was an
if
Oban,
(S.D.1985)
made
applicable
restitution is
for counsel- State v.
set
in State
forth
(S.D.1992),
dissented,
306,
Castaneira,
(S.D.1993);
I
this
112
wherein
502 N.W.2d
Hol
319
Sheridan,
phrase
311;
“shock the con-
loway
this
at
Court added
State v.
383 N.W.2d
Court,”
depicted in
Christians,
(S.D.1986);
the
science
865
and State v.
381
of
(S.D.1981).
115,
N.W.2d
117
Antelope,
304
corpus
N.W.2d 214
The habeas
807,
Curtis, 298
811
See
State v.
N.W.2d
also
court
consider other
refused to
(S.D.1980). Therefore,
appear
now
deeming all of the aforesaid data
sentences
the
have
on conscience: Shock
two tests
Shilvock-Havird,
472
as “useless.”
men generally
of
conscience and reason
(S.D.1991),
N.W.2d
cited in the ma
779
The ma-
shock
conscience
Court.
the
Erickson,
jority opinion, Judge
writing for
scopes
jority
it satisfies both
of
opinion holds
here)
(and
this
the habeas
Court
who is
court
review;
holding, agree.
Thereaf-
with said
cited
concurrence
this writer’s
result
ter,
my
part company
Brothers
(S.D.
Janssen,
State v.
371 N.W.2d
357
review is
un-
proportionality
the
“obviated”
1985). Therein,
recognized that
propor
he
Harmelin,
majority opinion.
der
cited
tionality
appel
cannot be considered at
test
Rather,
apposite
holding.
It
to such a
is not
late level
it is raised at the
unless
trial court
determined the
because we have
Certainly
dispro
said that
level.
it can be
shocking,
Eighth
to be
the
Amendment
portional sentence can never be established
of
portionality test is activated. Take heed
permitted
unless
counsel is
establish
Gehrke,
pronouncement
our
State v.
recent
facts, statistics, data,
client’s
records
case
(S.D.1992),
recog-
N.W.2d
Here,
sentencings.
ease
nizing
the “conscience and reason
totally
denied a consideration which had
as the
generally,”
men
as well
“conscience
proportionality.
hearing
direct
Excessive
this
is shocked.
Court”
disproportionate
or
sentences
been con
manifestly disproportion-
If a sentence is
stitutionally offensive since 1892 in South
crime,
light
gravity
ate
[in
Becker,
A
Dakota.
51 N.W.
penalty]
and harshness
offense
word, “or,”
to be
seems
overlooked
...
other two
listed
then the
factors
state;
many in
this
notice
cited below:
imposed on
others
[sentence
Helm
appeal,
jurisdic-
On
determine
jurisdiction and
other
we first
whether
same
require
focused
conscience”
become more
sentence “shocks the
or is so
tions]
II,
extensive review. Weiker
to the crime that it actú
Helm,
at
also
at
827. See
vates the
Amendment “within and
3011, 77
L.Ed.2d at 650.
jurisdiction” proportionality
tests.
mine.)
(Emphasis supplied
my opinion,
Court
reviewed
sentence of life
and has consid-
Lykken,
State v.
punishment
manifestly dispro-
ered
to be
Andrews,
Accord State v.
Therefore,
portionate
to the crime.
at new 76,
(S.D.1986);
Weiker,
*8
judge may
sentencing, so that a trial
focus on
(Weiker
(S.D.1985)
II).
823,
N.W.2d
sentence,
a fair
a trial
consider
must
Obviate?
Activate? Yes.
No.
given
imposed on others who were
sentences
juris-
kidnapping and in
sentences for
other
literally all
We need not follow
termed, by writers,
as “the
dictions.
It
expressed in Harmelin. Need we adhere to
jurisdiction propor-
within and
the
principles
the strict
held
proportionality
as
Basker,
tionality test.” State v.
468 N.W.2d by the
No. A seminal
habeas court?
case
413,
(S.D.1991).
Opperman,
this nation
State v.
89 S.D.
25,
decision,
tion rehabilitation. we state total darkness. Bult. Does he human, “bad,” spark? idea that each however sess God, spark. look for child must burning candle. a dear
Life is a It is
light light precious prison walls —a —so — extinguish away into should not lest ebb