STATE of Tennessee, Appellee, v. Billy Joe HARRIS, Appellant.
Supreme Court of Tennessee, at Jackson.
Dec. 7, 1992.
844 S.W.2d 601
Because the second Murray requirement is not met, the exclusionary rule precludes admission of evidence seized from Defendant‘s home subsequent to violation of her Fourth Amendment rights. Accordingly, the judgment of the Court of Criminal Appeals is affirmed and the case remanded to the trial court. Costs of this appeal are taxed to the State.
REID, C.J., and O‘BRIEN, DAUGHTREY and ANDERSON, JJ., concur.
Mark W. Fowler, Union City, for defendant-appellant.
Charles W. Burson, Atty. Gen. & Reporter, Joel W. Perry, Asst. Atty. Gen., Nashville, for appellee.
DROWOTA, Justice.
The sole issue presented by this appeal is whether Defendant Billy Joe Harris‘s 20-year sentence for aggravated sexual battery violates the Eighth Amendment of the United States Constitution or Article I, Section 16, of the Tennessee Constitution. We granted Defendant‘s application to appeal in order to address whether his sentence is unconstitutionally disproportionate to his crime. Finding the sentence violates neither the State nor Federal Constitution, we affirm.
The eight-year-old victim in this case attended a birthday party for a friend at Defendant‘s home. After the party, the victim spent the night, sleeping with two other girls on a sofa-bed. The next morning she awoke to find Defendant fondling her chest under her nightgown and touching her in the genital area over her shorts. The victim reported the crime to her mother, the police were notified, and Defendant was arrested.
In April 1989, Defendant was convicted of Aggravated Sexual Battery under
At the outset we note that because reviewing courts should grant substantial deference to the broad authority legislatures possess in determining punishments for particular crimes, “[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare.” See Solem v. Helm, 463 U.S. 277, 289-90, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637, 649 (1983) (emphasis in original) (quoting Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382, 390 (1980)). Further, we announce no new constitutional rule today, but undertake only to clarify the reach of
Pursuant to the
Although the language of
We hold that the proper means by which to evaluate a defendant‘s proportionality challenge under the Tennessee Constitution is that set forth by Justice Kennedy in Harmelin, — U.S. at —, 111 S.Ct. at 2702-09, 115 L.Ed.2d at 866-74 (Kennedy, J., concurring in part). Under this methodology, the sentence imposed is initially compared with the crime committed. Unless this threshold comparison leads to an inference of gross disproportionality, the inquiry ends—the sentence is constitutional. In those rare cases where this inference does arise, the analysis proceeds by comparing (1) the sentences imposed on other criminals in the same jurisdiction, and (2) the sentences imposed for commission of the same crime in other jurisdictions.
After examining Defendant‘s 20-year sentence in light of the gravity of his offense, we hold that no inference of gross disproportionality arises. Defendant‘s unlawful touching of the small child was a deliberate attempt to gratify his perverted desires which, the trial court specifically found, caused the victim mental suffering. Indeed, the traumatic memory of this battery may remain with the victim for life, perhaps to fester and manifest itself in as yet unknown manners. A 20-year sentence is not an unconstitutional punishment for this crime.
There being no inference of gross disproportionality, we need not proceed to intra- and inter-jurisdictional analyses.
Defendant‘s 20-year sentence is not grossly disproportionate to his crime of aggravated sexual battery on an eight-year-old victim so as to constitute cruel and unusual punishment under the Eighth Amendment of the United States Constitution or Article I, Section 16, of the Tennessee Constitution. Accordingly, the judgment of the Court of Criminal Appeals is affirmed.
O‘BRIEN and ANDERSON, JJ., concur.
DAUGHTREY, J., dissents.
REID, C.J., not participating.
DAUGHTREY, Justice, dissenting.
There are several propositions set out in the majority opinion with which I agree. There can be no legitimate question, for example, that “the fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is properly within the province of legislatures, not courts.” Harmelin v. Michigan, 501 U.S. —, —, 111 S.Ct. 2680, 2703, 115 L.Ed.2d 836 (1991) (quoting Rummel v. Estelle, 445 U.S. 263, 275-276, 100 S.Ct. 1133, 1139-1140, 63 L.Ed.2d 382 (1980)). It is for this reason that when faced with an allegation that a particular sentence amounts to cruel and unusual punishment, “[r]eviewing courts ... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes....” Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637 (1983). At the same time, there can also be no question that reviewing courts, in Tennessee at least, must on rare occasions take action with regard to penalty statutes that do not comport with constitutional guarantees. As noted in an early case:
This court has never declared void an act of the Legislature under the sixteenth section of the [Tennessee] Bill of Rights, forbidding excessive bail, excessive fines,
and cruel and unusual punishments, in any reported case known to us.... However, we think that the [legal] profession generally understands, and the clear weight of modern authority is, that the courts have such power under Section 16 of the Bill of Rights, and in a proper case presenting the question, it would be their undoubted duty to do so. Brinkley v. State, 125 Tenn. 371, 382-83, 143 S.W. 1120, 1122 (1911). Accord State v. Black, 815 S.W.2d 166, 188-189 (Tenn. 1991).
In addition, I applaud the majority‘s decision to subject the sentence in this case to scrutiny under the state as well as the federal constitution, and in so doing, to flesh out the standards to be applied under state law. I differ with the majority only as to the test to be applied under Article I, Section 16 of the Tennessee Constitution and as to the result in this case.
1. Determination of Gross Disproportionality Under Article I, Section 16
Judicial recognition of Tennessee‘s constitutional protection against cruel and unusual punishment in Brinkley predates extension of the Eighth Amendment‘s cruel and unusual punishment clause to the states1. Unfortunately, when the Brinkley court concluded that the penalty statute in question there did not “fall within the prohibition ... of the Constitution,” it did so without identifying a rationale for its conclusion. Brinkley v. State, 125 Tenn. at 383, 143 S.W. at 1122.
In the 80-odd years since Brinkley, Tennessee decisions have tended to follow suit, either referencing but omitting discussion of the state constitutional provision, see, e.g., Pearson v. State, 521 S.W.2d 225, 229 (Tenn.1975), or assuming without analysis that the state constitutional prohibition against cruel and unusual punishment “places no greater restriction on the punishments that may be imposed by this state than does the federal constitution.” Cozzolino v. State, 584 S.W.2d 765, 767 (Tenn. 1979); accord State v. McKee, 803 S.W.2d 705, 706 (Tenn.Crim.App.1990).
Just last year, however, we recognized that “although the Eighth Amendment to the Federal Constitution and Article I, § 16, are textually parallel, this does not foreclose an interpretation of the language of Article I, § 16, more expansive than that of the similar federal provision.” State v. Black, 815 S.W.2d at 188. We further noted in Black that “[t]he very generality of the terms ‘cruel and unusual’ indicates that, like the framers of the Federal Constitution, the authors of Tennessee‘s fundamental law delegated the task of defining these terms to the courts,” while at the same time recognizing that “[t]he exact standards to be used to determine whether a legislatively approved punishment is cruel and unusual under the Tennessee Constitution have never been set forth by the courts of this state.” Id. at 188-189.
In Black, we dealt specifically with the constitutional validity of Tennessee‘s capital punishment statute, with a majority of the Court in agreement that the death penalty is not, in every instance, disproportionate to the offense of first-degree murder. In this case, we have the opportunity to develop standards applicable to the determination of what constitutes cruel and unusual punishment in a non-capital case. In an era when federal law on this subject appears to be unsettled, compare Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (held: life sentence for recidivist convicted of non-violent offenses does not violate Eighth Amendment), with Solem v. Helm, 463 U.S. 277, 305, 103 S.Ct. 3001, 3017, 77 L.Ed.2d 637 (1983) (held: life sentence without possibility of parole for recidivist with record of relatively minor offenses does violate Eighth Amendment), and with Harmelin v. Michigan, 501 U.S. —, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (held: life sentence without possibility of parole for possession of large quantity of cocaine does not violate Eighth Amendment), development of the Tennessee Constitution‘s provisions seems particularly appropriate.
First, does the punishment for the crime conform with contemporary standards of decency? Second, is the punishment grossly disproportionate to the offense? Third, does the punishment go beyond what is necessary to accomplish any legitimate penological objective[?]
State v. Black, 815 S.W.2d at 189 (quoting State v. Ramseur, 106 N.J. 123, 169, 524 A.2d 188, 210 (1987)).
Moreover, because of the split of opinion in Harmelin, the decision has already, just a year after its release, garnered substantial judicial disparagement. The ruling under attack in Harmelin was the United States Supreme Court‘s recognition only eight years earlier that “[t]he principle that a punishment should be proportionate to the crime is deeply rooted in common-law jurisprudence,” tracing back to the Magna Carta, and the Court‘s holding, based on that principle of proportionality, that the Eighth Amendment “includ[es] the right to be free from excessive punishments.” Solem v. Helm, 463 U.S. at 284, 286, 103 S.Ct. at 3006, 3007.
In Solem v. Helm, the United States Supreme Court had suggested a three-part inquiry for deciding whether a given penalty is sufficiently “graduated and proportioned to [the] offense” in question to pass constitutional muster. Id. at 287, 103 S.Ct. at 3008 (quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910)). “First,” the Solem court said, “[in determining excessiveness] we look to the gravity of the offense and the harshness of the penalty.... Second, it may be helpful to compare the sentences imposed on other criminals in the same jurisdiction.... Third, courts may find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions.” Id. at 290-292, 103 S.Ct. at 3009-3011. Under Solem, if application of these “objective criteria” leads to the conclusion that the sentence is “significantly disproportionate to [the] crime,” that sentence is “prohibited by the Eighth Amendment.” Id. at 303, 103 S.Ct. at 3016-3017.
When, last year, the United States Supreme Court was asked to review the Michigan statute at issue in Harmelin, only four justices were willing to continue adherence to Solem v. Helm.2 Justice Scalia, writing for himself and the Chief Justice, argued that “the Eighth Amendment contains no proportionality guarantee.”3 The remaining three justices, Kennedy, O‘Connor, and Souter, occupied what can only be described as a middle ground. They formed a majority to deliver as the “opinion of the court” a five-paragraph section of Justice Scalia‘s multi-part opinion. That portion of Scalia‘s opinion does little more than hold that the Michigan statute mandating a life sentence without possibility of parole for first offense cocaine possession does not violate the Eighth Amendment.4
What Justice Kennedy champions in Harmelin is a narrowing of the principle of proportionality, to be achieved by giving controlling weight to the first of the Solem factors and by raising the standard from one of “significant disproportionality” to that of “gross disproportionality.” Hence, in his view the “intra- and inter-jurisdiction analyses” that form the second and third prongs of the Solem inquiry would be “appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” Harmelin, 501 U.S. at —, 111 S.Ct. at 2707. Justice Kennedy concludes that “[t]he proper role for comparative analysis of sentences ... is [merely] to validate an initial judgment that a sentence is grossly disproportionate to a crime.” Id.
It is difficult to quarrel with the proposition that there must be some significant indication of disproportionality between a sentence and the offense for which it is imposed before a court is called upon to undertake the arduous task of making a comparative analysis of that sentence on either an intra-jurisdictional or an inter-jurisdictional basis, or both. But it is also difficult to understand how a court can determine that a given sentence is “grossly disproportionate” without reference to an overall sentencing scheme, or, viewed from another perspective, why a court would need to make a comparative analysis if it had already concluded on some other basis that the sentence was, indeed, “grossly disproportionate.”
Of more than passing interest on the question of the appropriate standard for assessing disproportionality is the recent decision of the Michigan Supreme Court in People v. Bullock, 440 Mich. 15, 485 N.W.2d 866 (1992), invalidating the mandatory life sentence at issue in Harmelin under the Michigan state constitution‘s “cruel or unusual punishment” clause. In Bullock, a majority of the Michigan court rejected Justice Kennedy‘s narrowed proportionality analysis in Harmelin and adhered instead to a formulation first announced in People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972). In Lorentzen, the Michigan Supreme Court had held that imposition of an “excessive” sentence would violate the Michigan state constitution, as well as the Eighth Amendment. To test for excessiveness, the Lorentzen court set up a three-part review that presaged almost exactly the Solem tripartite analysis. 387 Mich. at 176-179, 194 N.W.2d at 829-833.
Applying what it referred to as the Lorentzen-Solem analysis to the statute at issue, the Michigan court in Bullock held that a mandated penalty of life without possibility of parole for possession of 650 grams or more of cocaine is unconstitutional under Michigan law, even though the same statute was held constitutional under the Eighth Amendment in Harmelin.
I have no difficulty with the proposition that a given sentence should be held to be “grossly disproportionate” before it can be
2. Application of the Tripartite Standard to the Facts in This Case
A. Gravity of the Offense and Severity of the Sentence.
In analyzing a penalty to determine whether it is excessive, most courts look first to the nature of the offense involved, in order to determine its relative gravity. In Solem, for example, the United States Supreme Court set out various factors to be considered in weighing the gravity of an offense relative to the severity of the penalty:
Comparisons can be made in light of the harm caused or threatened to the victim or society; and the culpability of the offender.... [A]s the criminal laws make clear, nonviolent crimes are less serious than crimes marked by violence or the threat of violence.... The absolute magnitude of the crime may be relevant.... Few would dispute that a lesser included offense should not be punished more severely than the greater offense ... [,] that attempts are less serious than completed crimes ... [and that] an accessory after the fact should not be subject to a higher penalty than the principal. Solem v. Helm, 463 U.S. at 292-293, 103 S.Ct. at 3011 (citations omitted).
While all these factors are important to some degree, not all of them will be relevant in a particular case. There can be no doubt, however, that in the absence of a recidivist provision, a very long sentence of incarceration for what is essentially a non-violent crime will subject the penalty provision to scrutiny. As the Michigan Supreme Court noted in Lorentzen:
A compulsory prison sentence of 20 years for a non-violent crime imposed without consideration for defendant‘s individual personality and history is so excessive that it “shocks the conscience.” People v. Lorentzen, 387 Mich. at 181, 194 N.W.2d at 834.
The offense in Lorentzen was sale of marijuana, which is qualitatively different from the offense of sexual battery involved here. But it does not trivialize the offense of sexual battery to hold that the penalty upon conviction cannot be disproportionate to the actual misconduct. In State v. Evans, 73 Idaho 50, 54, 245 P.2d 788, 789 (1952), for example, the Idaho Supreme Court struck down a life sentence imposed on the defendant for conviction of “committing lewd and lascivious acts upon and with the body of a female child under the age of 16 years.” The Idaho court said:
[I]t is now generally recognized that imprisonment for such a length of time as to be out of all proportion to the gravity of the offense committed, and such as to shock the conscience of reasonable men, is cruel and unusual within the meaning of the [state] constitution.5
In other jurisdictions, statutory penalties have been found to constitute cruel and unusual punishment under similar tests. In State v. Des Marets, for example, the New Jersey Supreme Court framed the inquiry in the following manner:
In considering [the defendant‘s claim that his sentence amounts to “cruel and unusual punishment” under the New Jersey Constitution], we inquire whether the
nature of the criticized punishment shocks the general conscience and violates principles of fundamental fairness; whether comparison shows the punishment to be grossly disproportionate to the offense; and whether the punishment goes beyond what is necessary to accomplish any legitimate penal aim. 92 N.J. 62, 455 A.2d 1074, 1084 (1983).
Similarly, the Massachusetts Supreme Judicial Court “has recognized that it is possible that imprisonment for a long term of years might be so disproportionate to the offense as to constitute cruel and unusual punishment” under state law. Cepulonis v. Commonwealth, 384 Mass. 495, 427 N.E.2d 17, 19 (1981). That Court noted further that “[t]o reach the level of cruel and unusual, the punishment must be so disproportionate to the crime that it ‘shocks the conscience and offends fundamental notions of human dignity.‘” Id., 427 N.E.2d at 20 (quoting In re Lynch, 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 226, 503 P.2d 921, 930 (1972)). Accord Workman v. Commonwealth, 429 S.W.2d 374, 377, 378 (Ky. 1968) (reviewing court must determine whether the sentence is “so disproportionate to the offense committed as to shock the moral sense of the community” or “violate the principles of fundamental fairness“); State v. Guajardo, 428 So.2d 468, 472 (La.1983) (reviewing court must determine whether the penalty is “so severe as to be degrading to human dignity, whether it imposes arbitrary infliction of punishment, and whether it shocks contemporary notions of decency“); State v. Davis, 108 Ariz. 335, 337, 498 P.2d 202, 204 (1972) (reviewing court must determine whether sentence is so disproportionate as to shock “the conscience of society“).
In addition, courts have required, as Justice White noted in his separate opinion in Harmelin, that “[t]o be constitutionally proportionate, punishment must be tailored to a defendant‘s personal responsibility and moral guilt.” 501 U.S. at —, 111 S.Ct. at 2716. See, e.g., People v. Bullock, 440 Mich. at 39, 485 N.W.2d at 876 (quoting Harmelin); People v. Dillon, 34 Cal.3d 441, 480, 194 Cal.Rptr. 390, 414, 668 P.2d 697, 721 (1983) (“a punishment which is not disproportionate in the abstract is nevertheless constitutionally impermissible if it is disproportionate to the defendant‘s individual culpability“).
Finally, in applying state constitutional restrictions, the courts in some jurisdictions have given consideration to “the penological purposes of the prescribed punishment.” In re Foss, 10 Cal.3d 910, 919, 112 Cal.Rptr. 649, 654, 519 P.2d 1073, 1078 (1974) (en banc). For example, in addition to its tripartite analysis in cases involving a claim of disproportionality, the Massachusetts Supreme Judicial Court imposes a further test:
The standard of review in considering less than a capital sentence is “whether the statute bears a reasonable relation to a permissible legislative objective.” This court has identified the interests served by punishment. These are (1) deterrence, (2) isolation and incapacitation, (3) retribution and moral reinforcement, and (4) reformation.
Cepulonis v. Commonwealth, 427 N.E.2d at 21 (citations omitted). Accord State v. Des Marets, 92 N.J. at 82, 455 A.2d at 1084 (reviewing court must determine “whether the punishment goes beyond what is necessary to accomplish any legitimate penal aim“).
There can be little doubt that the eight-year-old victim in this case was traumatized to some degree when the defendant briefly rubbed her chest under her clothes and her genital area over her clothes, although not all would find it as theoretically damaging as does the majority here. There can also be no doubt that such activity should be proscribed by law. The question is whether the mandatory minimum sentence of 20 years imprisonment is an excessive penalty for such behavior and therefore cruel and unusual under
Although labelled as “aggravated sexual battery” for purposes of Tennessee‘s current criminal code, the misconduct in this case has historically been identified as “child molesting” or “child fondling” and
Prior to 1961, the offense of assault and battery on a young female under circumstances not amounting to an attempt to commit rape was treated as an attempt to commit a felony, and was punishable by one to five years incarceration, or as the lesser included offense of assault and battery, punishable as a misdemeanor by imprisonment of less than a year accompanied by a fine. See, e.g., Brown v. State, 65 Tenn. 422 (1873); State ex rel. Hull v. Rimmer, 129 Tenn. 383, 386, 164 S.W. 1148 (1914). In 1961, the legislature amended then
In 1979, yet another new sex offense statute was adopted, this one called “The Sexual Offenses Law of 1979,”
Although this escalation of the gravity of the offense, at least as to young victims, was substantial, a first offender convicted of fondling an eight-year-old would have faced a Range I sentence of five to 20 years, under the new sentence calculation provisions enacted in 1982. See
Three years later, as part of a legislative package aimed at preventing child sexual abuse, the General Assembly amended what was then
Still, it might be possible to defer to legislative prerogative and bow to the General Assembly‘s wisdom in providing such a severe sentence for child fondling, were it not for the fact that this obviously harsh penalty turned out to be short-lived. For when the new Criminal Sentencing Reform Act of 1989 was adopted, effective November 1 of that year, the penalty for a Range I offender found guilty of aggravated sexual battery was reduced to a minimum of eight and maximum of 12 years.
It seems apparent that the 20-year minimum sentence imposed on this defendant must be considered “unusual,” if for no other reason than its limited temporal applicability—it was mandated by statute only from July 3, 1985, until November 1, 1989, a period of just over four years. Like Billy Joe Harris in this case, similarly situated convicts currently serving mandatory prison sentences of 20 years and over for fondling a child suffer not from the result of principled penology, but from the sheer fortuity of timing. Had they committed the same offense only a matter of months earlier or later than they did, the minimum penalty would have been a fraction of the sentence they actually received.
Moreover, there is little doubt that the 20-year mandatory sentence at issue here would be found invalid under most, if not all, of the state constitutional standards discussed above. The facts of this case demonstrate that, as committed, the offense was nonviolent and did not involve
To quote the New Jersey Supreme Court in Des Marets, the sentence imposed here both “shocks the conscience” and “violates principles of fundamental fairness.” To impose a 20-year sentence to such an offense also “goes beyond what is necessary to accomplish a legitimate penal aim.” This last point can best be seen by viewing the penalty in the abstract. As one member of the Idaho Supreme Court observed in State v. Evans:
In other words, a boy 18 years of age, or even less, could ... be sent to the penitentiary for life for engaging in a “necking party” with a girl 15 years, 11 months and 29 days old. There is no statute anywhere in the United States, or anywhere else, that has been called to our attention, that contains such a gross injustice.
State v. Evans, 73 Idaho at 62, 245 P.2d at 795 (Keeton, J., dissenting).6
As further proof of “cruelty,” a brief comparison of the defendant‘s sentence with sentences imposed for other offenses in Tennessee and on like offenders in other jurisdictions is convincing proof that the sentence in this case is unconstitutional.
B. Intrajurisdictional Comparison.
In comparing the sentence imposed on Billy Joe Harris with other Tennessee penalty provisions, a convenient starting point is examination of the punishment provided for commission of the very same offense, but under slightly different circumstances. If, for example, Harris‘s victim had been 13 years old rather than eight, the defendant‘s conduct would have constituted sexual battery, which carried a minimum sentence under then
As the defendant points out in his brief, under Tennessee law there were only five offenses that carried a stiffer mandatory minimum sentence than fondling a young child at the time of his conviction in this case: first-degree murder (life or death sentence, under
Moreover, under the Sentencing Reform Act of 1989, the most serious class of offenses, Class A felonies, are punishable by a mandatory minimum sentence of 15 years. Limited in number, they include attempted first-degree murder, conspiracy to commit first-degree murder, second degree murder, aggravated kidnapping, especially aggravated robbery, aggravated rape, aggravated arson, and the sale or possession of large quantities of controlled substances. See
As defense counsel phrases it, the sentence imposed on Billy Joe Harris “is out of place in the sentencing matrix, at least under the facts of this case, if not generally.” Although there is no question that the legislature may validly enact a statute that penalizes a defendant more severely for victimizing a small child, or one that provides a harsh sentence in order to deter sexual abuse of children, the sentence cannot be so excessive in relation to the offense that it is unduly oppressive or unjust. In relation to Tennessee‘s overall penological scheme, the sentence imposed for the fondling incident in this case appears to be not only disproportionate, but “grossly disproportionate,” and thus unconstitutional.
C. Interjurisdictional Comparison.
It is important to note, first, that no other jurisdiction punishes child molestation as harshly as does Tennessee. Research indicates that most states provide a minimum sentence of one year or less for sexual contact with a child; maximum sentences commonly range from five years to 10 years, with perhaps a dozen states topping out at 15 to 20 years as a maximum. See Appendix A. Two states apparently permit a maximum sentence of as much as 30 years,7 but this figure is well below the possible maximum of 35 years that was imposable under
There is only one reasonable conclusion that can be drawn from a comparison between the penalty imposed on child molesters under
3. Appropriate Relief
Based on the foregoing analysis, I would hold that the sentence imposed on Billy Joe Harris is unconstitutional under Article I, Section 16 of the Tennessee Constitution. As for the appropriate remedy, I would follow the lead of the Michigan Supreme Court in Bullock and take the least drastic action available to cure the invalidity.
In Bullock, the Michigan court struck down only that part of the mandatory life sentence that made the defendant ineligible for parole. 440 Mich. at 42-3, 485 N.W.2d at 878. Here, it would be possible to invalidate the provision in
Finally, I would remand this case to the trial court for resentencing within the revised range of five to 20 years.
APPENDIX A
Penalties For Child Molestation
| State | Offense | Penalty |
|---|---|---|
| Sexual abuse in the first degree | 1-10 years | |
| Sexual abuse of a minor in the second degree | 10 years maximum | |
| Molestation of a child | 17 years (1st offense) 28 years (2nd offense) (plus or minus 5 years) | |
| Sexual abuse in the first degree | 3-10 years | |
| Lewd or lascivious acts on a minor under 14 years | 3, 6, or 8 years | |
| Sexual assault on a child | 2-8 years | |
| Sexual assault in the fourth degree | less than a year | |
| Unlawful sexual contact in the 2nd degree | 7 years (+ fine) | |
| Indecent acts with children | 10 years maximum | |
| Lewd, lascivious or indecent assault or act upon child | 15 years maximum | |
| Child molestation | 1-20 years | |
| Sexual abuse in the first degree | 5 years maximum |
| State | Offense | Penalty |
|---|---|---|
| Sexual abuse of a child under 16 years; Lewd conduct with a minor child under 16 | 15 years; life | |
| Aggravated criminal sexual abuse | 3-7 years | |
| Child molesting | 4 years (possible fine of $10,000) | |
| Lascivious acts with a child | 5 years maximum (plus fine) | |
| Aggravated Sexual battery | 2-10 years | |
| Sexual abuse in the first degree | 1-5 years | |
| Sexual battery | 10 years maximum | |
| Unlawful sexual contact | 5 year maximum | |
| Third degree sexual offense | 10 years maximum | |
| Indecent assault and battery on a child under 14 | 10 years maximum | |
| Second Degree criminal sexual conduct | 15 years maximum | |
| Criminal sexual conduct in the 2nd degree | 10 yrs $35,000 fine max. | |
| Touching, handling child for lustful purposes | 1-10 years and possible $10,000 fine | |
| Sexual abuse in the 1st degree | 5 years maximum | |
| Sexual assault | 2-20 years | |
| Sexual assault of a child | 5 years/$10,000 fine maximum | |
| Lewdness with child under 14 | 1-10 years/$10,000 fine max. | |
| Felonious sexual assault | 7 year maximum | |
| Sexual assault | 5-10 years | |
| Criminal sexual contact of a minor in the third degree | 3 years | |
| Sexual abuse in the first degree | 7 years maximum | |
| Taking indecent liberties with children | 10 years maximum | |
| Gross sexual imposition | 20 years maximum | |
| Gross sexual imposition | 10 years maximum | |
| Lewd or indecent proposals or acts | 1-20 years | |
| First degree sexual abuse | 5 years maximum | |
| Second degree child molestation | 6-30 years | |
| Committing lewd act upon child | Discretion of Judge | |
| Sexual contact with child | 15 yr max and/or $10,000 fine | |
| Aggravated sexual battery | 8-30 yrs and possible $25,000 | |
| Indecency with child | 2-10 yrs ($10,000 fine permissible) | |
| Sexual abuse of a child | 1-15 years |
| State | Offense | Penalty |
|---|---|---|
| Sexual assault | 20 yrs max ($10,000 fine possible) | |
| Aggravated sexual battery | 1-20 years | |
| Indecent liberties | 10 yr max; $20,000 fine max. | |
| Sexual abuse in the 1st degree | 1-5 yrs; $10,000 fine possible | |
| First degree sexual assault | 20 years maximum | |
| Sexual assault in the third degree | 5 years maximum |