State v. Bartlett

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day Arizona, Appellee,

The STATE of BARTLETT, Jr.,

Joseph Appellant.

No. CR-88-0411-PR. Arizona. Court of

8,May Woods, Atty. by punishment. appeals Grant Paul Gen. J. unusual The court of Phoenix, Ramsey, McMurdie and Diane M. rejected argument and Defen affirmed appellee. for dant’s sentence in a memorandum decision. Bartlett, No. CA-CR 88-0024 Flannigan David & P. and Hicks Con- 10, 1988). review, (Ct.App. On Nov. we logue, Conlogue, Bisbee, P.C. James L. concluded that Defendant’s sentence consti appellant. for punishment tuted cruel and unusual under eighth amendment to the United States OPINION Constitution. Bartlett Ariz. at Memorandum Decision of the Court Noting 792 P.2d at 703. that Defendant Two, of Appeals, Division filed given could be a more lenient sentence 10, 1988, November vacated provisions 13-604.01, under of A.R.S. § FELDMAN, Chief Justice. resentencing, we remanded the case for Bartlett, In 229, 240, 164 Ariz. classifying Defendant as a class 2 felon but (1990) (hereinafter Bart- holding statutory range that “the of sen I), Bartlett, lett held Joseph Jr.’s tencing under A.R.S. 13-604.01 [could forty-year sentence constituted cruel and constitutionally applied” on resen not] punishment unusual under Id. tencing. 792 P.2d at 704-05. United States Constitu- Supreme grant- The United States Court tion. The case is back before this court petition ed the state’s for a writ of certiora- Supreme because the States United Court ri, opinion, vacated our and remanded for opinion vacated our and remanded for fur- light reconsideration in of its decision in light ther consideration in of its decision in ¶. Harmelin. Arizona While was Harmelin Michigan, U.S.-, pending Supreme before United States (1991). S.Ct. 115 L.Ed.2d 836 Court, appeared Defendant before the trial Bartlett, Arizona v. judge resentencing pursuant to our or- (1991). 115 L.Ed.2d 1046 longer der of remand. No constrained 13-604(H) 13-604.01, FACTS AND PROCEDURAL HISTORY tri- §§ judge al considerably was vested with more Joseph Bartlett, (Defendant) Jr. was con- sentencing discretion in Defendant on his victed in 1987 of two counts of sexual hearing two-count conviction. After evi- minor, conduct with a 13- A.R.S. § offenses, regarding dence and in the 1405. The facts established that the two discretion, judge exercise of his im- girls just involved were under fifteen posed the minimum terms a class 2 old and that the entirely sexual acts were felony, sentencing Defendant to five and Nevertheless, consensual. the state in- one-quarter years on one count seven provisions voked the of A.R.S. 13- §§ other, 604(H) 13-604.01, the sentences to requiring run the trial impose concurrently. have, court to judge sen- The trial consecutive could result, not, tences on the aggra- two counts. As a but did sentence Defendant to though imposed mitigated even he that, mini- if consecutively, vated terms twenty-five mum terms of fifteen and thirty-five years. totalled Un- years, judge required the trial was sen- der impоsed, the sentence Defendant would tence Defendant to consecutive terms total- parole-eligible approximate- have become ing forty years prison, the sentence to be eight ly years and four months and could time,” possibility served as “hard years. have served no more than seven early parole. release or Defendant, Thus who has been incarcerat- prison system ed in the state since his Acknowledging that A.R.S. 13-604.01 sentencing face, eligible would soon be was constitutional on its Defendant if not for challenged constitutionality his the United States that, regard tence and claimed Court’s remand for reconsidera- crime, the sentence constituted cruel and tion. crime, portionate” United Su- to his and because

On remand from the States Court, impose statute to requested judge required preme additional brief- considering the fixed sentence without ing from counsel and heard additional oral “particularized circumstances of crime argument question on the of whether our of the criminal.” and holding light in I could stand in of Bartlett at-, 111 at 2684. S.Ct. Supreme in the Court’s decision Harmelin. Accordingly, begin summary with a of announced the Justice Scalia Court’s previous opinion our and of judgment that Harmelin’s sentence did not Supreme opinions Court Justices’ punishment. constitute cruel and unusual Harmelin. opinion, Scalia delivered the Court’s Justiсe however, con- only rejecting Harmelin’s

DISCUSSION does not raise in tention —which Bartlett present “a sentence is case—that A. Bartlett cruel and unusual becomes not otherwise granted review in I to deter- ” ‘mandatory’ is simply so because it whether Defendant’s sentence consti- mine sentencing required in is that individualized punishment under tuted cruel unusual at-, noncapital 111 at cases. Id. S.Ct. 164 the federal or state constitution. contrast, only Chief Justice 2701-02. Applying at P.2d at 693. Rehnquist Scalia’s concurred Justice Helm, three-prong of test Solem v. wrong; simply conclusion that “Solem was 77 L.Ed.2d 637 Eighth propor- Amendment contains (1983), we held: at-, tionality guarantee,” id. S.Ct. pos 1. forty-year sentence with no holding of the at which was not the early grossly sibility release was out Court. severity to crimes as proportion Kennedy, joined by Justice Justices by the facts of the case. Bartlett shown Souter, delivered concur- O’Connor 234-36, 164 Ariz. at 792 P.2d at 697-99. opinion question proportion- ring on 2. to disproportionate The sentence was before ality, the issue now us. Justice in Arizona for imposed others more serious Kennedy eighth stated that the amendment 236-37, crimes. Id. at 792 P.2d at 699-700. “encompasses proportionality a narrow disproportionate The sentence was at-, principle.” at 2702. Id. S.Ct. similarly those situated defen- interpreted He as understood Solem “best 237-40, Id. jurisdictions. dants holding comparative analysis within at 700-03. jurisdiсtions always is not and between proportionality review.” Id. at relevant We therefore concluded that Defendant’s added). (emphasis 111 S.Ct. at 2707 cruel and unusual sentence constituted analyses “[Ijntra- inter-jurisdictional punishment under the only in the rare case in appropriate Constitution, and con- to the United States comparison the crime which a threshold sequently validity did not address leads committed and analogous provision the sentence under gross disproportionali- to an inference in the Arizona Constitution. Id. test, therefore, ty." important Id. The P.2d at 703-04. grossly dispropor- whether the sentence gravity tionate of the offense. The Michigan B. Harmelin v. analysis is purpose comparative to val- Harmelin was sentenced state Ronald gross dispropor- idate an initial inference imprison- term of life court to a tionality. Id. possibility after be- ment without (Jus Finally, the Court grams of four members of possessing 672 convicted of White, Blackmun, Stevens, and Mar tices to the United States appeal cocaine. On shall) at all. Court, would not restrict Solem Id. Harmelin claimed his sen- at-, (White, .J., 2709-19 un- S.Ct. at unconstitutionally cruel and tence was at-, dissenting); 111 S.Ct. at 2719 “significantly dispro- id. it was usual because hand, id. rule Solem.1 On (Marshall, J., dissenting); the other it seems (Stevens, J., dissenting). pro- at 2719-20 if reasonable to conclude Solem’s all, is to portionality analysis applied Applying view of the is diffi- Court Rehnquist proba- Scalia and Justices opinions are so cult when the Justices’ di- bly prefer Kennedy’s approach over Justice opin- ‍​​‌‌‌​​​​​​​‌‌‌‌‌​​‌​​​‌​​‌‌‌​​​‌‌‌‌​‌​​‌​‌‌‌​​​‍expressed separate verse and five adherence Solem’s the dissenters’ strict that Solem believe, however, ions. We analysis.2 three-prong We therefore reex- Harmelin. survives While two Justices Bartlett I wrong, opinion conclude that it was neither a ma- amine plurality willing Kennedy.3 jority nor a over- standard articulated denied, Scalia Conn. A.2d 1. While Justice stated that Solem was cert. 2686, (1991). wrong, 111 S.Ct. he did not, say given only not could Chief Justice —and Indeed, only judges handful of courts Rehnquist’s concurrence —that it was overruled. expressed view that Harmelin over LaFleur, United States v. ruled Solem. See 952 majority 2. The vast state federal and courts 1537, (9th Cir.1991) (citing F.2d 1547 Harmelin validity that have assessed the of the Solem proposition does not analysis proportionality in the of Harme wake require appropriateness assessment of of sen validity applied lin have or assumed the of at cases); Knott, noncapital People tence in v. 224 gross disproportionality least the standard advo 539, 236, 521, Ill.App.3d Ill.Dec. 586 166 N.E.2d Kennedy. cated Justice See United States v. 479, (1991) (“Solem expressly 497 v. Helm was Drive, (2nd 38 Whalers Cove F.2d 29 Cir. 954 Harmelin"). overruled in See also State v. Orte 1992) (applying analysis); Solem United States 554, 558, 1196, ga, 112 N.M. 817 P.2d 1220 Gordon, (8th Cir.1992) (con v. 953 F.2d 1106 (1991) J., (Baca, concurring part and dissent ducting Kennedy’s opin review based Justice (Harmelin part) "has cast doubt on the Harmelin); Massachusetts, ion in Tart v. 949 Solem"). vitality of We believe these courts 490, (1st Cir.1991); F.2d & 503-04 n. 16 United misinterpret Harmelin. Salmon, 1106, (3rd States v. 944 F.2d 1130-31 Finally, applied cases several have either — U.S.-, Cir.1991), denied, 112 S.Ct. cert. holding sentencing Harmelin’s 1213, (1992); 117 L.Ed.2d 451 States v. United merely is not unconstitutional it is because 419, (6th Cir.1991); Hopper, 941 F.2d 422 United mandatory, or affirmed sentences under Harme Jones, 1309, (7th States v. F.2d Cir. 950 1317 by comparing lin’s result sen 1991); 1191, Contreras, v. United States F.2d 937 commonly approved tence most (7th Cir.1991); 1195-96 & n. 3 United States v. Lowden, drug cases. United See States v. 955 Manuel, 414, (8th Cir.1991); 944 F.2d Johnson, 417 United (1st Cir.1992); Kramer, F.2d 128 United v. States 396, (8th Cir.) States v. (no 944 F.2d 408-09 479, (7th Cir.1992); 955 F.2d 488 United States analysis further undertaken unless sentence 566, (8th Cir.1992) (de Knapp, v. 570 955 F.2d crime), grossly disproportionate to cert. de participation fendant’s claim that sentence for —nied, U.S.-, 646, 112 116 L.Ed.2d S.Ct. drug conspiracy pun was cruel and unusual (1991); McLean, 663 States 951 F.2d United v. merit”); “simply ishment lacks States United v. 1300, (D.C.Cir.1991) (“Eighth 1303 Amendment’s 1, (1st Cir.1991) (manda Campusano, 947 F.2d 4 proportionality principle applies noncapital tory sentencing punish not cruel and unusual 101, sentences”); Curtis, 33 M.J. United States v. ment); Torres, United v. F.2d States 941 124 — U.S.-, (C.M.A.1991), denied, n. 108 9 cert. (2nd Pickett, Cir.1991); United States v. 941 F.2d 1177, (1992); People v. 117 L.Ed.2d 421 (6th Dunson, Cir.1991); 411 United States v. 940 714, Weddle, 1190, Cal.Rptr.2d Cal.App.4th 1 2 denied, (6th Cir.1991), F.2d 989 cert. (1991) difficulty (discussing 715-17 & n. 1 1488, (1992); 112 117 S.Ct. L.Ed.2d 629 Harmelin); interpreting multiple opinions in (8th Harvey, United States v. 1991); 946 F.2d Cir. 1375 30, (Colo. Gaskins, People n. 10 v. 825 P.2d 34 Winrow, United v. Van States 951 F.2d ; State, 596, 1992) 261 Ga. 408 S.E.2d Isom v. 1069, (9th Cir.1991); Smith, 1071 1991 701, Brown, (1991); State v. 702-03 215646, (severe (Del.Super.) WL at *3 mandato (Idaho 1992). States v. 491 See also United ry sentences not cruel and unusual Cir.1991) (would (7th Thompson, 944 F.2d dismissed, Harmelin), (Del. appeal 604 A.2d 419 disproportion not address whether standard is State, 1991); (Fla.App. v. 589 So.2d 385 Leftwich ality gross disproportionality since under the or 1991) smuggling (prisoner marijuana pris into neither), cert. de circumstances sentence on). Hermann, See also Wis.2d State —nied, U.S.-, 117 L.Ed.2d (App.) (citing N.W.2d Harmelin (1992); States v. Publish United drug concluding that sentence for convic California Liquidating Corp., F.Supp. ers "shocking public tion was not senti (N.D.Texas 1991); Cavanaugh, WL ment”), denied, (Wis. review N.W.2d (sentence (Conn.Super.) inap 1991). at *2 given propriate offense, disproportionate nature of time, offender, public interest character 3. At the same we believe that under the sentence), (Justices protected, purpose of views of four members of the and deterrent Court Application girls C. of the time. Both testified at trial that Harmelin Standard had vol- intercourse with Defendant been Disproportion 1. Gross Defendant’s guilty of untary. Defendant was found His Sentence to Crimes minor counts sexual conduct with a two begin inquiry under We Harme 13- under fifteen old. Kennedy’s by following lin di 1405.5 rection to determine whether Defendant’s possibility forty-year total sentence with no There are no new facts be considered grossly disproportionate to his then, analysis. general, in our current held crimes. rela- this is case of consensual sexual application “broad of the statute to encom hand, On in mind tions. the other we bear pass situation results in a [Defendant’s] age that the two victims were below the penalty grossly proportion out age legislature to determined be severity crime.” 164 relations could at which consent added). (emphasis 792 P.2d at 699 means, course, validly given. This thorough reached conclusion after criminal, that Defendant’s conduct was but facts, may be summa issue: does foreclose constitutional September rized as follows: In De forty-year pos- whether sentence without fendant, age twenty-three, was introduced sibility of is and unusual when cruel age to A Mary,4 fourteen and one-half. applied to the facts set forth above. later, Mary few months introduced Defen Solem, Supreme forth the Court set Susan, approximately dant her friend to of in the weighing several factors relevant age. Mary voluntary the had same sexual severity gravity against of offense the in intercourse with Defendant December gross of in order to determine penalty 1986, years when she was fourteen and ten disproportion. These include “the harm age. voluntary had months of Susan also or threatened to the victim or socie- caused in De sexual intercourse with Defendant offender____ ty, culpability and the fourteen cember when she was example, as the criminal make For laws age. and six months of clear, serious nonviolent crimes less In January Susan’s mother filed a the marked violence or than crimes complaint police, alleging De- with the that 292-93, threat of violence.” 463 U.S. at forcibly sexually fendant had assaulted Su- explained 103 S.Ct. at 3011. The Court neigh- from san. Defendant learned When that police inquiring were about bors that It list is no means exhaustive. him, police voluntarily [t]his he went to the sta- simply general- illustrates that there are police tion. Defendant admitted to the accepted comparing criteria ly he had consensual sexual intercourse had severity of different crimes on a broad Mary knowing that Susan and both scale, face they despite under fifteen old difficulties courts were at Blackmun, Stevens, ("The White, Marshall), said Court has that success employed challenges proportionality particu Solem stand, we in Bartlett I would ful Solem, ‘exceedingly the result reached would rare.’ lar sentences are 289-90, presumably be valid. is such a U.S. at 103 S.Ct. at 3009. This case.”). principles in rare We adhere to those noting expressly con It also worth that we opinion. many principles in iden sidered Bartlett Kennedy, including proper tified 4. teenage girls. use names for the fictitious fixing ly legislative function I, P.2d at Bartlett 164 Ariz. at 230 n. — See crimes, Harmelin, at-, specific U.S. n. 1. finding rarity dispro at and the objective portion lack clear stan because "we 5. The current 13-1405(B) sexual § text of makes distinguish dif between sentences for dards to at-, a class 2 with a minor under years." conduct felony punishable Id. 111 S.Ct. at ferent terms fourteen I, pursuant 13-604.01. 164 Ariz. at 2705. Accord Bartlett 1990; (legislature authority at the time The statute was amended has "broad ... at 696 crime, determining relevant types punish Defendant committed his and limits Ariz.Sess.Laws, Solem, crimes”) ch. (quoting age 384, See at was fifteen. U.S. ments 290, 3009); 2.§ id. 792 P.2d at 103 S.Ct. at attempting degree same statutory draw distinctions be- scheme: second murder, similar crimes. assault, taking tween sexual a child for purposes prosti- prostitution, child Id. Although 103 S.Ct. at 3011. tution, involving drug or using a minor in Harmelin narrowed Solem’s proportionali- offenses, assault, aggravated molesta- review, ty it did not factors criticize the child, tion of a ‍​​‌‌‌​​​​​​​‌‌‌‌‌​​‌​​​‌​​‌‌‌​​​‌‌‌‌​‌​​‌​‌‌‌​​​‍of a utilized Solem determine whether exploitation minor, abuse, See grossly kidnapping. child or disproportionate sentence generally crime. 13-604.01. Having again we find reviewed 164 Ariz. at 792 P.2d at 697-98. now, original before, we found that the Second, prior Defendant’s of a lack penal- Defendant is “a any crime, record of in- let alone a crime ty grossly proportion severity out of children, volving gravi- further reduces the of the crime.” ty offenses, particularly respect his 792 P.2d at 699. We base conclusion to the increased sentence for his “recidi- on several factors. Harmelin, vist” second offense. See First, crime, the circumstances of this at-, (discussing 111 S.Ct. at 2705 particularly the absence violence or underlying felonies defendant’s recidivism violence, severity. threat minimize its Solem). original As we stated in our opinion: (comparing at 2705-06 nonviolent crime personal culpability, As to defendant’s Solem violence often accompanying the record “im- indicates that he was an crimes). resulting drug from As wrote young mature” man who associated with in Bartlett I: a younger peer group because of Although the minor’s consent will not insecurities, emotional included a conduct, decriminalize the sexual that pending marriage divorce at a consent is relevant to inquiry into the age. prior young felony He had no gravity case, of the offense. In this both assaulting and of history record maturity minors were close to the line young No children. evidence was legislature that the has drawn for less presented that to he intended harm these According serious offenses. to their tes- girls, physically emotionally. either or timonies, willing both participants were Bartlett 164 Ariz. at at P.2d in defendant’s conduct. Defendant used 698. These circumstances are relevant against no violent or force threats them. here, they not because excuse the conduct girl

Neither physically injured or question “gross dispro- but because the of testified to emotional trauma. Un- portion” circumstances, der these сannot be resolved without consid- we must cer- ering of tainly grave aggravate consider all the factors these offenses less than the punishable mitigate ignore others the the crime.6 To the in facts examining 6. In and ized the facts of the crime the circumstances of the and crime the crimi- criminal, not, dissent, argued by we do as determining question the dispropor- nal in the of apply Solem instead of at Harmelin. Dissent tionality. See at dissent 830 P.2d at 833 (Corcoran, J.). 830 P.2d at do not — (Corcoran, J.) Harmelin, (quoting at U.S. “comprehen- to allude is Bartlett because it a -, 2705). quoted at The cited Solem," application sive and lucid 311, at dissent portions of Harmelin are from Justice Scalia’s rather, but, (Corcoran, J.), 830 P.2d at 832 opinion alleged the and relate to facial invalidi- analysis "comprehensive” because it a contains schemes; ty mandatory sentencing the Court analysis of peated was re- Defendant’s offenses. That held that statute was not unconstitutional Kennedy’s ante because we read Justice merely sentencing judge its face because the opinion the cir- Harmelin to that it is mean could not consider the facts of the crime. This cumstances of the the criminal that crime and ques- defendant does not raise that The issue. determining gross dispro- must be considered severity punish- is tion here whether the ment, of the concedes, portion. apрroach As the dissent this crime, compared facts the consistent with articulated Harmelin, grossly disproportionate. Kennedy. P.2d at Dissent at at-, U.S. 111 S.Ct. at 2702. J.). (Corcoran, arguing Nor is that dissent five correct in justices rejected particular- consideration the consenting, willing, post-pu- with a determining is cruel course whether sentence the make title of views teenager. and unusual would the the dissent bescent While “Dangerous Against Chil- Crimes controlling as a method of this “rational” statute — dren”—determine the constitutionality of posed by teenage societal sexu- threats court Surely, if this imposed. the sentence activity, at at 834 al dissent constitu- responsibility to review the has J.), (Corcoran, it we believe so drastic tionality of sentences under approach age-old problem to an as to indi- requires apply amendment, duty us to cate that threshold constitutional federal constitution standards limitations has reached. been occurred, no matter what the facts what Finally, the the law evolution legislature has label attached much sentencing standards tell us present criminalizing Legislatures statute. must of the sen brush, disproportionality about paint leav- necessity with broad rape, along with statutory it to the courts to measure constitution- tence. While ality by true applying felonies, may law facts—the once been many other have — judicial Harmelin, functiоn. crime, at capital see standards S.Ct. at societal

Third, good ignore we cannot faith Indeed, trend changed. the modern realities of adolescent life described recognize that separate “We must ... crime I: in the law has been among post-pubescent teen- sexual conduct forms statutory rape from other violent agers Ariz. at is not uncommon.” 164 concomitantly rape, and to reduce Indeed, “[according to 698.7 severity generally of the sentence. See testimonies, willing [girls] their both were Institute, American Penal Law Model Id. participants in defendant’s conduct.” 213.1 com Code Commentaries §§ this does 792 P.2d at While (Official 6, 213.3 Draft ment comment any less not make conduct Defendant’s 1980). “mini Revised Comments “criminal,” illustrates relative severi- it how mum” sentence society. ty of its harm to Cf. ever, intercourse for consensual (drug 2705-06 girls is willing post-pubescent two “rela- category than crime a different minimum im comparable minor, tively nonviolent crime at issue provoked, posable had Defendant been be Solem,” and given grave violence threat of violent, girls, con come killed the and been resulting drug traf- society harm to from degree of second murder. See victed use). ficking and 13-604.01(1)(a). A.R.S. § legislature’s prerog- acknowledge We choose behavior and to ative criminalize As we said before: Harme- appropriate punishment. Sеe Measuring gravity of the offenses lin, 111 S.Ct. at U.S. context, compare must the harsh- this we Hence, mi- crime as we do not view this legislature The has penalty. ness of seven-year im- nor—witness the minimum consecu- resentencing. long as the posed on But so 15 and 25 for the tive sentences of narrow eighth amendment contains even and acts of sexu- second consensual proportionality principle Harmelin —and minor, possibili- conduct al with a no does, 111 S.Ct. says that it early of The court thus ty release. trial that it difficult to at 2702—it is believe penalty had no discretion to reduce the imprison forty state to permits the according to the individual circumstances eighteen years everyone time years’ hard or a inter- that indicated a less serious offense age or twice has had of older who accurately misinterprets from it char- the word coran Bartlett because our use of 7. The dissent type do not use the word because examina- "uncommon." We acterizes the of behavior under be con- crime "should not helps distinguish “we believe" the it from more seri- tion and . 312, at 833 Dissent at 830 P.2d sidered severe.” (Corcoran, ous crimes. it, J.). quoting Cor- use culpable Defendant, meaning evolving stan- less defendant.8 draw its from the prior felony history, with no has received decency of progress dards of that mark the 40-year penalty sexual conduct Dulles, maturing society.” Trоp v. consenting post-pubescent teen- with two 86, 590, 598, 101, 78 S.Ct. L.Ed.2d application The broad agers. of time, (1958)(plurality opinion). At one to encompass statute this situation re- flogging punishment by or the stocks grossly pro- out penalty sults in of might been and unusual. not have cruel portion severity the crime. supposes that One castration be penalty may Although such a harsh prompt punishment effective and for this other, justified in the more context crime, certain, surely ex- a more less crimes the sen- heinous included within pensive perhaps meth- more “rational” scheme, justified under tencing it is not see controlling promiscuity, od of specific case. circumstances this 313, (Corcoran, dissent at at 834 P.2d I, 164 Ariz. 236, at 699 J.), years’ than forty imprisonment without added; added). (emphasis footnote possibility parole. our Informed Atwood, State Cases such as 171 Ariz. reading present-day standards 576, (1992), Beaty, 832 P.2d 593 civilization, nevertheless venture (1988), cert. 158 Ariz. 762 P.2d 519 today punishments such are cruel and un- denied, 491 U.S. usual, legislature even were the to autho- Roscoe, (1989), and L.Ed.2d 708 eighth rize them statute. The amend- denied, cert. 145 Ariz. ment, all, legisla- either a barrier to 471 U.S. 85 L.Ed.2d nothing tive empty action or but words. see dissent at (1985), 830 P.2d at point make, The dissent (Corcoran, J.), very point illustrate the avoids, proportional- is that —as a matter we make. These cases involve violent sex standards, ity intrajurisdic- of either against young ual crimes children who giving actual, comparison comparison were tional incapable let alone between legal, consent who were later mur punishment modes forty sentence of —a perpetrators question. dered possibility without con- view, eighth requires amendment post-pubescent teenagers sensual sex with that a clear distinction be made between gross reaches dispropor- the threshold of crimes, such the facts of which demand and tion, given the people, fact penalties, receive the most severe and the through legislature, adopted their today. propor crime that we consider impose statutes under which the courts tionality principle contained in the comparable punishment by imprisonment defendant, requires rape, for crimes such as violent second whose crime involved violence and murder, degree assault chil- brutal willingly consented, whose victims treat be cited, post, dren. See cases note 9. severely ed much com less than those who against young mit sexual crimes Harmelin, Here, violent in unlike which dealt children. a defendant convicted of an offense involving dealing, can drug fairly it be said which, Nor is this a case in as dissent applied regime that the to the com offense suggests, personal our views “conclude our mitted Defendant is an one “ancient judgment.” Dissent at at 835 J.). (Corcoran, surprising way[, revived in a sudden or not measuring cruel what is unusual, eighth care, clarity amendment “must calibrated with and much one] again sentencing judge's noncapital 8. trial alized lin, in We refer to the lack of cases. Harme- discretion, — suggest resulting at-, This, not that the U.S. 2701-02. cruel and however, tence was ry, unusual because mandato- requirement not does alter the that the explain why the trial did not but to court actually imposed sentence cruel and un- take diminishing we have identified as the circumstances usual, and the relevant circumstances must ob- gravity of Defendant’s crimes viously making be taken into account in Indeed, sentencing. into in a defen- account determination. constitutionally dant entitled is not to individu- Harmelin, under at-, sentenced which defendant was deliberation.” circumstances. J.). these factual Kennedy, (opinion at 2708 S.Ct. before, conclude, did therefore as we We at 700.9 164 Ariz. at grossly dis- sentence was that Defendant’s Next, sentence compare we Defendant’s to his crimes. proportionate in other crime to sentences for the same Bartlett jurisdictions. we concluded im- mandatory minimum sentence that “the Intra- and Inter-Jurisdictional for his offense posed on defendant Analysis Comparative received disproportionate to sentences was infer the threshold We have drawn in other by similarly situated defendants required by Harmelin thаt Defen ence man- 25-year that “the jurisdictions,” grossly disproportion dant’s sentence was defendant’s datory imposed minimum conduct crimes. must next ate to his We disproportionate also second offense [was] comparison inter-jurisdictional an intra- and similarly situ- sentences inference. to validate Id. jurisdictions.” in ated defendants First, at 2707. Again, we 792 P.2d at 702-03.10 compare Defendant’s sentence we opinion by prolonging point see no more seri- imposed in Arizona for thoroughly dis- restating that which Harmelin did not ous crimes. Because I. We sup- Bartlett include the cussed the second and alter I as Part porting analysis from Bartlett II id., see test, Solem prongs third Appendix. of the comparison we conduct- not rehash the will Defendant’s determined We have I; however, ed in set forth the disproportionate to his grossly sentence supporting our conclusion original analysis inter-jurisdictional intra- and crime. Our quote from Appendix. We Part inference. comparison confirms our initial original conclusion: forty- that Defendant’s We therefore hold early comparison possibility year sentence without We conclude that pro- imposed for other crimes release violates punishments punishment. of cruel and unusual disproportion with hibition Arizona reveals to a chart examples jurisdictions, and refers this court cases—cited here as 9. For more recent 28(c), summarizing sentencing provisions in other precedent, Ariz.R.Civ. see Rule and not DeCrow, difficulty appreciate the in- jurisdictions. App.P., No. 17B A.R.S.—see 5, 1991) (twenty- comparing defini- (Ct.App. sentences when the Nov. herent CA-CR 90-1231 jurisdic- widely among “brutal varies so year where defendant tion of crimes sentence tions, engaged recognize challenge stepdaughter, in summariz- ly raped he his minor accurately; succinctly yet for two conduct with the victim this information sexual nevertheless, only physically rely but able to with confi- suffered we must be and the victim emotionally party’s as a result of assessment of the crimes and will continue to suffer dence on a conduct"); Lyon, sentencing CA-CR 90- accompanying Nos. 2 schemes relevant Aug. (Ct.App. (consolidated) comparison. -0557 chart is of limit- 0556 and The state’s to our 1991) conduct (twenty-year sexual regard. example, utility For ed in this stepdaughter, year-old twelve with defendant’s state in which chart includes Utah as a state’s stepson, child abuse indecency have received a similar sen- Defendant could Flores, 2 CA- stepdaughter); State of second relevant recidivist statutes. Our tence under the research, however, (Ct. (consolidated) CR and 91-0245-PR suggests 90-0035 that in Utah under sentence, 27, 1991) (twenty-year to be App. Aug. could of this case Defendant the circumstances rape of a four “day-for-day,” violent served years in to at most five have been sentenced assisting an ac year-old and then victim $5,000 teen prison fine on each of two counts and a . victim) rape complice’s intercourse, degree a third unlawful sexual felony, sex offender stat- and that the habitual that, contrary illustrate cases also These apply only after a to offenses committed utes claim, P.2d at 830 dissent see dissent’s prior sex been convicted of defendant has J.), imposed (Corcoran, courts have 835 76-3-203(3) Code Ann. §§ See Utah offense. serious comparable for more lesser or (fines), sentencing), (felony 76-3-407 76-3-301 crimes. offenders), (habitual 76-5-401 sex and 76-3-408 amounting (unlawful I, intercourse not argues argued and in Bartlett state 10. The (circumstances rendering rape), con- now, 76-5-406 is similar again Defendant’s sentence that (1990). rape) purposes of many ineffective for sent received in he could have to that CAMERON, (retired), D. Cruel and Punishment Under JAMES DUKE J. Unusual Jr., GORDON, (retired), X. the Arizona FRANK J. Constitution concur. I, explained In Bartlett we that “[h]av- the sentences concluded that CORCORAN, Justice, dissenting: eighth in this case violate I. Harmelin versus Solem pun- against cruel and unusual

prohibition ishment, they address we do not whether I respectfully I dissent. believe that the art. the Arizona Constitu- violate majority properly interprets Harmelin v. 792 P.2d at 704. tion.” — -, Michigan, U.S. S.Ct. reason, we do For the same not address (1991), requiring as 115 L.Ed.2d prece- time the issue whether our proportionality analy narrower somewhat analysis— applying proportionality dent required previously by sis than that Solem require broad- predating Solem11—would Helm, 103 S.Ct. U.S. proportionality analysis Ari- er under the (1983). dissent, however, L.Ed.2d I appropriate zona Constitution ‍​​‌‌‌​​​​​​​‌‌‌‌‌​​‌​​​‌​​‌‌‌​​​‌‌‌‌​‌​​‌​‌‌‌​​​‍than is under such an applying analy because instead of federal as interpreted constitution sis, majority re-applies merely Solem. Harmelin. Nor do consider whether I, I pleased As the author of am Bartlett suggest other factors a different standard majority recognizes it as compre- that the assessing punish- cruel unusual application hensive lucid of Solem. ment under our state constitution. However, Bartlett, in Arizona v. 115 L.Ed.2d 1046 DISPOSITION (1991), the United States Court original Defendant’s sentence constituted Bartlett I vacated and remanded the case punishment cruel and unusual under to this court for further consideration in proportionality analysis princi- limited light of Harmelin —not some minor ple Kennedy’s articulated in Justice concur- editing rearrangement. ring opinion in Harmelin. That sentence light Just what Harmelin casts—with its not, therefore, is vacated. We need reach separate opinions concededly easy pertaining »the issues Consti- Arizona —is I agree majority see. with the tution. Kennedy’s opinion, although joined concluding De- only Souter, Justices O’Connor and ar- fendant could constitutionally be sen- the proportiоnality analysis ticulates now 13-604.01, tenced under A.R.S. re- eighth required amendment.12 I resentencing manded to the trial court for however, disagree, majority’s ap- with the with instructions that sen- Defendant be plication analysis. tenced a class felon Kennedy’s 13-701 and analysis, 13-702. 164 Ariz. at Under Justice á §§ at 704. Pursuant instruc- to our court must determine whether it is tions, the reviewing trial court has resentenced De- “the rare in which a case thresh- one-quarter years comparison fendant five and old of the crime committed and other, one count and seven on the the sentence leads to an inference concurrently. gross disproportionality.” Harmelin, sentences to run sen- of That challenged tence stands and has not been at 2707. If comparison Defendant. has al- Because Defendant threshold does not lead to an resentenced, ready gross disproportionality, been there is no need inference appeals’ complete; another remand. The court of the sentence does not If, memorandum decision vacated. The offend the amendment. on the hand, presently comparison in effect is tence affirmed. threshold does 92, 96, See, e.g., Mulalley, majority, 127 Ariz. 12. Like that Justice believe Scalia (1980). Rehnquist prefer and Chief Justice Jus- Kennedy’s approach to the tice dissenters’ to adherence Solem. provides support majority’s gross disproportion- lead to an inference of no for the dis- ality, may the court find it useful to con- indispensability cussion of the of consider- inter-jurisdictional propor- duct intra- and ing the facts of crimes or defendant’s — Harmelin, tionality reviews. at U.S. its in determin- consideration those facts -, ing defendant’s sentences are whether severity grossly disproportionate to the majority analysis begins by The its stat- his crimes. I, “In Bartlett we held ing, that the ‘broad application encompass of the statute to re-analyzing In to the facts addition in penalty results situation [Defendant’s] crimes, majority defendant’s bases its grossly proportion out of to the severity grossly his are conclusion that of the crime.’ We reached this conclusion severity to disproportionate facts____” thorough analysis after of the considering by crimes 4 additional factors. (citation omitted). (emphasis original) The first is “the circumstances [the] Then, re-analyzing the exact same however, noted, just crime.” As fair in analyzed facts that we reading of Harmelin compels the conclu- majority original concludes that “the conducting gross dispropor- sion that in imposed on ‘a penalty tence Defendant is tionality analysis, we should not take into grossly out of proportion severity ” account the circumstances of the crime. (Citation omitted.) the crime.’ The second factor defendant’s “lack of agree I would While have to that this Harmelin, prior however, record.” gross analysis dispro- consistent with Kennedy Justice did not mention the fact portionality analysis articulated Justice prior felony had no Harmelin convic- Kennedy, wholly it is inconsistent Similarly, expressly tions. 5 Justices re- gross analysis conduct- disproportionality jected argument “it is ed Harmelin’s ‘cru- Kennedy. Kennedy’s Justice Justice severity el impose mandatory measured the of Harme- and unusual’ particular lin’s crime by analyzing severity, sentence of such without con- and circumstances crime, but mitigating of so-called sideration factors facts posed the threat by analyzing rather in his that he had as, such fact and to society individual commis- Harmelin, prior felony convictions.” — — Harmelin, crime. See sion of that U.S. at-, (empha- U.S. S.Ct. at (In 111 S.Ct. at 2705-07 determin- added). gross sis Under Harmelin’s dis- crime whether Harmelin’s was momen- analysis, proportionality court should enough to life tous warrant a not take into account defendant’s lack of a parole, Kennedy without Justice did prior record. during discuss the fact the commission the majority third factor considers is of his crime neither Harmelin was violent “the life.” The realities adolescent ma- Rather, injure anyone. nor did he jority appears to believe that the crimes Kennedy ways discussed numerous committed this case should not be con- drugs illegal the individual threаten they “not sidered severe because un- Moreover, society.). ex- 5 Justices By affirming common.” Harmelin’s sen- pressly rejected Harmelin’s argument that tence, however, the United States his sentence was unconstitutional because appears Court believe that even crimes sentencing statutorily re- judge “the uncommon,” pos- which are “not such as quired it, impose taking into without illegal drugs, may sessing be considered particularized circumstances of account pun- enough impose harshest severe criminal,” held the crime and of available, save death. See Harme- ishment judge that the amendment allows a lin, 111 S.Ct. at 2705. sentence without taking into impose because Indeed, precisely it is crimes particulars or of account the crime by defendant and Harmelin are the criminal. committed they pose “not -,---,---, uncommon” that such a S.Ct. at sum, society. Harmelin to the individual and to 2707-09. threat Further, imprisonment is that it ‘no sentence of be dis- Harmelin makes clear (citations omitted). proportionate____’”) of weigh not for realities this court to determining propriety life in adolescent majority The fourth and final factor the particular of a As Justice Ken- sentence. considers is the of “evolution the law and Harmelin, nedy pronounced in present sentencing major- standards.” The fixing prison specific ity terms for states that of “societal stаndards have [T]he changed,” penological and “the crimes involves a substantive modem trend separate has that, matter, law been to judgment general a is crime of stat- as utory rape from other violent forms of province legisla- of “properly within rape, and to concomitantly reduce the se- tures, not courts.” Determinations verity of the sentence!” What this state- punish- of purposes about the nature and ignores, however, ment is that Harmelin acts implicate ment for criminal difficult change allows societal standards to back. enduring respecting questions And, by enacting the statutes at issue individual, sanctity of the of the nature Legislature this the Arizona has un- law, and the relation between law and doubtedly adopt chosen more severe political the social order. “As a or moral punishment espoused by than that punishment pro- issue [the offenders] Further, “modern trend.” modem trends emotions, intemperate deeply vokes con- are, best, subjective an elastic and stan- flicting interests, and intractable dis- dard which to measure constitution- agreements.” efficacy ality of imprisonment tencing system cannot be assessed ab- eighth in- amendment. Because our agreement sent the purposes and ob- quiry defendant’s sentences not.whether jectives penal system. And the trend, comport with the modem but rather responsibility making thеse funda- whether a person might reasonable think implementing mental choices and them proper, should, them this court as Harme- lies the legislature. instructs, lin leave the consideration Harmelin, S.Ct. at legislature. modern trends to the Harme- added) (citations (emphasis omitted). —lin, -, -, U.S. at 111 S.Ct. at Harmelin’s, Under gross disproportionality 2706; York, see also Lochner v. New analysis, court, legislature, this 45, 75-76, 539, 546-47, 198 U.S. role, any, must determine what if the reali- (1905) (Holmes, J., L.Ed. 937 dissenting) play ties of life fixing prison adolescent (“Some embody ... laws convictions or terms for defendants convicted of sexual prejudices judges which likely to share. misconduct with children. may Some not. But a Constitution is not certainly embody particular This is intended to say [theory]. not to that this court may people It is made for uphold fundamentally as constitutional a sentence differing views, and the accident has It may rational basis. not. finding opinions certain natural famil- Conversely, however, believe iar, novel, shocking, ought or and even requires uphold Harmelin court judgment upon ques- conclude our constitutional a sentence that does embodying tion whether statutes them con- rational basis. See flict with the Constitution the United (“[T]he S.Ct. at 2706 Michigan States.”). Legislature could with reason conclude that posed the threat to the individual and socie- Likewise, majority’s comparison ty by possession of grams] than 650 [more being defendant’s sentences to sent enough cocaine ... to stocks, momentous being flogged, being castrated— warrant the deterrence and retribution of all deal with punish- severe modes of parole____ life sentence without ra- helpful ment—is not in determining wheth- [A] Michigan tional exists basis to conclude punishment er a severe term is constitu- crime is as serious giving meaning tional [Harmelin’s] of felony violent as crime murder with- evolving reference “the kill, specific decency out intent a crime for which standards of that mark the progress maturing society.” is the nature relatively of a What non-violent of his helpful, however, recognize By comparing is to that our crimes. defendant’s sen- Legislature, parade Arizona has tences to of horribles and society, via the un- ifs,” majority, sound determined that sexual intercourse be- “what it is the not least of who fails person years give meaning tween who is at to the age conformity by evolving and a child is not with reference to “the decency.” it standards decency While that mark “standards the might people progress maturing society.” to some or even be decent societies, “progressed has some ours revealing After I what consider to be point condemning to the such matured” majority’s analysis fatal flaws in the conduct. Harmelin, I I now advance what consider compari- two majority appropriate proportionality makes to be the analy- which, although correct, technically by sons sis as articulated and conducted story. First, First, only major- Kennedy. tell half of the the must conduct in- an ity quiry ‘minimum’ states that to determine whether “a threshold “[t]he sentence[s] imposed comparison case ... the crime committed comparable this and the [are] imposable imposed minimum leads to inference of the had sentence[s] gross Harmelin, provoked, violent, disproportionality.” Defendant been become at-, 111 S.Ct. at 2707. conduct- girls, killed the been convicted of [two ing this I inquiry, believe that we must look degree counts second murder.” The of] particular not at the facts or circumstances story rest hypothetical of the is that «/this crime, of the must decide whether out, but we played likely had itself it is more reason, could, legislature the with conclude sentencing the judge imposed would have the posed threat to the individual (25 years the sentences of maximum and to defendant’s society offenses years years the first count and enough momentous to warrant deter- count), rather second than the mini- rence and of the sentences im- retribution (15 years mum of 40 years sentences posed. years first count and 25 for the second 111 S.Ct. at 2706. If such a rational basis count) as he did in this case.13 exists, then the sentences are not Second, majority’s statement grossly severity to the disproportionate through legislature, “the people, their defendant’s crimes. Id. adopted which statutes under the courts exactly While I what factors do know impose im- comparable punishmentfs] by legislature in enacting considered prisonment rape, for crimes such violent statute, Sexual Conduct a Minor murder, degree second and brutal assault 13-1405, Adopting the sentenc- children,” Al- simply inaccurate. guidelines Dangerous of the Crimes though range punish- it is true that the statute, Against Children A.R.S. 13-604.- ment for the crimes defen- committed believe that the sentences dant rape, and the crimes of violent second grossly disproportionate this case are not degree murder, and the brutal assault light committed offenses same, children are the there is no evidence posed society threat the individual and impose comparable punish- that “courts by engaging in sexual misconduct with chil- Indeed, ment” for these offenses. it is dren. only counterintuitive believe that courts so, do it is inconsistent with the record II. The Threat Posed Individual case, suggests that the reason posed imposed upon The threat of harm to children who court defendant the mini- of sexual misconduct is imposable mum was of become victims because Moreover, 13-604.01(A), (G) (15 parole. "provoked, had See A.R.S. § if defendant been violent, girls,” killed become having [and] for first count of sexual misconduct with them, minоr, count, sexual intercourse he would for second subject have ling to minimum sentences total- murder). been degree years for of second each count years’ imprisonment possibility without significant. considering nonetheless, pain statutes is the suffered legislature issue in this during children mis- and after presented with and Finally,. considered less than conduct. sub- sexual misconduct emotional, types jects AIDS, of individual so harm: children to diseases such as cial, physical. Offenses; pregnancy. Sexual Child and unwanted Hearings Victims: on 1021 S.B. Before Comm, Leg., 37th Judiciary, 1st Society III. Threat Posed to (Feb. 1985) (hereinafter Sess. 1-15 During hearings on the at statutes Victims). Child issue in Skelly, Jim the Chairman Committee, the House made Judiciary Children who become the victims of sexu- following statement: develop al often misconduct emotional problems. One against mother testified that aas Crimes children have increased misconduct, victim daughter by of sexual her epidemic proportions only in the problems all, “has behavioral worse throughout State of Arizona Na- but our stated, she has I grow ‘... never want According to tion. article to an in the Ari- ” up because adults do fun things.’ Republic, February 17, 1985, don’t zona child Victims, supra, addition, Child 9. In percent nationally has abuse increased 35 are children who the victims of year. figures sexual mis- last Current for the conduct engage often City misconduct as Phoenix show that as See, adults. е.g., Atwood, v. compared State to aggrava- assaults and 576,-, (1992) Ariz. (defen- against ted by assaults minors increased dant as engaged molested child percent, although rape against adult). misconduct as Concomitantly, by percent, chil- minors decreased four dren who suffer from problems against emotional sex minors increased [offenses] often suffer their relationships. by percent. social necessary It is not to you tragic to happenings reiterate taught History has us that children who Tempe. important Tucson and It is to become the victims of sexual misconduct note that Frank Jarvis Atwood has a many physically times harmed and even long history of child molestation and had by murdered their attackers eliminate parole been only released on serv- See, the children as e.g., witnesses. Child addition, a short In sentence. Mr. Victims, supra, (mother at 9 testified that Castaneda was also released on daughter had been victimized man who happened and we all know what told her if anyone she told he would Perry boy. little mother); kill Atwood, her and her 171 Ariz. timely I think it is that this month’s (defendant 832 P.2d 593 convicted Digest printed Reader’s enti- article of murdering 8-year-old girl had told tled, “Why Do We Tolerate These Crimes friend “had he ‘picking up’ considered an Against Children?” other child and that ‘this time he would Victims, supra, Child Chief Assist- make sure child ”); wouldn’t talk’ State Attorney ant General J. also Steven Twist v. Beaty, 158 Ariz. (1988) 762 P.2d 519 rеcognized against that “crimes children (defendant sexually molested and murdered many have made our urban centers unin- ¶. 13-year-old child); Castaneda, State many and cause habitable us to (1986)(defendant Ariz. P.2d 1 jus- fear and frustration over criminal sexually 12-year- molested and murdered system.” Victims, tice supra, at 3. Child child); Roscoe, old State (1984) (defendant sexually addition, P.2d 1312 In 8-year-old of an mother child).14 7-year-old girl molested and murdered had who been and murdered abducted quite traumatic, physical Not so but harm emphasized convicted child molester saying 14. I am defendant's crimes were each defendant in these cases. He should not. only severe as crimes committed in these I list these cases to illustrate the threat They saying posed cases. were not. Nor am I to children who become the victims death, defendant should be sentenced to as was sexual misconduct. grief only by girls impris- anguish 14-year-old suffered not different family, possi- also the victim’s oned for a total of without victim’s but Victims, bility early friends and classmates. Child release. stressed,

supra, at 14. same mother That society’s I read reinforcing Harmelin as protect “It is time we realize we need drugs. light against declaration of war they our are our future. children because believe that the Arizona children, will protect If we what do not Legislature is entitled declare war it be fifteen from now?” Id. like against the sexuаl abuse children. concluding that Harmelin’s se- grossly disproportionate to the was not MOELLER, Justice, Vice Chief recog- verity crime, Kennedy his of dissenting. “[possession, nized use and distri- that agree I with Justice Corcoran’s dissent. illegal represents drugs ‘one of bution of Supreme The Court remand- United States greatest problems affecting health ” light ed this to us to reconsider in case population.’ of our and welfare Harme- Putting aside difficulties Harmelin. lin, U.S. at Harmelin, every interpreting nuance of omitted). (citation concluding that de- United one fact is incontrovertible: dispro- not grossly fendant’s sentences are Supreme Michigan that States Court held crimes, severity portionate to the of his I may constitutionally impose impris- lifetime recognize that sexual offenses possibility upon a onment without against prob- a represent children similar possession of 650 first-time offender for words, lem. In other I believe rational being I grams of cocaine. That for basis exists defendant’s sentences. why may fail to Arizona understand I sen Because find that defendant’s impose fifteen-year constitutionally a “flat” grossly disproportionate are not tences con- term an adult convicted crimes, severity or inter- intra- minor, by duct with be followed ap jurisdictional proportionality is review twenty-five-year “flat” term for another propriate. a dif- conviction for a similar offense with Similarly, this S.Ct. at because ferent minor. 2, analyses of art. 15 of the Ari court’s consistently been zona have Constitution limited con- Because our review is analyses its counter sentence, identical to federal of the than stitutionality rather independent analysis part, I that no wisdom, believe compelled are to its believe we is appropriate. state constitution of the original major- to affirm the sentence. The See, 92, Mulalley, 127 Ariz. State v. e.g., arguments, including those relative to ity’s (1980), 95-97, P.2d 589-91 over (majority life” “the realities adolescent Noble, grounds, 829), ruled on opinion Ariz. at 830 P.2d at (1987); 731 P.2d 1228 152 Ariz. State legisla- appropriately addressed 335, 337-38, Davis, 108 Ariz. 498 P.2d ture, charged responsibili- which is (1972). 204-05 determining pun- ty of the wisdom of the role much limited— ishment. Our is more

IV. Conclusion may pun- only determine whether the we In my opinion, ishment is constitutional. a defen- result Harmelin Harmelin teaches that it is. Michigan may constitutionally be dant in pos- imprisonment to life sentenced without felony for early release a first sibility APPENDIX possession of than 650 more

conviction result, opinion in I was Because our Bartlett From that it grams of cocaine. Legislature vacated the United States Arizona seems clear Court, reproduce require here intra- authority to has the constitutional comparisons conduct- inter-jurisdictional on a conviction 23-year-old defendant ed with two there. had sexual intеrcourse who has eligible proba- offenders are first-time tion, or, imprisoned, early if earn can re- Part I day days lease of 1 for each 2 credits Imposed Crimes Sentences Other A second carries a mini- served. offense Ariz. quoting Arizona years, presumptive mum of 7 term term 236-37, P.2d at 699-700. years, years, of 10.5 and a maximum of 21 the sentences We next examine early potentially release available af- commit defendants Arizona on who ter two-thirds sentence has been than this defendant’s. crimes more serious -702, -604(B). served. A.R.S. §§ 3010; Solem, 463 U.S. S.Ct. at pre- The first second sentences are Jonas, 164 Ariz. sumed run but the consecutively trial (1990). previously disap court discretion to make them concur- has only proved practice comparing stating on the rent its reasons record. encompassed those crimes within the chal A.R.S. 13-708. Included within this lenged sentencing statute to conclude punishment class 2 scheme of felonies punishment proportionate all because following crimes, potentially are the all statutory crimes within the scheme receive than more serious the offenses committed Jonas, penalties. the same kidnapping, defendant: 249-250, 712-713, disapprov 792 P.2d at 13-1304; adult, sexual of an assault § ing Smith, 156 State v. 13-1406; degree burglary A.R.S. § 518, 526, (1987), 1174, Ariz. P.2d structure, 13-1508; a residential A.R.S. § 280, and Crego, Ariz. structure, occupied and of an arson A.R.S. (1987). Additionally, manslaughter, 13-1704. a § 13-1103, felony, punish- class 3 A.R.S. However, comparison a other a able with minimum sentence of 3.75 punishable crimes under the same manda- years, years, presumptive a term of and a tory sentencing provisions of 13- A.R.S. § years. maximum term of 10 A.R.S. 13- 604.01 helpful this case to that ‍​​‌‌‌​​​​​​​‌‌‌‌‌​​‌​​​‌​​‌‌‌​​​‌‌‌‌​‌​​‌​‌‌‌​​​‍show -702(B). 701(C)(2), more serious offenses do not receive greater punishment. example, For second compare We also the circumstances un- degree murder, assault, forcible sexual tak- der other which defendants have been sub- purposes a prostitution, child for the jected mandatory sentencing to the same or involving drug a child in a offense are In upheld scheme. Taylor, degree against all considered first crimes 2,975 aggregate prison years term of for children, subject to the same dangerous against crimes counts chil- minimum years sentences of 15 and 25 (1989). Ariz. dren. 160 773 P.2d 974 13-604.01(A), defendant received. A.R.S. § performed In that the defendant and (D). potentially More than serious crimes photographed various sexual acts with chil- here, aggravated those such committed aged years old, dren from 18 to 8 months assault, molestation, abuse, child child many and small unidentified children. kidnapping, subject to a mini- are lesser prior history He had a also criminal of sex years mum sentence of for the first young crimes two other with children years offense and 23 for the second of- recognized “irreparable states. We 13-604.01(B), (D). fense. See A.R.S. § harm he has caused normal children,”

Other do not development more serious crimes that of numerous similarly inability involve children lesser “to proclivity receive control his for penalties important than those mandated this case. with children” as conduct involving dangerous Class 2 justifying felonies a factors the harshness of the sen- weapon physical injury Taylor, or threatened are tence. 160 Ariz. 773 P.2d ¶. punishable for first offense mini Crego, with a 982. State court of years, upheld presumptive appeals 20-year mum term of 5.25 two consecutive prison term of 14 years, of 7 a maximum terms a defendant who molested years, potentially age release avail 3 early different victims under only able after half the sentence has been a few months he had been prison served. -702. Such from released similar §§ is difficult because comparison This

3010. offense, parole. 154 committed and while he was on the offenses defendant v. 742 P.2d at 290. State crimes variety Ariz. at chargeable as a broad Smith, upheld a appeals However, also the court punishments. varying of 91 mandatory prison sentence penalties for compare attempted to repeatedly molested a 10- defendant who here: committed closest to those the crimes boy photographed the numer- year-old nonincestuous, in- consensual, heterosexual approximately 60 occa- incidents on ous 14-yеar-old. tercourse with Ariz. at 753 P.2d at sions. 156 compare each of defen- Additionally, we points out other cases Defendant also keeping in individually, dant’s sentences ap- sentencing provisions were which harsh im- was 15-year mind involving propriately applied in situations offense, the 25- and that posed for a first against repeated and cruel sexual offenses imposed for a second year sentence was See, v. e.g., children. State Cum- small only those sen- also consider offense. We (App. 148 Ariz. mings, defendant with scoutmaster, tences for a 1985) performed (defendant, a convictions, 12- to other than prior felony oral anal sex on multiple acts of victims; sentenced 13-year-old male as an enhancement first offense used (cid:127) ranging from prison to 5 terms concurrent focus is second offense. Our factor for the O’Neill, 117 years); to 15.75 State mandatory minimum necessarily on the (1977) (defendant, 572 P.2d 1181 jurisdictions, in other two-year-old babysitting, molested a while received is what defendant because infant, vagi- her resulting a tear between significant the not consider here. We do rectum; to 20 was sentenced na and argument that defendant could have state’s life). stand in These and other cases juris- in other received maximum sentences under to the circumstances stark contrast minimums im- greater than the dictions in this was sentenced which this defendant clear- the record posed in this because case. find trial court did not ly indicates that the comparison of the that a We conclude maximum aggravating justifying factors crimes imposed for other punishments circumstances. sentences under these disproportion with Arizona reveals sentenced under defendant was (1) First 15-year Sentence Offense for these factual circumstances. offenses jurisdictions, defendant’s 10 II

Part a crime or would be would either be Imposed Same Sentences with a only as a misdemeanor punishable quoting Bartlett States Crime Other year one and/or a of less than sentence 237-40, P.2d at 700-03. Ariz. at 792 164 felony offense fine.15 For a first defendant would remaining jurisdictions, im- punishment also examine one, penalty of minimum a jurisdic- crime in other posed for the same faced two, probation often 292,103 years,16 or three Solem, 463 U.S. tions. (third Felony penalties in other degree for a offense carnal § misdemeanor); Ark.Stat. 5-14-106 15. See following sentencing abuse, jurisdictions Code include Cal. Penal a class A (2 intercourse); years); 261.5, (unlawful ranges: to 20 Ga. Ala.Code 13A-6-62 § sexual 264 § 11.41.434, (1 (fornication); to 10 Haw. 12.55.125 §§ 26-2010 Alaska Stat. § Crim.Code 18-3-4-3, (2 (sexual years); in the third 18-1-105 §§ abuse Colo.Rev.Stat. § Rev.Stat. 707-732 (contributing 53a-71(a)(l), years); 53a- degree); § 11-4.1 Conn.Gen.Stat. § Ill.Crim.Code to 8 child); (1 delinquency years); Md.Ann. 11 of a Del.Code Ann. tit. the sexual to 10 35a offense); (fourth degree (3 years); sexual Fla.Stat.Ann. Code 27-464C 4205 to 30 § §§ (not age 800.04, felony; (1 yеars); Code a to 15 Idaho § Mo.Rev.Stat. 566.030 775.082 §§ (not 14); 18-6101, life); (1 a year § 18-3122 Ind.Code consent is Pa.C.S.Ann. 18-6104 §§ 14); (2 felony; age 35-42-4-3(c), years); S.C.Code Ann. of consent is 35-50-2-6 to 8 Ann. §§ 14); crime; (not age (1 years); of consent a 10 Kan.Crim. § 16-3-655 Code 709.4 § Iowa 61-8B-9(a) (sexual (3 years); abuse Ann. to 20 § W.Va.Code 21-4501 §§ Code Ann. (1 degree). years); La. Ky.Rev.Stat.Ann. to 5 § third 510.060 (1 years); Me.Rev. to 10 Rev.Stat.Ann. 14:80

319 case, however, potential In this dis Thus, defen unique proportion our between the sentences available. statute imposes actually those among jurisdictions all in that it dant received and years, 15 similarly minimum term of on other situated defen higher jurisdictions which is 5 times than that in other is actual. De dants jurisdic- all myriad jurisdiction. supplied other fendant has us with a Arizona, sentencing judge has tions examples published but in the case law of other imposing range discretion representative wide jurisdictions. A few cita statutory bottom of the v. sentence at the point; tions illustrate Diefenderfer range circumstances State, that fits the individual (defendant (Wyo.1987) 745 P.2d 556 maximum Although al- the crime. degree third pleaded guilty to sexual as jurisdictions in some lowable sentence 14; girl sault of a the execution range within would have fallen years suspended his sentence 3 to 5 tencing provided a first offender under v. State DeJe years probation imposed); 4 13-604.01(A), jurisdiction in no sus, (1987) Conn.App. A.2d 1156 required sentencing judge would the (defendant degree pleaded guilty to second impose a sentencе more than 3 14-year-old; assault of Thus, legislature the identical offense. Borde, La years upheld); of 5 penalty potentially dispro- has mandated a (1958) (defendant La. con So.2d portionate to an individual criminal act or knowledge 14-year-old; victed carnal Howe, Thoughts defendant. J. on year, months); sentenced to one Mandatory Sentencing, Bar J. June- Smart, (1965) 247 La. 170 So.2d 365 July 1985, at 24-25. (defendant knowledge convicted of carnal 13-year-old; years); of a sentenced 3to potential disproportionality Such is not Rodriguez, v. State N.J.Super. enough to us to find allow defendant’s sen (defendant (1981) A.2d 957 convicted of tences cruel and unusual. See State v. 13-year-old; sexual assault of sentenced Taylor, 160 Ariz. (1989) Newell, 4 years); State N.C.App. (“Although Ari spectrum national (1986) (defendant con S.E.2d against zona deals crimes children of taking victed indecent liberties with a states, more severely many than 16; consenting child between 13 sen Eighth Amendment violated ‘[t]he Hartman, to years); tenced 3 145 every time a state reaches a conclusion 1, (1988)(defendant Wis.2d 426 320 N.W.2d majority different from a of its sisters over statutory rape 14-year- convicted of of a how to best administer its criminal laws.’ old; Florida, Spaziano 447, 464, 104 sentenced a term of more than v. to 3 468 U.S. 3154, 3164, 340, placed years, suspended 82 but defendant L.Ed.2d 355 (1984)”). probation county jail 6 potential Such in sen with months in differences tencing federalism, progrаm). Additionally, are mark of “a not un work release de Bishop, constitutionality.” appellate to 717 fendant’s counsel has avowed 261, (Utah 1986). diligently 272 court “has searched that he 17-A, 254, 2907.04, 1252(2)(D) (1 2929.11(D)(1) (1 year); Stat.Ann. tit. 2 §§ Rev.Code Ann. to §§ (1 life); year 1114(B), (1 Mass.Gen.Laws Ann. Ch. 23 to years); § 1116 21 Okla.Stat.Ann. to §§ 163.355, 750.520(4)(a), Mich.Comp.Laws § § M.S.A. 28.- (1 years); §§ Or.Rev.Stat. 161.605 to 5 15 788(4)(a) (1 years); to 15 § Minn.Stat.Ann. 609.- 11-37-6, (1 years); to §§ RJ.Gen.Laws 11-37-7 5 344(1)(b), (2) (1 years); to 15 Miss.Code Ann. (1 22-22-1(5) years); Laws to § S.D. Codified 15 (1 years); 97-5-21 to 10 § Mont.Code Ann. 45- § (1 years); years); to § Tenn.Code Ann. 39-2-605 5 5-503(3)(a) (2 years); to 40 Nev.Rev.Stat. 200.- §§ (2 years); § 22.011 20 Tex.PenaI Code Ann. to (1 364(3), 200.368(1) years); to 10 N.H.Rev.Stat. 76-5-401(1), 76-3-203(3) (1 Code Ann. §§ Utah 632-A:3, (1 years); §§ Ann. 651:2 to 7 NJ.Rev. (1 years); Vt.Stat.Ann. tit. 13 to 20 § 5 3252 2C:43-6, 2C:14-2(c)(5), a(2) (2 Stat. §§ to 10 9.94A.310, 9A.44.079, years); §§ Wash.Rev.Code (1 30-9-13(B), years); §§ N.M.Stat.Ann. 31-18-15 (1 years); 1 940.- table 5 Wis.Stat.Ann. 130.25, 70.00, years); Law §§ to 2(e) (1 N.Y.Penal sube. 225(2)(e) (1 Wyo.Stat.Ann. years); §§ to 10 6-2- 14.202.1, years); to 4 N.C.Gen.Stat. 14- §§ (1 6-2-306(A)(iii) years); to 5 Ann. D.C.Code 1.1(a)(8) (1 years); to 10 N.D.Cent.Code 12.1— §§ (1 life). year to §§ 24-203 20-03, 12.1-32-01, (1 years); subd. 3 Ohio to find nature of

refused the consecutive of case of our 50 separate two centuries law of each for two sentences two crimes to required states. This the review sister a factor that render be would the second 2,600 case was just over cases. Not one disproportionate. Jonas, sentence similarly a defendant found where situated Ariz. at 792 P.2d at 712. We thus do remotely aggravated received an sentence not consider that factor here.17 Nonavaila- mandatory comparable imposed to that as a parole, however, bility of is a factor in upon Mr. Bartlett.” minimum determining although proportionality, conclude that authority, itself, Given parole, absence does not make a mandatory sentence minimum disproportionate. Solem, sentence dis- for his offense was on defendant n. U.S. at 297 and 103 S.Ct. at 3013 and first received sim- proportionate 24; Jonas, n. Ariz. at 792 P.2d at jurisdic- in other ilarly situated defendants In this the absence of tions. availability requires us to consider de- 25-year serve entire fendant will (2) 25^year sentence second offense for the offense. tence second mandatory comparison 25-year A difficulties, Despite comparison these a minimum sentence defendant received for penalties face of what defendant would offense the second with those jurisdictions, a second offense in other al- jurisdictions complicated comparison though not as clear for a as second sen enhancement defendant’s offense, the conclusion compels first was treated tence because first count subject to a much defendant be predicate felony. jurisdic Most prior as a lighter minimum sentence for repeat strin punish tions offenders more one penalties on his second offense all but state. gently, enhancement prior consist the basis of offenses has been Nebraska, subject defendant would at upheld against eighth amendment ently statutory range years of 25 to 50 for a Estelle, See, e.g., v. tacks. Rummel conviction second of sexual assault involv- 263, 276, consenting than 16 child less Bramlett, (1980); v. L.Ed.2d Cocio old, eligible parole. and would not be (9th Cir.1989). However, F.2d (3). 28-319(l)(c), Neb.Rev.Stat. How- requir legislature, mindful that the ever, United States Court for a sec ing 25-year minimum sentence Helm, finding that a noted Solem offense, that it was implicitly ond assumed could received an identical- defendant enhancing constitutionally proportionate sentence in other state is also ly harsh one for a minimum sentence of 15 indication he “could not have a clear mini already We have found the offense. such a received severe for the first offense to be mum sentence 103 S.Ct. at 50 States.” disproportionate to the facts of this case. Furthermore, added). (emphasis “prior” Additionally, felony in this case was simulta not been advised the state was one for which defendant have sec neously tried and sentenced with the charged in with of- defendant Nebraska offense, existing in a factor not other ond actually fenses similar Bartlett’s receiv- 13-604(H). jurisdictions. See A.R.S. Rather, ing such a harsh sentence. cases have found chal- published that we complicating Also lenging mandatory Nebraska sentence mandatory nature of the two consecutive have involved more for a second offense sentences, along absence offenses, including rape forcible parole. previously heinous availability of We hold, however, repetitive separate that we conduct resulted in We do not would 17. requirement of consecutive never consider with consecutive sentences. such crimes case, determining propor- be a factor in nature of the sentences the consecutive not, example, tionality. a case This is for deciding propor- perhaps be a factor in imposed on a consecutive sentences were tionality. engaged single course of who in one defendant

830 P.2d 842 physical injuries serious victim. Arizona, Appellee, STATE See, Brand, e.g., Neb. (1985) (defendant N.W.2d received 35- MALONE, Appellant. Clarence Dene year sentence for second conviction of first-degree involving sexual assault No. 1 CA-CR 89-1077. force; dispropor- use of sentence found not Arizona, Appeals Court of crime). tionate to Under these circum- E. Department Division stances, 25-year we cannot find the manda- tory minimum sentence for defendant’s sec- March 1991. proportionate merely ond offense to be on June Review Granted basis of the Nebraska statute.

Except Nebraska, jurisdic- no other imposes mandatory

tion minimum sen- years of more

tence than second juris-

offense similar to defendant’s. particularly

diction did we find the harsh here, provisions present

combination of in-

cluding mandatory both consecutive

tencing nonavailability parole. ‍​​‌‌‌​​​​​​​‌‌‌‌‌​​‌​​​‌​​‌‌‌​​​‌‌‌‌​‌​​‌​‌‌‌​​​‍conclude, therefore, 25-year

must minimum for defen- disproportion-

dant’s second offense is also

ate the sentences similarly jurisdictions.

situated defendants

Based on the above analysis, we hold

that defendant’s sentences offense for the sec- disproportionate

ond offense are to the specific

crimes he committed under the

facts of this violate thus proscription against cru- punishment.

el and unusual This is a nar- holding

row limited facts circum-

stances of this case. The Court challenges

has said that successful

proportionality particular sentences are

“exceedingly Solem, rare.” 463 U.S. at

289-90, 103 at 3009. This is such

rare case.

Case Details

Case Name: State v. Bartlett

Court Name: Arizona Supreme Court

Date Published: May 8, 1992

Citation: 830 P.2d 823

Docket Number: CR-88-0411-PR

Court Abbreviation: Ariz.