*1
This opinion is subject to revision before publication in the Pacific Reporter
IN THE
S UPREME C OURT OF THE S TATE OF U TAH TATE OF U TAH ,
Appellee,
v. R OBERT C AMERON , Appellant.
No. 20080625 Filed February 24, 2015 Second District, Farmington The Honorable Glen R. Dawson No. 0601700273 Attorneys: Sean D. Reyes, Att‘y Gen., Christopher D. Ballard, Asst. Att‘y Gen., Salt Lake City, for appellee John P. Pace, Salt Lake City, for appellant
J USTICE N EHRING authored the opinion of the Court, in which J USTICE P ARRISH joined, C HIEF J USTICE D URRANT joined except as to
section II.F.2, and J USTICE D URHAM joined in Part I. A SSOCIATE C HIEF J USTICE L EE authored a concurring opinion. J USTICE D URHAM authored a dissenting opinion, in which C HIEF J USTICE D URRANT concurred in Part I.
J USTICE N EHRING , opinion of the Court: INTRODUCTION Robert Cameron Houston was seventeen and a half
years old when he murdered R.E., a staff member of the Justice Nehring took part in this decision and authored this opinion prior to his retirement.
Opinion of the Court
residential treatment center for youth where Mr. Houston was temporarily residing. The State charged Mr. Houston with aggravated murder, aggravated sexual assault, and rape. Mr. Houston pleaded guilty to aggravated murder, and the State agreed to drop the other charges.
¶ 2 The parties agreed to a sentencing hearing where a jury would determine whether Mr. Houston would be sentenced to life in prison without the possibility of parole or an indeterminate term of twenty years to life. Following the sentencing hearing, eleven of the twelve jurors voted to sentence Mr. Houston to life imprisonment without the possibility of parole.
¶ 3 On appeal Mr. Houston brings numerous constitutional challenges to his sentence. He also contends that his counsel rendered ineffective assistance of counsel during the sentencing proceeding in violation of the Sixth Amendment to the United States Constitution. After a careful review of the record, we conclude that Mr. Houston‘s sentence is constitutional, and his counsel was not ineffective. We therefore affirm the jury‘s sentence.
BACKGROUND
¶ 4 Mr. Houston had a very difficult childhood, and he became an early juvenile offender and a troubled young adult. Mr. Houston was born with a deformed ear, which left him almost completely deaf on one side and made it difficult for him to learn to talk. As a child, he struggled with this physical deformity and was also ridiculed by his peers for being overweight. Mr. Houston‘s parents fought often and eventually divorced, and his father was physically and verbally abusive. When his father left the home, Mr. Houston struggled emotionally over the separation. At age eight, Mr. Houston attempted suicide and was diagnosed with major depressive disorder. When he was twelve, he was sexually abused by his brother‘s friend for several months. Mr. Houston committed several violent sexual offenses
as a young teenager, which led to his placement in a residential treatment program for juvenile sex offenders. In 2003, at age fourteen, Mr. Houston attempted to rape his teenage stepsister at knifepoint. He was charged with aggravated sexual assault. Mr. Houston entered a guilty plea, though the record does not
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¶ 7 The State also presented evidence that two months after Mr. Houston‘s arrival at YHA he allegedly attempted to sexually assault a female staff member. The staff worker fought back and was able to gain control. After the incident, Mr. Houston allegedly explained to other staff workers that he wanted to hurt and sexually assault her. Mr. Houston did not have a weapon during that incident. On February 15, 2006, when Mr. Houston was seventeen
years old, he committed the murder that led to this appeal. At that time, Mr. Houston resided at an independent living home associated with YHA. It was snowing that night, and Mr. Houston did not want to walk the four blocks home from YHA to the independent living home. He asked R.E., a female staff worker, for a ride. Although it was against YHA‘s policy to give a ride in a personal vehicle to a resident, R.E. was sympathetic and did not want Mr. Houston to have to walk home in the bad weather. When they arrived at the independent living home, R.E.
followed Mr. Houston inside to sign the log book. As she turned to leave, Mr. Houston grabbed her from behind, covered her mouth with his hand, and held a knife to her throat. Mr. Houston then forced R.E. into his bedroom and ordered her to remove her clothing. R.E. told Mr. Houston that she was a virgin and that she did not want to have sexual intercourse. Mr. Houston responded angrily, and raped her. R.E. screamed and begged him to stop. Mr. Houston responded by pressing a knife to her throat. When R.E. continued to scream, Mr. Houston stabbed her in the side of the neck and sliced her throat. He then stabbed her repeatedly in the chest, side, and back. When R.E. continued to struggle, Mr. Houston attempted to kill her by snapping her neck. R.E. continued to scream, and Mr. Houston became scared and fled.
Opinion of the Court
¶ 10 Mr. Houston climbed into R.E.‘s car and sped off. He drove into a house, which he later explained was an attempt to kill himself. Mr. Houston was arrested and taken to the hospital. He was interviewed by Detective Mike Valencia shortly after arrival. Mr. Houston confessed to attempting to kill R.E. and described in detail to the detective how he had tried to rip out R.E.‘s trachea to stop her from screaming. The detective noted that Mr. Houston was unemotional as he described the details of the crime.
¶ 11 Mr. Houston was charged with aggravated murder, aggravated sexual assault, and rape. In exchange for the State‘s promise to drop the other charges, Mr. Houston pleaded guilty to aggravated murder. The parties agreed that the sentencing hearing would be held before a jury. Following a five-day hearing, eleven of the twelve jurors voted to sentence Mr. Houston to life imprisonment without the possibility of parole (LWOP). After he was sentenced, Mr. Houston obtained new appointed counsel and subsequently filed a timely appeal to challenge his sentence. We stayed the case in anticipation of the ruling in a United States Supreme Court case, Miller v. Alabama , [2] and the parties provided supplemental briefing concerning the effect of Miller on Mr. Houston‘s case. We have jurisdiction under Utah Code section 78A-3-
102(3)(i).
STANDARD OF REVIEW We begin our discussion of the standard of review by
noting that Mr. Houston did not preserve any of the issues
presented on appeal. ―As a general rule, claims not raised before
the trial court may not be raised on appeal‖
[3]
unless a plain error
occurred,
[4]
exceptional circumstances warrant our review,
[5]
or the
defendant‘s attorney rendered ineffective assistance of counsel.
[6]
(con‘t.)
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[5]
Id.
¶ 11.
State v. Low
,
prejudicial error standard is equivalent to plain error review.‖
Opinion of the Court
unpreserved constitutional challenges to sentences, and is inconsistent with the rule announced in State v. Yazzie . [9]
¶ 16 As we describe in greater detail below, we hold that each of Mr. Houston‘s constitutional challenges falls within the narrow scope of rule 22(e)‘s exception to the preservation of claims. We therefore decline the State‘s request to overrule our precedent in State v. Candedo . Under rule 22(e), we treat Mr. Houston‘s claims as if they had been preserved, reviewing conclusions of law for correctness and granting no deference to the district court. [10] Because rule 22(e) provides a higher standard than ―manifest prejudice‖ review, we decline to address Mr. Houston‘s alternative argument.
¶ 17 A claim of ineffective assistance of counsel is also an exception to our preservation doctrine. [11] For ―ineffective assistance of counsel claims, we review a lower court's purely factual findings for clear error, but [we] review the application of the law to the facts for correctness.‖ [12]
ANALYSIS
I. MR. HOUSTON PROPERLY BROUGHT FACIAL CONSTITUTIONAL CHALLENGES TO HIS SENTENCE UNDER UTAH RULE OF CRIMINAL PROCEDURE 22(e) Utah Rule of Criminal Procedure 22(e) provides that ―[t]he court may correct an illegal sentence, or a sentence imposed in an illegal manner, at any time.‖ We hold that the rule encompasses facial constitutional challenges to the sentence that do not implicate a fact-intensive analysis. We also conclude that each of Mr. Houston‘s constitutional challenges to his sentence meets these criteria, and therefore his claims are properly brought under rule 22(e). Under our traditional preservation doctrine, ―generally
an appellant must properly preserve an issue in the district court
[9]
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[13]
O’Dea v. Olea
,
[14] Patterson , 2011 UT 68, ¶ 12 (alteration in original) (internal quotation marks omitted).
[15]
State v. Holgate
,
[16]
Patterson
,
[17]
Holgate
,
omitted). Id. (alteration in original) (internal quotation marks omitted).
Opinion of the Court While it is clear that the preservation rule does not apply
to a defendant‘s challenge to an illegal sentence, we have had few occasions to discuss what constitutes an ―illegal sentence.‖ In State v. Yazzie , we adopted a definition of ―illegal sentence‖ from the United States Court of Appeals for the Tenth Circuit:
[An illegal sentence is] one which is ambiguous with
respect to the time and manner in which it is to be
served, is internally contradictory, omits a term
required to be imposed by statute, is uncertain as to
the substance of the sentence, or is a sentence which
the judgment of conviction did not authorize.
[21]
In
Candedo
, we elaborated on this definition. We
concluded that ―if an offender‘s sentence is unconstitutional, the
sentence is not authorized by the ‗judgment of conviction,‘ and is
therefore illegal.‖
[22]
In that case, the district court placed
Francisco Candedo on nine years‘ probation after he pleaded
guilty to three felonies arising from his involvement in a
fraudulent investment scheme.
[23]
Rather than object to the length
of his probation at sentencing, Mr. Candedo challenged on direct
appeal the legality of the duration of his probation sentence
under rule 22(e), arguing that his sentence violated his
2009 UT 14, ¶ 13, 203 P.3d 984 (alteration in original)
(quoting
United States v. Dougherty
,
definition is inconsistent with
Yazzie,
or that it is otherwise
unsupported by legal authority. We squarely rejected these
arguments in
Candedo. See id.
¶¶ 12–14. We also note that our
holding in
Candedo
—that an illegal sentence encompasses an
unconstitutional sentence—is consistent with the Tenth Circuit‘s
definition and application of this term.
See United States v. Groves
,
369 F.3d 1178, 1182 (10th Cir. 2004) (―Because the defendant
reserved the right to appeal an ‗illegal sentence,‘ and because an
unconstitutional sentence is ‗illegal,‘ we hold that the defendant is
entitled to challenge his sentence . . . .‖);
United States v. Lyman,
261 F. App‘x 98, 100 (10th Cir. 2008) (noting that an
unconstitutional sentence is an example of an illegal sentence).
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Prion , a case in which the defendant raised statutory and double jeopardy challenges to his sentence. [28] We recognized that the Candedo ―formulation, if broadly construed, raises the prospect of abuse.‖ [29] We cautioned that such abuse could arise ―if rule 22(e) were construed broadly to sanction a fact-intensive challenge to the legality of a sentencing proceeding asserted long after the time for raising it in the initial trial or direct appeal.‖ [30] In considering the scope of the rule, we also explained that our rule 22(e) derived from a former Federal Rule of Criminal Procedure that authorized a court to correct illegal sentences. [31] We recognized that federal courts traditionally limited challenges under the federal rule to attack sentences that exceeded the statutory maximum, violated double jeopardy, or were facially ambiguous or internally inconsistent. [32] Some circuits appear to have recognized a broader
[24] Id.
[25] Id.
[26] Id. ¶ 2.
[27] Id. ¶ 11. We nonetheless affirmed Mr. Candedo‘s sentence because we determined that it did not violate due process. Id. ¶ 25.
[28]
[29]
Id.
¶ 20 (internal quotation marks omitted).
Id. Id.
¶ 22;
see
F ED . R. C RIM . P. 35(a) (1984). The federal rule
was repealed in 1987.
See Prion
,
(con‘t.)
Opinion of the Court
application of the federal rule, such as when the sentence is
generally ―in violation of the Constitution,‖
[33]
is based on
―misinformation of a constitutional magnitude,‖
[34]
or even when
the sentence violates another federal rule.
[35]
In
Prion
, we held that the defendant‘s statutory and
double jeopardy challenges properly fell within the ambit of rule
22(e).
[36]
Such challenges attacked ―facial defects‖ that ―could
F.2d 440, 443 (4th Cir. 1992), and
Hill v. United States
,
[33] United States v. Hovsepian , 307 F.3d 922, 927–28 (9th Cir. 2002) ; see also Hill , 368 U.S. at 430 (finding no illegal sentence under rule 35(a) when the sentence was not ―legally or constitutionally invalid in any other respect‖). United States v. Plain , 856 F.2d 913, 916 (7th Cir. 1988)
(quoting United States v. Tucker , 404 U.S. 443, 447 (1972) (considering a rule 35 motion when a sentencing authority bases the sentencing decision on erroneous factual information)). Cook v. United States , 171 F.2d 567, 569 (1st Cir. 1948) (vacating a sentence that violated Federal Rule of Criminal Procedure 43 because the defendant was not present before the court when his sentence was increased). 2012 UT 15, ¶¶ 23–24. The concurrence misreads our
holding in Prion as limiting rule 22(e) challenges to only those permitted under the antecedent federal rule. Infra ¶¶ 114–31. But we nowhere stated that we were adopting the federal limitation. In fact, reading Prion to adopt such a limitation would require us to have overruled our earlier decisions in Candedo , 2010 UT 32, and State v. Telford , 2002 UT 51, 48 P.3d 228 (per curiam). In Candedo , we expressly found that the defendant‘s substantive due process claim fell within the scope of the rule:
We therefore hold that the court of appeals erred
in failing to reach the merits of Candedo‘s
substantive due process challenge because the
definition of illegal sentence under rule 22(e) is
sufficiently broad
to
include constitutional
violations that threaten the validity of the
(con‘t.)
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that we have not previously addressed under rule 22(e). Today, we draw on our previous decisions to articulate the standard for a criminal defendant who brings an unpreserved claim under rule 22(e) that his or her sentence is illegal, and we reiterate the concern expressed in earlier cases that ―rule 22(e) claims must be narrowly circumscribed to prevent abuse.‖ [39] We therefore hold that under rule 22(e), a defendant may bring constitutional challenges that attack the sentence itself and not the underlying conviction, [40] and which do so as a facial challenge rather than an as-applied inquiry. [41] This standard
sentence. This holding allows us to reach the merits of Candedo‘s claim . . . .
[37] ,
disparity between unpreserved challenges to convictions and to sentences. To the extent that such a dichotomy exists, it is inherent in the rule itself, which allows illegal sentences to be challenged at any time. Moreover, our decision today limits that disparity by restricting constitutional challenges under the rule to only facial attacks.
Opinion of the Court
comports with previous rule 22(e) decisions of this court. For example, in State v. Telford , we permitted the defendant to bring some unpreserved constitutional challenges to his sentence under rule 22(e) while ruling that other constitutional claims did not properly fall within the scope of rule 22(e) review. [42] We authorized the defendant‘s challenge to the indeterminate sentencing scheme under the separation of powers clause of the Utah Constitution. [43] We also allowed claims under the cruel and unusual punishments clauses of the Utah and United States Constitutions, but only to the extent that the defendant argued for ―a per se violation.‖ [44] In contrast, we concluded that to the extent that the defendant contested the constitutionality ― as applied to his particular case , he impermissibly attempt[ed] to employ rule 22(e) to attack his underlying conviction.‖ [45] Similarly, we prohibited review of claims brought under the Sixth Amendment of the United Sates Constitution and article I, section 12 of the Utah Constitution because those clauses did not relate to sentencing. [46] Limiting constitutional challenges to facial attacks serves judicial economy. As we recognized in Brooks , ―[w]hen the pertinent facts are undisputed and a purely legal question with respect to which the trial court has no discretion remains to be decided, nothing is to be gained by remanding the case to the trial court.‖ [47] The concurrence argues that our standard creates an unworkable rule because even facial challenges can be fact-
[42]
did not amount to a constitutional violation. Id. ¶¶ 3–4. 908 P.2d at 860; see also Prion , 2012 UT 15, ¶ 20 (warning against permitting rule 22(e) to ―sanction a fact-intensive challenge‖); id. ¶ 22 (explaining that facial defects can easily be corrected by an appellate court without the need to remand for factual development).
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claims are important, but so too is a criminal defendant‘s right to endure only those sentences that can be constitutionally imposed. Because Mr. Houston facially attacks the constitutionality of the statute that authorized his sentence, we hold that he has properly challenged it as an ―illegal sentence‖ under Utah Rule of Criminal Procedure 22(e). [49] We next turn to the merits of Mr. Houston‘s claims. For analytical clarity, we separate his claims into two categories. First, we address his facial constitutional claims, and we analyze the sentence for correctness under rule 22(e)‘s exception to preservation. Next, we address Mr. Houston‘s claims brought under the framework of ineffective assistance of counsel. We ultimately conclude that all of Mr. Houston‘s claims fail and therefore affirm his sentence of life without the possibility of parole.
II. MR. HOUSTON‘S SENTENCE OF LIFE WITHOUT
PAROLE DOES NOT VIOLATE THE UTAH OR
THE UNITED STATES CONSTITUTION
We begin by addressing Mr. Houston‘s six constitutional
challenges to his sentence. Mr. Houston argues that his sentence:
(A) is unconstitutional under the United States Supreme Court
case
Apprendi v. New Jersey,
[50]
(B) is unconstitutional because the
Infra
¶¶ 128–29.
In light of this limiting construction, we decline the State‘s
request for us to overrule our holding in
Candedo
,
Opinion of the Court
sentencing statute does not contain a ―beyond a reasonable doubt‖ standard of proof, (C) violates the Utah uniform operation of laws clause and the United States Equal Protection Clause, (D) violates the due process clauses of the Utah and United States Constitutions, (E) violates the unnecessary rigor clause of the Utah Constitution, and (F) violates the cruel and unusual punishments clauses of the Utah and United States Constitutions. We take up each of these issues in turn.
A. Mr. Houston’s Sentence Is not Unconstitutional Under Apprendi v. New Jersey Mr. Houston first argues that Apprendi v. New Jersey [51] renders the sentencing statute unconstitutional. [52] This claim is grounded in the Fifth and Sixth Amendments to the United States Constitution. According to Mr. Houston, his sentence is unconstitutional because Apprendi mandates that ―any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.‖ In Apprendi , the New Jersey statutory scheme permitted
a judge to impose a sentence beyond the statutory maximum if the judge determined, by a preponderance of the evidence, that the defendant committed a hate crime. [53] The United States Supreme Court held that this sentencing scheme was unconstitutional because ―any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.‖ [54]
[51]
Id.
The concurrence claims that this argument is not a facial
challenge.
Infra
¶ 128. But Mr. Houston argues that the
sentencing statute violates
Apprendi
‘s constitutional protections by
allowing the sentencer to impose LWOP, rather than the
presumptive twenty year sentence, if the sentencer deems it
appropriate. We conclude that this is a challenge on the face of
the statute and not to Mr. Houston‘s particular circumstances.
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B. The Sentencing Statute Is not Constitutionally Defective for Failing to Include a ―Beyond a Reasonable Doubt‖ Standard Mr. Houston next argues that the sentencing statute is invalid and unconstitutional because it does not articulate a standard of proof for sentencing. [56] Relying on this court‘s decision in State v. Wood , [57] Mr. Houston contends that Utah‘s sentencing scheme requires that a jury find ―beyond a reasonable doubt‖ that an LWOP sentence is justified and appropriate. We disagree. We begin by examining the language of the sentencing
statute at issue. Utah Code section 76-3-207 provides that ―the jury shall . . . determine whether the penalty of life in prison without parole shall be imposed . . . . The penalty of life in prison without parole shall only be imposed if the jury determines that the sentence of life in prison without parole is appropriate.‖ [58]
[55]
See
U TAH C ODE § 76-3-207(5)(c) (2008). This statute was
amended in 2010, but we cite to the version in effect at the time
Mr. Houston was sentenced.
See id.
Opinion of the Court
¶ 35 In Wood , we interpreted an earlier version of this statute and held that, in order to impose a death sentence under this section, the sentencing authority must find that (1) the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt and (2) the sentence is justified and appropriate in the circumstances beyond a reasonable doubt. [59] Mr. Houston asks us to extend the Wood ―beyond a reasonable doubt‖ standard to LWOP sentences. We decline to do so . We begin by noting that, unlike Mr. Houston‘s case, Wood was a death penalty case, and our holding in Wood was premised on the unique nature of a proceeding in which the defendant‘s life is at stake. We explained:
We reject the proposition that the death penalty may be imposed when there is substantial doubt whether it should be. . . . ―Death[,] in its finality, differs from life imprisonment more than a hundred-year prison term differs from one of only a year or two. Because of that [qualitative] difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.‖ [60] Throughout the Wood opinion, we emphasized the ―irrevocable‖ nature of a death sentence, and the corresponding degree of conviction that a judge or jury must have to impose it. In State v. Bell , we returned to our holding in Wood in the
context of a different sentencing statute. [61] In Bell , the defendant argued that Utah‘s sentencing scheme for aggravated sexual assault was unconstitutional because it did not assign a burden of proof with respect to aggravating and mitigating circumstances in determining which of the mandatory presumptions should be imposed. [62] We held that the burden of proof rule articulated in
[59]
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¶ 38 Because a death sentence is uniquely irrevocable and the most severe of all sentences, we have an interest in ensuring that no reasonable doubt remains before we authorize the taking of a human life. But, as we stated in Bell , outside this context, there are no ―clear considerations of fairness that militate in favor of a particular standard, except to the extent that one may quarrel with the wisdom of the statute—which is beyond our prerogative.‖ [65]
¶ 39 Here, our legislature has determined that a jury may sentence a defendant to life without parole if it determines that the State has satisfied its burden to demonstrate that this is the ―appropriate‖ sentence to impose. [66] Mr. Houston has not demonstrated that we are constitutionally required to interfere with the legislature‘s authority and write a ―beyond a reasonable doubt‖ standard into the sentencing statute.
C. The Sentencing Statute Does not Violate the Equal Protection Clause or the Uniform Operation of Laws Clause Mr. Houston next argues that the sentencing statute violates the uniform operation of laws clause of the Utah Constitution and the Equal Protection Clause of the United States Constitution because the statute ―provides no guidance to jurors in determining which sentence to impose.‖ This, he contends, creates a substantial probability of arbitrary sentencing and disproportionate penalties. Because we have held that Utah‘s uniform operation of
laws clause ―is at least as rigorous as the federal guarantee,‖ [67] we
[63] Id. at 59 (distinguishing Wood ).
[64] Id. Id. See U TAH C ODE § 76-3-207(5)(c) (2008). State v. Drej ,2010 UT 35 , ¶ 33 n.5,233 P.3d 476 ; see also ABCO
(con‘t.)
Opinion of the Court
first analyze Mr. Houston‘s claims under the Utah Constitution. If we determine that the statute survives scrutiny under Utah‘s uniform operation of laws provision, then we must conclude that it is constitutional under the United States Constitution‘s Equal Protection Clause as well. [68]
¶ 42 Mr. Houston contends that two juvenile defendants could commit aggravated murder, and, due to the lack of guidance in the statute, a jury could arbitrarily sentence one of the juvenile offenders to life with parole and sentence the other to life without parole. Mr. Houston argues that by failing to narrow in a principled way those who may receive life without parole, the statute disparately treats similarly situated offenders without a rational basis for the disparate treatment. We disagree.
¶ 43 The uniform operation of laws provision of our Constitution requires us to address three questions: (1) ―what, if any, classification is created under the statute,‖ (2) ―whether the classification imposes on similarly situated persons disparate treatment,‖ and (3) whether ―the legislature had any reasonable objective that warrants the disparity.‖ [69] Examining Utah‘s statute in light of these criteria, we conclude that it does not violate the uniform operation of laws clause because it creates no impermissible classifications and it treats all similarly situated defendants the same. We begin by examining the plain language of the
challenged sentencing statute ―to determine what classification[, if any,] is created by [the] legislative enactment.‖ [70] At the time of Mr. Houston‘s sentencing, the sentencing statute provided:
If the jury is unable to reach a unanimous
decision imposing the sentence of death, the jury
Enters. v. Utah State Tax Comm’n
, 2009 UT 36, ¶ 14, 211 P.3d 382
(concluding that uniform operation of laws and Equal Protection
claims need only be analyzed under the more rigorous Utah
provision).
Drej
,
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This statute classifies defendants into two categories—those eligible for a death sentence and those ineligible for a death sentence. And under the language of this statute, all defendants who are ineligible for a sentence of death are similarly situated and are treated equally—they are subject to a jury‘s determination that either a sentence of life with parole or a sentence of life without the possibility of parole is the more appropriate sentence based on the jury‘s evaluation of a particular case. Although it is true that two defendants who commit aggravated murder may receive different sentences from a jury, this is either because the defendants were not similarly situated (for example, one defendant committed a much more heinous crime) or the jury in the course of its deliberations finds it more ―appropriate‖ to sentence one defendant to a more lenient or more severe penalty. We conclude that the sentencing statute treats all similarly situated defendants the same and it does not contain any impermissible classifications. It subjects all defendants guilty of aggravated murder to a jury‘s determination of what sentence is most ―appropriate‖ given the particular circumstances of each case. Mr. Houston‘s argument accordingly fails.
D. The Statute Is not Unconstitutionally Vague Under the Due Process Clause of the Utah or the United States Constitutions Mr. Houston also argues that the sentencing statute is unconstitutionally vague in violation of due process under the federal and state constitutions because it lacks clear standards to guide the jury in sentencing a defendant. Specifically, Mr. Houston claims that the sentencing statute only advises the jury to impose an LWOP sentence if ―appropriate,‖ but it does not provide a standard of proof for aggravating factors, nor does it contain a standard for determining when LWOP is an U TAH C ODE § 76-3-207(5)(c) (2008).
Opinion of the Court
―appropriate‖ sentence. He alleges that these deficiencies provided him with no notice as to whether pleading guilty would result in a life sentence with or without parole. Thus, he contends, the lack of standards created a ―roll of the dice‖ as to which sentence he would receive. We agree that, standing alone, the statutory directive
that an LWOP sentence may be imposed if ―appropriate‖ is troubling. The term ―appropriate‖ contributes little or nothing to the solemn task in which it plays a central role. ―Appropriate‖ is defined as ―specially suitable‖ or ―belonging peculiarly.‖ [72] But everyday experience may not equip a juror with the ability to determine when it is ―specially suitable‖ to imprison a juvenile for the remainder of his life. Nonetheless, ―we do not interpret the ‗plain meaning‘ of a statutory term in isolation.‖ [73] Instead, we ―determine the meaning of the text given the relevant context of the statute.‖ [74] The sentencing statute supplies guidance to the decision-maker by illustrating examples of aggravating and mitigating factors that should be considered in making this weighty decision. [75] For example, the statute specifically lists ―the youth of the defendant at the time of the crime‖ as a mitigating factor to consider. [76] Moreover, the sentencing authority is free to consider ―any other fact in mitigation of the penalty.‖ [77] We conclude that this guidance sufficiently contextualizes the ―appropriate‖ standard such that the statute is not unconstitutionally vague. [78]
[72] W EBSTER ‘ S T HIRD N EW I NTERNATIONAL D ICTIONARY 106 (1961).
[73]
Olsen v. Eagle Mountain City
,
[75] See U TAH C ODE § 76-3-207(3), (4) (2008). Id. § 76-3-207(4)(e). Id. § 76-3-207(4)(g). Moreover, the trial judge instructed the jurors that it was their ―duty to consider all of the aggravating and mitigating evidence in determining the appropriate penalty.‖ The judge listed several mitigating factors that may be considered in
(con‘t.)
*21
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―[p]ersons arrested or imprisoned shall not be treated with unnecessary rigor.‖ This clause protects arrested or imprisoned individuals from the infliction of treatment during their confinement that is incompatible with the values of a civilized society. ―The restriction on unnecessary rigor is focused on the circumstances and nature of the process and conditions of sentencing, including Mr. Houston‘s youth and his capacity to appreciate the wrongfulness of his conduct. The judge also emphasized that the jury ―should not merely add up the number of aggravating and mitigating circumstances or factors, or otherwise apply a mechanical rule‖ to their consideration of the evidence. And finally, the judge explained that the presumptive sentence was life with the possibility of parole and that the ―burden rests upon the State to persuade [the jury] that a sentence of life in prison without parole [was] the appropriate sentence‖ to impose. The concurrence argues that this is an as-applied challenge.
Infra
¶ 128. But Mr. Houston does not claim that LWOP
constitutes unnecessary rigor given the specifics of his case; he
argues that LWOP is unnecessarily rigorous when applied to any
juvenile offender, regardless of the facts of the crime.
State v. Perea
,
Opinion of the Court
confinement,‖ not on ―the sentence imposed.‖ [81] This provision is targeted at eliminating ―unreasonably harsh, strict, or severe treatment‖ in prison such as ―being unnecessarily exposed to an increased risk of serious harm.‖ [82] We hold that the unnecessary rigor clause does not
apply to Mr. Houston‘s challenge. Mr. Houston does not object to the conditions of his confinement, but rather the length of the sentence imposed by statute. Although a defendant may challenge the length of his or her sentence as unconstitutional, this claim is more properly characterized as a cruel and unusual punishments claim and may not be brought under the unnecessary rigor clause.
F. Mr. Houston’s Sentence Does not Violate the Cruel and Unusual Punishments Clause of the Utah or the United States Constitution 1. Cruel and Unusual Punishments Clause of the United States
Constitution Finally, Mr. Houston claims that sentencing a juvenile to LWOP violates the cruel and unusual punishments clauses of the Utah and United States Constitutions. In support of his federal argument, Mr. Houston cites three recent United States Supreme Court cases: Graham v. Florida , holding that it is unconstitutional to sentence a juvenile to LWOP for a nonhomicide crime; [83] Roper v. Simmons , holding that it is unconstitutional to sentence a juvenile to death; [84] and Miller v. Alabama , holding that it is unconstitutional to impose a mandatory LWOP sentence on a juvenile. [85] Mr. Houston argues that the particular characteristics of youth undermine the penological basis for imposing an LWOP sentence, and that LWOP for a juvenile therefore constitutes cruel and unusual punishment.
[81]
Dexter v. Bosko
,
[82] Id. ¶ 19.560 U.S. 48 , 82 (2010).543 U.S. 551 , 578 (2005).
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Constitution provides: ―Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.‖ [86] We have recognized that ―[a] criminal punishment may be cruel and unusual when it is barbaric, excessive, or disproportional to the offense committed.‖ [87] Moreover, despite an evolving analytical framework, the fundamental principle of the Eighth Amendment remains unchanged: ―[C]riminal punishments are prohibited if they are excessive or contravene evolving standards of decency and human dignity.‖ [88] We also note, however, that sentencing statutes derive from a variety of often imprecise policy considerations. For this reason, we must accord ―substantial deference . . . to the prerogatives of legislative The Eighth Amendment‘s Cruel and Unusual Punishments Clause is incorporated against the states via the Due Process Clause of the Fourteenth Amendment. Robinson v. California , 370 U.S. 660, 675 (1962); State v. Herrera , 1999 UT 64, ¶ 33 n.13, 993 P.2d 854. State v. Mace , 921 P.2d 1372, 1377 (Utah 1996) (footnote
omitted) (citing
Solem v. Helm,
original) (internal quotation marks omitted);
see also Trop v. Dulles
,
Opinion of the Court
power ‗in determining the types and limits of punishments for crimes.‘‖ [89] For this reason, ―absent a showing that a particular punishment is cruelly inhumane or disproportionate, we are not apt to substitute our judgment for that of the legislature regarding the wisdom of a particular punishment or of an entire sentencing scheme.‖ [90] The United States Supreme Court has not ruled on
whether the Eighth Amendment prohibits the imposition of LWOP for a juvenile convicted of homicide. [91] But the Court considered related questions in Graham , Roper , and Miller . We find those cases instructive and determine that the Eighth Amendment does not prohibit the imposition of LWOP for a juvenile homicide offender. We deferred our consideration of Mr. Houston‘s appeal
while Miller v. Alabama was pending before the United States Supreme Court. [92] In Miller , two defendants who had committed unrelated murders at the age of fourteen challenged an Alabama statute that mandated an LWOP sentence. [93] The Supreme Court announced its decision in 2012, holding that a sentencing scheme that mandates an LWOP sentence for a juvenile constitutes cruel and unusual punishment under the United States Constitution. [94] The Court explained that the Eighth Amendment requires individualized sentencing procedures for juveniles so that the sentencing authority may consider the mitigating circumstances inherent in youth. [95] Miller did not, however, categorically
[89]
State v. Bishop
,
[90] Mace , 921 P.2d at 1377–78 (citation omitted) (internal quotation marks omitted).
[91] See Miller , 132 S. Ct. at 2469 (explicitly reserving ruling on this issue).
[92] The parties provided supplemental briefing addressing the
effects of the
Miller
decision on the instant case.
Miller
,
(con‘t.)
*25
Cite as:
analysis of proportionality. The Court reiterated ―the basic precept of justice that punishment for crime should be graduated and proportioned to both the offender and the offense.‖ [98] This proportionality analysis implicated two lines of cases. The first involves ―categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty.‖ [99] In that line of cases, the Court struck down the death penalty for nonhomicide offenders, [100] juveniles, [101] and individuals with severe mental disabilities. [102] Using similar reasoning, the Court prohibited LWOP for juveniles who commit nonhomicide crimes. The second line of cases addresses the mandatory imposition of sentences—in other words, sentencing schemes that leave the sentencing authority without power to consider the individual circumstances of the offense or the offender. For example, the Court invalidated statutes prescribing a mandatory death penalty sentence. The sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.‖).
Id . at 2469. Id.
Id.
at 2463 (quoting
Roper
,
Id.
Kennedy v. Louisiana
,
Roper
,
Atkins v. Virginia
,
Graham
,
Miller
,
Woodson v. North Carolina
,
Opinion of the Court
confluence of these two lines of precedent led the Miller Court to strike down Alabama‘s mandatory sentencing scheme imposing LWOP. The Court held that, as applied to juveniles, the punishment was severe and Alabama‘s statute did not allow for the consideration of possible mitigating factors. [106] Therefore, the Court concluded that mandatory LWOP sentences for juveniles could not be sustained under the Eighth Amendment. [107] Drawing from evidence in Graham and Roper , the Court explained that juveniles ―are constitutionally different from adults for purposes of sentencing.‖ [108] This is because ―juveniles have diminished culpability and greater prospects for reform,‖ and thus ―they are less deserving of the most severe punishments.‖ [109] Roper and Graham identified three areas of ―significant gaps‖ distinguishing juveniles from adults:
First, children have a ―lack of maturity and underdeveloped sense of responsibility,‖ leading to recklessness, impulsivitity, and heedless risk-taking. Second, children ―are more vulnerable . . . to negative influences and outside pressures,‖ including from their family and peers; they have limited ―contro[l] over their own environment‖ and lack the ability to extricate themselves from horrific, crime-producing settings. And third, a child‘s character is not as ―well formed‖ as an adult‘s; his traits are ―less fixed‖ and his actions less likely to be ―evidence of irretrievabl[e] deprav[ity].‖ [110] These conclusions were informed by science and social science research, including longitudinal studies and brain mapping. [111] These decisions also recognized that ―the distinctive attributes of
[106]
Miller
,
[107] Id. at 2475.
[108]
Id
. at 2464.
Id.
(internal quotation marks omitted).
Id.
(alterations in original) (citations omitted) (quoting
Roper
,
Cite as:
dissent [118] that juveniles represent a unique class warranting special considerations in sentencing. We believe that the unique characteristics of youth are accounted for, both by Utah law and through federal constitutional protections. We note again that
[112] Id. at 2465.
[113]
[114] Miller , 132 S. Ct . at 2465 (citing Graham ,560 U.S. at 69–70). [115] Id. at 2466. Id. at 2469. Id. Infra ¶ 258.
Opinion of the Court
juveniles are not eligible for the death penalty, regardless of the offense committed, under both Utah law [119] and the Supreme Court‘s decision in Roper . [120] Similarly, state law [121] and federal precedent [122] prohibit LWOP for juveniles who commit a nonhomicide crime. And finally, as required by Miller , Utah‘s sentencing statute does not impose a mandatory LWOP sentence on juveniles. [123] Instead, the statute provides a presumptive sentence of twenty years; LWOP may be imposed only if ten or more jurors agree it is appropriate. [124] Importantly, our statutory scheme enables the kind of
individualized sentencing determination that the Supreme Court has deemed necessary for serious offenses. Utah Code section 76-3-207 permits the sentencer to consider any and all relevant factors which would affect the sentencing determination. The statute directs the sentencing authority to consider aggravating circumstances and mitigating factors, and it specifically provides a nonexhaustive list of each to aid the sentencer. [125] In fact, the statute specifically directs the sentencer to consider ―the youth of the defendant at the time of the crime.‖ [126] We thus conclude that the statute meets the ―requirement of individualized sentencing for defendants facing the most serious penalties,‖ [127] and places particular emphasis on youth as a mitigating factor.
[119] U TAH C ODE § 76-5-202(3)(e).
[120]
[121] See, e.g. , U TAH C ODE § 76-5-302(6) (removing the possibility of LWOP for juveniles charged with aggravated kidnapping); id. § 76-5-402(3)(b)(ii) (same for rape); id. § 76-5-405(b) (same for aggravated sexual assault).
[122]
Graham
,
[123] U TAH C ODE § 76-3-207(5)(c) (2008).
[124] Id. Id. § 76-3-207(3), (4). Id. § 76-3-207(4)(e). Miller ,132 S. Ct. at 2460 .
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convicted of homicide does not violate the Eighth Amendment‘s prohibition on cruel and unusual punishments. We therefore deny Mr. Houston‘s challenge under the United States Constitution.
2. Cruel and Unusual Punishments Clause of the Utah
Constitution We next turn to article I, section 9 of the Utah Constitution, which provides that ―cruel and unusual punishments [shall not] be inflicted.‖ In State v. Lafferty , we held that ―[a] criminal punishment is cruel and unusual under article I, section 9 if it is so disproportionate to the offense committed that it shock[s] the moral sense of all reasonable men as to what is right and proper under the circumstances.‖ [132] The concurrence
[128]
Id.
at 2470 (quoting
Graham,
[129]
Infra
¶ 271.
Brief for Petitioner,
Jackson v. Hobbs
, 132 S. Ct. 2455 (2012)
(No. 10-9647),
Kentucky, and Texas). Lafferty , 2001 UT 19, ¶ 73 (second alteration in original)
(internal quotation marks omitted).
Opinion of the Court
concludes that this determination merits no deference and should be repudiated because it is ―an unworkable standard.‖ [133] We do not agree. The basic concept of article I, section 9 flows from the precept of justice that punishment should be graduated and proportioned to both the offender and the offense. Like the Supreme Court, we recognize that ―[w]hile the State has the power to punish,‖ we must ―assure that this power be exercised within the limits of civilized standards.‖ [134] Fines, imprisonment, and even execution may be imposed depending upon the enormity of the crime. Moreover, it would be inappropriate for us to deviate
from our prior jurisprudence in the present case. Both the State
and Mr. Houston have relied on the standard announced in
Lafferty
, and they have grounded their arguments in discussions
of proportional punishment. The parties have not asked this court
to consider the interpretation Justice Lee now advocates, and
therefore the court does not have the benefit of adversarial
briefing on the issue. As a general rule, we decline to rule or
opine on issues that are not briefed by the parties.
[135]
We therefore
Infra
¶ 138. The concurrence bases its argument ―most
fundamentally‖ on the fact that ―no majority opinion of this court
has ever employed a state standard of proportionality that is
distinct from the federal standard.‖
Infra
¶ 142;
see also infra
¶ 145
(arguing that because we have treated the state and federal
standards as
indistinguishable, there
is ―no
independent
significance [for] the state standard‖ and ―thus no basis for
stare
decisis
reliance‖). We fail to see how this supports the view that
our prior pronouncements warrant no respect. While we are
certainly not required to adopt a federal interpretation for our
state provision, we likewise are not forbidden from doing so. Our
jurisprudence does not garner precedential weight if, and only if,
we adopt a standard that diverges from federal practice. Such a
view contradicts our long-standing practice of looking to federal
interpretation for guidance.
Trop
,
UT 32, ¶ 19,
(con‘t.)
*31
Cite as:
proportionate to the offense, we look to federal decisions as a
guide in determining whether ―a particular punishment is cruelly
inhumane or disproportionate.‖
[137]
We therefore look to the
characteristics of juveniles that set them apart from adult
offenders. We again acknowledge the unique characteristics of
youth—its impetuosity, vulnerability to outside influence, and
potential for change.
[138]
We also consider the penological goals of
the sentence, recognizing that they may be diminished in the case
of juveniles.
[139]
But we do not conclude that these circumstances
render LWOP cruel and unusual for juveniles as a class. Under
Utah law, this severe sentence is only permitted for the gravest of
offenses and requires at least ten members of the jury to
quotation marks omitted));
State v. Ball
,
[136] We also note that our conclusion that Mr. Houston‘s sentence does not violate proportionality principles, see infra ¶¶ 66–67, ultimately renders a decision on which standard to apply unnecessary in this case. Mr. Houston‘s challenge fails regardless of whether we apply the Lafferty proportionality analysis or Justice Lee‘s more limited originalist approach, infra ¶ 210. Lafferty , 2001 UT 19, ¶ 74 (internal quotation marks
omitted).
See Miller
,
Opinion of the Court
determine that, given the circumstances of the crime and the offender‘s background, LWOP is appropriate. Moreover, we note that a majority of our sister states as well as the federal system permit LWOP for juveniles convicted of the most heinous crimes. [140] Applying a proportionality analysis, we conclude that the imposition of LWOP for juveniles convicted of homicide does not violate the Utah Constitution.
¶ 67 We reiterate the hope expressed by the Supreme Court that LWOP sentences for juveniles will be rare. [141] It is the most severe sentence a judge or jury can impose on a juvenile, and it should be carefully considered and reserved for only the most severe crimes and most incorrigible juvenile offenders. But where, as here, we find no constitutional violation, we may not ―substitute our judgment for that of the legislature regarding the wisdom of a particular punishment.‖ [142] We therefore hold that Mr. Houston has not demonstrated that his LWOP sentence violates the cruel and unusual punishments clauses of either the Utah or United States Constitution. Because we reject each of Mr. Houston‘s constitutional
challenges to his sentence of life without parole, we conclude that Mr. Houston has failed to demonstrate that his sentence was unconstitutional and therefore illegal under Utah Rule of Criminal Procedure 22(e).
III. MR. HOUSTON HAS FAILED TO ESTABLISH
THAT HIS COUNSEL RENDERED
INEFFECTIVE ASSISTANCE
On appeal, Mr. Houston presents seven claims of
ineffective assistance of counsel during his sentencing proceeding.
First, Mr. Houston argues that his counsel was ineffective for not
objecting to certain statements made by the prosecutor in closing
argument, and alternatively that the trial court plainly erred in
failing to intervene. Second, he contends that his counsel was
ineffective in failing to find and call certain mitigation expert
witnesses. Third, Mr. Houston claims that his counsel was
Supra
¶ 62.
See Miller
,
Cite as:
United States Constitution includes ―the right to the effective assistance of counsel.‖ [143] In Strickland v. Washington , the United States Supreme Court announced the two-part test for ineffective assistance of counsel claims. [144] First, the defendant must show that ―his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment.‖ [145] Second, the defendant must demonstrate ―that counsel‘s performance prejudiced the defendant.‖ [146] We have acknowledged ―the variety of circumstances faced by defense counsel [and] the range of legitimate decisions regarding how best to represent a criminal defendant.‖ [147] As a result, ―we must indulge in a strong presumption that counsel‘s conduct [fell] within the wide range of reasonable professional assistance, and that, under the
[143]
McMann v. Richardson
, 397 U.S. 759, 771 n.14 (1970);
accord
State v. Templin
,
[144]
omitted). Templin , 805 P.2d at 186 (alteration in original) (internal
quotation marks omitted).
Opinion of the Court
circumstances, the challenged action might be considered sound trial strategy.‖ [148]
¶ 71 With this framework in mind, we now address each of Mr. Houston‘s ineffective assistance of counsel claims.
A. Mr. Houston Has Failed to Demonstrate that His Counsel Was Ineffective when Counsel Did not Object to the Prosecutor’s Closing Argument or that the Trial Court Plainly Erred by Failing to Intervene Mr. Houston argues that his counsel rendered ineffective assistance when counsel failed to object to statements made in the closing argument. Alternatively, Mr. Houston contends that the trial court committed plain error for allowing the statements during closing argument. Mr. Houston fails to make either showing. During the sentencing proceeding, Mr. Houston‘s expert
neuropsychologist testified that another doctor had diagnosed Mr. Houston with a ―conduct disorder‖ when he was an adolescent. On cross-examination, the prosecution asked the neuropsychologist if she, too, had concluded that Mr. Houston had a conduct disorder. The neuropsychologist explained that she did not conclude that Mr. Houston suffered from a conduct disorder because Mr. Houston was an adult when she evaluated him and ―conduct disorder‖ is not an available diagnosis for an adult. The prosecutor then asked the neuropsychologist if she believed that Mr. Houston was ―antisocial.‖ The neuropsychologist testified that Mr. Houston may show signs of being antisocial, but ultimately she did not conclude that he met the test for an antisocial diagnosis. The neuropsychologist also testified that she did not believe Mr. Houston suffered from psychopathy. In supporting her opinion, the neuropsychologist contrasted Mr. Houston with the well-known serial killer and psychopath Ted Bundy.
State v. Lenkart , 2011 UT 27, ¶ 25, 262 P.3d 1 (alteration in original) (internal quotation marks omitted). Mr. Houston raises this argument under the plain error
doctrine because he acknowledges that it was not preserved.
See State v. Weaver
,
Cite as:
I think it is important that you look at [the conduct disorder] diagnosis, because what does it say? That diagnosis says, yeah, [Mr. Houston] has depression, but he has a conduct disorder. That means he‘s a violent character. He‘s a criminal. And they had to take that into consideration as they dealt with him. Then the prosecution challenged the neuropsychologist‘s conclusion that Mr. Houston did not suffer from antisocial behavior as an adult:
[The defense] expert didn‘t even look at [the conduct disorder] as antisocial behavior, . . . didn‘t even say that it was [antisocial] despite the fact that [Mr. Houston] had committed three violent acts. Mr. Houston argues that his counsel was ineffective in
failing to object to these statements. According to Mr. Houston, the State‘s closing argument was ―incorrect and inflammatory‖ because the State ―effectively argued—with no basis in the record whatsoever—that [Mr.] Houston is antisocial pathologic, incurably violent.‖ By not objecting, moving to strike, or in any way addressing these statements, Mr. Houston contends that counsel left the jury ―free to equate [Mr.] Houston with Ted Bundy.‖ We disagree with Mr. Houston‘s characterization and conclusions. First, Mr. Houston‘s counsel did not render ineffective
assistance when he did not object to the prosecutor‘s statements.
We have recognized that ―[c]ounsel for both sides have
considerable latitude in their closing arguments. They have the
right to fully discuss from their perspectives the evidence and all
inferences and deductions it supports.‖
[150]
Moreover, ―[a]
prosecutor has the duty and right to argue the case based on the
total picture shown by the evidence.‖ When we review an
State v. Dibello
,
(con‘t.)
Opinion of the Court
attorney‘s failure to object to a prosecutor‘s statements during closing argument, the question is ―not whether the prosecutor‘s comments were proper, but whether they were so improper that counsel‘s only defensible choice was to interrupt those comments with an objection.‖ [152] Here, we conclude that the prosecutor appropriately exercised his discretion to emphasize Mr. Houston‘s childhood diagnosis of conduct disorder, and to challenge the defense expert‘s conclusion that Mr. Houston did not suffer from an antisocial behavior disorder as an adult. The record contained evidence that Mr. Houston was a violent offender and had extensive history with the criminal justice system. The prosecutor was free to draw on this record evidence and question the conclusions of Mr. Houston‘s expert. The jury was informed that what lawyers ―say during their closing arguments is not evidence‖ and that the members of the jury should rely ―on [their] memory of the evidence‖ in reaching a sentencing decision. None of the prosecutor‘s statements were so inflammatory that ―counsel‘s only defensible choice was to interrupt those comments with an objection.‖ [153] We also disagree that the court plainly erred when it did
not address the prosecutor‘s statements. We do not impose a duty on the courts ―to constantly survey or second-guess the nonobjecting party‘s best interests or trial strategy.‖ [154] As stated above, the prosecutor was free to emphasize Mr. Houston‘s past diagnosis. The prosecutor was also free to challenge the defense expert‘s conclusion that Mr. Houston was not antisocial. Because we determine that neither Mr. Houston‘s
counsel nor the trial judge had an obligation to object to the State‘s closing argument, we conclude that Mr. Houston has failed to meet his burden to show that the prosecutor‘s statements necessitate reversal.
quotation marks omitted). Bussard v. Lockhart , 32 F.3d 322, 324 (8th Cir. 1994)
(emphasis added).
Id. State v. Labrum
,
Cite as:
called a forensic neuropsychologist to testify about Mr. Houston‘s mental and emotional development. She explained to the jury that there were available treatments to help Mr. Houston confront his mental and emotional issues and to stop his violent reactions to his life circumstances. Our review of the record demonstrates that Mr. Houston‘s counsel did not act unreasonably in calling this qualified expert witness or in declining to call any additional expert witnesses on the same issue.
State v. Tyler
,
Opinion of the Court
1. Mr. Houston Has Failed to Demonstrate that His Counsel Was
Ineffective for not Calling a Human Development Expert ¶ 82 Mr. Houston first argues that his counsel should have called a ―human development‖ expert to testify about the effects of youth on the decision-making process. While such testimony may have been helpful to Mr. Houston‘s defense, we conclude that this testimony was not required, and it certainly was not ineffective for Mr. Houston‘s counsel not to retain an expert on this topic.
¶ 83 We have stated before that expert testimony is most helpful to explain topics that are ―beyond the common knowledge of ordinary jurors.‖ Mr. Houston‘s counsel could have reasonably concluded that the jurors would understand from life experience that a seventeen-year-old‘s decision-making is not as reasoned as that of an adult. Moreover, throughout the sentencing procedure, Mr. Houston‘s counsel emphasized his youth in a manner that fell within the wide range of professionally competent assistance. Therefore, it was not essential for counsel to retain an expert on this issue.
2. Mr. Houston Has Failed to Demonstrate that His Counsel Was
Ineffective in Deciding not to Call an Expert to Testify About YHA‘s Failure to Treat and Supervise Mr. Houston Mr. Houston next argues that his counsel was ineffective in failing to call an expert to testify that YHA‘s failure to properly treat and supervise Mr. Houston was the proximate cause of R.E.‘s murder. Mr. Houston argues that the result of his sentencing proceeding would have been different had his counsel called an expert to testify that had ―YHA followed industry standards, or enforced its own policies, the crime would not have occurred.‖ Our review of the record indicates that this claim fails for two reasons. First, like Mr. Houston‘s prior claim, no expert was
needed to present to the jury facts related to YHA‘s deficient
treatment and supervision of Mr. Houston because such facts
were not beyond the common knowledge of the jurors. During
the proceeding, defense counsel successfully elicited this
State v. Clopten
,
Cite as:
treatment and supervision was already introduced at the proceeding, it is difficult for us to see how Mr. Houston‘s counsel‘s decision not to present expert testimony on this issue was unreasonable. Our review of the record demonstrates that counsel‘s decision not to seek an expert on this issue was the result of a strategic move consistent with the defense‘s theory that Mr. Houston deserved mercy in sentencing for having pleaded guilty and accepting responsibility for his own actions. Presenting an expert to blame Mr. Houston‘s crime on the YHA staff would have contradicted this theory. We therefore conclude that Mr. Houston has failed to demonstrate ineffective assistance of counsel regarding this issue.
3. Mr. Houston Has Failed to Demonstrate that His Counsel Was
Ineffective in Failing to Call a Different Risk Mitigation Expert
Mr. Houston also argues that his counsel should have
called a different expert to address risk mitigation because the
expert that Mr. Houston‘s counsel called was not sufficiently
qualified to address these issues. Mr. Houston argues that had
this testimony been presented to the jury, it would have made a
See State v. Walker,
2010 UT App 157, ¶ 16, 235 P.3d 766
(noting expert testimony is not critical when same information can
be elicited on cross-examination).
See Strickland
,
ineffective assistance of counsel claim, ―the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy‖ (internal quotation marks omitted)).
Opinion of the Court
difference in the outcome of his case because it would have rebutted the State‘s ―powerful future dangerousness‖ argument. Again, we disagree.
¶ 88 Our review of the record indicates that the expert Mr. Houston‘s counsel called was a licensed neuropsychologist with extensive experience in evaluating criminal defendants. She has a bachelor‘s degree in psychology and biology, and master‘s and doctoral degrees and postdoctoral training in neurobiology. She has evaluated criminal defendants since 1987, and has treated individuals with obsessive disorders and sexual dysfunctions since 1979. This experience indicates that the neuropsychologist was fully qualified to testify as an expert in this case. Mr. Houston has failed to demonstrate that his counsel‘s decision to call and rely on her testimony was unreasonable. Mr. Houston has also failed to demonstrate that the
neuropsychologist‘s performance was anything but thorough and competent. The record indicates that the neuropsychologist testified extensively about Mr. Houston‘s troubled background and the impact it had on his mental health. Although she testified that Mr. Houston was troubled, she also testified that current medications could treat his disorders and could ―really make a in his mental and behavioral health. difference‖ The neuropsychologist also described in detail how Mr. Houston could benefit from cognitive behavioral therapy and how this type of therapy could help him to develop skills to stop his violent thoughts and reactions. We thus conclude that the neuropsychologist adequately addressed the issue of risk mitigation and Mr. Houston‘s future dangerousness, and it was not unreasonable for Mr. Houston‘s counsel to rely on her testimony as sufficient. At its core, we conclude that Mr. Houston‘s expert
testimony claims are merely an assertion that appellate counsel would have called and retained different experts than those trial counsel decided to present to the jury. But we ―will not review counsel‘s tactical decisions simply because another lawyer, e.g., appellate counsel, would have taken a different course.‖ Parsons v. Barnes , 871 P.2d 516, 524 (Utah 1994) (internal quotation marks omitted).
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C. Mr. Houston Has Failed to Show His Counsel Was Ineffective During Voir Dire Questioning Mr. Houston‘s next ineffective assistance of counsel claim centers on his counsel‘s questioning during the initial juror interviews. Mr. Houston contends that his ―[c]ounsel displayed a remarkable ignorance of the law, and rendered extraordinarily ineffective assistance when, during initial juror interviews, [counsel] surrendered the presumption favoring [a sentence of] life with parole.‖ Specifically, Mr. Houston argues that by asking the jurors if they could ―equally‖ consider imposing a sentence of life with parole and life without parole, Mr. Houston‘s counsel abandoned the directive that a juror should sentence a defendant to life with parole unless the State demonstrates that a sentence of life in prison without parole is more appropriate given the defendant‘s particular case. According to Mr. Houston, by failing to emphasize the favorable sentencing presumption, ―the jurors were free to vote for life without parole based upon any inclination, no matter how slight,‖ and ―this certainly undermines confidence in the result.‖ We disagree. We recognize the importance of voir dire questioning as
―essential to choosing an impartial jury, and an impartial jury is as
essential to a fair trial as is an impartial judge.‖ Indeed, ―[v]oir
dire is intended to provide a tool for counsel . . . to carefully and
skillfully determine, by inquiry, whether biases and prejudices,
latent as well as acknowledged, will interfere with a fair trial if a
State v. Saunders
,
Opinion of the Court
particular juror serves in it.‖ [163] While the jury selection process is of great importance, there are many ways to effectively question jurors, and there ―are a multitude of inherently subjective factors typically constituting the sum and substance of an attorney‘s judgments about prospective jurors.‖ [164] Given that ―jury selection is more art than science,‖ [165] ―trial counsel should be given considerable latitude in asking voir dire questions, especially in view of the fact that only counsel will, at the beginning, have a clear overview of the entire case and the type of evidence to be adduced.‖ [166] Thus, when reviewing an attorney‘s questioning and decision to keep or remove a particular juror, we must presume that counsel‘s choices were objectively reasonable, ―the product of a conscious choice or preference,‖ and ―constitute effective representation.‖ [167] Mr. Houston has failed to rebut this presumption. First, Mr. Houston has failed to show that there was
anything unreasonable about his counsel‘s questioning of the jurors. During voir dire, Mr. Houston‘s counsel actively participated and asked the jurors a series of questions to probe their ability to serve as impartial jurors. These questions included whether the individuals could consider the life with parole and life without parole sentences equally, and whether they thought one sentence was too severe or one was too lenient. Our review of the record demonstrates that all of the jurors selected expressed openness to imposing either sentence presented to them and that they were committed to hearing all the evidence before making a decision. [168] And the excerpts cited by Mr. Houston in his brief
[163] Id. ¶ 34 (internal quotation marks omitted).
[164]
State v. Litherland
,
[165]
Id. Saunders
, 1999 UT 59, ¶ 34 (internal quotation marks
omitted).
Litherland
,
whether life without parole was too severe, or if she felt life with parole was too light, she responded, ―Depends on what you guys present in front of us.‖ In response to a similar question, another
(con‘t.)
*43
Cite as:
resulted from Mr. Houston‘s counsel‘s questions to the jurors was cured by the trial court‘s jury instruction to apply a presumption of life with parole, and by counsel‘s closing argument, which also emphasized this directive. Immediately before conducting individual jury voir dire, the trial court advised the prospective jurors that the law favored a sentence of life with parole over life without parole:
The jury will be presented with evidence for and against a penalty of life in prison without parole. It is presumed that an indeterminate prison term of not less than 20 years and which may be for life will be imposed upon the defendant unless the State persuades you that a penalty of life in prison without parole is the appropriate sentence in this case. During closing argument, Mr. Houston‘s counsel
reminded the jury that the presumptive sentence was life with parole and that the State bore the burden of persuading the jury that life without parole was the appropriate sentence. Finally, at the conclusion of the sentencing proceeding, the court instructed the jury that ―[t]he penalty of life without parole should only be imposed if the jury determines that such a sentence is appropriate‖ and that the ―burden rests upon the State to persuade [the jury] that a sentence of life in prison without parole juror responded, ―I think you have to learn what the circumstances are. You know, you really can‘t judge the person unless you hear all the details.‖ Other jurors explained that they would consider either sentence appropriate ―depending on the circumstances,‖ or ―depending on what we hear‖ about the evidence. Similarly, other jurors noted that they were willing to consider ―either [sentence] fairly‖ and that before the evidence was presented they ―couldn‘t say one way or the other right now.‖
Opinion of the Court
is the appropriate sentence in this case.‖ We are convinced that these instructions and reminders from counsel and the court were sufficient to cure any misperceptions that may have been created during Mr. Houston‘s counsel‘s voir dire questioning. [169] Having concluded that Mr. Houston‘s counsel did not act unreasonably during voir dire questioning and that Mr. Houston has failed to show any prejudice from his performance, we reject this ineffective assistance of counsel claim.
D. Mr. Houston Has Failed to Show His Counsel Rendered Ineffective Assistance by Failing to Seek a Change of Venue Mr. Houston claims that his attorney rendered ineffective assistance of counsel by failing to seek a change of venue, or to ―even conduct a venue analysis‖ in Mr. Houston‘s case. Specifically, Mr. Houston contends that the negative pretrial media attention surrounding his case—including reports of gruesome details about the crime, sympathetic stories about the victim and her family, and ―community outcry‖ against violent sex offenders—made it impossible for Mr. Houston to have a fair proceeding in Davis County. We disagree. Under Utah Rule of Criminal Procedure 29, a defendant
who ―believes that a fair and impartial trial cannot be had in the jurisdiction where the action is pending‖ may ―ask to have the trial of the case transferred to another jurisdiction.‖ [170] Whether counsel should seek a change of venue is a question that must be evaluated under the ―totality of the circumstances.‖ [171] Relevant considerations may include ―(1) the standing of the victim and the accused in the community; (2) the size of the community; (3) the nature and gravity of the offense; and (4) the nature and extent of publicity.‖ [172] However, recognizing the benefits of hindsight, in posttrial evaluation ―the determinative question is whether [the]
[169]
See State v. Menzies
, 889 P.2d 393, 401 (Utah 1994) (noting
that an appellate court will ―generally presume that a jury will
follow the instructions given [to] it‖).
U TAH R. C RIM . P. 29(d)(1).
State v. James
,
Cite as:
record demonstrates that five of the jurors selected had no knowledge of Mr. Houston and were not exposed to any information about the crimes committed. Of the nine jurors who had heard of the crime, seven indicated that they had not formed an opinion about what Mr. Houston‘s punishment should be, and two indicated that they had formed opinions. However, subsequent explanations from those two jurors revealed that they had only formed an opinion about Mr. Houston‘s guilt—an issue that, because of Mr. Houston‘s plea, was not in dispute. Those jurors thus had not predetermined what Mr. Houston‘s punishment should be, only that some form of punishment was appropriate. Both jurors indicated that they could rely on the evidence to determine the appropriate sentence and would be fair and impartial in [176] their decision-making. Moreover,
[173]
Lafferty v. State
,
Neb. Press Ass’n v. Stuart , 427 U.S. 539, 554 (1976)) (internal quotation marks omitted). See Archuleta , 2011 UT 73, ¶ 38 (stating that a defendant
must show both objectively deficient performance and prejudice to prevail on a claim of ineffective assistance of counsel). During voir dire, one of the two jurors explained that she did not really understand the question because she did not realize until later that Mr. Houston had pleaded guilty. She stated that she did not have any opinion about what his sentence should be because ―you have to learn what the circumstances are. . . . [Y]ou can‘t judge the person unless you hear all the details.‖ The other juror explained that she had not formed an opinion because ―I
(con‘t.)
Opinion of the Court
Mr. Houston‘s counsel asked detailed questions of all the jurors, and the jurors‘ voir dire answers demonstrated that they could be fair and impartial despite their exposure to any pretrial publicity.
¶ 99 Although Mr. Houston referenced several graphic and detailed newspaper articles about his case, he has failed to identify anything in the record that supports his claim that this pretrial coverage resulted in a biased juror or jury. While it may have been prudent for Mr. Houston‘s attorney to seek a change of venue due to the small community and concentrated media attention surrounding Mr. Houston‘s case, Mr. Houston‘s claim that this pretrial publicity affected his sentence is speculative at best. Because Mr. Houston has not shown that it was objectively unreasonable not to seek a change of venue or that counsel‘s decision resulted in an unfair sentencing proceeding, we conclude that this claim of ineffective assistance of counsel fails.
E. Mr. Houston Has Failed to Demonstrate that Counsel Was Ineffective for not Objecting to Testimony From a Department of Corrections Officer that Mr. Houston Could Be Paroled Before Serving at Least Twenty Years in Prison Mr. Houston next argues that his counsel was ineffective when he failed to object, move to strike, or seek a curative instruction to address the testimony from John Ford, an assistant director with the Utah Department of Corrections. Mr. Ford testified that if Mr. Houston was sentenced to life with parole, there was a chance that Mr. Houston could be released before serving at least a twenty-year prison term. During the sentencing proceeding, Mr. Houston‘s
counsel called Mr. Ford to testify about Utah‘s sentencing system and to explain to the jury the different treatment afforded inmates sentenced to life with parole and life without parole. Mr. Ford also explained that when an individual is sentenced to life with the possibility of parole, it is for an indeterminate term, meaning that after a period of time the Board of Pardons and Parole would hold a hearing to determine when an individual might be paroled. The Board of Pardons would also schedule a future hearing to revisit this determination.
haven‘t heard . . . enough to.‖ She also stated that she could fairly consider either sentencing option.
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PROSECUTOR : So generally speaking, you would anticipate the person serve at least 20 years?
MR. FORD : At least that and most likely it would be much more than that.
PROSECUTOR : But it‘s not a guarantee, clearly, because the Board of Pardons has great power?
MR. FORD : Yes. ¶ 103 To emphasize the unlikelihood of a release from prison before Mr. Houston served at least twenty years, Mr. Houston‘s counsel asked on redirect: ―It was asked whether or not I guess in theory somebody could be released prior to 20 years. In theory that‘s possible, but not likely?‖ Mr. Ford responded, ―Not likely.‖ Mr. Houston‘s counsel then asked, ―Especially where you need a three-person majority [of the Board of Pardons] and you indicated that it‘s most likely that the person will spend much more than the 20 years in prison?‖ Mr. Ford responded, ―That‘s correct.‖ Mr. Houston argues that counsel was ineffective in responding to Mr. Ford‘s testimony. Specifically, Mr. Houston argues that counsel should have objected during the prosecutor‘s cross-examination of Mr. Ford, and that by bringing the issue back up on redirect, counsel only reinforced to the jury that Mr. Houston‘s early release was a viable possibility. We find nothing ineffective or prejudicial about Mr. Houston‘s counsel‘s response to Mr. Ford‘s testimony. A formal objection and request for a curative instruction
is not the only objectively reasonable response to unexpected or
Opinion of the Court
unfavorable testimony. [177] As stated before, there are a variety of ways to competently represent a criminal defendant, and no one method is required for effective representation. [178] Instead of objecting to the prosecutor‘s line of questioning, Mr. Houston‘s counsel decided to clarify on redirect and emphasize to the jury that the likelihood that Mr. Houston would be released early was extremely limited. When we consider this decision in light of the presumption of competence, we must conclude that Mr. Houston‘s counsel was not ineffective and that his decision to emphasize the limited chance of early release on redirect ―was the result of conscious trial strategy.‖ [179] We further conclude that Mr. Houston has failed to
demonstrate any prejudice resulting from his attorney‘s response to Mr. Ford‘s testimony. Before sentencing, the judge instructed the jury to disregard any testimony about possible early release: ―[Y]ou are not to take into account any actions the Board of Pardons and Parole might take in the future. Future decisions of the Board are merely speculative and are irrelevant to a jury‘s determination of an appropriate sentence.‖ This instruction assures us that any improper weight that the jury may have assigned to this line of questioning was properly addressed and cured by the trial judge. [180]
F. Mr. Houston Has Failed to Demonstrate that His Counsel Was Ineffective for not Objecting to the Alleged Double Counting of an Aggravating Factor in the Jury Instructions Mr. Houston‘s next ineffective assistance of counsel argument stems from his counsel‘s failure to object to a series of
[177]
See State v. Bullock
, 791 P.2d 155, 160 (Utah 1989)
(concluding trial counsel‘s decision not to object to unfavorable
testimony did not constitute ineffective assistance of counsel).
See Templin
,
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During the sentencing proceeding, aggravating and mitigating evidence was presented to you with respect to the penalty to be imposed. You are instructed that the terms ―aggravating circumstances,‖ ―aggravating factors,‖ and ―aggravating evidence,‖ used interchangeably, refer to evidence tending to show that the penalty of life without parole is appropriate.
Jury instruction number 14 states that ―[t]he fact that [Mr. Houston] has pled guilty to the crime of Aggravated Murder is not an aggravating circumstance. . . . However, you may consider as aggravating circumstances the matters that were presented as aggravating circumstances in the charge against the defendant.‖ And finally, jury instruction number 15 lists ―rape‖ and ―aggravated sexual assault‖ as two possible aggravating circumstances the jury could consider. ―Aggravated sexual assault‖ is defined as when an individual ―in the course of a rape . . . , causes bodily injury to the victim or uses or threatens the victim with the use of a dangerous weapon, such as a knife.‖ Mr. Houston argues that these instructions created overlapping aggravating factors that skewed the weighing process in the minds of the jurors. During the sentencing proceeding, the judge told the
jury that it may find an aggravating circumstance if it concluded that ―[Mr. Houston] intentionally or knowingly caused the death of [the victim] while . . . engaged in the submission of or an attempt to commit rape or aggravated sexual assault.‖ The judge‘s instructions made clear that Mr. Houston was charged with and pleaded guilty to aggravated murder because he committed either rape or aggravated sexual assault, but not both. These aggravating factors were read to the jury in the alternative, and thus, the jury could find the presence of an aggravating circumstance if it concluded that either rape or sexual assault occurred. The instruction did not direct the jury to count these as
Opinion of the Court
separate aggravating factors, and thus, Mr. Houston‘s counsel did not err by not objecting to these instructions. We further conclude that even if there was some
confusion surrounding aggravating circumstances in the jury instructions, any confusion did not prejudice Mr. Houston because the jury was instructed to weigh the aggravating and mitigating circumstances not in terms of numbers, but rather in terms of ―how compelling or persuasive the evidence is when deciding an appropriate sentence.‖ To emphasize the directive that the jury should not merely count up the aggravating and mitigating circumstances, the trial court stated that ―any aggravating factor, standing alone, could be more persuasive than some or all of the mitigating factors in the case. On the other hand, one mitigating factor, standing alone, could be more persuasive than some or all of the aggravating factors.‖ Therefore, even if Mr. Houston is correct in his assertion that the jurors counted the rape and sexual assault as two separate aggravating factors rather than finding the presence of one or the other, the jurors‘ ultimate decision was still based on what they found most compelling or persuasive considering the totality of the circumstances, not the mere number of aggravating factors present in the case. And in evaluating Mr. Houston‘s claim of prejudice, we must proceed ―on the assumption that the decision- maker is reasonably, conscientiously, and impartially applying the standards that govern the decision.‖ [181] We therefore conclude that Mr. Houston has failed to show that his counsel‘s performance was deficient or that any deficiency caused him prejudice.
G. Mr. Houston Has not Demonstrated Cumulative Error that
Undermines Our Confidence in His Sentence
Finally, Mr. Houston argues that we should reverse his
sentence under the cumulative error doctrine because the
ineffectiveness of counsel alleged above should undermine our
confidence in the sentence. To evaluate a cumulative error claim,
―we consider all the identified errors, as well as any errors we
assume may have occurred.‖ However, ―[i]f the claims are
Parsons,
(con‘t.)
*51
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CONCLUSION It is beyond contention that Mr. Houston‘s case is tragic.
This is an extremely uncommon case where the jury, considering the mitigating circumstances inherent to Mr. Houston‘s youth, nevertheless concluded that life without the possibility of parole was the appropriate sentence for the crime committed. We hold that Mr. Houston properly brought constitutional challenges to his sentence under Utah Rule of Criminal Procedure 22(e); however, we conclude that each of his claims fails. We also hold that Mr. Houston has failed to demonstrate that he received ineffective assistance of counsel. We therefore affirm the jury‘s sentence of life in prison without the possibility of parole.
quotation marks omitted). Id. (alteration in original) (internal quotation marks
omitted).
A.C.J. L EE , concurring
A SSOCIATE C HIEF J USTICE L EE , concurring in part and concurring in the judgment:
¶ 113 I concur in the opinion of the court in part and concur in the judgment affirming the conviction entered against Mr. Houston. I write separately, however, to express my disagreement with the majority on two principal points: (1) I would not deem Houston‘s challenge to his sentence to be properly presented under rule 22(e) of our rules of criminal procedure (but instead subject only to review for plain error); and (2) I would reject Houston‘s state constitutional challenge to his sentence based on an original understanding of the Utah Constitution, which categorically forecloses the proportionality challenge advanced in this case.
I. PRESERVATION AND UTAH RULE OF
CRIMINAL PROCEDURE 22(e)
Houston failed to raise a constitutional challenge to his
sentence in the proceedings below. Despite that failure, the
majority deems the constitutional claims advanced on appeal to
be properly presented under rule 22(e) of the Utah Rules of
Criminal Procedure.
Supra
¶ 26. That provision expressly
authorizes a court to ―correct an illegal sentence, or a sentence
imposed in an illegal manner, at any time.‖ U TAH R. C RIM . P. 22(e).
In recent cases, however, we have adopted limiting constructions
of this rule. Most recently, in
State v. Prion
,
limitation (imported from federal law) is aimed at striking ―a careful balance between the goal of correcting illegal sentences on one hand and . . . encouraging preservation and finality on the other.‖ Id . Yet the Prion standard is not a subjective balancing test. Nor does it leave room for the standard embraced by the majority—of opening the door to unpreserved challenges to sentences that are ―facial‖ and not ―as-applied.‖ Supra ¶ 26.
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¶ 116 The majority overrules this standard, replacing it with a
standard allowing a ―facial challenge‖ to the constitutionality of a
sentence but foreclosing ―fact-intensive,‖ ―as-applied‖ challenges.
Supra
¶¶ 18, 23, 26. The court purports to find support for this
standard in
Prion
and its antecedents.
See supra
¶¶ 24–27 (citing
Prion
and also
State v. Candedo
,
behind this limitation in terms that emphasized the downsides of
opening the door to unlimited challenges to the constitutionality
of a sentence. Our opinion warned, for example, of the abuse and
anomaly that would ensue if our law ―elevate[d] challenges to
sentencing proceedings over parallel challenges to the guilt phase
of a trial.‖
Prion
,
formulation we imported from longstanding cases interpreting
the federal rule incorporated into our rule 22(e)—encompassing
only ―instances ‗when the sentence imposed exceeds the
statutorily-authorized limits, violates the Double Jeopardy Clause,
or is ambiguous or internally contradictory.‘‖
Id
. ¶ 22. The
majority is mistaken in its assertion that
Prion
―nowhere stated
that we were adopting the federal limitation‖ as the holding of the
court.
Supra
¶ 24 n.35. We did so expressly, and repeatedly.
See
Prion
,
A.C.J. L EE , concurring
a narrow construction of the rule‖ (emphasis added)); see also id . ¶ 23 (―[Prion‘s] 22(e) motion . . . is one that comes within the traditional bounds of the rule, and we accordingly uphold it against the State‘s procedural attack.‖ (emphasis added)). Our Candedo opinion cannot properly be read to support the majority‘s new standard. Candedo did not establish a standard dependent on the ―facial‖ or ―as-applied‖ nature of a constitutional challenge to a sentence. Instead, the opinion in Candedo simply reversed the court of appeals‘ determination that an ―illegal‖ sentence under rule 22(e) was limited to cases ―where either the sentencing court has no jurisdiction, or . . . the sentence is beyond the authorized statutory range.‖ 2010 UT 32, ¶ 10 (alteration in original) (internal quotation marks omitted). And in so doing, Candedo stated generally that ―if an offender‘s sentence is unconstitutional, the sentence is not authorized by the ‗judgment of conviction,‘ and is therefore illegal.‖ Id . ¶ 13. On that basis, Candedo held ―that the court of appeals erred in failing to reach the merits of Candedo‘s‖ constitutional challenge ―because the definition of illegal sentence under rule 22(e) is sufficiently broad to include constitutional violations that threaten the validity of the sentence.‖ Id . ¶ 14. Our holding in Candedo , moreover, did not rest on a distinction between facial and as- applied challenges to a sentence. Indeed, our constitutional analysis (upholding
Candedo‘s sentence against a substantive due process attack) ultimately rejected both facial and as-applied challenges. See id . ¶ 21 (holding ―that Utah‘s probation statute generally, as well as the term of probation to which Candedo was sentenced, are rationally related to the state‘s legitimate interest‖); id. ¶ 23 (acknowledging that ―a defendant could successfully challenge a probation sentence that is truly arbitrary or discriminatory under the due process clause or prove that the probation statute is cruel and unusual, but such a case is not before us now‖). And as to the governing standard, the Candedo opinion effectively punted on the specific sorts of constitutional claims that could be cognizable under rule 22(e). While acknowledging the state‘s argument that rule 22(e) countenances only claims that a sentence is ―‗patently‘ or ‗manifestly‘ illegal,‖ the Candedo court concluded that it was unnecessary to ―reach‖ that issue if the claims at issue failed on their merits. Id . ¶ 14 (concluding that there is no need to ―reach
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There we acknowledged that Telford challenged his sentence ―on
both per se and as applied grounds,‖
1995), in support of its new standard, supra ¶ 27, but the Brooks opinion is in line with the approach in Telford and Candedo . As the majority indicates, the Brooks opinion states that ―nothing is to be gained by remanding the case to the trial court‖ when ―the pertinent facts are undisputed and a purely legal question with respect to which the trial court has no discretion remains to be decided.‖ 980 P.2d at 860. But the Brooks opinion does not adopt the facial/as-applied distinction embraced by the majority. It simply holds that rule 22(e) may sometimes ―permit[] the court of appeals to consider the legality of a sentence even if the issue is raised for the first time on appeal,‖ while rejecting the applicability of the rule in the context of a claim that ―[i]n substance‖ challenges the underlying conviction and not the sentence. Id . (explaining that Brooks‘s claim, while styled as a challenge to his sentence, was ultimately a challenge to his ―conviction for a lesser included offense‖).
The point is not to suggest that the court did not decide whether the claims in Telford and Candedo were properly brought under rule 22(e). I am simply clarifying that the operative standard articulated in these cases was relatively unimportant, as the sentencing challenges at issue failed on their merits in any event. And, given the patchwork formulations in our cases at the time we decided Prion , it was essential that our opinion in that case seek to provide some clarity.
A.C.J. L EE , concurring
¶ 123 I acknowledge the plausibility of the alternative
readings of our prior cases advanced by the majority opinion. As
that opinion suggests, the
Candedo
opinion may plausibly be read
to have endorsed the viability of
any
―constitutional violations
that threaten the validity of the sentence.‖
See supra
¶ 24 n.35. As
for
Telford
and
Brooks
, those opinions may also be understood to
have interpreted rule 22(e) in a manner endorsing an operative
legal standard—in
Telford
, the notion that the rule is limited to the
correction of sentences that are ―manifestly illegal,‖ 2002 UT 51,
¶ 5; and in
Brooks
, the principle that the rule encompasses
challenges to sentences that are ―patently illegal,‖
(con‘t.)
*57
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unanimous. I would reaffirm it and apply it here. And I would accordingly deem Houston‘s challenges to his sentence uncovered by rule 22(e), as none of them involve a claim that his sentence exceeded statutory limits, violated double jeopardy, or was ―based on ‗misinformation of a constitutional magnitude‘‖ could have been subject to challenge under the federal rule. Supra ¶ 23. It is unsurprising that the general federal rule we embraced in Prion may have been subject to an occasional aberration or exception in the federal caselaw. That is also beside the point. Prion embraced a straightforward, objective standard limiting rule 22(e) challenges to those attacking sentences that exceed statutory limits, that violate double jeopardy, or that are ambiguous or internally contradictory. Prion , 2012 UT 15, ¶ 22. We rooted that standard in the majority rule adopted in federal cases as we understood them. But the standard was clear and unmistakable; it was in no way a standard subject to expansion or extension if aberrational federal cases could be cited in the future (as in the majority opinion here).
The point in invoking the federal caselaw is not to suggest that we are bound to follow it. Prion was based on the need to adopt an objective, limiting standard under rule 22(e). And the federal standard was the one we chose to fulfill that need.
It is telling that even the majority does not adopt the standard set forth in the outlier federal cases that it cites. Instead, it adopts a new one of its own making, and in so doing it repudiates a square holding that is entitled to deference.
A.C.J. L EE , concurring
ambiguous or internally contradictory. Thus, I would analyze Houston‘s constitutional challenges to his sentence under a standard of plain error review, which is the standard that applies to an unpreserved challenge to a sentence that is not covered by rule 22(e). I would also observe that the court‘s analysis is itself
unfaithful to the standard it postulates. Some of Houston‘s challenges to his sentence seem to be ―as-applied‖ challenges. See supra ¶¶ 30–32 (addressing Houston‘s Apprendi challenge); supra ¶¶ 49–51 (addressing Houston‘s Unnecessary Rigor Clause challenge). These claims clearly implicate a degree of fact- intensive analysis. Even ―facial challenges,‖ moreover, may require fact-intensive analysis, in that such challenges require a litigant to ―establish that no set of circumstances exists under which the [statute] would be valid.‖ United States v. Salerno , 481 U.S. 739, 745 (1987). If this is the sort of claim the majority means to preserve under criminal rule 22(e), the court has not succeeded in adopting a ―limited‖ standard. It has instead opened the door to a broad range of claims that are quite often fact- intensive. The back-and-forth between the majority and dissenting
opinions is illustrative. The dissent cites extensive social science research in support of its conclusion that Houston‘s life-without- parole sentence is incompatible with the standard of proportionality that it advances. Infra ¶¶ 258–269 (cataloguing social science research on the nature of juvenile cognitive The majority opinion responds with the notion that ―the court need not delve into the record or make findings of fact‖ on a ―facial constitutional attack.‖ Supra ¶ 27. That strikes me as overstated. To establish that ―no set of circumstances exists‖ in which a sentencing provision could be valid, Salerno , 481 U.S. at 745, factual questions could easily be implicated. This case is a prime example. If we are to gauge social science research in assessing the question of proportionality in sentencing, surely we could benefit from the presentation of evidence on the matter. On this question the competing opinions find it sufficient to rest on their own evaluations of social science, but that does not make the inquiry any less fact-intensive.
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immediately through our rulemaking process. Our law as it stands under rule 22(e) as written is confusing, fuzzy, and perverse. The confusion is in the terms of the rule. The rule as it stands is a trap for an unwary litigant. We should not retain a rule that says one thing and means another. The fuzziness is in the court‘s standard as articulated today. There is no clear, established distinction between ―facial‖ and ―as-applied‖ challenges to a sentence. So the standard we have adopted is sure to lead to uncertainty and arbitrary decisionmaking going forward. Lastly, the perversion is in a legal regime that suspends the law of preservation for ―facial‖ constitutional challenges to a sentence while retaining the law of preservation for parallel challenges to a conviction . That is backwards. If anything, an unconstitutional conviction ought to be more troubling.
See Am. Fed’n of State, Cnty., & Mun. Emps. Council 79 v. Scott , 717 F.3d 851, 865 (11th Cir. 2013) (―[T]he line between facial and as-applied relief is a fluid one, and many constitutional challenges may occupy an intermediate position on the spectrum between purely as-applied relief and complete facial invalidation.‖); Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing , 113 H ARV . L. R EV . 1321, (2000) (―There is no single distinctive category of facial, as opposed to as-applied, litigation.‖).
A.C.J. L EE , concurring
¶ 131 The majority‘s standard under rule 22(e) should not stand. We should amend the rule to address the significant problems that are highlighted by today‘s opinion.
II. HOUSTON‘S CONSTITUTIONAL CLAIMS
¶ 132 For the above reasons, I would address Houston‘s
constitutional claims under a plain error standard of review. And
I would reject all of them under that standard, as Houston has not
asserted—and cannot conceivably claim—that the sentence
imposed runs afoul of established legal standards.
See, e.g.
,
State v.
Nielsen
,
constitutional challenge to his sentence, we are of course bound to
follow the precedents of the United States Supreme Court under
the Eighth Amendment‘s Cruel and Unusual Punishments Clause.
And because those precedents appear to adopt a form of
―proportionality‖ review, we must apply that same standard
The U.S. Supreme Court has invoked proportionality
analysis in a number of its opinions.
See Miller v. Alabama
, 132 S.
Ct. 2455, 2475 (2012) (striking down mandatory life without parole
sentences
for
juveniles as violating
the ―principle of
proportionality‖ embedded in the Eighth Amendment);
Graham v.
Florida
, 560 U.S. 48, 59 (2010) (holding that Eighth Amendment
proportionality principle prohibits imposition of life without
parole sentence on juvenile who did not commit homicide);
Solem
v. Helm
,
(con‘t.)
*61
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Cruel and Unusual Punishments Clause incorporates a standard
of proportionality authorizing appellate courts to second-guess a
lawfully imposed sentence on grounds of excessiveness.
Supra
¶ 64. And unlike the dissent,
infra
¶¶ 213–251, I would not
proportionality standard are somewhat ―unclear.‖
Harmelin v.
Michigan
,
LWOP sentences for juveniles will be rare.‖ Supra ¶ 67. That
(con‘t.)
A.C.J. L EE , concurring
interpret article I, section 9 to authorize this court to consult our ―humanitarian instincts,‖ infra ¶ 255, or our sense of ―evolving standards of decency that mark the progress of a maturing society.‖ Infra ¶ 213.
¶ 137 Instead, based on the original meaning of the text of article I, section 9, I would conclude that the Utah Constitution forbids only those modes of punishment that were repudiated as ―cruel‖ at the time of the adoption of this provision and that are ―unusual‖ in the sense of being contrary to established practice. And I would accordingly reject Houston‘s state constitutional claim on grounds narrower than those embraced by the majority. First, I would repudiate the dicta in this court‘s prior interpretations of article I, section 9, which articulate an unworkable standard and accordingly do not merit deference under the doctrine of stare decisis . Second, I would adopt an originalist conception of article I, section 9—a standard that leaves no room for proportionality analysis and prohibits only those methods of punishment that are so barbaric or cruel that they were barred by longstanding law or practice. Finally, applying this standard, I would reject Houston‘s state constitutional claim because he raises no challenge to the method of his punishment but only challenges his term of confinement on grounds of proportionality.
A. Utah Supreme Court Precedent In State v. Herrera , 1999 UT 64, ¶ 39, 993 P.2d 854, this court asserted that the Utah Constitution‘s prohibition of cruel and unusual punishments encompasses a principle of proportionality. In the Herrera court‘s words, ―a criminal punishment is cruel and unusual‖ under article I, section 9 ―if the punishment is so disproportionate to the offense committed that it shock[s] the moral sense of all reasonable men as to what is right and proper under the circumstances.‖ Id . ¶ 33 (alteration in original) (internal quotation marks omitted).
sounds well and good as a matter of humanitarian empathy. But it strikes me as beyond our role as judges to express ―hope‖ for any particular outcome—as to jury verdicts, damages awards, or criminal sentences—in the proceedings that we review on appeal.
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¶ 141 Yet the presumption of stare decisis is rebuttable. And it is rebutted where its reliance-based justification is not implicated, as where the precedent in question adopted a standard that is vague or unworkable. State v. Menzies , 889 P.2d 393, 399 (Utah 1994). I would decline to defer to the Herrera standard on two principal grounds. First and most fundamentally, no majority opinion of
this court has ever employed a state standard of proportionality
that is distinct from the federal standard.
Herrera
articulated a
state standard, but it did so in a manner that simply parroted the
governing federal standard. Thus, in applying the above-quoted
standard of proportionality, the
Herrera
court cited precedent
applying the
federal
standard and concluded that the federal
standard ―appl[ied] with equal force to our consideration of
Herrera‘s claims under the cruel and unusual punishment[s]
clause of the Utah Constitution.‖
court cited
State v. Mace
,
(con‘t.)
A.C.J. L EE , concurring
That likewise holds for the other majority opinion cited in
Herrera
—
State v. Copeland
, 765 P.2d 1266, 1270 (Utah 1988).
Copeland
‘s proportionality analysis was also federal in nature, as
was the proportionality analysis in the other majority opinions
from which
Copeland
‘s standards emanate.
See id.
(citing
State v.
Hanson
, 627 P.2d 53, 56 (Utah 1981) (federal Eighth Amendment
claim; citing, in turn,
State v. Nance
,
standard of proportionality that it adopted.
See Herrera
, 1999 UT
64 ¶ 33 (citing
State v. Gardner
,
foundation of the Solem standard as a matter of federal constitutional law, noting as follows:
[T]wo sitting justices of the United States Supreme Court have articulated the view that the Eighth Amendment does not embody a proportionality requirement for sentences in noncapital cases, and . . . three other justices would forbid only sentences that are ―grossly disproportionate‖ to the crime committed. Our use of the term ―disproportional‖ in the text is not meant to express any view on the status of this evolving jurisprudence, nor is the meaning of the term at issue in the present case.
Mace
,
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standard it identifies is a hazy and unworkable one. This is
another ground rebutting the presumption of
stare decisis
.
[191]
An
unpredictable legal standard is simply not one that litigants can
use as a guidepost in organizing their affairs. For that reason
courts have long held that unworkable precedents do not qualify
for
stare decisis
deference.
[192]
This court‘s precedents on
proportionality in sentencing are an archetype of unworkability.
That fact is reflected in the federal decisions on which our own
cases are based
[193]
and in legal commentary.
[194]
See, e.g.
,
Utah Dep’t of Transp. v. Admiral Beverage Corp.
, 2011
UT 62, ¶¶ 36–42, 275 P.3d 208 (overruling
Ivers v. Utah Dep’t of
Transp.
, 2007 UT 19, 154 P.3d 802, both because it was ―wrongly
decided‖ and because its holding was ―unworkable in practice‖).
Id.
;
see also Payne v. Tennessee
, 501 U.S. 808, 842–43 (1991)
(Souter, J., concurring) (―In prior cases, when this Court has
confronted a wrongly decided, unworkable precedent calling for
some further action by the Court, we have chosen not to
compound the original error, but to overrule the precedent.‖);
Swift & Co. v. Wickham
,
categorical proportionality review the Court employs . . . lacks a
(con‘t.)
A.C.J. L EE , concurring This problem is highlighted by the formulation set forth
in the dissenting opinion in this case. Quoting the Nevada Supreme Court, the dissent proposes a standard of proportionality that would turn ―‗largely, if not entirely, upon the humanitarian instincts of the judiciary‘‖—a standard that openly acknowledges that ―‗[w]e have nothing to guide us in defining what is cruel and unusual apart from our consciences,‘‖ or in other words, the ―‗mosaic of our beliefs, our backgrounds and the degree of our faith in the dignity of the human personality.‘‖ Infra ¶ 255 (quoting Naovarath v. State , 779 P.2d 944, 947 (Nev. 1989)). No part of that formulation could sustain any reasonable reliance interests. No criminal defendant or prosecutor could reliably divine what the ―consciences‖ or ―beliefs‖ of the judges assessing a particular sentencing practice might dictate in any anticipated trial or appeal. The proportionality standard as formulated by the dissent is the very definition of unworkability. It cannot possibly sustain any reasonable reliance interests, and thus has no claim to stare decisis .
B. An Originalist View of Article I, Section 9
For the above reasons, I would not feel bound to follow
our prior pronouncements on the meaning of article I, section 9.
Instead, I would take a fresh look at the important question of the
meaning of the Utah Cruel and Unusual Punishments Clause. In
principled foundation.‖);
Harmelin
,
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¶ 149 ―Our state and federal constitutions are not just
supreme; they are organic or constitutive, in that they establish
the fundamental ground rules for lawmaking and fixed bulwarks
against potential tyrannies of the majority.‖
State v. Walker
, 2011
UT 53, ¶ 35, 267 P.3d 210 (Lee, J., concurring). The founding
purpose of the U.S. Constitution was to ―form[ ] the fundamental
and paramount law of the nation,‖ by establishing ―certain limits
not to be transcended‖ and ―designed to be permanent.‖
Marbury
v. Madison
,
interpretation. We implement the principles of the constitution as
originally adopted because that is the very point of having a
written constitution. When judges seize the discretion to amend
and adapt the provisions of the constitution, those principles
cease to be the ―paramount law of the nation.‖
Id
. at 177. Or at
least they can no longer be thought of as ―permanent‖ rules that
are ―not to be transcended.‖
Id
. at 176. Thus, ―originalism is not
just a wise starting point; it is the beginning and end of the judge‘s
function, and an essential limitation on judicial power.‖
Walker
,
inevitability—of adaptation of the law over time. Thus, the case for originalism is not, as is sometimes assumed, an insistence that the founding generation had a monopoly on wisdom. Instead, the originalist simply recognizes and respects the means by which our laws are supposed to adapt under the terms of the See, e.g. , Thurgood Marshall, Reflections on the Bicentennial of the United States Constitution , 101 H ARV . L. R EV . 1, 1–2 (1987) (―I do not believe that the meaning of the Constitution was forever ‗fixed‘ at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the framers particularly profound.‖).
A.C.J. L EE , concurring
constitution. Such means are twofold: (a) amendment of the constitution through the super-majoritarian procedures set forth in its provisions [196] and (b) the implementation of policies embraced by the people through their representatives in the political branches of government—by the adoption of statutes, regulations, and other laws within the limitations prescribed in the constitution. These and other forms of legal adaptation refute a
common critique of originalism—that it shackles society to rule by a ―dead hand.‖ As these examples illustrate, the originalist does See U.S. C ONST . art. V (―The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress . . . .‖); U TAH C ONST . art. XXIII, § 1 (―Any amendment or amendments to this Constitution may be proposed in either house of the Legislature, and if two-thirds of all the members elected to each of the two houses, shall vote in favor thereof, such proposed amendment or amendments shall be entered on their respective journals with the yeas and nays taken thereon; and the Legislature shall cause the same to be published in at least one newspaper in every county of the state, where a newspaper is published, for two months immediately preceding the next general election, at which time the said amendment or amendments shall be submitted to the electors of the state for their approval or rejection, and if a majority of the electors voting thereon shall approve the same, such amendment or amendments shall become part of this Constitution.‖). Justice William J. Brennan, Jr., Speech to the Text and
Teaching Symposium, Georgetown University, Washington, D.C., Oct. 12, 1985, in O RIGINALISM : A Q UARTER C ENTURY OF D EBATE 55 (Steven G. Calabresi ed., 2005) (―[T]he genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to
(con‘t.)
*69
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mean what they meant to the minds of the voters of the state
when the provision was adopted.‖
Tintic Standard Mining Co. v.
Utah Cnty.
, 15 P.2d 633, 637 (Utah 1932). This is the approach to
cope with current problems and current needs.‖); Michael S.
Moore,
A Natural Law Theory of Interpretation
, 58 S. C AL . L. R EV .
277, 357 (1985) (―The dead hand of the past ought not to govern,
for example, our treatment of the liberty of free speech, and any
theory of interpretation that demands that it does is a bad
theory.‖).
Am. Bush v. City of South Salt Lake
,
1235 (Parrish, J., majority opinion) (noting that ―[s]ocial values
and public opinion . . . fluctuate over time,‖ but that the
appropriate response is for the people to address such problems
―through
legislative enactments or even to amend our
constitution‖);
id. ¶
¶ 79, 82 (Durrant, J., concurring) (noting that it
is ―enticing to adopt an interpretive technique whereby we, as
judges, look to our own attitudes and views to discern the
contours of the protective boundary erected by our state
constitution,‖ but explaining that this approach ―is more akin to
dictating than judging‖).
See Walker
,
that the ―barriers to amendment of our laws are by design,‖ and
that ―[m]embers of the public are entitled to rely on and organize
their affairs around the law as positively enacted—unless and
until the law is amended or repealed‖);
Am. Bush
,
A.C.J. L EE , concurring
constitutional interpretation that this court has embraced—with a
few notable exceptions —for most of its history.
[201]
Compare Soc’y of Separationists, Inc. v. Whitehead
, 870 P.2d
916, 921 n.6 (Utah 1993) (―We have encouraged parties briefing
state constitutional issues to use . . . sister state law . . . and policy
arguments in the form of economic and sociological materials to
assist us in arriving at a proper interpretation of the provision in
question.‖),
with Am. Bush
, 2006 UT 40, ¶ 12 n.3 (―We have
intentionally excluded the consideration of policy arguments
suggested by
Soc’y of Separationists v. Whitehead
,
Originalism:
A Response
, 2014 U TAH L. R EV . O N L AW 1, 5–6 & nn.
26–36, 9–10 & nn.59–64 (citing and discussing this court‘s
approach to constitutional
interpretation over time, and
concluding that the prevailing approach has largely been
originalist (citing
Richardson v. Treasure Hill Mining Co.
,
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out of a judge‘s ―humanitarian instincts‖ is no constitution at all.
Or at least it is not a ―written‖ constitution capable of ―form[ing]
the fundamental and paramount law of the nation,‖ or of
establishing ―certain limits not to be transcended‖ and ―designed
to be permanent.‖
Marbury
,
by all ―officers made elective or appointive by this Constitution or by the laws made in pursuance thereof, to ―support, obey and defend‖ the United States and Utah Constitutions). The ―evolving standards‖ approach has one thing going for
(con‘t.)
A.C.J. L EE , concurring
¶ 157 I would accordingly reject the ―evolving‖ anti- originalist approach endorsed by the dissent. Instead, I would adopt an interpretation of article I, section 9 rooted in the understanding of this provision that prevailed in the late nineteenth century. For reasons explored below, I would conclude that that understanding does not deputize the courts to second- guess punishments they deem excessive or lacking in proportionality, but only to proscribe methods of punishment historically rejected as barbaric or torturous. I would base that conclusion on the text and structure of article I, section 9; the history and understanding of this provision‘s federal and state counterparts at the time of its adoption in the late nineteenth century; and the drafting history and post-ratification history of this provision.
1. Text and Structure of Article I, Section 9 Article I, section 9 provides that ―[e]xcessive bail shall not be required; excessive fines shall not be imposed; nor shall cruel and unusual punishments be inflicted.‖ U TAH C ONST . art. I, § 9. The structure and language of this provision cut against an interpretation that would authorize the courts to assess the proportionality of a sentence, and suggest instead an inquiry into the nature or the method of punishment. The first cue from the terms of this provision is
structural. In its first two clauses, article I, section 9 expressly calls for proportionality review—by proscribing ―[e]xcessive bail‖ and ―excessive fines.‖ The essence of excessiveness , after all, is it; it is transparent. But a standard of constitutionality that expressly depends on the ―humanitarian instincts‖ or ―beliefs‖ of the judge(s) assigned to a particular case is incoherent. The oath that we take to uphold the constitution confirms that it is supposed to mean something concrete and objectively discernible. We thwart that premise—and replace it with an insistence that the constitution will mean different things in different courtrooms— when we repudiate originalism and insist on our right to see that the constitution evolves as a living document over time.
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support for the dissent‘s contrary view. This canon resolves
ambiguities in a term in a statutory list by importing points of
parallelism among other terms in the list.
See Thayer v. Wash. Cnty.
Sch. Dist.
,
(con‘t.) *74 S
A.C.J. L EE , concurring
¶ 161 Clearly ―cruel and unusual‖ is not the same as ―excessive.‖ The relevant (nineteenth century) sense of ―cruel‖ is ―[d]isposed to give pain,‖ ―barbarous.‖ W EBSTER ‘ S C OMMON S CHOOL D ICTIONARY 82 (1892). [208] Tellingly, the dissent does not point out any attested usage of the word ―cruel‖ that reflects the notion of proportionality. The same goes for ―unusual.‖ In the relevant time period, that term was understood simply as ―not usual; uncommon; rare.‖ Id. at 393. Thus, a punishment is ―cruel and unusual‖ if it is rare or uncommon in its barbarousness or tendency to cause pain. That has nothing to do with its proportionality in relation to the underlying offense. ―Excessive[ness],‖ on the other hand, is an unmistakable reference to the principle of proportionality. Historically, this term was understood to mean ―[b]eyond any given degree, measure or limit, or beyond the common measure or proportion ‖ and ―[b]eyond the laws of morality and religion, or beyond the bounds of justice, fitness, propriety, expedience or utility.‖ W EBSTER ‘ S A MERICAN D ICTIONARY OF THE E NGLISH L ANGUAGE 314 (3d ed. 1830) (emphasis added); see also W EBSTER ‘ S C OMMON CHOOL D ICTIONARY (defining ―excess‖ as ―intemperance; the amount by which one thing exceeds another‖). This underscores the structural point highlighted above. Where article I, section 9 employs a term encompassing proportionality review in two of its clauses but not in the third, the message seems clear: Excessiveness or proportionality review is limited to judicial consideration of bail and fines, and does not extend more broadly to punishments. The dissent deems this distinction ―unnatural,‖
―incongruous,‖ and ―‗anomalous.‘‖ Infra ¶ 224 (quoting Solem , 463 U.S. at 289). And, citing cases interpreting the Eighth Amendment of the U.S. Constitution, the dissent asserts that ―[t]he Supreme third noun (punishments) already modified by its own adjectives (cruel and unusual). See also W EBSTER ‘ S A MERICAN D ICTIONARY OF THE E NGLISH
L ANGUAGE (3d ed. 1830) (defining ―cruel‖ as ―[d]isposed to give pain to others, in body or mind; willing or pleased to torment, vex, or afflict; inhuman; destitute of pity, compassion or kindness; fierce; ferocious; savage; barbarous; hard-hearted‖).
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The logic of the matter is quite the opposite. If ―cruel and unusual punishments‖ included disproportionate punishments, the separate prohibition of disproportionate fines (which are certainly punishments) would have been entirely superfluous. When two parts of a provision (the Eighth Amendment) use different language to address the same or similar subject matter, a difference in meaning is assumed.
. . . .
But, it might be argued, why would any rational person be careful to forbid the disproportionality of fines but provide no protection against the disproportionality of more severe punishments? Does not the one suggest the existence of the other? Not at all. There is good reason to be concerned that fines, uniquely of all punishments, will be imposed in a measure out of accord with the penal goals of retribution and deterrence. Imprisonment, corporal punishment, and even capital punishment cost a State money; fines are a source of revenue. As we have recognized in the context of other constitutional provisions, it makes sense to scrutinize governmental action more closely when the State stands to benefit.
Harmelin
,
long embraced the canon of independent meaning (or, in other
A.C.J. L EE , concurring
words, a presumption against superfluous language).
See, e.g.
,
Hi-Country Prop. Rights Grp. v. Emmer
,
¶ 165 For these reasons, the language and structure of the Utah Constitution are incompatible with the proportionality standard embraced by the dissent. Instead, the terms of this provision appear to be directed at a standard focused on the question whether a punishment is one that is both ―barbarous‖ or ―disposed to give pain‖ and ―uncommon‖ or ―rare.‖
B. Original Public Meaning of ―Cruel and Unusual Punishments‖ This view is confirmed by evidence of the original public meaning of the Utah Cruel and Unusual Punishments Clause and of its federal and English antecedents. Article I, section 9 traces its roots to a parallel provision in the U.S. Constitution‘s Eighth Amendment. And the federal provision, in turn, was based on a parallel clause in the English Bill of Rights. This background highlights three additional historical sources that inform my understanding of the meaning of article I, section 9: (1) the English origins of the principle of cruel and unusual punishments, (2) the original understanding of the federal Cruel and Unusual Punishments Clause, and (3) the understanding prevailing at the time of the adoption of the Utah Constitution. All three sources are incompatible with the principle of proportionality endorsed by the dissent, and point instead The two clauses are nearly identical. Compare U.S. C ONST . amend. VIII (―Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.‖), with U TAH C ONST . art. I, § 9 (―Excessive bail shall not be required; excessive fines shall not be imposed; nor shall cruel and unusual punishments be inflicted. Persons arrested or imprisoned shall not be treated with unnecessary rigor.‖).
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a. The English origins of protection against ―cruel and unusual punishments‖ ¶ 168 I do not doubt that the ―maxim that the punishment must fit the crime‖ is a matter ―foundational‖ to any ―reasoned system of criminal justice.‖ Infra ¶ 214. But the question presented does not concern the wisdom or general applicability of this ―venerable principle,‖ infra ¶ 214, as a matter of aspirational public policy. Instead, the question is whether and to what extent this principle is incorporated in the terms of the Cruel and Unusual Punishments Clause. And that question must be answered by reference to the original meaning of the operative terms of the constitution. The quest for original meaning is not simply a search
for deeply embedded historical values. Again, the premise of originalism is not that a dusty tome is more worthy of respect than a modern one, but that a written constitution is aimed at cementing established principles in place unless and until they are repealed or amended. See supra ¶¶ 148–152. So the venerable historical sources cited in the dissent— see infra ¶¶ 214–15 (quoting the Code of Hammurabi, Leviticus, Plato, and Cicero)—are ultimately beside the point. The fact that sages of centuries past embraced proportionality in sentencing tells us little about the doctrine embedded in the U.S. Constitution in 1789, or the Utah Constitution in 1896. (And, in any event, the quoted provisions speak only to general aspirational policy of proportionality in criminal punishment; we undoubtedly have long embraced that general policy in the United States, but that doesn‘t mean that our constitutional law requires our judges to enforce such a principle as against legislatively endorsed punishments.) To derive an original understanding of the constitution, we must consider its text and legal underpinnings. The Cruel and Unusual Punishments Clause borrows terms and concepts from the English Bill of Rights. Compare An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown, 1 W. & M., 2d sess., ch. 2 (Dec. 16, 1689) (―That excessive bail ought not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.‖), with U.S. C ONST . amend. VIII (―Excessive bail shall not be required, nor excessive fines
A.C.J. L EE , concurring
imposed, nor cruel and unusual punishments inflicted.‖). So the starting point for any historical study of the Eighth Amendment is an inquiry into the understanding of that provision that prevailed historically. In its initial invocations of the principle of
proportionality, the United States Supreme Court proceeded in
open disdain for the original meaning of the Eighth Amendment.
In
Weems v. United States
, for example, the Court openly
acknowledged that it was embracing a ―progressive‖ legal
standard that was ―not fastened to the obsolete.‖ 217 U.S. at 378.
Thus, far from attempting to connect up its view with original
meaning, the
Weems
Court endorsed a principle that could
―acquire meaning as public opinion becomes enlightened by a
humane justice.‖
Id
.
Trop v. Dulles
, 356 U.S. 86 (1958), is to the
same effect. There the Court formulated the principle endorsed by
the dissent in this case—a proportionality inquiry rooted in
―evolving standards of decency that mark the progress of a
maturing society.‖
Infra
¶ 213 (quoting
Trop
,
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1685 case of Titus Oates, which was decided the year after the
A.C.J. L EE , concurring
adoption of the English Bill of Rights. Oates was a ―Protestant cleric whose false accusations had caused the execution of 15 prominent Catholics for allegedly organizing a ‗Popish Plot‘ to overthrow King Charles II in 1679.‖ Id . at 969. Oates was ―tried and convicted before the King‘s Bench for perjury.‖ Id . His crime, of ―bearing false witness against another, with an express premeditated design to take away his life, so as the innocent person be condemned and executed,‘ had, at one time, been treated as a species of murder, and punished with death.‖ Id . at 969–70. Yet
[a]t sentencing, [Lord Chief Justice] Jeffreys complained that death was no longer available as a penalty and lamented that ―a proportionable punishment of that crime can scarce by our law, as it now stands, be inflicted upon him.‖ Second Trial of Titus Oates, 10 How. St. Tr. 1227, 1314 (K.B. 1685). The law would not stand in the way, however. The judges met, and, according to Jeffreys, were in unanimous agreement that ―crimes of this nature are left to be punished according to the discretion of this court, so far as that the judgment extend not to life or member.‖ Ibid . Another justice taunted Oates that ―we have taken special care of you,‖ id. , at 1316. The court then decreed that he should pay a fine of ―1000 marks upon each Indictment,‖ that he should be ―stript of [his] Canonical Habits,‖ that he should stand in the pillory annually at certain specified times and places, that on May 20 he should be whipped by ―the common hangman‖ ―from Aldgate to Newgate,‖ that he should be similarly whipped on May 22 ―from Newgate to Tyburn,‖ and that he should be imprisoned for life. Ibid .
Harmelin
,
and the Lords‘ opinions form the basis of the Harmelin opinion‘s sense of the content of the English Bill of Rights‘ protection against ―cruell and unusuall Punishments.‖ Id . ―‗Not a single peer ventured to affirm that the judgment was legal: but much was said about the odious character of the appellant,‘ and the Lords affirmed the judgment.‖ Id . ―A minority of the Lords dissented, however, and their statement sheds light on the meaning of the
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history of Oates‘s trial, highlighting statements in the House of Lords that all thought ―such an extravagant Judgment ought not to have been given, or a Punishment so exorbitant inflicted on an English Subject,‖ or in the House of Commons that members described the sentence as ―excessive‖ and ―extravagant.‖ Infra ¶ 234. It also cites the work of one legal scholar who has concluded, in part based upon his reading of the Oates materials, that the ―English Cruell and Unusuall Punishments Clause was originally understood to prohibit new punishments that were excessive in light of prior practice.‖ Infra ¶ 233 (quoting John F. Stinneford, Rethinking Proportionality Under the Cruel and Unusual *82 H
A.C.J. L EE , concurring
Punishments Clause , 97 V A . L. R EV . 899, (2011)). There are several problems with the dissent‘s take on the Oates case. First, it is not true that Oates‘s punishment was ―unprecedented in its severity,‖ as the dissent puts it. Infra ¶ 234. It is simply not the case that parts of Oates‘s sentence (like the flogging that would probably have resulted in death) would have been seen as disproportionate to his crime—perjury with the intent (and the result) of having fifteen innocent people executed. See Harmelin , 501 U.S. at 973 n.4 (Scalia, J.); see also Anthony F. Granucci, ―Nor Cruel and Unusual Punishments Inflicted:‖ The Original Meaning , 57 C ALIF . L. R EV . 839, 859 n.97 (1969) (citing 4 T HE D IARY OF J OHN E VELYN (E. DeBeer ed. 1955) (noting contemporary opinion that Oates‘s ―punishment was but what he well deserved‖)); 3 T HOMAS B ABINGTON M ACAULAY , T HE ISTORY OF E NGLAND FROM THE A CCESSION OF J AMES II (1898) (noting that Oates‘s ―sufferings, great as they might seem, had been trifling when compared with his crimes‖). Indeed, the reason Lord Chief Justice Jeffreys complained that ―a proportionable punishment of that crime can scarce by our law, as it now stands, be inflicted upon [Oates],‖ Second Trial of Titus Oates , 10 How. St. Tr. 1227, 1314 (K.B. 1685), is that the crime of which Oates was convicted used to be punishable by death . See 4 B LACKSTONE , supra at *196 (noting that under ―the antient [sic] common law‖ it was ―a species of killing held to be murder‖ to ―bear[] false witness against another, with an express premeditated design to take away his life, so as the innocent person be condemned and executed‖). But such punishment was discontinued and had no statutory authorization. Thus, the problem with Oates‘s sentence, in the view of the dissenting Lords and the House of Commons, was its unusualness or illegality. Second, the Lords‘ and Commons‘ references to
―excessive[ness]‖ may well have referred to the 2,000 marks Oates was fined, an amount that ―may have been excessive‖ for the time period, Granucci, supra at 859, and which was undoubtedly subject to the Excessive Fines Clause of the English Bill of Rights. See Earl of Devon’s Case , 11 State Trials 133, 136 (1689) (condemning a ―fine of thirty thousand pounds‖ as ―excessive and exorbitant.‖).
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A principal source for the dissent‘s view of originalism is the research of Professor Stinneford. See infra ¶ 233 (citing John F. Stinneford, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause , 97 V A . L. R EV . (2011)). I find Stinneford‘s historical analysis helpful on some points, but deem his thesis unsupported by the history that he cites. In any event, it should be noted that Stinneford does not endorse the freewheeling approach to proportionality endorsed by the dissent. See Stinneford, supra at (criticizing the U.S. Supreme Court‘s ―proportionality jurisprudence‖ as arbitrary and noting ―the lack of a workable method for measuring the excessiveness of punishment‖); id. at 968 (―The evolving standards of decency test has proven itself an unreliable and ineffective measure of cruelty. [And] [s]ole reliance on the Court‘s ‗independent judgment,‘ on the other hand, would be standardless and potentially antidemocratic.‖ (footnote omitted)); id. at 969 (arguing for proportionality as determined by ―the bounds‖ of the common law and prior practice).
S H
A.C.J. L EE , concurring
etc.; administering poison to procure abortion; sodomy; rape; statutory rape, and certain classes of forgery.‖ [211] Thus, the more careful analysis of the English origins of the Eighth Amendment indicates an understanding in line with the terms and structure of article I, section 9—that it did not impose a principle of proportionality, but only a limitation on ―cruel‖ forms of punishment that were ―unusual‖ in the sense of being unauthorized by past precedent.
b. Original understanding of the Eighth Amendment This conclusion is also confirmed by the practice and debate that prevailed in the United States at or around the time of the federal framing. In state conventions leading to the ratification of the United States Constitution, for example, an objection was raised that the Constitution (then without a Bill of Rights) ―nowhere restrained‖ Congress ―from inventing the most cruel and unheard-of punishments, and annexing them to crimes.‖ 2 J ONATHAN E LLIOT , D EBATES OF THE F EDERAL C ONSTITUTION 111 (2d ed. 1854). And, in context, the reference to such ―cruel and unheard-of punishments‖ was not about proportionality, but about form—a concern that without such a ―constitutional check,‖ Congress might be inclined to turn to cruel punishments such as ―racks and gibbets,‖ which ―may be amongst the most mild instruments‖ imaginable. Id .
Harmelin
,
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lines. One commentator spoke of ―[t]he prohibition of cruel and unusual punishments‖ as ―mark[ing] the improved spirit of the age, which would not tolerate the use of the rack or stake, or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion.‖ J AMES B AYARD , A B RIEF E XPOSITION OF THE C ONSTITUTION OF THE U NITED S TATES 154 (2d ed. 1840). Another spoke of the Eighth Amendment‘s Cruel and Unusual Punishments Clause as prohibiting ―[t]he various barbarous and cruel punishments inflicted under the laws of some other countries,‖ such as ―[b]reaking on the wheel, flaying alive, rendering asunder with horses, [and] various species of horrible tortures inflicted in the inquisition,‖ such as ―maiming, mutilating and scourging to death.‖ B ENJAMIN L. O LIVER , T HE R IGHTS OF AN A MERICAN C ITIZEN 186 (1832).
See also 3 J OSEPH S TORY , C OMMENTARIES ON THE C ONSTITUTION OF THE U NITED TATES § 1896 (1833) (asserting that the Eighth Amendment was ―adopted as an admonition to all departments of the national government, to warn them against such violent proceedings , as had taken place in England in the arbitrary reigns of some of the Stuarts‖ (emphasis added)); Harmelin , 501 U.S. at 981–82 (discussing these and other commentaries, and concluding that they ―contain[] no reference to disproportionate or excessive sentences‖ and indicate that the Cruel and Unusual Punishments Clause was understood as ―designed to outlaw particular modes of punishment‖).
A.C.J. L EE , concurring
¶ 186 This commentary confirms what is indicated by the other historical sources cited above: The federal Cruel and Unusual Punishments Clause was widely understood not to prescribe an assessment of proportionality, but simply to prohibit modes of punishment that were ―cruel‖ in the sense of being barbaric and ―unusual‖ in the sense of being unprecedented.
c. The public understanding at the time of the Utah framing This same understanding of ―cruel and unusual punishments‖ prevailed at the time of the framing of the Utah Constitution. Thus, even if there were doubt about the original meaning of the federal Cruel and Unusual Punishments Clause, the question presented here would yield a straightforward answer: Article I, section 9, as originally adopted in 1896, is not a license for judicial assessment of the proportionality of criminal punishment; it is merely a prohibition of modes of punishment that are unprecedented in their barbarousness or tendency to inflict pain. State and federal courts consistently conceived of the
constitutional prohibition of cruel and unusual punishments in
this way, often expressly rejecting the type of proportionality
State v. Williams
, 77 Mo. 310, 312–13 (1883) (holding that
cruel and unusual does not refer to prison sentences as a mode of
punishment but only to ―such punishments as amount to torture‖
such as ―drawing and quartering‖ or ―burning him at the stake‖);
People ex rel. Kemmler v. Durston
, 7 N.Y.S. 813, 815 (Sup. Ct. Gen.
Term 1889) (holding that the provision bans modes of punishment
that ―involve torture and a lingering death‖);
In re Kemmler
,
7 N.Y.S. 145, 149–50 (Co. Ct. 1889) (―[I]t is clearly not against
[death as a mode of punishment] that the constitution is directed‖
rather it extends to punishments such as ―crucifixion, boiling in
water, oil, or lead, blowing from cannon‘s mouth, burning,
breaking on the wheel, dismemberment, [and] burying alive.‖);
James v. Commonwealth
, 12 Serg. & Rawle 220, 235 (Pa. 1825)
(holding that ―the ducking-stool‖ was an illegal punishment
under ―the humane provisions of the constitutions of the United
Sates and of [Pennsylvania], as to cruel and unusual
punishments‖);
Ligan v. State
,
(con‘t.)
*87
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defendant‘s
argument
that
sentence was
―entirely
disproportionate to the nature and character of the offense‖ and
holding that ―[s]o long as [legislators] do not provide cruel and
unusual punishments, such as disgraced the civilization of former
ages, and make one shudder with horror to read of them, as
drawing, quartering, burning, etc., the Constitution does not put
any limit upon legislative discretion‖);
State v. White
,
(con‘t.)
A.C.J. L EE , concurring
and unusual punishments‖ as a limitation on barbaric
methods
of
punishment, while emphasizing that the length of a prison term
was a matter for legislative discretion. In the words of the
constitution and holding that the punishments ―prohibited by our
constitution‖ are the ―cruel‖ and ―inhuman‖ punishments such as
―loading him with weights,‖ ―drown[ing], disembowel[ment],‖ or
being ―sewed up in a leather sack with a live dog, a cock, a viper,
and an ape, and cast into the sea‖);
Territory v. Ketchum
, 10 N.M.
718, 718 (1901) (expressing ―great doubt,‖ based on the then-state
of constitutional law that ―the courts, in any case, have the power
to review legislative discretion in determining the severity of
punishment for crime, so long as all forms of torture have been
avoided‖);
Garcia v. Territory
, 1 N.M. 415, 417–19 (1869)
(upholding sentence of lashing for stealing a mule on the grounds
that cruel and unusual punishment has reference only to ―the
process of torture‖ and that it was otherwise ―never designed to
abridge or limit the selection by the law-making power of such
kind of punishment as was deemed most effective in the
punishment and suppression of crime‖);
People ex rel. Kemmler v.
Durston
,
(affirming sentence involving a fine and imprisonment for unlawful sale of intoxicating liquor and explaining that the length of imprisonment is a matter ―for the legislature to determine‖); Barker v. People , 20 Johns. 457, 459 (N.Y. 1823) (affirming punishment of disenfranchisement on conviction of dueling, rejecting challenge on cruel and unusual punishments grounds
(con‘t.)
*89
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including in the decade in which our Utah Constitution was
adopted. An exemplary decision was
Hobbs v. State
,
while explaining that ―[t]he disfranchisement of a citizen is not an
unusual punishment; it was the consequence of treason, and of
infamous crimes, and it was altogether discretionary in the
legislature to extend that punishment to other offences‖);
Aldridge
v. Commonwealth
,
(affirming sentence of five-year term of imprisonment for crime of receiving stolen property ―of the value of one dollar‖; rejecting
(con‘t.)
A.C.J. L EE , concurring This same approach was reflected in legal commentary
in the era. ―Punishments‖ were understood as ―cruel when they involve[d] torture or a lingering death.‖ 3 B OUVIER ‘ S L AW D ICTIONARY 2771 (8th ed. 1914). On the question of ―[w]hat punishment is suited to a specified offence,‖ moreover, the prevailing view was that that matter ―must in general be determined by the legislature.‖ Id . Thus, a ―[s]entence for a term not exceeding that prescribed by statute‖ was not ―regarded as a cruel or unusual punishment.‖ Id . It may be a bit of an overstatement to say that the
nineteenth-century view of the courts on this point was
―universal.‖
See Harmelin
, 501 U.S. at 984 (opinion of Scalia, J.)
(articulating this view);
Weems
, 217 U.S. at 402 (White, J.,
dissenting) (same). At or around the time the Utah Constitution
was adopted, some courts had endorsed the view that the
constitutional prohibition of cruel and unusual punishments
encompassed a standard of review for proportionality of prison
terms. And at least a couple of legal treatises had begun to
challenge to sentence on the ground that it was ―cruel and
unusual‖ punishment, particularly in light of the fact that the thief
himself could only have been sentenced to imprisonment for one
year; explaining that ―[u]pon the legislature alone is conferred the
power to fix the minimum and maximum of the punishment for
all crimes,‖ and that a ―law which provides a greater maximum
penalty for receiving stolen property than for the larceny of it
cannot be held to authorize cruel and unusual punishment‖);
Jackson v. United States
,
dissenting) (asserting that the Eighth Amendment is ―directed, not only against punishments‖ of a barbarous or unduly painful nature, but also ―against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged‖); McDonald v. Commonwealth , 53 N.E. 874, 875 (Mass. 1899) (―[I]t is possible that imprisonment in the state prison for a long term of years might be so disproportionate to the offense as
(con‘t.)
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preponderance‖ of courts in the nineteenth century adopted the
approach it takes today.
Infra
¶ 244. But in so concluding, the
dissent ignores—or at least fails to refute or distinguish—a
significant segment of the body of cases cited above.
See supra
¶¶ 188–89 & nn.31–35. And in any event the authority it cites does
not support this conclusion. Before the dissenting opinion in
O’Neil
(1892) and then the majority in
Weems
(1910), the United
States Supreme Court had never endorsed proportionality review
under the Eighth Amendment.
Weems
and subsequent Supreme
Court caselaw recognize as much.
Weems
,
A.C.J. L EE , concurring
tide-change in Eighth Amendment law instigated by the
O’Neil
dissent and the
Weems
majority (emphasis added)). The dissent‘s
reading of relevant caselaw prior to
Weems
is, in my view, in error.
The dissent derides my reading of
Pervear
as ―unduly
strained‖ and somehow meant to sustain the proposition that the
Supreme Court ―was proclaiming the punishments imposed by
statute to be immune from constitutional review.‖
Supra
¶ 239.
First, I am not claiming that a legislative enactment can never be
cruel and unusual. And no court ever held any such thing. Instead, my point is simply that the prohibition on ―cruel and
unusual punishments‖ goes to the barbarousness or torturousness
of the punishment, and not to the length of the term of
confinement. Second, my reading of
Pervear
is hardly ―strained‖;
the Court in that case did hold that ―[t]he mode adopted‖ to
punish a crime ―is wholly within the discretion of State
legislatures.‖
Pervear
, 72 U.S. at 480. Third, it is the dissent that
stretches the scope of
Pervear
beyond what it bears by concluding
that the Court ―implicitly recognized its understanding that
excessive punishments may be cruel and unusual punishments.‖
Infra
¶ 238. There is little question why the Court indicated that it
―perceive[d] nothing excessive, or cruel, or unusual‖ in Pervear‘s
sentence.
Pervear
,
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establishing the authority of the
judiciary to overturn a
disproportionate sentence, only two of them actually overturned a
prisoner‘s sentence.
See State ex rel. Garvey v. Whitaker
,
the phrase cruel and unusual punishments was aimed ―to prevent the imposition of obsolete, painful, and degrading punishments,‖ and then holding that ―[w]e do not think that the fine imposed upon the petitioner by the trial court was excessive , nor the punishment growing out of the failure to pay, or secured to be paid, that fine, is cruel or unusual‖ (emphasis added)). Even this dictum, moreover, represented a clear departure
from prior practice. See Sturtevant v. Commonwealth , 33 N.E. 648, 649 (Mass. 1893) (holding that the ―cruel or unusual‖ punishments clause applied to ―courts, not to the legislature‖);
(con‘t.)
A.C.J. L EE , concurring
Jugs of Intoxicating Liquor
is along similar lines.
against its position—notwithstanding the dissent‘s attempts to
discredit them.
People v. Smith
, 54 N.W. 487 (Mich. 1893),
unequivocally stated that ―the legislature alone‖ had ―the power
to fix the minimum and maximum of the punishment for all
crimes.‖
Id
. at 488. The dissent views this decision as undermined
by a case handed down ―just two years later‖—
People v. Whitney
,
(Va. Gen. Ct. 1824), also undermines the dissent‘s view. And the
case cannot properly be dismissed on the ―racial animus‖ grounds
charged by the dissent.
Infra
¶¶ 248–49. Granted, an element of
the
Aldridge
court‘s analysis was based on the notion that the Bill
of Rights did not apply to African Americans.
Aldridge
, 4 Va. at
449. But the court also articulated an alternative—and
legitimate—ground: It expressly held that the Cruel and Unusual
Punishments Clause ―[had no] bearing on th[e] case‖ because the
provision did not ―control the right to determine . . . the
adequacy
of the punishment, but [wa]s merely applicable to the modes of
punishment.‖
Id.
at 450. And, in the subsequent case of
Commonwealth v. Wyatt
,
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prominent cruel and unusual punishment case out of Utah in the
late nineteenth century,
People v. Wilkinson
,
The question . . . presents itself: ―Is the manner designated in the case before us, that of death by shooting, a cruel and unusual punishment?‖ We do not think the appellant so considers it, nor do we think he could. It is the mode adopted for the army in enforcing discipline; it is a mode recognized and practised in other civilized countries to enforce criminal laws; and, as we have seen, it was approved by express statute of this Territory for nearly a
A.C.J. L EE , concurring
quarter of a century, and as history tells us, it is the manner of death of which criminals in this Territory made choice in preference to other modes, such as hanging and beheading. That manner cannot be cruel which criminals prefer, and that cannot be unusual which is often adopted.
Id . at 164.
¶ 198 The Wilkinson court‘s approach is entirely in line with the historically accepted view outlined above. Instead of assessing the proportionality or excessiveness of the punishment, the Wilkinson court‘s analysis deems the element of ―cruel[ty]‖ to go to the ―manner‖ of punishment, and that of ―unusual[ness]‖ to be addressed to the extent to which a punishment is ―adopted‖ by law and common practice. The United States Supreme Court‘s decision affirming
the Territorial Supreme Court is even clearer. Far from assessing proportionality or excessiveness, the Supreme Court directed its consideration of ―cruelty‖ to methods of punishment involving ―torture,‖ or in other words ―terror, pain, or disgrace.‖ Wilkerson , 99 U.S. at 135. Thus, in affirming the sentence of death by firing squad, the Supreme Court made reference to modes of barbarous punishment such as ―where the prisoner was drawn or dragged to the place of execution,‖ or ―where he was embowelled alive, beheaded, and quartered.‖ Id . And in conceptualizing ―the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted,‖ the Supreme Court held ―that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that emendment [sic] to the Constitution.‖ Id . at 136. Because ―[n]othing of the kind‖ was involved in this case, the Supreme Court affirmed, rejecting ―the theory . . . that the court possessed no authority to prescribe the mode of execution‖ while holding that ―death by shooting‖ was by no means cruel and unusual punishment. Id . at 136–37. I suppose it‘s true that the Wilkerson decision did not ―define with exactness the [full] extent‖ of the Eighth Amendment, but held only that ―punishments of torture . . . are forbidden‖ by it. Infra ¶ 242 (quoting Wilkerson , 99 U.S. at 136). But the quoted statements are the sum and substance of the court‘s analysis of the Eighth Amendment, and they make no reference to proportionality. And in any event, any doubts about
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¶ 201 This was the prevailing public understanding of ―cruel and unusual punishments‖ at the time of the framing of the Utah Constitution. As the author of the dissenting opinion today opined previously, ―[l]egal scholars and jurists continued to accept this understanding of the phrase [‗cruel and unusual‘] throughout the nineteenth century despite occasional attempts to expand the cruel and unusual punishments clause to prohibit punishments deemed disproportionate to the crime.‖ State v. Gardner , 947 P.2d 630, 636 (Utah 1997) (Durham, J., plurality opinion) (citing Granucci, supra at 842). At that time a few isolated judges and commentators had alluded to a theory of constitutional review for proportionality, but the overwhelming majority view was to the contrary—foreclosing only those barbarous methods of punishment rejected by law and common practice. And the majority approach had been endorsed by our Territorial Supreme Court in an opinion affirmed by the U.S. Supreme Court.
3. History of Article I, Section 9 The history of article I, section 9 supports this same construction. As the dissent indicates, proposed constitutions for the State of Deseret (a series of them, from 1849 to 1872) broadly provided that ―[a]ll penalties and punishments shall be in proportion to the offence.‖ D ESERET C ONST . art. VII, § 8; infra ¶ 216. But this general proviso never became law. By the time we became a state, the people of Utah had abandoned the broad principle of proportionality in the proposed Deseret constitutions. They adopted instead a provision that limits the excessiveness inquiry to the imposition of bail and fines. See U TAH C ONST . art. I, § 9. The dissent interprets this drafting history to preserve a
broad principle of proportionality. See infra ¶¶ 216–17 & n.1. I see no basis for that conclusion. In light of the plain language of article I, section 9, I see no way to conclude that our constitution embraced a broad principle of proportionality for ―all penalties
A.C.J. L EE , concurring
and punishments.‖ Instead, I would interpret this provision as repudiating the general principle and replacing it with a more limited standard (restricting review for excessiveness to bail and fines). Other state constitutions—including many in place at
the time of the founding of this state—embrace the formulation in the proposed Deseret provision. Many of those provisions expressly require proportionality in punishment in addition to prohibiting the ―cruel and unusual.‖ And courts interpreted them in accordance with their terms. In State v. Woodward , 69 S.E. 385 (W. Va. 1910), for example, the West Virginia Supreme Court concluded that its Cruel and Unusual Punishments Clause did ―not affect legislation providing imprisonment for life or years,‖ but applied only to ―inhuman, barbarous inflictions.‖ Id. at 388– 89. Yet the court then went on to examine the propriety of a six month to one year prison sentence for violations of ―Sunday‖ laws, noting the West Virginia Constitution commanded that ―[p]enalties shall be proportioned to the character and degree of See, e.g. , G A . C ONST . art. I, §§ 16, 21 (1868) (―[N]or shall cruel and unusual punishments be inflicted.‖; ―All penalties shall be proportioned to the nature of the offence.‖); I LL . C ONST . art. II, § 11 (1870) (―All penalties shall be proportioned to the nature of the offense. . . .‖); I ND . C ONST . art. I, § 16 (1851) (―Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense.‖); M E . C ONST . art. I, § 9 (1820) (―Sanguinary laws shall not be passed: all penalties and punishments shall be proportioned to the offence: excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.‖); N EB . C ONST . art. I, § 15 (1875) (―All penalties shall be proportioned to the nature of the offense . . . .‖); O HIO C ONST . art. VIII, §§ 13, 14 (1803) (―Excessive bail shall not be required; excessive fines shall not be imposed, nor cruel and unusual punishment inflicted. . . . All penalties shall be proportioned to the nature of the offense.‖); W. V A . C ONST . art. III, § 5 (1872) (―Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Penalties shall be proportioned to the character and degree of the offence.‖).
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requiring that ―[a]ll penalties . . . be proportioned to the nature of the offense‖ and prohibiting ―cruel and unusual punishments‖— presupposes that the two provisions have independent meaning. See, e.g. , Hi-Country Prop. Rights Grp. v. Emmer , 2013 UT 33, ¶ 24, 304 P.3d 851 (interpreting statute ―under the presumption of independent meaning (and/or its converse, the presumption against surplusage)‖); Vota v. Ohio Copper Co. , 129 P. 349, 353 (Utah 1912) (―It is our duty to give effect to every word or phrase contained in [a] statute. . . .‖). That alone suggests that the prohibition of ―cruel and unusual punishments‖ is something other than a requirement of proportionality. It also indicates, by implication, that the framers of the Utah Constitution rejected a principle of proportionality when they declined to include the proportionality provision in article I, section 9. I suppose it is conceivable that the framers of the Utah
Constitution were aware of the outlier cases identified above—
cases embracing proportionality review as an element of the
constitutional prohibition of cruel and unusual punishments.
See
supra
¶ 194 & n.40. But the text our framers adopted strikes me as
a highly unlikely mode of embracing this aberrational theory.
And if they had intended to buck the prevailing view in other
jurisdictions operating under parallel clauses, it seems likely they
would have addressed the matter openly in debate—as they did
on other such points of dispute. Yet the record of the
The court acknowledged that the words ―cruel and
unusual‖ had been held to ban imprisonment that was ―too long a
time,‖ but the only authority the court cited was
Weems
.
State v.
Woodward
,
THE C ONVENTION 429–92 (1895) (debates over women‘s suffrage); id. at 326–38 (debates over the phrase ―or damaged‖ into the Takings Clause); id. at 294–97 (debates over permitting a jury of less than twelve to have less-than-unanimous verdicts in civil
(con‘t.) *100 S H
A.C.J. L EE , concurring
constitutional convention is silent on article I, section 9. That is significant. It suggests, all other things being equal, that our framers were endorsing the prevailing approach to ―cruel and unusual punishments,‖ and were not embracing a burgeoning theory of proportionality. That conclusion is confirmed by the post-ratification
history of this provision in the wake of the U.S. Supreme Court‘s
decision in
Weems
. The
Weems
decision was the U.S. Supreme
Court‘s first articulation of a principle of proportionality under
the Eighth Amendment of the U.S. Constitution.
noted ―agitat[ion] over the action of the supreme court of the United States in inaugurating what is designated as a new era in the punishment of criminals— that of requiring punishment to be proportionate to the offense .‖ New Era in Criminal Penology Commences , S ALT L AKE H ERALD , at 1 (May 9, 1910) (emphasis added). That account is impossible to square with the notion of cases). Yet virtually nothing about article I, section 9 was said during the debates over our constitution. See id. at 257 (noting the reading of article I, section 9, one objection to the Unnecessary Rigor Clause, some response to that objection, and the striking of that clause). See also New Era in Criminal Penology Commences , S ALT L AKE ERALD , at 1 (May 9, 1910) (―The court has determined that the
eighth amendment is not applicable to the states, and hence the states will not be compelled to follow the new principles .‖ (emphasis added)); Supreme Court Arouses Lawyers , O GDEN TANDARD , at 7 (May 9, 1910) (―It was admitted that the constitution makers have used this phrase only to prohibit the resort to inhuman methods for causing bodily torture. It had been used to prevent a return . . . to the English custom of
(con‘t.)
*101
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the specific context of a claim like Houston‘s (challenging the imposition of a sentence of life without parole on a juvenile): At the time of the framing of the Utah Constitution and for many disemboweling traitors and burning alive women who committed treason. The court decided to regard these precedents as milestones in the advance of civilization and not as limitation on the phrase.‖); Criminals and Their Punishment , D ESERET E VENING N EWS , at 7 (May 9, 1910) (―Much speculation exists as to the effect of the decision. . . . Most of the states . . . have provisions in their constitutions similar to the eighth amendment and it is believed the decision will have a powerful influence in the future interpretation of these.‖ (emphasis added)); Penalty Must Fit the Crime , S ALT L AKE T RIBUNE , at 1–2 (May 9, 1910); Holds Punishment Cruel: Supreme Court Orders Release of Convicted Philippine Official , N.Y. T IMES , at 4 (May 9, 1910) (noting that the Supreme Court had ―[f]or the first time in its history‖ overturned a sentence on cruel and unusual punishment grounds and that ―the musty precedents of the past‖ only used the words ―cruel and unusual‖ to ―prohibit a resort to inhuman methods for causing bodily torture‖). I have no doubt that the founding generation in Utah would have bristled at the notion of the death sentence ―for a minor infraction such as public intoxication.‖ Infra ¶ 226. And it would not be surprising to hear that some of them may have thought of such a sentence, colloquially, as ―cruel.‖ Infra ¶ 226. Presumably that‘s why they didn‘t adopt such a disproportionate sentence. But that ultimately tells us nothing about the original understanding of the constitutional construct of ―cruel and unusual punishments.‖ That question, instead, requires an examination of the founding generation‘s understanding of this legal term of art.
A.C.J. L EE , concurring
years thereafter, a juvenile convicted of murder [230] would have been subject to either the death penalty or to life in prison without the possibility of parole. [231] This well-established, widely applicable sentencing scheme renders Houston‘s claim of unconstitutionality highly questionable. Because our founding-era justice system clearly and expressly required a juvenile convicted of murder to be sentenced to a life-without-parole sentence or worse, I find it difficult to believe that such sentence would have been viewed as ―cruel and unusual‖ at the time of our founding. [232]
[230] From the time of the founding of the Utah Constitution until 1907, Utah had no separate system for adjudicating crimes committed by minors. See 1907 Laws of Utah 207–14 (establishing the juvenile court system). And even after 1907, a minor who committed a felony was tried in the district courts, not the juvenile system. See, e.g. , 1907 Laws of Utah 208, § 2 (―[Juvenile] Court[s] shall have no jurisdiction in cases involving the commission of a felony.‖). Thus, a minor like Houston would have been ―liable to be punished under the laws of this state.‖ U TAH C OMP . L AWS 1907, § 4072.
[231]
See
U TAH C OMP . L AWS 1907, § 4071 (―All persons are capable
of committing crimes except . . . . [c]hildren under the age of seven
years; [c]hildren between the ages of seven years and fourteen
years, in the absence of clear proof that at the time of committing
the act charged against them they knew its wrongfulness.‖);
id
.
§ 4162 (―Every person guilty of murder in the first degree shall
suffer death, or, upon the recommendation of the jury, may be
imprisoned at hard labor in the state prison for life, in the
discretion of the court.‖);
see also State v. Thorne
,
actions of the First Congress . . . are persuasive evidence of what
(con‘t.)
*103
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torturous or barbarous form of punishment. His claim, instead, goes to the alleged excessiveness of his prison term. He alleges, specifically, that his ―immaturity, vulnerability, impetuosity, and underdeveloped character render him less culpable than an adult with fully developed brain and value systems,‖ and as a result his sentence constitutes ―disproportionate punishment.‖ This is not a cognizable constitutional claim under article I, section 9. Because Houston challenges only the excessiveness of his prison term, he has not asserted a claim under the Utah Constitution as originally understood. I would reject that claim on that basis.
the Constitution means. . . .‖); M’Culloch v. Maryland , 17 U.S. (4 Wheat) 316, 401–02 (1819) (relying on the fact that the power to establish a national bank ―was exercised by the first congress‖ and that ―[a]n exposition of the constitution, deliberately established by legislative acts . . . ought not to be lightly disregarded‖). *104 H
J. D URHAM , dissenting
J USTICE D URHAM , dissenting:
¶ 213 I disagree with the majority‘s conclusion that
sentencing juveniles to life without the possibility of parole
(LWOP) is not cruel and unusual under article I, section 9 of the
Utah Constitution. In my view, the diminished culpability of
juveniles, combined with the exceeding harshness and irreversible
nature of LWOP, makes this sentence unconstitutionally
disproportionate and inconsistent with the ―evolving standards of
decency that mark the progress of a maturing society.‖
Trop v.
Dulles
,
I. UTAH‘S CRUEL AND UNUSUAL PUNISHMENTS CLAUSE AND PROPORTIONAL SENTENCING A. The Principle of Proportionality Perhaps no theory of punishment is more foundational to a reasoned system of criminal justice than the maxim that the punishment must fit the crime. This venerable principle can be traced back to the Code of Hammurabi and the Mosaic codes found in the Old Testament. C ODE OF AMMURABI § 196 (c. 1770 B.C.E.) (―If a man destroy the eye of another man, one shall destroy his eye.‖); Leviticus 24:20 (―Breach for breach, eye for eye, tooth for tooth: as he hath caused a blemish in a man, so shall it be done to him again.‖); see M ORRIS R APHAEL C OHEN , R EASON AND L AW 53 (1950) (―But if . . . an eye for an eye or a tooth for a tooth[] sounds too barbaric today, may we not . . . put it thus: Everyone is to be punished alike in proportion to the gravity of his offense . . . ?‖). The ancient Greeks and Romans also acknowledged punishments in a just society must be proportional to the crime. P LATO , L AWS bk. XI, at 934, in 5 T HE D IALOGUES OF P LATO (B. Jowett trans., New York, MacMillan & Co. 3d ed. 1892) (c. 350 B.C.E.) (―[T]he law, like a good archer, should aim at the right measure of punishment, and in all cases at the deserved punishment.‖); C ICERO , D E O FFICIIS bk. I, ch. XXV, at 91 (Walter Miller trans., Harvard Univ. Press 1997) (44 B.C.E.) (―We should take care also that the punishment shall not be out of proportion to the offense . . . .‖). Consequently, ―[t]he principle that a punishment
should be proportionate to the crime is deeply rooted and frequently repeated in common-law jurisprudence.‖ Solem v. Helm , 463 U.S. 277, 284 (1983). Indeed, the Magna Carta of 1215 guaranteed rights to proportional punishment: ―A free man shall
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It is a kind of quackery in government, and argues a want of solid skill, to apply the same universal remedy, the ultimum supplicium [the death penalty], to every case of difficulty. It is, it must be owned, much easier to extirpate than to amend mankind: yet that magistrate must be esteemed both a weak and a cruel surgeon, who cuts off every limb, which through ignorance or indolence he will not attempt to cure. It has been therefore ingeniously proposed, that in every state a scale of crimes should be formed, with a corresponding scale of punishments, descending from the greatest to the least . . . .
4 W ILLIAM B LACKSTONE , C OMMENTARIES *17–*18 (footnote omitted). The early settlers of the Utah Territory intended that the
―deeply rooted‖ common law principle of proportional punishment be constitutionally protected. In 1849, residents of what would become the Utah Territory prepared a proposed state constitution guaranteeing that ―[a]ll penalties and punishments shall be in proportion to the offence.‖ C ONSTITUTION OF THE TATE OF D ESERET 10 (Kanesville, Orson Hyde 1849). Constitutional conventions held in 1856 and 1862 produced proposed state constitutions containing identical guarantees of proportional punishment. Constitution of the State of Deseret , D ESERET N EWS , April 2, 1856, at 30; S EN . M ISC . D OC . No. 35–240, at 2, 4 (1858); H.R. M ISC . D OC . N O . 37–78, at 5 (1862). The fundamental principle of proportional punishment
was carried forward into Utah‘s cruel and unusual punishments clause. The draft constitutions of 1872 and 1882 and the state
S
J. D URHAM , dissenting
constitution adopted in 1895 replaced the more explicit guarantee of proportional punishment found in prior draft constitutions with language drawn from the Eighth Amendment of the U.S. Constitution: ―Excessive bail shall not be required; excessive fines shall not be imposed; nor shall cruel and unusual punishments be inflicted.‖ U TAH C ONST . art. I, § 9; accord H.R. M ISC . D OC . N O . 42– 165, at 5 (1872); C ONSTITUTION OF THE TATE OF U TAH 20 (Salt Lake City, D ESERET N EWS C O . 1882). The Supreme Court has long held that identical language found in the Eighth Amendment prohibits disproportionate punishments. Solem , 463 U.S. at 290 (―[A] criminal sentence must be proportionate to the crime for which the defendant has been convicted.‖); Weems v. United States , 217 U.S. 349, 367 (1910) (―[I]t is a precept of justice that punishment for crime should be graduated and proportioned to offense.‖); O’Neil v. Vermont , 144 U.S. 323, 331–32, 339–40 (1892) (Field, J., dissenting) (although the majority declined to address the issue of proportionality under the Eighth Amendment because it was not briefed and because the amendment had not yet been extended to the states, the dissent reasoned that the Eighth Amendment The 1872 draft constitution was modeled after the recently approved Nevada Constitution as part of the Utah Territory‘s ongoing efforts to obtain statehood despite national opposition to the practice of polygamy. Soc’y of Separationists, Inc. v. Whitehead , 870 P.2d 916, 928 n.31 (Utah 1993) (―In 1872 the constitutional convention borrowed the constitution of Nevada as the basis for its proposed constitution.‖ (internal quotation marks omitted)); see H.R. M ISC . D OC . N O . 42–165, 42d at 4 (1872) (―The constitution of the proposed State, which is presented [to Congress] herewith, looks to the development of those improvements of political science which elsewhere excite public attention; for it will be observed that it provides for minority representation, impartial suffrage, and equal public educational facilities, without distinction of race, color, religion, or citizenship.‖) The cruel and unusual punishments clause contained in the 1872 draft is identical to the corresponding clause found in the Nevada Constitution. Compare H.R. M ISC . D OC . N O . 42–165, at 5 (1872), with N EV . C ONST . art. I, § 6. The language found in the Nevada Constitution was taken from the Eighth Amendment of the U.S. Constitution.
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¶ 218 Courts have cited two principal reasons for interpreting the text of the Eighth Amendment to guarantee proportional punishment. Some courts have held that the Eighth Amendment‘s explicit prohibitions of ―[e]xcessive bail‖ and ―excessive fines‖ must extend to bar excessive terms of imprisonment as ―cruel and unusual.‖ Solem , 463 U.S. at 289. Other courts have held that disproportionately harsh sentences are both ―cruel‖ and ―unusual‖ within the meaning of those terms. Weems , 217 U.S. at 364, 377 (A sentence of twelve years of ―hard and painful labor‖ for making false entries in an official document was ―cruel in its excess of imprisonment and that which accompanies and follows imprisonment. It is unusual in its character. Its punishments come under the condemnation of the Bill of Rights, both on account of their degree and kind.‖). Other states that have similar cruel and unusual
punishments clauses in their constitutions have interpreted this
clause to protect against disproportionate sentences.
See, e.g.,
McDonald v. Commonwealth
, 53 N.E. 874, 875 (Mass. 1899);
In re
Lynch
, 503 P.2d 921, 930 (Cal. 1972). Although the interpretation
given to similar or even identical language found in the federal
Constitution or the constitutions of our sister states is not binding,
we may look to these interpretations when construing Utah‘s
Constitution.
Soc’y of Separationists, Inc. v. Whitehead
,
unusual punishments clause of the Utah Constitution provides
protections against disproportionate punishments similar to the
safeguards provided by the Eighth Amendment. Thus, ―[a]
criminal punishment is cruel and unusual under article I, section 9
if it is so disproportionate to the offense committed that it shock[s]
the moral sense of all reasonable men as to what is right and
proper under the circumstances.‖
State v. Lafferty
, 2001 UT 19,
¶ 73,
J. D URHAM , dissenting
B. Utah’s Cruel and Unusual Punishments Clause Prohibits Disproportionate Punishments ¶ 221 In his concurring opinion, Justice Lee argues that we should abandon our caselaw affirming that the cruel and unusual punishments clause of the Utah Constitution forbids disproportionate sentences. The concurrence asserts that both the text of this clause and the historical understanding of the language adopted in the Utah Constitution point to a more limited understanding of ―cruel and unusual punishments.‖ Under this interpretation, the Utah Constitution bans methods of punishment that are barbaric, but does not prohibit an excessive application of an otherwise permissible mode of punishment.
¶ 222 I, along with a majority of this court, disagree. The text of the cruel and unusual punishments clause demonstrates that disproportionate punishments—not just barbaric methods of punishment—are prohibited. Moreover, the historical understanding of the term ―cruel and unusual punishments‖ at the time Utah adopted its constitution affirms, rather than detracts from, this reading of the text.
1. Text of Utah‘s Cruel and Unusual Punishments Clause Article I, section 9 of the Utah Constitution provides: ―Excessive bail shall not be required; excessive fines shall not be imposed; nor shall cruel and unusual punishments be inflicted.‖ This section contains three parallel clauses. The first two clauses prohibit ―[e]xcessive bail‖ and ―excessive fines‖ and expressly incorporate the principle of proportionality. They require the amount of money a defendant may be required to deposit in security to remain free, as well as the amount in fines that a convicted individual may be required to pay, to be commensurate with the crime. The third prohibition against ―cruel and unusual punishments‖ does not contain an explicit reference to proportionality. Invoking the canon of independent meaning, the
concurrence asserts that this structure indicates that the framers of the Utah Constitution intended to protect citizens from disproportionate fines, but not excessive prison sentences or the disproportionate application of the death penalty (both accepted methods of punishment in Utah). Supra ¶¶ 158–65. This structural reading of article I, section 9, however, produces an unnatural and incongruous result. A more appropriate canon of construction to
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We have recognized that the Eighth Amendment
imposes ―parallel limitations‖ on bail, fines, and
other punishments, and the text is explicit that bail
and fines may not be excessive. It would be
anomalous indeed if the lesser punishment of a fine
and the greater punishment of death were both
subject
to proportionality analysis, but
the
intermediate punishment of imprisonment were not.
Solem
,
because of its long-standing application to this constitutional language. It was first used in Justice Field‘s influential 1892 dissent in O’Neil v. Vermont , where he reasoned: ―The whole inhibition is against that which is excessive either in the bail required, or fine imposed, or punishment inflicted.‖ 144 U.S. at 340 (quoted in Weems , 217 U.S. at 371). Because this canon was applied before Utah adopted article I, section 9, it is more appropriate to apply the noscitur a sociis canon to this constitutional provision. The plain meaning of ―cruel and unusual punishments‖
reinforces this structural interpretation. The concurrence looks to several nineteenth century definitions of the word ―cruel‖ and argues that because none of these dictionary definitions do not expressly incorporate the concept of proportionality, Utah citizens would have understood ―cruel‖ to exclude this notion. Supra ¶ 161. Under this logic, Utahns in 1895 would not have understood a death sentence imposed for a minor infraction such as public intoxication as a ―cruel‖ punishment because the death penalty was not deemed to be an inherently barbarous penalty. This cannot be the case. The definition of ―cruel‖ is broad enough to include grossly disproportionate punishments. Such punishments can be said to be ―inhuman;‖ ―destitute of pity,
J. D URHAM , dissenting
compassion or kindness;‖ or ―hard-hearted.‖ W EBSTER ‘ S A MERICAN D ICTIONARY OF THE E NGLISH L ANGUAGE 210 (3d ed. 1830) (defining ―cruel‖). As noted by the California Supreme Court:
A contrary view leads to the astounding result that it is impossible to impose a cruel and unusual punishment so long as none of the old and discarded modes of punishment are used; and that there is no restriction upon the power of the legislative department, for example, to prescribe the death penalty by hanging for a misdemeanor, and that the courts would be compelled to impose the penalty. Yet such a punishment for such a crime would be considered extremely cruel and unusual by all right- mined people.
Cox v. State
,
2. Historical Understanding of ―Cruel and Unusual
Punishments‖ The concurrence also argues that the framers of the Utah Constitution would not have understood article I, section 9‘s prohibition of ―cruel and unusual punishments‖ to forbid disproportionate punishments. Supra ¶¶ 166–67. Most of the historical evidence cited by the concurrence, however, merely supports the conclusion that this phrase was traditionally understood to include barbaric modes of punishment. This evidence does not advance the theory advocated by the concurrence: that the term ―cruel and unusual punishments‖ traditionally excluded cruelly disproportionate applications of otherwise acceptable modes of punishment. A proper historical understanding of ―cruel and unusual punishments‖ includes both the method and the severity of punishment imposed.
a. The English Bill of Rights As noted by the concurrence, supra ¶ 170, the language for Utah‘s cruel and unusual punishments clause originated in the English Bill of Rights of 1689, which provides ―[t]hat excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted,‖ An Act Declareing the Rights and Liberties of the Subject and Setleing the Succession of
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Oates tried for perjury for falsely accusing prominent English Catholics of organizing a ―Popish Plot‖ to overthrow his brother, King Charles II. Harmelin v. Michigan , 501 U.S. 957, 969 (1991) (opinion of Scalia, J.). These accusations resulted in the execution of fifteen individuals. Id. Oates was found guilty, and the court sentenced him to life imprisonment and to annually stand in pillory and be whipped through the streets of London. Id. at 970. Shortly after James II was deposed in the Glorious Revolution of 1688 and the English Bill of Rights was passed, Oates petitioned the House of Lords to overturn his sentence. Id. Even though the Lords considered the judgment of sentence to be ―erroneous‖ and ―exorbitant,‖ a majority of the House of Lords declined to overturn the sentence. 10 H.C. Jour. 249 (1689). Instead, the Lords deemed it sufficient to introduce a bill to ―prevent . . . like Judgments for the future.‖ Id . Members of the House of Commons took up Oates‘s cause, however, and passed a bill urging the House of Lords to reconsider. Id . at 251. The record of the proceedings before the House of
Lords and the House of Commons reveals that the debate over Oates‘s fate was largely driven by the sectarian politics and prejudices of the time. Members of the House of Commons argued that Oates‘s conviction should be set aside as corrupt because the trial was called for by the recently deposed ―Papist‖ King James II after ―partial, corrupt, and unqualified Persons were returned, and served on Juries.‖ Id. at 248. House Members also asserted that the Jesuit novices who gave testimony against Oates could not be trusted to honor their oaths as witnesses because their superiors would have instructed them to lie in order ―to discredit the Evidence of the Popish Plot; and disparage those Parliaments who had prosecuted it with so much Vigour.‖ Id . The House of Commons further urged the House of Lords to consider whether denying Oates‘s petition would be ―interpreted a great Step towards disavowing the Popish Plot,‖ as it had already been understood by rival powers ―beyond Sea,‖ and to contemplate whether this tacit admission would ―be so much for the Honour of our Nation, or our Religion.‖ Id . at 247. Members of the House
J. D URHAM , dissenting
of Lords, on the other hand, seemed to view Oates and his improbable conspiracy theories (including committing perjury ―in other Matters‖ such as accusing the former Queen of conspiring to kill the King, ―which nobody could believe of her‖) as something of an international embarrassment to be swept under the rug. Id. at 249. Although the Lords conceded that Oates‘s sentence was improper, they declined to reverse it, explaining that the Oates case ―was a Matter of great Expectation: That the Eyes of all Europe were upon it: And that it would be the Occasion of great Censures, if he should be set up for a Witness again, without a full Examination of the whole Affair.‖ Id .
¶ 231 As noted by the concurrence, both members of the House of Commons and the dissenting Lords also proffered a legal argument for overturning Oates‘s sentence based upon the recently passed English Bill of Rights. Supra ¶¶ 176–77. Given the extent to which national and religious politics pervaded this debate, however, it is somewhat difficult to discern the degree to which these political concerns colored the legal reasoning found in the record. But the comments preserved in the legislative record undoubtably provide some insight into the original meaning of the prohibition against ―cruel and unusual punishments‖ contained in the English Bill of Rights. The dissenting Lords argued that the sentence imposed
upon Oates should be overturned under the cruel and unusual punishments clause of the English Bill of Rights because there were ―no Precedents to warrant the Punishments of whipping and committing to Prison for Life, for the Crime of Perjury.‖ 14 H.L. Jour. 228 (1689). Thus, they asserted that the judgment against Oates was ―contrary to Law and ancient Practice, and therefore erroneous, and ought to be reversed.‖ Id . Members of the House of Commons likewise decried the unprecedented nature of punishment, calling the sentence ―illegal‖ and ―against Law.‖ 10 H.C. Jour. 247 (1689). The lesson that the concurrence takes from these
statements is that certain members of Parliament objected only to the illegal and unprecedented nature of Oates‘s sentence, and not the disproportionality of the punishment. Supra ¶ 177. But this is a false distinction. The punishments prescribed were unsupported by ―Precedents‖ and were ―contrary to Law and ancient Practice‖ because they exceeded the punishments previously meted out for similar crimes. As one legal commentator put it: ― Titus Oates’ Case
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¶ 234 This concern that Oates‘s sentence was cruel and unusual because it was unprecedented in its severity is reflected in the Parliamentary record. The dissenting Lords, who argued that Oates‘s sentence should have been overturned, asserted that the sentence was ―barbarous, inhuman, and unchristian‖ because ―there is no Precedents to warrant the Punishments of whipping and committing to Prison for Life, for the Crime of Perjury.‖ 14 H.L. Jour. 228 (1689). Even the Lords in the majority, who affirmed Oates‘s sentence in order to prevent ―so ill a Man‖ from serving as witness in the future, conceded that ―there was not one Lord, but thought the Judgments erroneous, and was fully satisfied, That such an extravagant Judgment ought not to have been given, or a Punishment so exorbitant inflicted upon an English Subject.‖ 10 H.C. Jour. 249 (1689) (first and second emphases added). Members of the House of Commons likewise described the sentence as ―cruel and ignominious,‖ ―excessive,‖ ―severe and extraordinary,‖ and ―an extravagant Judgment‖—all descriptions of the disproportionate nature of the sentence. Id. at 247, 248. Thus the Parliamentary debates over the sentence of Titus Oates, which were conducted in the context of the recently passed English Bill of Rights, demonstrate an original understanding of ―cruel and unusual punishments‖ that includes the concept of proportionality.
b. The understanding of the cruel and unusual punishments
clause contemporaneous to the adoption of the Utah Constitution Of course, the meaning assigned to ―cruel and unusual
punishments‖ in the English Bill of Rights does not control the question of what this phrase means in the context of the Utah Constitution. The relevant issue is what these words meant when our Constitution was drafted and ratified in 1895. The contemporaneous precedents of (1) the U.S. Supreme Court in examining the Eighth Amendment, which is nearly identical to the relevant language of article I, section 9 and (2) state supreme courts that examined similar constitutional clauses reveal that the
J. D URHAM , dissenting
phrase ―cruel and unusual punishments‖ was generally interpreted in line with its plain meaning: that disproportionately harsh punishments were cruel and unusual punishments.
(i) Contemporaneous U.S. Supreme Court precedent ¶ 237 Although the majority of the U.S. Supreme Court did not squarely address the question of whether the Eighth Amendment prohibited disproportionately harsh punishments prior to the adoption of the Utah Constitution, Supreme Court precedent indicates that the Court had assumed that a disproportionately harsh sentence was a cruel and unusual sentence. The Court first addressed a proportional punishments in Pervear v.
argument under the Eighth Amendment Massachusetts , 72 U.S. (5 Wall.) 475 (1866). The defendant in that case argued that his sentence of a fifty dollar fine and three months imprisonment at hard labor for the illegal sale of intoxicating liquors was ―excessive, cruel, and unusual‖ under the Eighth Amendment. Id . at 479–80. The Court declined to resolve this claim because it held that the Eighth Amendment did not apply to state legislation. Id. The Court went on to opine, however, that even if the defendant could invoke the Eighth Amendment, the defendant‘s argument would fail on its merits because the sentence was not excessive: ―We perceive nothing excessive, or cruel, or unusual in [the defendant‘s sentence].‖ Id. at 480. Thus, the Court implicitly recognized that excessive punishments may be cruel and unusual punishments. The concurrence, however, draws a different conclusion
from this opinion. The concurrence focuses on the Court‘s subsequent observation that the objective of liquor licencing laws is ―to protect the community against the manifold evils of intemperance‖ and that ―[t]he mode adopted, of prohibiting under penalties the sale and keeping for sale of intoxicating liquors, without license, is the usual mode adopted in many, perhaps, all of the States. It is wholly within the discretion of State legislatures.‖ Id. The concurrence interprets this language to mean that the ―mode‖ of enforcing liquor licensing laws is completely within the discretion of the state legislature and could never be deemed cruel and unusual so long as the legislature does not employ inherently cruel methods of punishment. Supra ¶ 188 n.33. This reading is unduly strained. There is no indication that when
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is directed, not only against punishments of the character mentioned [the rack, thumb-screws, iron boots, and stretching of limbs], but against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged. The whole inhibition is against that which is excessive either in the bail required, or fine imposed, or punishment inflicted.
Id. at 339–40. A separate dissenting opinion authored by Justice Harlan and joined by Justice Brewer expressed a similar view, declaring that a sentence of fifty-four years ―inflicts punishment which, in view of the character of the offenses committed, must be deemed cruel and unusual.‖ Id. at 371. For the purpose of the inquiry at issue here—the
prevailing understanding of the phrase ―cruel and unusual punishments‖ when the Utah Constitution was drafted and ratified in 1895—it is of little importance that the opinions of Justices Field, Harlan, and Brewer are not binding precedent. The unchallenged opinion of three Supreme Court justices that a disproportionate sentence is also a cruel and unusual sentence just three years before Utah adopted its constitution is convincing
J. D URHAM , dissenting
evidence of how contemporaries would have understood this phrase.
¶ 242 The U.S. Supreme Court case that the concurrence relies
upon,
Wilkerson v. Utah
,
certainly affirm the principle that inherently cruel methods of punishment are proscribed by the Eighth Amendment, these opinions do not provide that this is the outer limit of the protections afforded by this amendment. The Court did not consider whether execution was a disproportionately harsh punishment for first-degree murder for the simple reason that this claim was never raised. Indeed, such an argument certainly would have been deemed frivolous in 1878.
(ii) Contemporaneous state supreme court precedent The preponderance of state courts that addressed the proportional punishments question under identical state constitutional provisions agreed with the reading of ―cruel and
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significantly undermine these contemporaneous pronouncements
J. D URHAM , dissenting
that a disproportionate sentence may be a cruel and unusual sentence. The concurring opinion cites several older state opinions that state the general proposition that the severity of a sentence is left to the legislature. See Commonwealth v. Hitchings , 71 Mass. (5 Gray) 482, 486 (1855) (―The question whether the punishment is too severe, and disproportionate to the offence, is for the legislature to determine.‖); Barker v. People , 20 Johns. 457, 459 (N.Y. Sup. Ct. 1823) (―[I]t was altogether discretionary in the legislature to extend [the punishment of disenfranchisement] to other offences.‖). These broad pronouncements that the legislature has the discretion to determine the severity of sentences do not directly lead to the conclusion that a sentence authorized by statute could never be unconstitutionally disproportionate. Indeed, courts in both Massachusetts and New York later announced that a disproportionately severe sentence could be set aside as cruel and unusual. McDonald v. Commonwealth , 53 N.E. at 875; In re Bayard , 63 How. Pr. 73, 77 (N.Y. Gen. Term 1881) (holding that ―cruel and unusual punishments‖ may include ―punishments so disproportioned to the offense as to shock the sense of the community‖). In a terse opinion, the Michigan Supreme Court also
rejected a claim that a sentence was cruel and unusual by stating
that ―[u]pon the legislature alone is conferred the power to fix the
minimum and maximum of the punishment for all crimes.‖
People
v. Smith
,
The concurrence also cites a federal Ninth Circuit case, which states that ―[t]he general rule is well settled that the sentence and punishment imposed upon a defendant for any violation of the provisions of the statute, which is within the punishment
(con‘t.)
*119
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48
(Va. Gen. Ct. 1824), a defendant challenged
the
constitutionality of a Virginia statute authorizing his punishment
as a ―‗free man of color‘‖ convicted of larceny to be whipped with
thirty-nine lashes, sold into slavery, and transported beyond the
provided for by the statute, cannot be regarded as excessive, cruel,
or unusual.‖
Jackson v. United States
,
J. D URHAM , dissenting
borders of the United States. The court denied the defendant‘s constitutional challenge, arguing that the Eighth Amendment was never intended to extend to slaves or ―free blacks and mulattoes.‖ Id. at 449. The court went on to opine in dicta, however, that the constitutional prohibition against cruel and unusual punishments ―was never designed to control the Legislative right to determine ad libitum upon the adequacy of punishment, but is merely applicable to the modes of punishment.‖ Id. at 449–50. The reasoning of Aldridge , however, does not reflect the
common understanding of ―cruel and unusual punishments‖ and may best be explained by racial animus. Indeed, just four years later a Virginia court contradicted Aldridge . In Commonwealth v. Wyatt , 27 Va. (6 Rand.) 694, 698 (Va. Gen. Ct. 1828), the court examined a statute permitting a judge to sentence a person guilty of operating an illegal card game to be whipped any number of times, so long as only thirty-nine stripes were inflicted at a time. Addressing an argument that the statute permitted cruel and unusual punishments, the court concluded that the statute was not unconstitutional on its face, but suggested that sentencing judges were constitutionally restrained from sentencing an individual to an excessive number of stripes. Id. at 700–701. Hobbs v. State , 32 N.E. 1019 (Ind. 1893) is likewise of limited usefulness in determining the generally accepted meaning of ―cruel and unusual punishments.‖ In addressing a challenge to a prison sentence under the Indiana Constitution, that state‘s supreme court stated that it had not previously analyzed the cruel and unusual punishments clause in any depth. Id. at 1020. The court therefore cited Joseph Story‘s treatise for the proposition that the Cruel and Unusual Punishments Clause of the U.S. Constitution prohibits the violent methods of punishment that ―had taken place in England in the arbitrary reigns of the Stuarts.‖ Id. at 1021 (internal quotation marks omitted). The Indiana Supreme Court then took this thesis one step further and independently concluded that ―cruel and unusual punishments‖ should be read to exclusively prohibit barbaric methods of punishment and that this language ―does not affect legislation providing imprisonment for life or for years.‖ Id. This holding, however, does not represent a common understanding of this constitutional language because the court did not cite any caselaw supporting this proposition. The Indiana Supreme Court came to this conclusion on its own. Indeed, the court seemed to be entirely
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3. Conclusion Under its plain meaning, ―cruel and unusual
punishments‖ includes disproportionately harsh punishments.
And an examination of how this phase was understood in 1895
does not reveal an interpretation that diverges from this plain
meaning. At minimum, however, this court should adhere to
prior precedents where we have recognized that article I, section 9
of the Utah Constitution prohibits disproportionate sentences.
See Lafferty
, 2001 UT 19, ¶ 75;
State v. Herrera
, 1999 UT 64, ¶ 37, 993
P.2d 854. An identical interpretation has long been applied by
federal courts to the Eighth Amendment.
Weems
,
II. PROPORTIONALITY OF JUVENILE LWOP A. Proportionality in Relation to Juveniles
as a Defined Class Because Utah has recognized that article I, section 9 of
the Utah Constitution protects against disproportionately cruel and unusual punishments, I now examine whether sentencing a juvenile to LWOP violates this constitutional protection. As we have previously recognized in State v. Lafferty that ―[a] criminal punishment is cruel and unusual under article I, section 9 if it is so disproportionate to the offense committed that it shock[s] the moral sense of all reasonable men as to what is right and proper under the circumstances.‖ 2001 UT 19, ¶ 73, 20 P.3d 342 (second alteration in original) (internal quotation marks omitted). But an individualized proportionality review under the Lafferty standard is not the only kind of constitutional proportionality analysis. Article I, section 9 also requires courts to consider whether a particular punishment is unconstitutionally disproportionate when applied to a less culpable class of individuals—in this case, juveniles.
J. D URHAM , dissenting
¶ 253 The Supreme Court has recognized that the Eighth
Amendment embodies two distinct types of proportionality
review. First, courts may determine that a sentence
is
unconstitutionally disproportionate, given all of the particular
circumstances of an individual case.
Graham v. Florida,
courts have addressed two questions: (1) whether ―community
consensus‖ favors or disfavors the application of a given penalty
In
State v. Gardner
, a plurality of this court reasoned that
Utah‘s cruel and unusual punishments clause categorically
prohibited the death penalty for the crime of aggravated assault
while in prison.
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More than any other provision in the Constitution the prohibition of cruel and unusual punishment depends largely, if not entirely, upon the humanitarian instincts of the judiciary. We have nothing to guide us in defining what is cruel and unusual apart from our consciences. . . . Our decision must necessarily spring from the mosaic of our beliefs, our backgrounds and the degree of our faith in the dignity of the human personality.
Naovarath v. State
,
B. Independent Assessment of the Proportionality
of Juvenile LWOP ―To be constitutionally proportionate, punishment must
be tailored to a defendant‘s personal responsibility and moral guilt.‖ Harmelin v. Michigan , 501 U.S. 957, 1023 (1991) (White, J., dissenting); accord Williams v. New York , 337 U.S. 241, 247 (1949) (―[T]he punishment should fit the offender and not merely the
J. D URHAM , dissenting
crime.‖);
United States v. Barker
,
recognized that sentences appropriate for adult offenders may not
be applied to juveniles. In
Roper v. Simmons
, the Court held that
juveniles may not be subjected to the death penalty because it is
―disproportionate punishment for offenders under 18.‖ 543 U.S. at
575. The Court subsequently held in
Graham v. Florida
that a
juvenile could not be sentenced to LWOP for a nonhomicide
crime.
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circumstances of childhood that make juveniles less culpable and constitutionally different from adults. Miller , __ U.S. at __, 132 S. Ct. at 2464 (―[C]hildren are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform . . . they are less deserving of the most severe punishments.‖ (internal quotation marks omitted)); see also Thompson v. Oklahoma , 487 U.S. 815, 835 (1988) (plurality opinion) (―[L]ess culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult.‖). These cases rely upon three fundamental characteristics of juveniles that separate them from adults: (1) a lack of maturity, (2) a greater vulnerability to negative influences, and (3) the fact that a juvenile‘s character is less fixed than an adult. Miller , __ U.S. at __, 132 S. Ct. at 2464. The mitigating characteristics of youth must also inform a proportionality analysis under the Utah Constitution. First, juveniles are less culpable because they exhibit ―a
lack of maturity and an underdeveloped sense of responsibility.‖
Id.
(internal quotation marks omitted). The underdeveloped
nature of a juvenile‘s moral compass is not merely a matter of
common-sense that ―any parent knows‖—it is rooted in the
science of brain development.
Id.
(internal quotation marks
omitted). Due to a
lack of maturity, ―‗adolescents are
overrepresented statistically in virtually every category of reckless
behavior.‘‖
Roper
,
S
J. D URHAM , dissenting
least in part, to an underdeveloped brain: ―[D]evelopments in
psychology and brain science continue to show fundamental
differences between juvenile and adult minds. For example, parts
of the brain involved in behavior control continue to mature
through late adolescence.‖
Graham
,
irresponsibility of juveniles, almost every State prohibits those
under 18 years of age from voting, serving on juries, or marrying
without parental consent.‖
Roper
,
influences and are generally unable to extricate themselves from crime-ridden environments. Roper , 543 U.S. at 569. ―[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage.‖ Eddings v. Oklahoma , 455 U.S. 104, 115 (1982). This susceptibility to negative influences is almost invariably coupled with a juvenile‘s inability to change his or her environment. Juveniles are dependent upon their parents or guardians for support and are unable to choose the neighborhood in which they live or, to great extent, the peers with whom they
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and is less likely to be mired in irretrievable depravity and psychological damage. Id. Studies have shown that a majority of juvenile offenders ―age out‖ of criminal behavior as they mature into adulthood. Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty , 58 A M . P SYCHOLOGIST 1009, 1014 (2003) (―For most teens, [antisocial] behaviors are fleeting; they cease with maturity as individual identity becomes settled. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood . . . .‖); Terrie E. Moffitt, Adolescence-Limited and Life- Course-Persistent Antisocial Behavior: A Developmental Taxonomy , 100 P SYCHOL . R EV . 674, 675 (1993) (―The majority of criminal offenders are teenagers; by the early 20s, the number of active offenders decreases by over 50%, and by age 28, almost 85% of former delinquents desist from offending . . . .‖). Given the often fleeting nature of juvenile criminal tendencies, ―[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.‖ Roper , 543 U.S. at 573. Because the adult who serves a life sentence will likely not be the same person who committed even a heinous crime while in their youth, juveniles are less deserving of the harsh sentence of LWOP. The characteristics of youth that make juveniles less
culpable than adults undermine the penological justifications for
an LWOP sentence. ―A sentence
lacking any
legitimate
penological justification is by its nature disproportionate to the
offense.‖
Graham
, 560 U.S. at 71;
accord Atkins
,
S
J. D URHAM , dissenting
penalty that does not adequately serve at least one of the legitimate social goals of punishment—rehabilitation, incapacitation, deterrence, and retribution—is nothing more than the ―unnecessary and wanton infliction of pain‖ and violates Utah‘s cruel and unusual punishments clause. State v. Gardner , 947 P.2d 630, 634 (Utah 1997) (plurality opinion) (internal quotation marks omitted). Juvenile LWOP does not adequately further these traditional justifications for punishment.
¶ 264 LWOP serves no rehabilitative purpose, because the defendant will never be allowed to participate in society. Miller , __ U.S. at __, 132 S. Ct. at 2465 (―Life without parole forswears altogether the rehabilitative ideal.‖ (internal quotation marks omitted)). Indeed, individuals serving LWOP are often denied access to rehabilitation programs in prison for the simple reason they will never be released. Ashley Nellis, The Lives of Juvenile Lifers: Findings from a National Survey , T HE ENTENCING P ROJECT 23–24 (Mar. 2012), http://sentencingproject.org/doc/publications /jj_The_Lives_of_Juvenile_Lifers.pdf. On the other hand, an LWOP sentence does serve the
penological goal of incapacitating the individual from committing future crimes—at least outside of prison. The incapacitation rationale, however, is only valid if the confined individual would commit additional crimes but for his or her incarceration. ―To justify life without parole [under an incapacitation theory] on the assumption that the juvenile offender forever will be a danger to society requires the sentencer to make a judgment that the juvenile is incorrigible.‖ Graham , 560 U.S. at 72. As noted above, however, making a determination that an individual will always be a danger to society based on crimes committed while a juvenile is very difficult given the often transient nature of juvenile criminal tendencies. Supra ¶ 262. Absent reliable indicators that a juvenile will forever be dangerous, the goal of incapacitation is severely undermined. Juvenile LWOP likewise does not adequately serve the
penological goal of deterrence. ―Because juveniles‘ lack of
maturity and underdeveloped sense of responsibility . . . often
result in impetuous and ill-considered actions and decisions, they
are less likely to take a possible punishment into consideration
when making decisions.‖
Graham
, 560 U.S. at 72 (alteration in
original) (citation omitted) (internal quotation marks omitted);
see
also Atkins
,
Cite as:
LWOP. ―The heart of the retribution rationale is that a criminal
sentence must be directly related to the personal culpability of the
criminal offender.‖
Tison v. Arizona
, 481 U.S. 137, 149 (1987).
Because juveniles are inherently less culpable than adults, ―the
case for retribution is not as strong with a minor as with an
adult.‖
Miller
, __ U.S. at __,
proportionality analysis, courts must weigh the culpability of a
particular class of individuals against the severity of the penalty.
In this case, juveniles are not only less culpable than adults; an
LWOP sentence is disproportionate because it is a harsher penalty
for juveniles than it is for adults. LWOP sentences ―share some
characteristics with death sentences that are shared by no other
sentence[]‖ because ―[i]mprisoning an offender until he dies alters
the remainder of his life by a forfeiture that is irrevocable.‖
Miller
,
__ U.S. at __,
J. D URHAM , dissenting
adult and a juvenile sentenced to LWOP ―receive the same punishment in name only.‖ Id.
¶ 269 Thus, in weighing the reduced culpability of juveniles against the severity of juvenile LWOP, I conclude such a sentence is unconstitutionally disproportionate under Utah‘s cruel and unusual punishments clause.
C. Community Consensus Although community consensus regarding a
punishment is not determinative, it is relevant to an analysis of
the constitutionality of juvenile LWOP. In gauging community
consensus, the Supreme Court has looked to whether ―objective
indicia of society‘s standards, as expressed in legislative
enactments and state practice, show a national consensus against
a sentence for a particular class of offenders.‖
Miller
, __ U.S. at __,
regarding juvenile LWOP—is inconclusive. In a vast majority of
states and in the federal criminal system, sentencing laws permit
juvenile LWOP.
Graham
,
Cite as:
community consensus—actual sentencing practices—provides a more definite indication of consensus. ―Actual sentencing practices are an important part of [an] inquiry into consensus.‖ Id . at 62. Thus, even in jurisdictions where legislative enactments permit a particular penalty, infrequent imposition of the punishment may nonetheless indicate popular disapproval of the punishment. Id . (infrequent imposition of juvenile LWOP for nonhomicide crimes in jurisdictions where the penalty ―is permitted by statute discloses a consensus against its use‖); Roper , 543 U.S. at 567 (infrequent imposition of the death penalty on Until recently, Utah was among the states that only permitted juvenile LWOP through its transfer statutes. See U TAH C ODE §§ 78A-6-602(3), 78A-6-702. In 2013, however, the legislature amended the aggravated murder statute to specify that juvenile defendants are not subject to the death penalty, but may be sentenced to either twenty-five years to life or LWOP. 2013 Utah Laws 317.
S
J. D URHAM , dissenting
juvenile offenders contributed to the Court‘s conclusion that
society disapproved of the practice);
Atkins
, 536 U.S. at 316
(infrequent imposition of the death penalty on persons with
mental disabilities indicated community disapproval). A rarely
imposed sentence may also indicate the punishment is ―unusual‖
within the meaning of the constitutional ban on cruel and unusual
punishments.
Atkins
,
sentence in Utah indicates societal disapproval of the punishment and that the sentence is ―unusual‖ within the meaning of Utah‘s cruel and unusual punishments clause. Indeed, prior to Mr. Houston receiving an LWOP sentence for a crime he committed while he was a juvenile, the punishment was more hypothetical than real. Mr. Houston is the only person serving a juvenile LWOP sentence in Utah. Juvenile Life Without Parole (JLWOP) , N AT ‘ L C ONFERENCE OF TATE L EGISLATURES 14 (Feb. 2010), http://www.ncsl.org/documents/cj/jlwopchart.pdf; State Distribution of Estimated 2,589 Juvenile Offenders Serving Juvenile Life Without Parol , H UMAN R IGHTS W ATCH (2004), http://www.hrw.org/sites/default/files/related_material/upda tedJLWOP10.09.pdf. And there is every indication that despite the fact that juvenile LWOP, as well as the death penalty before the Supreme Court declared it unconstitutional, has long been available through the juvenile transfer statute, Mr. Houston is the only juvenile offender to ever receive such a harsh sentence in Utah. Jesse Fruhwirth, To Die in Prison , S TANDARD -E XAMINER , May 6, 2007, at 1A. A sentence so rarely imposed despite its availability through legislative enactment demonstrates this punishment has never garnered wide-spread approval in Utah. Finally, the international consensus against juvenile LWOP confirms my conclusion that this sentence is cruel and The deterrent effect of an infrequently imposed sentence is also greatly reduced, undermining this justification for imposing the penalty in the first instance. See Furman v. Georgia , 408 U.S. 238, 311 (1972) (White, J., concurring) (―[T]he death penalty could so seldom be imposed that it would cease to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system.‖).
Cite as:
consensus against the penalty is all but unanimous. The United States is the only country in the world that currently sentences juveniles to a life imprisonment with no chance of release. Connie de la Vega & Michelle Leighton, Sentencing Our Children to Die in Prison: Global Law and Practice , 42 U.S.F. L. R EV . 983, 989 (2008). Only ten other counties have laws allowing a juvenile LWOP sentence: Antigua and Barbuda, Argentina, Australia, Belize, Brunei, Cuba, Dominica, Saint Vincent and the Grenadines, the Solomon Islands, and Sri Lanka. Id. at 990. But researchers have been unable to identify any juveniles serving an LWOP sentence in these countries, indicating that, in practice, the United States is the only nation to actually impose irreversible life-long imprisonment on minors. Id. at 990, 1004–07. International treaties confirm the international
community‘s condemnation of juvenile LWOP. The U.N. Convention on Rights of the Child (CRC), adopted by almost every nation in the world, provides that ―[n]either capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.‖ GA Res. 44/25, Annex, U.N. GAOR, 44th Sess., Supp. No. 49 at 167, U.N. Doc. A/44/49, at art. 37(a) (Nov. 20, 1989). The United States and Somalia are the only countries that have not ratified the CRC. Connie de la Vega & Michelle Leighton, Sentencing Our Children to Die in Prison: Global Law and Practice , 42 U.S.F. L. R EV . 983, 1009 (2008); Lisa S. Yun, The United States Stands Alone: An International Consensus Against Juvenile Life Without Parole Sentences , 20 S. C AL . I NTERDISC . L.J. 727, 732 (2011); Jelani Jefferson & John W. Head, In Whose ―Best Interests‖?—An International and Comparative Assessment of US Rules on Sentencing of Juveniles , 1 H UM . R TS . & G LOBALIZATION L. R EV . 89, 103 (2008).
J. D URHAM , dissenting
D. Conclusion I agree with the majority‘s holding that Utah Rule of Criminal Procedure 22(e) requires this court to review Mr. Houston‘s unpreserved constitutional challenges to his sentence. I also agree with the majority that the cruel and unusual punishments clause of the Utah Constitution forbids disproportionate punishments—not just methods of punishment that are barbaric. Both this court‘s prior caselaw and an analysis of the text and history of this clause confirm that a disproportionate sentence may be both cruel and unusual. I disagree, however, with the majority‘s conclusion that
juvenile LWOP is not unconstitutionally disproportionate. Both the extreme infrequency of a juvenile LWOP sentence in Utah and global rejection of permanent incarceration for crimes committed before adulthood confirm my independent assessment that juvenile LWOP is cruel and unusual under the Utah Constitution. I would remand with instructions to administer the only other sentence available at the time of Mr. Houston‘s conviction: twenty years to life in prison. See U TAH C ODE § 76-5-202(2) (2005); id . § 76-3-207(5)(a)–(c) (2005). Mr. Houston may well prove to be an irretrievably depraved individual, and a parole board may never deem him fit to rejoin society. Under this scenario, Mr. Houston would justifiably spend the rest of his days behind bars. I find it cruel and unusual, however, to make an irreversible determination that he should die in prison based upon even a heinous crime committed while he was a minor. The special circumstances of youth, which make juveniles less blameworthy and more capable of reform than adults, require the justice system to treat children differently.
I note that the record is replete with evidence that Mr. Houston suffers from mental illness and the psychological damage created by a history of abuse and neglect. With the option of eventual release, his access to treatment and services would be enhanced, and perhaps, therefore, his ability and motivation to transform his life.
Notes
[85]