Lead Opinion
OPINION
A despondent mother’s attempt to commit suicide and infanticide by asphyxiation was interrupted by an alert neighbor. All survived and, fortunately, no one was injured. She was not charged with attempted murder but, instead, with two counts of intentional or knowing child abuse under A.R.S. § 13-3623(B)(1) which carries a much more severe sentence. Upon conviction, the court sentenced her to two consecutive 17 year prison terms which require her to serve the full 34 years before release. We are asked to decide whether this sentence is cruel and unusual under the federal and state constitu
I. THE FACTS
Colette DePiano had been, by all accounts, a very good mother. Her husband deserted her shortly after her second child was born. Despite the difficulty of raising two boys while working as a flight attendant with America West Airlines, DePiano appeared to manage. A few years after her husband deserted her, she began dating a co-worker at America West. Six months later she was hospitalized for post-abortion psychological complications. About one month before the suicide-infanticide attempt, she broke up with her boyfriend. She moved out of the house they shared, although she had no income and no place to live. She stole $300 from her ex-boyfriend to pay bills. A friend allowed her to live rent-free at her Tempe house. She was depressed, upset, and disillusioned.
On October 16, 1991, DePiano went to dinner with some friends at America West and came home late. At 2:00 a.m., a neighbor woke up to the sound of what he thought was a washing machine. His bedroom was right next to DePiano’s garage. After checking things out, the neighbor noticed that the noise was coming from a car in the garage. He knocked on the garage door and the front door, but got no answer. He called the police.
A Tempe police officer came out, went into the sealed garage and brought DePiano and her two children out to the front yard. The police and paramedics took them to the hospital where she told the attending physician that she was depressed and had attempted suicide.
At her child abuse trial, she denied she was trying to commit suicide and claimed that she was trying to fix her car. After closing arguments and before the jury returned its verdicts of guilty, she left town.
In a 2-1 decision, the court of appeals affirmed her convictions and sentence. State v. DePiano,
II. CRUEL AND UNUSUAL PUNISHMENT
DePiаno’s sentence of 34 years is the result of the confluence of three separate sentencing enhancements. First, although most class 2 felonies then carried a 7 year presumptive term, A.R.S. § 13-701 (1989), intentional or knowing child abuse carried a presumptive term of 17 years. A.R.S §§ 13-604.01(B), 13-3623(B)(1). Second, A.R.S. § 13-604.01(E) requires that persons convicted of child abuse must serve the entire term. Third, sentences imposed for intentional child abuse, where the victim is under 15 years of age, must be served consecutively. A.R.S. § 13-604.01(J) (now A.R.S. § 13-604.01(1)). DePiano argues that her resulting sentence of 34 straight years without the possibility of release violates the prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and art. 2, § 15 of the Arizona Constitution.
While it is clear that a cruel and unusual sentence violates both constitutions, what is cruel and unusual is not so clear. The United States Supreme Court addressed this issue in Harmelin v. Michigan,
In State v. Bartlett,
We do not believe that Bartlett II is entitled to the sort of precedential value one ordinarily would associate with an opinion of this court. The court was almost equally divided on the meaning of a plurality opinion of the United States Supreme Court. We are thus left with two levels of informed speculation. The first is whether the plurality opinion in Harmelin would command a majority today. The second is whether the majority or the minority read Harmelin correctly in Bartlett II. We agree with Bartlett II that until the Supreme Court of the United States holds otherwise, we shall follow Justice Kennedy’s plurality opinion. But we disapprove of that part of Bartlett II that concludes that Justice Kennedy’s analysis would require an examination of the facts and circumstances of the particular crime and the particular offender. We agree with the minority in Bartlett II that the initial threshold disproportionality analysis is to be measured by the nature of the offense generally and not specifically. We think this is particularly true for serious violent offenses.
Under this framework of analysis, and turning to this case, child abuse is a serious violent crime. The abuse must occur under “[circumstances likely to produce death or serious physical injury.” A.R.S. § 13-3623(B)(1). Child abuse is a violent crime and probably a more severe offense than the possession of 672 grams of cocaine. If, under Harmelin, a life sentence without the possibility of parole is not grossly disproportional to the offense of possession of cocaine, a fortiori, a shorter sentence for a more severe offense is not grossly disproportional. Therefore, without looking at the particular circumstances surrounding her offense, we reject DePiano’s claim that her sentence violates the Eighth Amendment to the United States Constitution and art. 2, § 15 of the Arizona Constitution.
III. STATUTORY REDUCTION
DePiano’s sentence is constitutional because the prohibition against cruel and unusual punishment embodies a very narrow proportionality principle. A sentence is cruel and unusual only where there is gross disproportionality between the crime generally and the sanction imposed by the legislature. We ordered supplemental briefing on whether DePiano’s sentence should nevertheless be reduced under A.R.S. § 13-4037(B), which, in contrast to the Eighth Amendment, allows the court to look at the particular circumstances of the crime and the offender and reduce any sentence that it finds to be excessive, even though the sentence is constitutional. A.R.S. § 13-4037(B) provides:
Upon an appeal from the judgment or from the sentence on the ground that it is excessive, the court shall have the power to reduce the extent or duration of the punishment imposed, if, in its opinion, the conviction is proper, but the punishment imposed is greater than under the circumstances of the case ought to be inflicted. In such a case, the supreme court shall impose any legal sentence, not more severe than that originally imposed, which in its оpinion is proper. Such sentence shall be enforced by the court from which the appeal was taken.
This court cannot engage in appellate sentencing. Nor can we ordinarily substitute our judgment for that of the trial judge. We cannot and would not micromanage the administration of criminal justice in Arizona. We have neither the competence nor the ability to do so. We thus exercise our power under this statute only with great caution. E.g., State v. Patton,
Such cases will be rare. Indeed, until today, we had not seen such a case in years. Although her children were with her, the crime here is essentially a bоtched suicide. Her suicide note, uncorrected, reads in part:
To all the people who made my life somewhat bearable;
Although none of this makes much sense to you—
I just know that I cannot put my sons through the coldness + hate that goes on — People talk above love — what does that mean — your parents tell you your out of house when your 18 — your spouse leaves + believes he doesn’t need to pay child support — Your children look up to you— what do you have to offer—
Dear God — I’ve taken my sons with me in hopes that we’d be somewhere away from the place we are now ...
To my Mom — You’ve instilled in me that raising children is a nightmare + all they do is grow up to resent you — That’s all the appreciation I get huh, — a resentment— You don’t even call me! — Boy—that really pisses me off—
Jeff1 — I lived your life, your problems your confusion — I loved you — what a waste—
Jim2 — what a loser you are for not helping me with the boys — I tried so hard to do it by myself — I tried so hard! — You bastard — how can anyone not want to see these two boys succeed — They deserve more than what I can offer as а single income family — Why couldn’t you help us — Just with day care expenses — they’re your kids—
God only know how much I believe in life — but I look around me + see everyone lying cheating stealing[.] no one has any morals—
I’m not a 90s person — I don’t want my sons to be a part of the hate we all spread around—
They are beautiful and pure + no one will take that away from us—
We are descent + honest ...
Jordan — You’ve been the best of friends— I love you with all my heart — I love you — I love you — You’ve been wonderful to us—
Jordan you of all people know how disheartened I am with the hatefulness of people—
People look at you tell you they love you + walk away—
This note, and all of the other matters of record leading up to this sad incident, illustrate that DePiano’s suicide-infanticide attempt was motivated by despair, not the evil,
The trial court found her lack of a prior criminal record and the absence of injury to the children to be mitigating. But he found her two month flight after the verdict was announced to be aggravating. He believed these factors balanced out and sentenced her to the presumptive term. In the ordinary case, a presumptive sentence could well be indicated. But the sentence here was driven more by the confluence of a series of nondiscretionary sentencing enhancements than individual judgment tailored to this particular offense and offender. We do not criticize the trial judge. Given these enhancements, the range available to him was narrowly severe. But A.R.S. § 13-4037(B) gives this court the responsibility to put the sentence in context. Had this been a typical child abuse case, we would have left this defendant where we found her. But it is not. Even most first degree murderers are eligible for parole after 25 years. A.R.S. § 13-703. We believe a 34 year flat sentence is excessive for this casе and therefore DePiano is entitled to some relief under A.R.S. § 13-4037(B).
Our authority to reduce an otherwise constitutional sentence is limited by § 13-4037(B) to “one within the statutory range enacted by the legislature.” State v. Bartlett,
IV. DISPOSITION
We vacate that part of the opinion of the court of appeals that relates to the cruel and unusual punishment issue. We affirm DePiano’s convictions, but under the authority of A.R.S. § 13-4037(B), the 17 year term of imprisonment for each count is reduced to 12 years for each of the two counts. The sentences in all other respects are affirmed, including the flat provisions of A.R.S. § 13-604.01(E) and the consecutive provisions of A.R.S. § 13-604.01(J).
Notes
. The boyfriend from whom she broke up a month and a half bеfore her suicide-infanticide attempt.
. Her husband at the time of the incident.
Concurrence Opinion
concurring in part and dissenting in part.
We agree with Justice Martone’s analysis under Harmelin and Bartlett II and with his conclusion that DePiano’s sentence is not unconstitutionally cruel and unusual. We therefore join in that portion of his opinion designated “Part II. Cruel and Unusual Punishment.” Because we disagree with the majority’s decision to inject A.R.S. § 13-4037(B) into the case and to reduce DePiano’s sentence, we dissent from that portion of the opinion designated “Part III. Statutory Reduction.”
Colette Renee DePiano decided to kill herself and her two children on October 16, 1991. At the time, DePiano was experiencing financial problems and the breakup of a relationship. At approximately 2:00 a.m., DePiano placed towels along the base of the garage door at the house where she was staying. She got into her car with her children, Dustin (age three) and Dakota (age four), and started the engine. Fortunately, because the windows of the car were shut, the level of carbon monoxide in the car’s interior rose slowly. Before DеPiano and her two children were overcome by the fumes, a concerned neighbor heard the car’s noise and alerted police. Responding officers entered the garage and rescued DePiano and the two children. Inside the ear, police found a note, quoted in the majority opinion (maj. op. at 31,
While the jury was out, DePiano fled the jurisdiction for a period of weeks. At sentencing, the trial court found that DePiano’s lack of a criminal record and the lack of physical injury to the children were mitigating factors. The judge found this mitigation counterbalanced by DePiano’s flight following the verdict. Therefore, the judge imposed the presumptive term: two consecutive seventeen-year sentences.
The constitutional issue of whether her sentence was cruel and unusual was the only issue raised by DePiano in her petition for review. Thus, disposition of that issue would ordinarily have disposed of the case. However, the majority chose to inject a new, second issue into the case and sua sponte asked the parties to brief that issue; namely, the availability of a sentence reduction under A.R.S. § 13-4037(B). This new issue is the vehicle by which the majority now reduces DePiano’s sentence. In addition to disagreeing with the decision to inject the new issue into this appeal, we disagree with the reduction of sentence for two reasons: 1) the majority finding of excessiveness is based on an unjustified construction of the child abuse statute and an improper appellate finding that DePiano suffered from depression; and 2) this case does not fall within the narrow range of cases in which Arizona appellate courts have historically invoked their statutory authority to reduce sentences under § 13-4037(B).
1. Is the presumptive term imposed by the trial court “excessive”?
A. “Typical” Child Abuse
In large part, the majority bases its conclusion that DePiano’s sentence is excessive on the notion that this case is not a “typical” case of child abuse because it did not involve “the evil, wicked, depraved or otherwise bad state of mind one associates with child predators.” See maj. op. at 31-32,
The majority also finds a legislative intent that we fail to discern in the statutory language or otherwise. A.R.S. § 13-3623(B) imposes substantial penalties on those who “having the care or custody” of a child, “intentionally or knowingly” place the child “in a situation where its person or health is endangered.” The majority acknowledges that DePiano violated the statute but asserts that the statute was intended to apply to cases involving “child predators,” which, we can only infer from the majority opinion, would involve the beating, torture, or molestation of children. See maj. op. at 31,
The majority seems to suggest that sentencing under § 13-3623(B) should be based on some sliding scale of violence; if a person places a child in mortal danger without violence, she should receive a lesser punishment than one who otherwise places the child in the same mortal danger. We believe this conclusion, unsupported in the majority opinion by logic or precedent, is incorrect. A mother who cold-heartedly and with premeditation attempts to kill her children by asphyxiation, whether by suffocating them with a pillow, by poisoning them with car exhaust, or by putting them in a bag and dumping them in a public receptacle, is not, under the statute, less culpable than a mother who flies into a rage and beats her children. If there
B. DePiano’s Depression and Despair
The majority, in deciding that this is not a “typical” case of child abuse, also concludes that what sets this case apart from “typical” cases is DePiano’s state of mind. See maj. op. at 31-32,
The majority emphasizes that while “[n]either [DePiano’s] depression nor her despair excuse her guilt ... we believe it is so mitigating here that it sets this case apart from the norm.” Maj. op. at 32,
The majority’s finding of “deprеssion [and] despair” is erroneous for two reasons. First, depression and despair could be found by trial or appellate courts in most, if not all, child abuse cases, particularly those involving abuse of one’s own child. The very fact that a parent abuses his or her own child will nearly always raise a question of the emotional well-being of that parent. Surely, the legislature did not enact a legislative scheme with the intent that a mitigated sentence be the norm. As we explain shortly, we believe the majority’s conclusion that “depression [and] despair” motivated DePiano’s act is suspect based on this record. However, even if DePiano were depressed, the majority makes no effort to explain how this sets her apart from other child abusers, or why “depressed” or “despairing” child abusers should receive mitigated sentences.
Even assuming “depressed” child abusers should receive mitigated sentences, we disagree with the majority’s finding that DePiano was deрressed, particularly when made, as it was here, as an initial matter on appeal. The majority uses DePiano’s suicide note, in which she directed a diatribe of blame and bitterness at those she felt were responsible for her misery, to show that this “sad incident” was “essentially a botched suicide” motivated by extreme “depression [and] despair.” See maj. op. at 31,
Your parents tell you your [sic] out of the house when your 18 — Your spouse leaves and believes he doesn’t need to pay child support____ To my Mom — You’ve instilled in me that raising children is a nightmare and all they do is grow up to resent you — That’s all the appreciation I get, huh, — a resentment — You don’t even call me! Boy that pisses me off — Jeff—I lived your life, your problems, your confusion — I loved you — what a waste — Jim—What a loser you are for not helping me with the boys ... you bastard____ They deserve more than what I can offer as a single income family.
The note, in our view, is at lеast as aggravating as it is mitigating. It shows that DePiano not only blames all those around her for her problems but that she was willing to kill her own children because of her financial woes and resentments.
Admittedly, the emergency room physician who saw DePiano described her as depressed. See state’s exhibit 26. The bare assertion that DePiano was acting depressed in the early morning hours following her suicide/infanticide attempt is hardly proof of her motivation before the attempt. It is not surprising or atypical that someone arrested for trying to murder her own children would act depressed. If we are to engage in fact-finding on appeal (an approach we wholeheartedly discourage), we need to look at all the evidence. When we do, it certainly does not show a dépressed mood either subjectively or objectively.
DePiano’s own testimony is that she felt fine during the period leading up to October 16, 1991. Her close friends did not report
Nor should we follow a “no harm, no foul” approach to criminal law. Although the children suffered no immediate physical harm in this сase, they would have been dead had DePiano’s plan been executed successfully. Criminal statutes contain many examples of crimes designed to deter conduct which may not result in physical injury but which, by their nature, expose citizens to unwarranted risk. Aggravated assault and armed robbery, just to name two examples, are crimes involving significant penalties even though a person convicted of those crimes might truthfully argue that no one suffered physical injury in the course of the offense. See A.R.S. §§ 13-1203 to -1204, § 13-1902. This court undercuts the policy of many criminal statutes by implying that sentences for crimes that do not result in immediate physical harm should be mitigated. Such an approach overlooks not only the express statutory language but the potentially devastating emotional impact such crimes may inflict on their traumatized victims. On this record, we know nothing of the non-physical damage to the children. We do know that it is only through the children’s good luck, the alertness of a neighbor, and the vigilance of the police that the children are alive today, whether emotionally scarred or not. Their survival owes nothing to their mother, the defendant.
2. Assuming the validity of the majority’s findings, is this court warranted in invoking its statutory power to reduce the sentence in this case?
It is evident that we disagree with the majority’s conclusion that DePiano’s crime was not of the “typical” sort envisaged by § 13 — 4037(13) and with the majority’s further conclusion that her presumptive sentence was inappropriate because she allegedly acted out of depression and despair. Even if the findings of the majority were correctly made at the appellate level, DePiano’s presumptive sentence should not be reduced under § 13-4037(B).
The majority concedes that we should use our power to reduce a sentence under A.R.S. § 13-4037(B) only with great caution. (Maj. op. at 31,
Having noted the limited scope of the statute, the majority states: “Such cases [warranting reduction] will be rare. Indeed, until today, we had not seen such a case in years.” Maj. op. at 31,
Nor does the present ease fit the narrow band of cases in which this court has exercised its statutory discretion in the past to reduce a sentence under § 13-4037(B). The facts of those eases granting relief under A.R.S. § 13-4037(B) stand in marked contrast to this one. For example, we have reduced a sentence as excessive because it exceeded the applicable statutory limits. State v. Jennings,
All of the foregoing cases in which sentences were reduced arose during the time when Arizona had indeterminate sentencing and trial judges had almost unlimited discretion in imposing sentences. Since presumptive determinate sentencing went into effect with the 1978 code, there have been only three reductions of sentencing under § 13-4037(B). One sentence was reduced because it exceeded the statutorily authorized punishmеnt, State v. Kerr,
Cases in which sentences have been reduced are extremely rare and have involved youthful defendants, mistakes or omissions at the trial level, relatively minor or nonviolent offenses, sentences beyond the statutory range, or other extenuating circumstances which show an abuse of discretion or clear error at the trial level. In this case, defendant is not youthful, but is, instead, a mature adult. She was twenty-nine years old when she committed the instant offense. Her crime was a very serious one which threatened to end the lives of two small children. The sentence imposed was within the permissible range and was the presumptive sentence which the legislature has deemed appropriate for acts of child abuse. No appellate court in Arizona has ever reduced a sentence for child abuse under § 13-4037(B). We would not do so now.
Until today, this court has maintained an appropriately high level of restraint under § 13-4037(B), as demonstrated by the very few cases in which sentences have been reduced in the past. Today’s case stands as a disturbing anomaly amid that line of decisions and invites wholesale requests for appellate resentencing under the statute, assuming the statute survives.
Concurrence Opinion
concurring in part, dissenting in part.
I concur in Justice Martone’s application of A.R.S. § 13-4087(B) to this case but disagree with his conclusion that DePiano’s sentence is not cruel and unusual. I also find the “informed spеculation” with which he analyzes this issue to be most peculiar and highly problematic. Whether a majority of the present United States Supreme Court would agree with the plurality opinion in Harmelin v. Michigan,
Only four years ago, a majority of this court held that Harmelin v. Michigan requires an examination of the circumstances of both the crime and the offender when deciding the constitutionality of a sentence:
[T]he question of “gross disproportion” cannot be resolved without considering all of the factors that aggravate or mitigate the crime. To ignore the facts in determining whether a sentence is cruel and unusual would make the title of the statute ... determine the constitutionality of the sentence imposed. Surely, if this court has a responsibility to review the constitutionality of sentences under the eighth amendment, that duty requires us to apply the standards of the federal constitution tо the facts of what occurred, no matter what label the legislature has attached to the criminalizing statute.
State v. Bartlett,
We do not believe that Bartlett II is entitled to the sort of precedential value one ordinarily would associate with an opinion of this court. The court was almost equally divided on the meaning of a plurality opinion of the United States Supreme Court. We are thus left with two levels of informed speculation. The first is whether the plurality opinion in Harmelin would command a majority today. The second is whether the majority or the minority read Harmelin correctly in Bartlett II.
Ante at 30,
I respectfully submit that Bartlett II continues to be the law of this jurisdiction. The fact that it was not unanimous makes it no less deserving of “precedential value” than any other decision of this court. See White v. Bateman,
Sound jurisprudential policy has caused us to abandon substantive precedent only when the reasons for it have ceased to exist or it appears to be clearly erroneous. White,
Not only am I unable to find a compelling reason to overrule Bartlett II, but I also concur that the facts and circumstances of the crime and the individual offender must be examined when determining gross disproportionality. It is the only logical way to apply punishment in a system rooted in concepts of justice and fairness. All defendants are not alike, just as all crimes, even if given the same label, are not identical. Child abuse is a prime example of an offense for which culpability arises from a full spectrum of conduct, ranging from neglectful parent to child predator. If this court were to ignore the particular facts and circumstаnces of each case, we would effectively be relinquishing our obligation to examine the constitutionality of sentences to the legislature, which has the power to define crimes, and the prosecutor, who has the authority to charge. See Bartlett II,
The threshold inquiry is whether defendant’s sentence is grossly disproportionate to her crimes. “[Pjroportionality review ... should be informed by ‘objective factors to the maximum possible extent.’ ” Harmelin,
DePiano was convicted of intentionally placing her children in a circumstance that was likely to cause death. See A.R.S. § 13-3623(B)(1). She and her sons were sitting in a running car within a closed garage. While the end result could have been tragic, it was not. The state argues that there is no dis-proportionality because defendant “attempted to kill her kids” and would be guilty of first degree murder had she succeeded. Putting aside the likelihood that she too would be dead under such a scenario, DePiano did not murder her children. Moreover, attempted murder was not the charge ultimately made by the prosecution, even though it was the basis upon which defendant was arrested. Most significantly, as the state conceded at oral argument, had this woman been convicted of attempted murder, her sentence would probably have been much less severe.
An expert -witnеss testified that the conditions of the garage were “likely to cause death.” However, the lack of physical effects on DePiano and her children, together with the low levels of carbon monoxide in their blood, show that they were not exposed to these conditions in any meaningful way. The expert concluded, and the evidence supports, that they were inside the ear with the windows rolled up. According to the expert, for the 20-30 minutes of exposure to have been lethal, they needed to be outside the car and exposed to carbon monoxide levels 5 times as concentrated as it was when the police arrived.
Although one could argue that Harmelin involved a similarly nonviolent crime — possession of cocaine — the Supreme Court made a point of citing studies and statistics showing a link between drugs, violence, and harm to society. The Court noted that the defendant in that case possessed 672.5 grams of undiluted cocaine, potentially yielding between 32,500 and 65,000 doses. Other evidence taken from Harmelin corroborated his heavy involvement in the drug trade: marijuana cigarettes, four brass cocaine straws, a cocaine spoon, 12 Percodan tablets, 25 tablets of Phendimetrazine Tartrate, a Motorola beeper, plastic bags containing cocaine, a coded address book, and $3,500 in cash. The Court found it undeniable that violent crime is linked to drug use, possession, and distribution. Thus, Harmelin’s crime was viewed as one involving violence to society as a whole.
When we lоok at the realities of DePiano’s crime, however, we see that this was an attempted suicide-infanticide. “[A] suicide gesture ... something calling for help” is how the prosecutor presented it to the jury. As the state points out, the statute in question did not require that this woman specifically intend to harm her children. But personal culpability, including state of mind, should be a factor in our proportionality determination. See Solem,
The state presented considerable evidence that DePiano was extremely depressed and despondent, someone who had previously been admitted to a mental hospital and left against medical advice. She was called “a troubled person, troubled person with a troubled mind.” The emergency room doctor described her demeanor on the date of this incident as very flat, continuous, monotonous, and consistent with that of someone suffering extreme depression. The entire picture is of a disturbed young woman who needs help, not 34 years in prison. Her children have been taken and her parental rights severed. There is no evidence that she poses a continuing threat to them or anyone else. How then can it be said that the punishment fits the crime?
I do not mean to suggest that we can or should ignore the legislature’s choice of how to treat certain conduct or the prosecutor’s discretion in filing criminal charges. It must be remembеred, however, that despite the latitude afforded, “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” ER 3.8 emt., Arizona Rules of Professional Conduct, Rule 42, Ariz.R.Sup.Ct. Furthermore, although we must “acknowledge the legislature’s prerogative to criminalize behavior and to choose the appropriate punishment,” Bartlett II,
DePiano is not a child predator. Not one witness testified to ever seeing her hit, scold, or “abuse” her children in any way. In fact, prosecution and defense witnesses all described her as a good mother who worked at being a better parent. The children were described as well-mannered and fun-loving, always clean, healthy, well taken care of, and well-groomed. DePiano also comes before the court without any prior convictions.
While the definition of the crime charged encompasses defendant’s actions, this is one of those rare cases in which the extreme sentence is grossly disproportionate to the circumstances of the offense. DePiano received two 17-year consecutive sentences to be served without any apparent possibility of suspension, commutation, probation, pardon, parole, work furlough, or other form of early release. See former A.R.S. §§ 13-604.01(B), (E) & (J). Unlike in Harmelin, the potential injustice of this broad sentencing scheme cannot be averted or corrected by executive or legislative clemency. See Harmelin,
The legislature has recognized this flaw and amended § 13-604.01 to permit commutation. See A.R.S. § 13-604.01(E). The amendment, however, applies to crimes committed after January 1, 1994. See Laws 1993, Ch. 255, §§ 98, 99. For defendant, then, only this court can ensure that she receives a constitutional and just sentence. See supra at 29,
Having found an inference of gross disproportionality, an intra- and inter-jurisdictional analysis is necessary to validate the result. Harmelin,
Without repeating the persuasive analysis contained in Judge Gerst’s dissent below, State v. DePiano,
Class 1 felony — 15 years: Second degree murder (A.R.S. § 13-1104);
Class 2 felonies — 10.5 years: Attempted Murder (A.R.S. § 13-1001); Kidnapping (A.R.S. § 13-1304); Sexual Assault (A.R.S. § 13-1406); First Degree Burglary of a Residential Structure (A.R.S. § 13-1508); Arson of an Occupied Structure (A.R.S. § 13-1704);
Class 3 felonies — 7.5 years: Manslaughter (A.R.S. § 13-1103); Aggravated Assault (A.R.S. § 13-1204).
With the exception of second degree murder and sexual assault, all of the above sentences are subject to early release. Even the murderer of a victim under age 15 sentenced to life imprisonment is eligible for release after 35 years. See A.R.S. § 13-703(A). Moreover, life sentences for first degree murder can be served concurrently. Incredibly, had both of her children died, DePiano would have been eligible to receive a sentence comparable to that she now faces. Unquestionably, the punishments imposed for more serious crimes in Arizona can be less severe than the 34 flat years Depiano received.
Finally, Arizona has by far the most severe punishment in the country for intentionally placing a child in a situation likely to cause death or serious physical injury. Although
Ten states hold a caretaker liable only if the child suffers physical or mental injury. See, e.g., Ga.Code Ann. § 16-5-70 (Supp. 1995) (cruel or excessive physical or mental injury). Of the “non-injury” states, only five require prison time exceeding one year, with the maximum sentence being 10 years. See Ala.Code § 26-15-3 (1975); Idaho Code § 18-1501(1) (1987); Ky.Rev.Stat. Ann. § 508.100(l)(b) (Michie/Bobbs-Merrill 1990); N.J. Stat. Ann. § 2G:24-4 (West 1995); N.M. Stat. Ann. § 30-6-1(0 (Michie 1978). Furthermore, in about one-third of the jurisdictions that do not require injury, there is a 1-year maximum sentence; in two-thirds, a 5-year maximum; and none have maximum sentences over 10 years. Finally, almost every other jurisdiction allows probation.
Having performed the constitutionally-mandated analysis of defendant’s claim, I find this the “exceedingly rare” circumstance in which a sentence is cruel and unusual under the Eighth Amendment to the United States Constitution and art. 2, § 15 of the Arizona Constitution. See Bartlett II,
Defendant’s consecutive 17-year prison terms without possibility of early release should be vacated, and the case remanded to the trial court for resentencing under A.R.S. §§ 13-701 and -702 (unenhanced sentencing guidelines with parole, probation, and concurrent sentences available), treating DePiano as a class 2 or 3 felon.