State v. Houston

Justiсe, Lee, opinion issued Chief Associate UT 40 concurring judg- concurring part Utah, Appellee, STATE ment. J., Durham, dissenting opinion issued HOUSTON, Appellant. Durrant, C.J., part. concurred which Cameron Robert No. of Utah.

Supreme Court 24, 2015.

Feb. March 2015.* Amended

As 30, 2015.

Rehearing Denied June

* dissent. 1273 of Justice Durham's 9 to the Added footnote end

57

59

G1 Gen., Christopher D. Reyes, Att'y D. Sean Gen., City, for Ballard, Att'y Lake Salt Asst. appellee. Pace, City, appel- for Lake P. Salt

John lant. opinion authored NEHRING

Justice Court, PARRISH in which Justice joined Justice DURRANT joined, Chief ILF.2, Justice exeept as section to in Part I. Associate Chief joined DURHAM concurring opinion. LEE authored Justice dissenting authored DURHAM Justice Justice DURRANT Chief opinion, which in Part I. concurred NEHRING, opinion Justice the Court: major with depressive disorder. When he twelve, was sexually he was abused his INTRODUCTION brother's friend for several months. T1 Robert Cameron Houston was seven- T 6 Mr. Houston committed several violent years teen and a half old when he murdered sexual young offenses as a teenager, which R.E., a staff member of the residential treat- placement led to his in a residential treat- ment youth center for where Mr. Houston program juvenile ment sex offenders. In temporarily was residing. The State fourteen, age at Mr. Houston attempt- charged Mr. Houston aggravated with mur- rape ed to teenage his stepsister at knife- der, aggravated assault, sexual rape. point. charged He was aggravated with sex- Mr. pleaded guilty Houston aggravated to ual assault. Mr. Houston guilty entered a murder, agreed and the State drop to plea, though the record does not specify to charges. other charge what pleaded. he February parties T2 agreed to a sentencing age fifteen, Mr. attempted Houston to hearing jury where a would determine aunt, rape his knifepoint. also at Mr. Hous- whether Mr. Houston would be sentenced to charged ton aggravated sexual as- prison life in possibility without the parole pleaded sault guilty, although the record or an twenty indeterminate term years again specify does not charge what Mr. Following life. the sentencing hearing, elev- pleaded. Houston As a result of these vio- en jurors of the twelve voted to sentence Mr. assaults, lent sexual Mr. placed Houston was Houston to imprisonment life without the with Youth (YHA), Health Associates a resi- possibility of parole. dential facility treatment juvenile sex of- Clearfield, fenders located in Utah. appeal

T3 On Mr. brings Houston numer- ous challenges constitutional to his sentence. 1 7 The presented State also evidence that He also contends that his counsel rendered two months after Mr. Houston's arrival at ineffective assistance of during counsel the YHA he allegedly attempted sexually as- sentencing proceeding in violation of the sault a female staff member. The staff Sixth Amendment to the United States Con- fought worker back and was gain able stitution. After a careful review of the rec- control. incident, After Mr. Houston ord, we conclude that Mr. Houston's sentence allegedly explained to other staff workers constitutional, and his counsel was not that he wanted to hurt sexually assault ineffective. We therefore affirm jury's her. Mr. Houston did not weapon have a sentence. during that incident. BACKGROUND February On when Mr. Hous- ton was years old, seventeen he committed I 4 Mr. very Houston had a difficult child- the murder that led appeal. to this At that hood, and he early juvenile became an of- time, Mr. Houston resided at an independent fender young troubled adult. living home associated with YHA. It was 115 Mr. Houston was born with a deformed snowing night, and Mr. Houston did not ear, which left him almost completely deaf on want to walk the four blocks home from YHA one side and made it difficult for him to learn independent living home. He asked child, to talk. As a struggled he with this R.E., a worker, female staff for a ride. Al- physical deformity and was also by ridiculed though it against was policy YHA's give to a peers his being overweight. Mr. Hous- personal ride in a resident, vehicle to a R.E. parents ton's fought often eventually and di- sympathetic was and did not want Mr. Hous- voreed, and his father physically was and ton to have to walk home the bad weather. verbally abusive. When his father left the home, Mr. Houston struggled emotionally T9 When they independent arrived at the over home, separation. living ageAt eight, R.E. followedMr. Mr. Hous- in- Houston ton attempted suicide and diagnosed was sign side log to book. As she turned to Nehring 1. part Justice took in this decision and opinion prior authored this to his retirement. anticipation case stayed the We sentence. behind, from her grabbed leave, Houston Mr. States in a United hand, ruling and held a of the his mouth with her covered Alabama,2 par and case, v. Miller Court then Houston Mr. throat. her to knife briefing concern supplemental provided and ordered ties his bedroom into RE. forced Mr. on Mr. Houston's RE. told Miller clothing. effect of ing the her to remove her case. that she virgin and was a she Houston Mr. intercourse. have sexual to not want did Code under Utah jurisdiction 12 We have raped her. and angrily, responded Houston 78A-3-102(3)(i). section stop. Mr. him to begged R.E. screamed to a knife by pressing responded Houston REVIEW OF scream, STANDARD to continued R.E. When her throat. of the in the side her stabbed Mr. Houston begin our discussion We stabbed He then throat. her and sliced neck Hous noting that Mr. of review standard side, chest, back. in the repeatedly her pre the issues preserve ton did Hous- struggle, Mr. to continued R.E.

When rule, general claims 3 Asa appeal. sented her by snapping kill her attempted to ton may not be the trial court before not raised seream, Mr. to continued RE. neck. occurred, plain error unless a appeal" raised on and fled. seared became Houston warrant circumstances exceptional car into R.E.'s Houston climbed Mr. €10 attorney review,5 ren defendant's or the our house, which into He drove sped off. counsel.6 ineffective assistance dered kill attempt to an explained was he later {14 stan disagree about the parties The and tak- arrested Houston was Mr. himself. to Mr. apply that should of review was interviewed dard hospital. He en to the arrival. shortly after Houston admits Mike Valencia Mr. Detective claims. Houston's and thus attempting preserved, to kill claims are to none of his confessed Mr. Houston to the detective in detail described ineffective plain R.E. and error and both argues under However, R.E.'s trachea rip out doctrines. had tried of counsel he how assistance alternative, not- detective screaming. The argues for two stop her from also Mr. Houston First, Mr. as he of review. unemotional heightened standards was Mr. Houston ed that crime. charged the details with described that he was contends Houston court offense, and therefore "capital" aggra- charged T 11 Mr. Houston prejudice" standard "manifest apply a should assault, and murder, aggravated sexual vated Second, Mr. claims. of his review to each promise exchange the State's rape. In is unconsti his sentence argues that Houston pleaded Mr. Houston charges, drop the other it on challenge he can therefore tutional parties murder. aggravated guilty to under Utah sentence "illegal" as an appeal hearing would be sentencing agreed that 22(e), and is Procedure of Criminal five-day Rule Following a jury. held before pre obligation to from the thereby excused jurors voted to of the twelve hearing, eleven of his support appeal. issues for serve imprisonment life Houston to Mr. sentence 22(e) cites State Mr. Houston (LWOP). argument, rule parole possibility of without Candedo, interpreted this court in which v. sentenced, Houston ob- Mr. he was After 22(e) unpre- of certain permit review rule and subse- counsel appointed new tained challenges.7 constitutional challenge his served timely appeal quently filed (alteration quotation marks original) - -, 183 L.Ed.2d 132 S.Ct. 2. U.S. omitted)). (2012). Id. ¶ 11. 74, 11, ¶ 5. Holgate, 10 P.3d 2000 UT v. 3. State 58, ¶ 19, Low, P.3d 867. 2008 UT 6. State ¶¶ 11, plain (noting to establish to show has the burden the defendant error, ("[If exists; (ii) have "G) error should error 32, ¶ 13, [aln 7. 2010 UT unconstitutional, the sen court; (iii) is sentence the error offender's to the trial been obvious 'judgment of con error, authorized harmful, ie., tence is not is a rea there absent the is viction,' illegal."). therefore and is outcome" more favorable of a likelihood sonable disagrees 15 The State purely Mr. Hous findings error, factual for clear but First, ton. "capital" State contends that application [we] review the of the law to the

review does apply facts for correctness." here because this is "capital" not a State, case.8 Accordingto the "capital" case is one where penal the death ANALYSIS

ty sought imposed; or because of his sta I. MR. HOUSTON PROPERLY juvenile, tus as a not, Mr. Houston was BROUGHT FACIAL CONSTITU- been, could not death, have sentenced to TIONAL CHALLENGES TO HIS such, "capital" appellate review is not SENTENCE UNDER UTAH RULE Second, available. argues the State 22(e) OF CRIMINAL PROCEDURE even if this court can reach Mr. Houston's unpreserved 22(e), claims under rule State v. 118 Utah Rule of Criminal Proce Candedo wrongly decided and should be 22(e) provides dure "[tlhe court support overruled. of its effort to undo correct illegal sentence, an or a sentence Candedo, argues the State opinion imposed in illegal manner, an any time." analysis lacks sufficient and citation to au We hold that the rule encompasses facial thority, unjustifiable creates an disparity be challenges constitutional to the sentence that tween this court's unpreserved treatment of do not implicate a analysis. fact-intensive constitutional challenges to convictions and We also concludethat each of Mr. Houston's unpreserved constitutional challenges to sen constitutional challenges to his sentence tences, and is inconsistent with the rule an criteria, meets these and therefore his claims nounced State v. Yazzie.9 properly 22(e). are brought under rule ¶ 16 As we greater describe in detail be 119 Under our preser traditional low, we hold that each of Mr. Houston's doctrine, vation "generally appellant must constitutional challenges falls within the nar properly preserve an issue in the district 22(e)'s scope row of rule exception to the court before it will be appeal."1 reviewed on preservation of claims. We therefore decline The issue must have "presented been to the request State's precedent overrule our district court in way such a that the court has in State v. 22(e), Candedo. Under rule we an opportunity to rule on [it]." These treat Mr. Houston's claims as if they had preservation rules exist both judicial to serve preserved, been reviewing conclusions of law economy prevent and to a defendant from for correctness granting no deference to failing object to an issue in hopes 22(e) district court.10 Because rule pro reversal of a appeal.15 convictionon Howev higher vides a standard than prej "manifest er, "(olur preservation requirement is self- review, udice" we decline to address Mr. imposed and.... [clonsequently, we exercise Houston's argument. alternative wide discretion when deciding whether to ¶ 17 A claim of ineffective assistance entertain reject matters that are first of counsel is also an raised on appeal." We have therefore rec preservation to our exception doct rine.11 For "ineffective ognized assistance exceptions limited rule, includ claims, counsel we review a lower ing court's when the issue arises under exceptional that, 8. argues event, The State also Olea, ¶ 15, 13. O'Dea v. 2009 UT 217 P.3d prejudicial "manifest error standard 704; accord Patterson v. Patterson, 2011 UT equivalent plain error review." ¶ 12, 266 P.3d 828. 14, ¶ 13, 9. 2009 UT 203 P.3d 984. Patterson, 68, ¶ 12, 14. 2011 UT 266 P.3d (alteration (internal original) quotation marks Prion, 15, ¶ 13, 10. See State v. 2012 UT omitted). Holgate, 15. State v. 2000 UT ¶ 11, 10 P.3d 11. Low, 2008 UT ¶ 19, 192 P.3d 867. 346; see also State v. Prion, 2012 UT ¶ 19, 274 P.3d 919. 12. Archuleta v. Galetka, 2011 UT ¶ 25, 267 (alteration P.3d 232 original) quota omitted). tion marks Patterson, 68, ¶ 13, 2011 UT 266 P.3d 828.

6G§ unconstitutional, the is sentence offender's has error plain where cireumstances by "judgment the not authorized is sentence occurred.17 2 In illegal.2 convietion,' is therefore of 22(e) another operates Rule 120 Francisco placed court case, the district that doctr preservation the exception limited he after years' probation on nine Candedo Candedo, explained we v. In State ine.18 arising from felonies to three guilty pleaded court appellate an "allows rule the that investment a fraudulent involvement his legal if the even illegal sentence" [an] vacate length object to the Rather than scheme.23 in the raised never ity of the sentence sentencing, Mr. Candedo probation of his that our stated We below.19 proceedings legality of appeal the direct challenged on in the context apply do not rules preservation rule under sentence probation his duration illegal 22(e) an challenge "because rule of a his violated 22(e), that his arguing sentence and, jurisdic issues of like void is sentence 20 rights under process due substantive any time." raised] at [may be tion court Constitution.24 United States (21 preser clear that it is While sentence Mr. Candedo's affirmed appeals to a defendant's apply does rule vation of his constitutional reaching the merits without sentence, had we have illegal challenge to an review, we de On certiorari m.25 clai an constitutes what to discuss few occasions appeals erred court of that termined Yazzie, we v. In State "illegal sentence." constitutional Mr. Candedo's reach it failed to when "illegal sentence" a definition adopted concluded enge.26 We chall Appeals for Court States from the United rule under illegal sentence an "[blecause Tenth Circuit: violations," 22(e) a de constitutional includes ambig is one which is] illegal sentence [An concerning the arguments may raise fendant manner time and respect with uous sentence, if un- even constitutionality of the served, internally is to be in which preserved.27 to be required contradictory, a term omits scope ¶ statute, of rule as to uncertain considered again imposed 23 We sentence, or is a sentence Prion, 22(e) substance in which a case v. in State did not conviction judgment of which jeop statutory and double raised defendant authorize.21 recog We his sentence.28 challenges to ardy "formulation, if the Candedo nized Candedo, we elaborated construed, prospect raises the broadly "H an concluded We definition. See application this term. 74, ¶ 11-13, cuit's definition 10 P.3d 346. Holgate, 2000 UT 17. 1178, Groves, 1182 F.3d 369 States v. United 919; ¶ 20, 15, ("Because Prion, Cir.2004) re- (10th State defendant 274 P.3d UT 2012 18. ("[R]ule sentence,' 1995) (Utah Brooks, 'illegal right appeal an P.2d v. served appeals 22(e) to consider 'ille- permits court of sentence is an unconstitutional and because issue is raised even if the legality a sentence is entitled the defendant gal," we hold appeal."). time on first sentence...."); for the States United challenge his Cir.2008) (10th Fed.Appx. Lyman, 261 P.3d 32, ¶ 9, 232 UT an 19. sentence is (noting that an unconstitutional omitted). quotation marks sentence). illegal example of an (internal quotation (alteration original) 20. Id. 32,¶ 1, P.3d1008. UT 23. 2010 omitted). marks 24. 1d. (alteration ¶ 13, 203 P.3d UT 21. 2009 Dougherty, 106 (quoting States v. original) United 25. 1d. Cir.1997)). (10th F.3d ¶ 2. ¶ 13, We dis P.3d 1008. 2010 UT

22. 26. Id. is incon this definition agree the State that with unsup or that it is otherwise Yazzie, with sistent ¶ 11. Mr. Cande- affirmed We nonetheless Id. rejected squarely authority. legal We ported it did we determined because do's sentence ¶ ¶ 12-14. See id. arguments in Candedo. these ¶25. process. due not violate holding in Candedo-that that our We also note encompasses an unconstitu illegal sentence ¶ 10, UT 28. 2012 Cir- the Tenth consistent sentence-is tional abuse.29 We cautioned that such abuse ¶ Prion, 24 In we held that the defendant's 22(e) could arise "if statutory rule were jeopardy construed double challenges properly broadly 22(6).36 to fell within sanction a fact-intensive ambit of rule challenge challenges Such attacked legality "facial of a defects" that sentencing proceeding easily "could be corrected without the need long asserted after the raising time for init for factual development original trial the initial trial or appeal.30 direct In con 7 court.3 We therefore reviewed the defen sidering scope rule, we also ex merits, dant's claims on the ultimately con 22(e) plained that our rule derived from a cluding that his sentence violated double former Federal Rule of Criminal Procedure jeopardy.38 that authorized a court to illegal correct sent ¶ 25 Mr. recognized ences.31 We Houston brings now that federal a host of courts constitutional traditionally claims that we previ limited have not challenges under ously 22(e). addressed under Today, rule federal rule to we attack sentences that exceed draw on previous our maximum, ed the articulate statutory decisions violated double internally standard for a criminal defendant who jeopardy, or facially were ambiguous or brings unpresеrved an 22(e) claim rule under istent.32 appear Some cireuits incons that his or her illegal, sentence is and we recognized have application broader reiterate expressed the concern in earlier rule, the federal such as when the sentence is 22(e) 3 cases that "rule claims must be narrow generally "in Constitution,3 violation of the ly prevent cireumseribedto abuse.39 is based on "misinformation of a constitution 34 al magnitude," or even when the sentence 126 We therefore hold that under violates another federal rule.35 22(e), rule defendant bring constitu 29. quotation omitted). Id. 120 15, ¶¶ 23-24, marks 36. 2012 UT 274 P.3d 919. The concurrence holding misreads our in Prion as limiting 22(e) challenges rule per those 30. Id. mitted under the antecedent federal rule. Infra ¶¶ 114-31. But we nowhere stated that we were ¶ 22; 35(a) 31. Id. (1984). see Fed.R.Crim.P. adopting fact, the federal reading limitation. In repealed Prion, federal rule was in 1987. See adopt Prion to such a require limitation would us 15, ¶ 22 8, 2012 UT n. 274 P.3d 919. to have overraled our earlier decisions in Cande do, 32, 2010 UT 232 P.3d and State v. 32. Prion, 2012 UT 15, (citing ¶ 22, P.3d 919 Telford, curiam). UT (per 48 P.3d 228 United (4th States v. Pavlico, 961 F.2d 440, 443 Candedo, expressly we found that the defen Cir.1992), and Hill v. United States, dant's process substantive due claim fell within 424, 430, 82 (1962); S.Ct. 468, 7 L.Ed.2d scope of the rule: Higginbotham, see also State v. 917 P.2d We therefore hold appeals the court of (Utah 1996) (remanding to the trial court under failing erred in to reach the merits of Cande- 22(e) rule to correct a senience enhancement process do's substantive due challenge because statute). made in violation of the illegal definition of sentence under rule 22(e) sufficiently broad to include constitu- 33. United States v. 307 F.3d Hovsepian, tional violations that validity threaten the (9th Cir.2002); Hill, 927-28 see also 368 U.S. at holding sentence. This allows us to reach 430, 82 (finding S.Ct. illegal no sentence the merits of Candedo's claim.... 35(a) under rule' when the sentence was not 32, ¶ 14, 2010 UT Telford, 232 P.3d 1008. And in "legally constitutionally invalid in other [allthough rejected we separation Telford's respect"). powers Eighth challenges Amendment to his sentence, we reached and considered the merits of 34. (7th United States v. Plain, 856 F.2d 913, 916 challenges 22(e)." ¶ those under rule Id. Cir.1988) (quoting Tucker, United States v. (citingTelford, 51, ¶¶ 3-4, 228) 2002 UT 48 P.3d U.S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d added). (emphasis denigrate We would not our (1972) (considering a rule 35 motion when a holdings in those "relatively cases unimpor sentencing authority sentencing bases the deci ¶ tant." 121 n. 1. Infra information)). sion on erroneous factual Prion, 15, 122, 37. 2012 UT 274 P.3d 919. States, 35. Cook v. (1st United 171 F.2d ¶ Cir.1948) (vacating 38. sentence that violated Fed eral Rule of Criminal Procedure 43 because the present defendant was not Candedo, before the court ¶ 9, when 2010 UT 232 P.3d 1008 i increased). his sentence was (quoting Telford, 51, 15, 228). 2002 UT to which respect legal question with purely sentence attack the challenges that tional conviction,40 remains has no discretion underlying court the trial and not itself gained re decided, nothing is to be than challenge rather a facial do so as which 47 The the trial court." manding case to com standard This inquiry.41 as-applied creates standard argues our 22(e) concurrence decisions rule previous ports with chal facial rule because even an unworkable Telford, example, in State For court. argu But this can be fact-intensive.48 lenges bring some defendant permitted we context, In this challenges to his mark. misses the ment also constitutional unpreserved in which "the analysis is one a fact-intensive 22(e) ruling that rule while under sentence or unclear. disputed are legal facts" pertinent properly did not claims other constitutional 22(e) constitutional review.42 is a facial rule there scopeof But where the fall within challenge to attack, delve into the need not the court the defendant's authorized We Instead, the findings fact. of or make under record sentencing scheme indeterminate the legal issue. resolving a the Utah powers clause is tasked separation of court the analysis will be the not mean But that does under claims also allowed We Constitution.43 to As any reference facts. easy or devoid clauses of punishments and unusual the cruel demonstrate, present case Constitutions, opinions in the the States and United the Utah legal question is often purely analysis of a the defendant that only the extent to but rigorous debate. warrants In con difficult violation." per "a se argued for just is not untenable here rule we articulate the extent trast, concluded we by court. hard work the requires constitutionality because contested the defendant case, imper- he particular applied to his "as 22(e) to rule employ end, missibly attempt{ed] finality judgment 128 In the Similar underlying conviction.45 attack his important, but of claims are preservation brought of claims review ly, prohibited we right to en criminal defendant's too is a so the United Amendment the Sixth under consti that can be only those sentences dure I, section and article Mr. Houston Constitution Because tutionally imposed. States claus because those Utah Constitution of the constitutionality of the facially attacks sentencing.46 not relate sentence, es did we hold authorized his statute it as an challenged properly has

that he Rule Crimi "illegal under Utah sentence" chal Limiting constitutional T27 22(e).49 turn to We next Procedure judicial econo nal attacks serves lenges to facial analyt For claims. Brooks, Mr. Houston's merits of recognized "[when we my. As into two his claims clarity, separate we ical and a undisputed facts are pertinent powers and un- separation and cruel ("[An Brooks, appellate viewed P.2d at 40. See merits). challenges on their usual legality of a sentence not review court ap- 22(e) substance when the rule under (empha 51, ¶ 7, 48 P.3d 2002 UT 45. Telford, itself, challenge, the sentencе not to peal is ... a added). sis conviction."). underlying but to ¶ ultimately that Mr. Tel- concluded We 46. Id. 6. creates an argues that such a rule 41. The State to a constitution did not amount sentence ford's unpreserved chal- disparity between unjustifiable ¶¶ 3-4. al violation. Id. To and to sentences. lenges to convictions exists, it is inherent that such extent Prion, dichotomy 860; 2012 UT see also P.2d at 47. 908 itself, illegal sentences which allows rule in the ¶ 20, (warning against permitting 274 P.3d Moreover, our challenged time. to be 22(e) chal a fact-intensive to "sanction rule restricting by disparity today limits that decision ¶ 22 (explaining defects facial lenge"); id. challenges under the rule constitutional appellate court easily be corrected can attacks. facial develop remand for the need to without factual ment). 2-5, ¶ ¶ 48 P.3d 228. 2002 UT 42. ¶¶ 128-129. 48. Infra ¶ 3. 43. Id. construction, limiting we de- light 49. In our request to overrule for us the State's cline ¶ 11, 232 2010 UT Candedo, ¶4; see Candedo, UT holding we re- (recognizing that P.3d 1008 Telford categories. First, we address his facial con- tence is unconstitutional Apprendi because claims, stitutional analyze and we the sen- "any mandates that fact that increases the penalty 22(e)'s for a tence for correctness under beyond crime prescribed rule ex- ception preservation. Next, statutory we address maximum must be submitted to a Mr. jury Houston's brought proved claims beyond under reasonable doubt." framework of ineffective assistance of coun- §81 Apprendi, Jersey the New ultimately sel. We conclude that all of Mr. statutory permitted scheme judge to im Houston's claims fail and therefore affirm his pose beyond a sentence statutory maxi sentence of life without possibility of mum if judge determined, prepon parole. evidence, derance of the the defendant committed a hate crime.53 The. United II. MR. HOUSTON'S SENTENCE OF States Court held that this sentenc LIFE WITHOUT PAROLE DOES ing scheme was unconstitutional because NOT VIOLATE THE UTAH OR THE "any fact that penalty increases for a UNITED STATES CONSTITUTION beyond crime prescribed statutory maxi begin by 129 We addressing Mr. Hous mum must be submitted jury, to a ton's six constitutional challenges to his sen proved beyond a reasonable doubt.5 tence. Mr. argues Houston that his sen 1 32 in Apprendi, however, Unlike the sen (A) tence: is unconstitutional under the tencing statute under which Mr. Houston United States Apprendi Court case was sentenced require does not judge the to (B) Jersey,50 v. New is unconstitutional be make findings factual that increase an of cause sentencing statute does not contain By fender's pleading sentence. guilty ag to "beyond a a reasonable doubt" standard of gravated murder, Mr. Houston admitted all (C) proof, violates the Utah opera uniform the facts relevant to the offense and became tion of laws clause and the United States subject to sentence authorized under Equal (D) Clause, Protection violates the due Utah law. Under statute, Utah's sentencing process clauses of the Utah and United juvenile a defendant guilty aggravated of (E) Constitutions, States violates the unnee- murder can be sentenced to either life with essary rigor clause of Constitution, the Utah possibility parole or LWOP.55There (F) violates the cruel and pun unusual were no factual findings to be made ishments clauses of the Utah and United Jury, only a determination that LWOP would States Constitutions. up We take each of or would not be appropriate. Because the these issues in turn. sentencing permit statute did not jury impose a "beyond sentence prescribed A. Mr. Houston's Sentence Is statutory maximum," Apprendi rule did not Unconstitutional Under apply, not and there is no violation. Apprendi Jersey v. New B. Sentencing The ¶ 30 Statute Is not Constitu- Mr. argues Houston first that tionally Apprendi Failing to Jersey51 v. New Include renders the sen Defective for "Beyond a Reasonable Doubt" Stan- tencing statute unconstitutional.52 This dard claim grounded is in the Fifth and Sixth

Amendments to the United States Constitu Mr. Houston argues next that tion. According Houston, to Mr. his sen- the sentencing statute is invalid and uncon 50. 530 U.S. 120 S.Ct. 147 L.Ed.2d challenge that this is a on the face of the statute (2000). and not particular to Mr. Houston's circum- stances. 468-69, 53. 530 U.S. at 120 S.Ct. 2348. 52. The concurrence argument claims that this is §128. challenge. not a added). facial Id. at (emphasis 120 S.Ct. 2348 But Mr. Infra argues Houston sentencing statute vio- Apprendi's lates protections by constitutional al- 76-3-207(5)(c) (2008). § 55. See Utah Code This lowing the sentencer statute was amended LWOP, rather impose but we cite to the presumptive sentence, than the twenty year if the version in effect at the time Mr. Houston was sentencer appropriate. deems it We conclude sentenced. appropriate death is termination articulate not it does because stitutional specificcase."6 in a Relying sentencing.56 proof standard Wood,57 v. in State decision court's on this empha- we opinion, the Wood Throughout sentencing Utah's contends Houston Mr. of a death nature "irrevocable" sized "beyond a jury find that a requires scheme degree sentence, corresponding and the sentence an LWOP doubt" reasonable jury must have judge or that a conviction disagree. We appropriate. justified > impose it. language [ examining the begin 34 We Bell, to our we returned In State Utah issue. sentencing statute of a different in the context holding in Wood "the provides 76-3-207 section Code Bell, the defendant In sentencing statute.61 penalty whether ... determine jury shall sentencing scheme Utah's argued that im shall be parole without prison life in unconstitu assault aggravated sexual prison with of life in penalty posed.... assign a burden it did not because tional jury if the imposed only be shall parole out and miti aggravating respect proof prison of life that the sentence dеtermines determining which of cireumstances gating appropriate." parole without imp should be mandatory presumptions Wood, {35 an earlier interpreted we proof the burden of held that We osed.62 rule that, in order held statute of this version apply when not in Wooddoes articulated see under this sentence a death impose possible considering death as jury is find that authority must sentencing tion, the that "the explained We se ntence.63 outweigh cireumstances aggravating death, justifies re being unique, choice rea beyond a cireumstances mitigating a persuasive reasons most quiring the (2) justi is the sentence doubt sonable certainty. Howev subjective degree of high circumstances in the appropriate fied and force in great have er, do not reasons those Mr. Houston doubt.59 beyond a reasonable sentences, possible of three choosing one "beyond a rea the Wood to extend asks us finality of death.6 has the which none of sentences. to LWOP standard doubt" sonable do so. We decline sentence is a death Because that, Mr. unlike by noting begin 136 We most severe and the irrevocable uniquely penalty case, a death was Wood Houston's ensuring sentences, have an interest we all premised case, holding in Wood our we before doubt remains no reasonable proceeding of a unique nature on But, as life. taking of a human authorize We life is at stake. the defendant's which context, Bell, there this outside we stated explained: of fairness "clear considerations are no the death proposition that reject We standard, particular a in favor of militate there is imposed when may be penalty may quarrel that one to the extent except ... be. should doubt whether substantial is of the statute-which wisdom life "Death{,] finality, differs from in its prerogative." beyond our hundred-year a more than imprisonment Here, legislature has determined our €39 only year one of from prison term differs to life a defendant jury may sentence dif- [qualitative] of that two. Because that the State if it determines parole without corresponding differ- ference, there is to demonstrate its burden satisfied reliability in the de- has need for in the ence (Utah 1988). 61. 754 P.2d 56. See id. 1982). (Utah

57. 648 P.2d at 57. 62. Id. 76-3-207(5)(c) (2008). § Utah Code 58. Wood). (distinguishing at 59 63. Id. at 83. 59. 648 P.2d 64. Id. Car (quoting v. North Woodson at 80-81 Id. olina, 96 S.Ct. (1976) (plurality opinion}). L.Ed.2d 944 imp "appropriate" is the (1) sentence to questions: "what, address three any, if 6Mr. Houston has not demonstrated statute," classification is created under ose.6 (2) constitutionally that we are required to inter "whether imposes classification legislature's fere with the authority similarly and write persons situated disparate treat "beyond a reasonable doubt" standard into ment," whether legislature "the had objective reasonable sentencing that warrants the statute. disparity."6 C. Sentencing The Statute Does not Vio- 144 Examining light Utah's statute in Equal late the Protection Clause or the criteria, these we conclude that it does not Operation Laws Clause Uniform operation violate the uniform of laws clause 140 Mr. Houston argues next because it impermissible creates no classifi- sentencing statute violates oper- the uniform cations and it similarly treats all situated ation of laws clause of the Utah Constitution defendants the same. Equal and the Protection Clause of the Unit- $45 begin by We examining the ed States Constitution because the statute plain language challenged sentencing "provides guidance no jurors in determin- statute "to classification[, determine what if ing which This, sentence to impose." he any,] legislative created [the] enactm contends, creates a substantial probability of ent.7 At the time of Mr. Houston's sen arbitrary sentencing disproportionate tencing, sentencing provided: statute penalties. If the is unable to reach jury a unanimous 141 Because we have held that Utah's decision imposing death, the sentence of operation uniform of laws clause "is at least jury shall then determine whether the rigorous as guarantee," the federal we penalty prison life parole without analyze first Mr. Houston's claims under the imposed. shall be ... penalty life Utah Constitution. If we determine that the prison parole without shall be im statute scrutiny survives under Utah's uni posed if jury determines that the sen operation form provision, laws then we tence of prison life in parole without must conclude that it is constitutional under appropriate.71 the United States Equal Constitution's Pro This statute classifies defendants tection Clause as well.68 into two categories-those eligible for a death sen- 1142 Mr. Houston juve- contends that two tence and ineligible those for a death sen- nile defendants could commit aggravated tence. And under language the of this stat- murder, and, due to guidance the lack of ute, all defendants ineligible who are for a statute, the Jury a could arbitrarily sentence sentence of death similarly are situated and juvenile one of the offenders to life with are treated equally-they subject are to a parole and sentence the other to life without jury's determination that either a sentence of parole. Mr. Houston argues failing parole life with or a sentence of life without to narrow in a principled way may those who the possibility parole is the appropri- more receive parole, life without the dispa- statute ate sentence based jury's on the evaluation of rately treats 'similarly situated offenders particular case. Although it is true that without a rational basis for disparate two defendants who aggravated commit mur- treatment. We disagree. may der receive different sentences from a ¶ 43 The operation uniform jury, this is either because the defendants provision laws of our requires Constitution (for us were not similarly situated example, one 76-3-207(5)(c) (2008). § 66. See Utah Code ¶ 33 Drej, 68. 2010 UT 35, n. 5, 233 P.3d 476. ¶ 33 Drej, 67. State v. 2010 UT 35, n. ¶ omitted). Id. marks quotation 476; see also ABCO Enters. v. Utah State Tax (con Comm'n, 2009 UT 36, ¶ 14, 211 P.3d 382 ¶ 35. cluding operation that uniform of laws and Equal only Protection analyzed claims need rigorous under the provision}. more Utah 76-3-207(5)(c) (2008). § 71. Utah Code alone, that, standing agree 148 We heinous much more committed defendant sen that an LWOP statutory directive crime) its deliber- course of jury in the or is "appropriate" if imposed may be tence sen- "appropriate" more finds it ations "appropriate" contrib term troubling. The or lenient to a more one defendant tence the solemn task nothing to little or utes penalty. severe more "Appropriate" role. a central plays it which sentencing stat- that the conclude 'I 46 We "belonging "specially suitable" is defined similarly defendants situated all ute treats everyday experience But culiarly.72 pe imper- contain it does not the same ability to juror with equip not defen- subjects all It missible classifications. "specially suitable" it when determine is jury's murder to aggravated guilty of dants of his remainder juvenile for the imprison a "ap- most of what sentence determination Nonetheless, interpret the not "we do life. particular cireumstances given the propriate" in isol statutory term meaning' of a 'plain ac- argument Mr. Houston's case. of each Instead, we "determine ation.7 cordingly fails. con given the relevant meaning of the text sentencing stat the statute." text of to the decision-maker supplies ute guidance Unconstitutionally Is not The Statute D. examples aggravating by illustrating Process Clause the Due Vague Under should be considered factors that mitigating Constitu- States the Utah or United For ex making weighty decision.75 tions "the specifically lists ample, statute argues also Mr. Houston at the time youth of the defendant unconstitutionally mitigating factor to consider.76 sentencing as a statute crime" under the process of due vague Moreover, sentencing authority violation is free because constitutions and state federal mitigation "any other fact to consider guid jury in that this guide the conclude penalty. We clear standards lacks "appro sufficiently contextualizes Mr. Specifically, sentencing a defendant. ance sentencing statute is not claims such that the statute priate" Houston standard an LWOP jury impose unconstitutionallyvague.78 advises but it does "appropriate," if sentence aggravating proof for a standard of

provide not Vi- Does E. Mr. Houston's Sentence factors, a standard for it contain nor does Unnecessary Rigor Clause olate "appropriate" is an determining when LWOP the Utah Constitution these deficiencies alleges that He sentence. also contends whether Houston notice as to Mr. him with no provided unnecessary rig- violates Utah's result in a life sentence his sentence pleading guilty would unnecessary contends, Thus, "it constitutes or clause because parole. he or without prison juvenile to die rigor to sentence a "roll of the created a lack of standards the According to Mr. hope parole." with no receive. he would as to which sentence dice" Dictionary judge appropriate penalty." The listed ing the New Internarionat Weester's Taro 72. (1961). may mitigating that be considered factors several youth including sentencing, Mr. Houston's City, 2011 UT Eagle Mountain Olsen v. 73. wrongfulness of his capacity appreciate the to his 248 P.3d 465. ¶ 12, emphasized judge that also conduct. The up merely the number of jury add "should not 74. Id. mitigating or fac- aggravating circumstances 76-3-207(3), (4) (2008). tors, apply rule" to § a mechanical or otherwise 75. See Utah Code evidence. And of the finally, their consideration 76-3-207(4)(e). § 76. Id. presumptive explained sen- judge that parole possibility of with the was life tence 76-3-207(4)(g). § 77. Id. persuade upon the State to "burden rests that the prison without jury] of life in that a sentence [the Moreover, jurors judge trial instructed to im- appropriate sentence" parole [was] "duty all of to consider that it was their pose. mitigating determin- evidence in aggravating and Houston, it is impose unconstitutional F. Mr. Houston's Sentence Does not Vio- severe sentence of parole life without late the Cruel on a and Unusual Punish juvenile immaturity, due to the vulnerability, ments Clause Utah the United States Constitution undeveloped character associated with youth.79 argues Mr. Houston that LWOP for 1. Cruel and Unusual Punishments Clause juveniles particularly rigorous is ju because of the United States Constitution pose veniles great do not a public threat € Finally, Mr. Houston claims that sen safety and are amenable to rehabilitation. tencing juvenile to LWOP violates the eruel Although some of these observations about punishments and unusual clauses of the Utah youth true, nature of certainly are almost and United States support Constitutions. In implicate do not purpose nature and argument, his federal Mr. Houston cites unnecessary rigor clause. three recent United States Court Florida, cases: Graham v. holding that it is I, Article section 9 of the unconstitutional juvenile to sentence a Utah provides Constitution "[plersons erime; LWOP for a Roper nonhomicide v. imprisoned arrested or shall not be treated Simmons, holding that it is unconstitutional unnecessary with rigor." This pro clause juvenile death; to sentence a and Miller tects imprisoned arrested or individuals from Alabama, holding that it is unconstitution the infliction of during treatment their con al impose mandatory LWOP sentence on finement that incompatible juvenile.85 is the values Mr. argues Houston of a society.80 civilized particular "The restriction on youth characteristics of undermine unnecessary rigor penological the cireum- imposing basis for LWOP focused sentence, and juvenile stances and LWOP for a process nature of the and condi therefore constitutes eruel and confinement," pun unusual tions of not on "the sentence ishment. imposed." provision targeted This eliminating "unreasonably harsh, strict, or recognize We unique there are severe prison treatment" "being such as juveniles characteristics of that distinguish unnecessarily exposed to an them offenders, increased from adult risk of and we conclude serious harm." that Utah's sentencing juve statute treats niles in a manner that accounts for these 151 We hold that the unnecessary rigor unique characteristics. For example, juve clause apply does not to Mr. Houston's chal- nile death, cannot be sentenced to regardless lenge. Mr. object Houston does not of the offense committed. LWOP is neither confinement, conditions of his but rather the a mandatory sentence presumptive nor the length of the imposed by sentence statute. sentence under Utah's sentencing statute. Although a may defendant challenge the And the statute directs the sentencing au length of his or her sentence as unconstitu- thority to consider relevant mitigating tional, this claim is more properly character- cireumstances. We therefore hold that Utah ized as a cruel and punishments unusual Code section facially 76-3-207 is constitution claim brought under al. begin We by addressing Mr. Houston's unnecessary rigor clause. claim under the United States Constitution argues 79. The ¶ 19. concurrence this is an as- ¶ 128. applied challenge. But Mr. Hous Infra ton does not claim that LWOP constitutes unnec 48, 82, 2011, 83. 560 U.S. 130 S.Ct. 176 L.Ed.2d essary rigor given specifics case; of his he (2010). 825 argues that LWOP unnecessarily rigorous is applied offender, any juvenile when regardless 551, 578, 1183, 84. 543 U.S. 125 S.Ct. 161 of the facts of the crime. (2005). L.Ed.2d 1 Perea, 68, ¶ 124, 80. State v. 2013 UT 322 P.3d 624. - -, 2455, 2475, 85. U.S. 132 S.Ct. 183 (2012). L.Ed.2d 407 Bosko, 29, 81. Dexter v. 2008 UT 184 P.3d 592.

73 Graham, questions related considered argument Houston's to Mr. turn and then cases in find those Roper, and Miller. We Constitution. the Utah under Eighth and determine structive ¶ 54 Amendment Eighth The imposition prohibit the does not Amendment provides: Constitution States United offender. juvenile homicide for a of LWOP nor required, not be shall "Excessive bail and unusu nor eruel imposed, fines excessive ¶ 56 our consider We deferred 86 recog We have inflicted." punishments al v. appeal while Miller Houston's of Mr. ation may be punishment criminal that "[a] nized the United pending before Alabama was barbaric, exces when it is and unusual cruel Miller, de In two Supreme Court.92 States committed." offense sive, to the disproportional or mur unrelated who had committed fendants evolving Moreover, an despite 87 challenged an age of fourteen at the ders framework, prin the fundamental analytical an LWOP that mandated Alabama statute un remains Eighth Amendment ciple of announced Supreme Court sentence.93 pro are punishments changed: "[CJriminal 2012, sentencing holding that a its decision or contravene if are excessive hibited an LWOP sentence that mandates scheme decency human evolving standards cruel and unusual juvenile constitutes for a 88 note, however, that sen also dignity." 'We States Constit punishment under the United variety of from a derive tencing statutes explained that The Court ution.94 For policy considerations. imprecise often individualized requires Amendment Eighth reason, def must accord "substantial we juveniles so that sentencing procedures for legislative prerogatives of ... erence authority may consider the sentencing limits of determining types 'in power youth.95 cireumstances inherent mitigating 9 reason, For this for erimes.8 punishments not, however,categoricallyprohib Miller did particular punish showing that a "absent juveniles.96 The Court ex it LWOP disproportion cruelly inhumane or ment foreclose a sentenc that it not plained "[did] judg our ate, apt to substitute we are juvenile convicted ability" sentence a er's regarding legislature ment for that to LWOP.97 of homicide punishment or of particular wisdom of 0 sentencing scheme.9 entire {57 Miller, ground- Court proportionali- analysis has in an Supreme Court decision States ed its I 55 The United precept basic reiterated "the ty. The Court Eighth Amendment whether the not ruled on for crime should justice that juve for a imposition of LWOP prohibits the to both the proportioned graduated But the Court be of homicide.91 nile convicted omitted) (citation Mace, P.2dat 1377-78 90. Eighth Cruel and Unusual Amendment's 86. The omitted). (internal quotation marks against incorporated Clause Punishments of the Four the Due Process Clause states via California, Miller, (explicitly v. Amendment. Robinson reserv- teenth 132 S.Ct. at 2469 91. See issue). ing ruling on this L.Ed.2d 1417, 82 S.Ct. 660, 675, U.S. Herrera, (1962); n. UT v. State briefing parties provided supplemental 854. 993 P.2d 92. The decision on addressing effects of the Miller case. the instant (Utah 1372, 1377 Mace, 921 P.2d 87. State v. (footnote omitted) 1996) (citing Helm, v. Solem Miller, at 2460. 132 S.Ct. 93. 77 L.Ed.2d 103 S.Ct. U.S. (1983)). 2469. 94. Id. at 20 P.3d 19, ¶ 76, 2001 UT State v. Lafferty, ("Graham, (alteration Roper, individ- original) quotation and our Id. at 2475 sentencing clear that decisions make ualized omitted); U.S. Dulles, see also marks Trop opportunity to con- judge jury must have 2 L.Ed.2d 78 S.Ct. 86, 101, imposing mitigating before (''The circumstances its mean sider [Eighth] Amendment must draw juveniles."). possible penalty for decency the harshest evolving ing standards of from the society."). maturing progress mark at 2469. 96. Id. (Utah 1986) 261, 269 89. State v. Bishop, 290, 3001). Solem, 97. Id. 103 S.Ct. (quoting 463 U.S. propor

offender and the offense.98 This bility reform," greater prospects for tionality analysis implicated "they deserving two thus lines of are less of the most punishments.1 Ropеr severe and Grakam "categorical cases. The first involves bans sentencing practices "significant gaps" identified three areas of on based on mismatches distinguishing juveniles from adults: culpability between the of a class of offend " severity penalty.99 ers and the of a In that First, children maturity have "lack of cases, line of the Court struck down the' underdeveloped responsibili sense of offenders,100 penalty death for nonhomicide ty," recklessness, leading impulsivity, juveniles,101and individualswith severe mental Second, risk-taking. and heedless children Using dis abilities.102 reasoning, similar "are ... negative more vulnerable influ prohibited juveniles Court for LWOP pressures," ences and including outside who commitnonhomicidecrimes.103The see- family from peers; their have ond line of mandatory cases addresses limited "controfl]l over their own environ imposition words, of sentences-in other sen ability ment" and lack the to extricate tencing schemes that sentencing leave the horrific, themselves from erime-producing authority power without to consider the indi third, settings. And a child's character vidual cireumstances of the offense or the off adult's; not as "well formed" as an his example, ender.104 For the Court invalidat traits are "less fixed" and his actions less prescribing ed statutes mandatory death likely to be "evidence of de- irretrievabl[e] penalty sentence.105The confluenceof these praviity].11 precedent two lines led the Miller court to These conclusions were informed science mandatory strike down sentencing Alabama's research, and social science including longitu imposing scheme LWOP. The Court held dinal mapping.111 studies and brain These that, applied juveniles, recognized decisionsalso that "the distinctive was severe and Alabama's statute did not youth attributes of diminish penological mitigating allow for the possible consideration of justifications" punishment, particularly Therefore, ors.106 the Court con fact regarding rehabilitation and retribution.112 mandatory cluded that LWOP sentences for juveniles could not be sustained under despite T59 But this evidence about Eighth Amendment.107 youth, characteristics of Court has narrowly nonetheless limited its deci Drawing T58 from evidence in Grakam, sions. applied the Court its ban Roper, Graham and explained the Court juveniles LWOP for where the un juveniles "are constitutionally different from derlying offense was a nonhomicide crime.113 adults purposes of sentencing." This The distinguished Court homicide crimes "juveniles is because culpa have diminished from nonhomicide crimes on the basis of 560, Miller, 98. (quoting Roper, Id. at 2463 543 U.S. at 106. 132 S.Ct. at 2468-69. 1183) (internal quotation 125 S.Ct. marks omit- ted). 107. Id. at 2475.

99. Id. 108. Id. at 2464. Louisiana, 407, ‍‌​​‌‌‌​​‌‌‌​​‌​‌‌​​​‌​​​‌​‌‌‌‌‌​‌‌​‌‌‌​‌​‌‌​‌​‌​‍469, Kennedy 100. 554 U.S. (2008). S.Ct. 171 L.Ed.2d 525 omitted). quotation 109. Id. marks 574-75, Roper, 101. 543 U.S. at 125 S.Ct. 1183. (alterations (citations original) 110. omit- Virginia, 102. Atkins v. ted) (quoting Roper, 569-70, 543 U.S. at (2002). S.Ct. 153 L.Ed.2d 335 1183) (internal omitted). quotation S.Ct. marks 103. Graham, 560 U.S. at 75, 130 S.Ct. 2011. 2464-65, Id. at 2465 n. 5. 104. Miller, 132 S.Ct. at 2463-64. Id. at 2465. Carolina,

105. Woodson v. North 428 U.S. (plu 303, 96 S.Ct. 2978, 49 L.Ed.2d 944 rality opinion). 113. 560 U.S. at 130 S.Ct. 2011.

75 consequential culpability and finally, And as moral a nonhomicide crime. "both commit 14 Miller, sentencing declined to Similarly, Miller Utah's statute required harm.1 mandatory impose a LWOP sen does juve for categorical bar to LWOP adopt a Instead, juveniles.123 the statute on tence instead, niles; foreclosed the Court twenty provides presumptive sentence of because such mandatory sentences LWOP may imposed only if ten or years; LWOP be authority sentencing "prohibit a sentences jurors agree appropriate.124 it is more the law's harshest assessing whether from proportionately pun imprisonment term of ¶61 statutory scheme en Importantly, our 15 And the Court juvenile offender.1 ishes sentencing kind of individualized ables the "appropriate recognized that there could Supreme determination that Court has juvenile imposing on a for LWOP occasions" necessary for serious offenses. deemed offender, may circumstances rare as those permits 76-3-207 the sen- Utah Code section Moreover, explained that it the Court be.116 all fac tencer to consider relevant ability to foreclose a sentencer's did "not sentencing tors which would affect the deter cases," long [impose in homicide so LWOP] sentencing mination. The statute directs the into account how "take[s] as the sentencer aggravating authority to consider cireum- different, how those differ are children factors, mitigating specifi stances and irrevocably sentencing against ences counsel cally provides a nonexhaustivelist of each to Thus, prison.117 them to a lifetime fact, aid the sentencer.125 the statute justifications for though penological specificallydirects the sentencer to consider juvenile for a be diminished LWOP youth "the of the defendant at the time of the adult, such a sentence is not compared to crime."1 We thus concludethat the statute justification in our criminal sentene- without "requirement of individualized meets the sen - ing scheme. tencing facing for defendants the most serious pe nalties,1 places particular em ¶ agree with the 60 We therefore phasis youth mitigating as a factor. the dissent Supreme Court and with warranting are not alone in this conclusion. juveniles represent unique class We sentencing. Supreme explained be The has special "[in considerations We Court ... unique youth considering categorical bars to life with lieve that the characteristics for, part analysis parole, law and out we ask as are accounted both Utah objective society's stan whether indicia through protections. federal constitutional juveniles eligible again note are not dards, We expressed legislative enactments regardless practice, show a national consensus penalty, for the death of the of state cоmmitted, against particular law and a sentence for a class of fense under both Utah notes, great Roper.120 offenders.1 As the dissent Court's decision Similarly, precedent law and federal state majority as the federal of states as well juveniles system juve- for prohibit permit for who LWOP sentences 122 LWOP 76-5-405(b) Miller, Graham, 402(3)(b)(ii) (same (citing rape); § id. 114. 132 S.Ct. at 2465 assault). aggravated 2011). sexual {same 69-70, U.S. at 130 S.Ct. 115. Id. at 2466. 122. S.Ct. 2011. Graham, (2008). 76-3-207(5)(c) 116. Id. at 2469. § 123. Utah Code 124. Id. 117. Id. ¶ 258.

118. Infra 76-3-207(3), (4). § 125. Id. 76-3-207(4)(e). 76-5-202(3)(e). § § 126. 119. Utah Code Miller, 1. 127. 132 S.Ct. at 2460. 120. 543 U.S. 125 S.Ct. 161 L.Ed.2d Graham, See, 76-5-302(6) (removing (quoting e.g., § 560 U.S. at Id. at 2470 Utah Code juveniles charged possibility of LWOP for 563, 125 S.Ct. 2011; 130 S.Ct. 543 U.S. at Roper, omitted). 1183) (internal quotation aggravated kidnapping); § marks id. 76-5- with . 2010, thirty-nine niles.129 As of al states repudiated should be because "an un it is 130 133 only juris such lowed sentences while six agree. workable standard." We do not affirmatively prohibited dictions In them.131 I, concept The basic of article section 9 flows precept justice from the looking society's to these as an indication of graduated proportioned standards, should be we cannot conclude that the "na of both the offender and the offense. Like the prohibition tional consensus" favors the juveniles Court, LWOP for recognize convicted of homicide. we that "[wlhile power the State punish," has the we must ¶ 63 sum, In imposing we conclude that power "assure that this be exercised within juvenile on a LWOP convicted of homicide 34 Fines, the limits of civilized standards."1 Eighth does not violate the Amendment's imprisonment, and even execution be prohibition punish on cruel and unusual imposed depending upon enormity deny ments. We therefore Mr. Houston's crime. challenge under the United States Constitu tion. Moreover, inappro would be priate for prior juris us to deviate from our 2. Cruel and Unusual Punishments Clause prudence present in the case. Both the of the Utah Constitution State and Mr. Houston have relied on the I, 164 We next turn to article Lofferty, standard announced in they Constitution, section 9 of the Utah which grounded arguments have théir in discus provides punish "cruel and unusual proportional punishment. sions of par [shall ments not] inflicted." State v. ties have not asked this court to consider the Lofferty, we punish held that eriminal interpretation advocates, "[a] Justice Lee now I, ment is cruel and unusual under article and therefore the court does not have the section 9 if it is disproportionate so to the benefit of briefing adversarial on the issue. offense committed rule, that it the moral general shock{s] As a we decline to opine rule or sense of all reasonable men as to what is on issues that by are not parti briefed right circums es.135 We therefore find no reason to de proper under tances.13 The concurrence concludes part from proportionality standard em in Lafferty.136 ployed this determination merits no deference and 129. 271. doing jurisprudence Infra ¶ from so. gar Our does not if, if, precedential weight ner adopt we - Petitioner, Hobbs, 130. Brief for Jackson v. diverges practice. standard that from federal -, U.S. long-standing prac Such a view contradicts our 132 S.Ct L.Ed.2d (No. 10-9647), looking interpretation guid tice of to federal 2012 WL at "1a © (combined ). case with Miller v. Alabama ance. 131. Graham, 560 U.S. at 82, 130 S.Ct. 2011 Trop, 134. 356 U.S. at 78 S.Ct. 590. (Alaska, Colorado, Montana, Kansas, Kentucky, Texas). 135. See Worship Utah Co Safe Learn-Safe alition, State, Inc. v. 32, ¶ 19, UT 94 P.3d (sec 19, ¶ 73, 2001 UT 20 P.3d 342 Lafferty, ('The courts hearing are not a forum for (internal original) quotation ond alteration in academic rendering advisory contentions or omitted). marks opinions." omitted)); quotation marks Ball, (Utah 1984) State v. ¶ 138. argu The concurrence bases its Infra (declining scope to consider the aof state consti fundamentally" ment "most on the fact that "no ' provision tutional when the issues were not majority opinion employed of this court has ever by parties briefed because "deserve thor proportionality a state standard of that is distinct ough treatment counsel and careful consider from the federal standard." ¶ 142; see also Infra ¶ 145 Court"); ation (arguing that because we have treated see also State, Winward v. infra (recognizing UT n. P.3d 259 the state indistinguish and federal standards as it would be to now able, [an] resolve significance "imprudent there is "no [for] independent exiremely important the state issue without the standard" and benefit of "thus no basis for stare reliance"). Baker, briefing"); adversarial sup decisis We State v. fail to see how 2010 UT 18, ¶ 57, ("[Where 229 P.3d 650 the law ... the view that our ports prior pronouncements respect. certainly warrant no While we are unsetiled and we are without the benefit of ad required adopt interpretation briefing subject, a federal for our versarial on the we would be ill- basis."). advised to resolve this case on that state we likewise are not forbidden provision, and un- violates the cruel punish LWOP sentence that a we conclude 166 Because offense, clauses of either the Utah punishments usual proportionate must be ment States Constitution. guide United as a to federal decisions we look punish particular "a determining whether reject Mr. Hous- we each of 1 68 Because disproportionate." cruelly inhumane or ment challenges to his sentence ton's constitutional to the character therefore look We 137 that Mr. parole, without we conclude of life from apart them juveniles that set istics that his has failed to demonstrate Houston acknowledge the again We adult offenders. unconstitutional and therefore sentence was youth-its impe unique characteristics Proce- illegal under Utah Rule Criminal influence, and vulnerability to outside tuosity, 22(e). dure change.138We also consider potential for sentence, recognizing goals penologicаl may the case be diminished III, FAILED TO MR. HAS HOUSTON But we do not conclude

juveniles.139 THAT HIS COUNSEL ESTABLISH eruel and render LWOP these cireumstances RENDERED INEFFECTIVE ASSIS- Under Utah juveniles for as a class. unusual TANCE law, only permitted this severe sentence requires of offenses for the presents gravest appeal, T Mr. Houston sev- 69 On jury to determine ten members of the least of counsel en claims of ineffective assistance that, of the crime given the circumstances First, sentencing during proceeding. Mr. his ap background, LWOP is the offender's argues that his counsel ineffec- Houston Moreover, majori we note that a propriate. objecting tive for not to certain statements federal ty states as well as the of our sister argument, prosecutor closing made juveniles convicted system permit LWOP for plainly alternatively that the trial court Applying a crimes.140 the most heinous Second, failing he erred in to intervene. analysis, that the we conclude proportionality that his counsel was ineffective contends juveniles for convicted imposition of LWOP mitigation call ex- failing to find and certain does not violate the Utah Consti of homicide Third, Mr. Houston claims pert witnesses. conducting was deficient tution. that his counsel Fourth, argues that Mr. Houston voir dire. failing to seek counsel was ineffective hope ex his 167 We reiterate Fifth, Supreme Court that LWOP pressed change he claims his a of venue. objecting not It is counsel was deficient for juveniles will be rare.141 sentences for Sixth, testimony proceeding. at the certain judge jury can most severe sentence that his counsel was Mr. Houston contends juvenile, and it should be care impose on a fully considered and reserved objecting jury to certain for not deficient Finally, argues Mr. Houston incorrigible instructions. crimes and most most severe here, where, if these errors alone is we that even none of juvenile offenders. But violation, enough assistance of to constitute ineffective we find no constitutional counsel, of the errors leg the cumulative effect judgment for that of the "substitute our undermine our confidence particular should nonetheless regarding the wisdom of islature therefore hold that Mr. punishment.14 We sentencing proceeding. in the result of his demonstrated that his We Houston has not Houston has not determine that Mr. Miller, See 132 S.Ct. at 2464. conclusion that Mr. 138. 136. We also note that our proportion sentence does not violate Houston's ¶¶ 66-67, ultimately principles, ality see infra at 2465. 139. apply on which standard to renders decision unnecessary Mr. Houston's chal in this case. ¶ Supra 140. 62. regardless apply the lenge of whether we fails analysis Lafferty proportionality or Justice Lee's ¶ 210. approach, originalist limited more Miller, infra 2469. See 132 S.Ct. at 141. 19, ¶ 74, (in Lafferty, 2001 UT 20 P.3d 342 Mace, omitted). 921 P.2d at 1377-78. quotation ternal marks ing closing argument.149 Mr. Houston fails provided

established that his counsel ineffec- tive assistance. showing. to make either right 170 The to counsel under the Sixth During sentencing proceeding, Amendment to the United States Constitu expert neuropsychologist Mr. Houston's tes- right tion includes "the to the effective assis diagnosed tified that another doctor had Mr. tance of counsel."1 v. Wash Strickland Houston with a "conduct disorder" when he ington, the United States Court cross-examination, was an adolescent. On two-part announced the test for ineffective prosecution neuropsychologist asked the First, assistance of counsel claims.144 she, too, if had concluded that Mr. Houston defendant must show that "his counsel ren had a conduct neuropsycholo- disorder. The performance dered deficient in some de gist explained that she did not conclude that manner, performance monstrable which fell Mr. Houston suffered from a conduct disor- objective below an standard of reasonable der because Mr. Houston was an adult when professional Second, judgment." the de him she evaluated and "conduct disorder" is fendant must demonstrate "that counsel's diagnosis not an available for an adult. The performance prejudiced the defendant."14 prosecutor neuropsychologist then asked the acknowledged variety We have "the of cir if she believed that Mr. Houston was "antiso- cumstances faced defense counsel [and] neuropsychologist cial." The testified that range legitimate regarding decisions signs being Mr. Houston show antiso- represent how best a criminal defend cial, ultimately but she not did conclude that 7 result, indulge ant.14 As a "we in must he met the test for diagnosis. an antisocial strong presumption that counsel's conduct neuropsychologist The also testified that she within range [fell] the wide of reasonable did not believe Mr. Houston suffered from assistance, that, professional under the psychopathy. supporting opinion, her cireumstances, challenged might action neuropsychologist contrasted Mr. Houston 8 strategy."14 considered sound trial with psycho- the well-known serial killer and ¶ 71 mind, With this in framework we now path Bundy. Ted address each of Mr. Houston's ineffective closing argument, 174 In prosecution assistance of counsel claims. emphasized the conduct disorder that Mr. diagnosed Houston was with as a child. Mr. A. Mr. Houston Has Failed to Demon- argues erroneously Houston the State strate that His Counsel Was Ineffective claimed that Mr. Houston still has the con- Object when Counsel Did not duct disorder: Closing Argument Prosecutor's or that Plainly the Trial Court Erred Fail- I important you think it is that look at [the ing to Intervene diagnosis, conduct disorder] because what say? does it argues diagnosis says, yeah, Mr. Houston That his counsel depression, rendered ineffective [Mr. Houston] assistance when counsel kas but he has a object failed to to statements in conduct made disorder. That means he's a vio- closing argument. Alternatively, Mr. lent they Hous character. He's a criminal. And ton contends that the trial court committed had to take that into consideration as plain allowing error for the statements dur with dealt him. (alteration Templin, origi- 147. 805 P.2d at 186

143. McMann v. Richardson, U.S. 771 n. (1970); 90 S.Ct. 25 L.Ed.2d accord nal) (internal omitted). marks quotation (Utah 1990). Templin, State v. Lenkart, State v. 2011 UT ¶ 25, P.3d 1 668, 687, 144. 466 U.S. 104 S.Ct. (alteration (internal original) quotation marks (1984). L.Ed.2d 674 omitted). Id.; accord Galetka, Archuleta v. UT 73, argument 149. Mr. Houston raises this under the 138, 267 P.3d 232. plain acknowledges error doctrine because he Weaver, preserved. that it was not See State v. 146. Archuleta, 2011 UT 73, ¶ 38, P.3d 232 omitted). ¶49, 18, quotation marks 2005 UT 122 P.3d 566. that Mr. Houston did not suffer neurop- conclusion challenged the prosecution Then the Mr. Houston did from an antisocial behavior sychologist's conclusion disorder as an behavior as contained evidence that from antisocial adult. The record not suffer . and had Mr. Houston was a violent offender adult: history justice with the criminal extensive expert didn't even look [The defense] system. prosecutor The was free draw as antisocial behav- disorder] conduct [the question the conclu this record evidence and ior, say [antiso- that was ... didn't even expert. jury was sions of Mr. Houston's Houston] fact that despite [Mr. cial] lawyers "say during informed that what three violent acts. had committed their arguments and that closing is not evidence" argues Houston that his counsel T75 Mr. jury rely the members of the should "on object failing to these ineffective memory reaching of the evidence" [their] Houston, According to Mr. statements. prosecu sentencing decision. None of argument was "incorrect and closing State's tor's statements were so inflammatory "effectively inflammatory" the State because was to inter "counsel's defensible choice in the record whatso- argued-with no basis objection." rupt those comments with an patho- Houston is antisocial ever-that [Mr.] By objecting, incurably logic, violent." disagree 177 We also the court strike, way addressing moving to plainly erred when it did not address statements, Mr. Houston contends these impose do not prosecutor's statements. We equate jury [Mr.] "free to counsel left the duty constantly survey or on the courts "to Bundy." disagree with Ted We Houston second-guess nonobjecting party's best Mr. Houston's characterization and con- strategy."1 interests or trial As stated clusions. above, emphasize prosecutor was free to First, 176 Mr. Houston's counsel past diagnosis. prosecu Mr. Houston's render ineffectiveassistance when he did not challenge tor was also free to the defense object prosecutor's statements. did not to the expert's Houston not that Mr. conclusion for both recognized "[clounsel We have antisocial. clos sides have latitude their considerable T78 Because we determine that neither They right fully to ing arguments. have judge had Mr. Houston's counsel nor the trial perspectives evidence discuss from their obligation object closing an to to the State's supp and all inferences and deductions has argument, we concludethat Mr. Houston 0 Moreover, prosecutor has the "[a] orts.15 failed to meet his burden to show duty right argue and to the case based on the prosecutor's statements necessitate reversal. 151 evidence." picture total shown attorney's When we review an failure to ob Mr. Failed to Show that B. Houston Has ject prosecutor's during statements clos to Selecting His Counsel Was Ineffective argument, question is "not whether ing Presenting Expert Witnesses and proper, were but prosecutor's comments improper that counsel's whether were so T claim of ineffee- 79 Mr. Houston's second interrupt concerns his attor- choice was to those tive assistance counsel defensible 152 Here, objection." comments with an we ney's presentation expert and selection mitiga- appropriately relevant to Mr. Houston's prosecutor conclude that witnesses emphasize Specifically, Mr. Houston exercised his discretion to Mr. tion defense. diagnosis childhood of conduct dis Houston's was ineffective claims that his counsel (1) order, "failing experts qualified to tell challenge expert's the defense to retain to Dibello, (Utah 150. State v. 780 P.2d 1989). Labrum, (Utah 154. State v. (Utah Hales, P.2d

151. State v. 1996). omitted). 1982) (internal quotation marks Lockhart, (8th 32 F.3d 152. Bussard Cir.1994) added). (emphasis (2) factor, mitigating testimony required, jury why youth is a was not and it cer- tainly self-serving testimony super- about the was not ineffective for Mr. Houston's

rebut YHA, fatally which under- provided vision expert topic. counsel not to retain an on this theory, primary testi- mined counsel's expert 183 We have stated before that fy mitigation and state's as to risk rebut testimony helpful explain topics is most to dangerousness future theme." knowledge that are the common "beyond ordinary jurors." Mr. Houston's counsel decision to call or "[ClJounsel's reasonably could have concluded that expert not to call an witness is a matter of jurors experience would understand from life strategy, questioned trial which will not be seventeen-year-old's decision-making that a and viewed as ineffectiveness unless there is is not as reasoned as that of an adult. More for that no reasonable basis decision." over, throughout sentencing procedure, Thus, to demonstrate that his counsel was youth emphasized Mr. Houston's counsel his retaining presenting expert ineffective in range a manner that fell within the wide witnesses, Mr. Houston must "rebut professionally competent assistance. There strong presumption that under the cireum- fore, it was not essential for counsel to retain stances, might action be consid [counsel's] expert on this issue. strategy.156 ered sound trial This is be ways provide cause there are "countless to 2. Mr. Houston Has Failed Demonstrate to case," any given effective assistance in that His Was Ineffective De- Counsel attorneys the best eriminal defense "Lelven ciding Testify Expert to Call an to particular would not defend a client in the About YHA's Failure to Treat and Su- way." same pervise Mr. Houston $81 sentencing proceeding, At the argues 184 Mr. Houston next Mr. Houston's counsel called a forensic neu- his counsel in failing was ineffective to call an ropsychologist testify about Mr. Houston's expert testify prop that YHA's failure to development. mental and emotional ex She erly supervise treat Mr. Houston was plained jury that there were available proximate cause of R.E.'s murder. Mr. help treatments Mr. Houston confront his argues Houston the result of his sen stop mental and emotional issues and to his tencing proceeding would have been different violent reactions his life circumstances. expert testify had his counsel called an Our review of the record demonstrates that standards, that "YHA industry had followed Mr. Houston's counsel did not act unreason policies, or enforced its own the crime would ably calling in qualified expert this witness or not have occurred." Our review of the ree- declining in expert to call additional wit ord indicates that this claim fails for two nesses on the same issue. reasons. First, claim, prior like Mr. Houston's

1. Mr. Houston Has Failed to Demonstrate expert no present jury was needed to that His Counsel Was Ineffective for not facts related to YHA's deficient treatment Calling Development Expert a Human supervision and of Mr. Houston because such argues 182 Mr. first beyond facts were not the common knowl Houston jurors. his counsel should have called a edge During "human de proceeding, velopment" expert testify about the effects successfully defense counsel elicited this in youth on decision-making process. through questioning formation YHA testimony may helpful While such have been staff members as well as Mr. Houston's case example, jury defense, we conclude that worker.159 For heard evi to Mr. Houston's (Utah 84, ¶ 32, Tyler, Clopten, 155. State v. 850 P.2d 158. State v. 2009 UT 223 P.3d 1993). 1103. v. State, 12, ¶ 73, 2007 UT Taylor Walker, 159. See State v. 2010 UT 157, ¶ 16, App omitted). quotation marks (noting expert testimony 235 P.3d 766 is not when critical same information can be elicited Strickland, 466 U.S. at 104 S.Ct. 2052. cross-examination).

$1 neuropsychologist a licensed with ex not realize that Mr. was YHA did dence that school; experience evaluating that Mr. in criminal de skipping tensive was Houston activity degree in sexual She has a bachelor's engaged was fendants. Houston girlfriend's preg psychology biology, in his and and master's and may have resulted therapist told degrees postdoctoral training that Mr. Houston's and nancy; doctoral Mr. Houston neurobiology. that she could not contact has evaluated criminal YHA She months; that Mr. Houston's and treated indi for several defendants since has viduals with obsessive disorders sexual lack of communi upset with the mother was Thus, jury was in a dysfunctions experience from YHA. cation since 1979. This of YHA's lack position to consider evidence ful neuropsychologist indicates that the was supervision ly testify expert and treatment. qualified to Mr. case. Houston has failed demon Second, testimony concern given that strate that his counsel's decision to call and supervision ing YHA's treatment testimony rely on her was unreasonable. proceeding, it already introduced at the for us to see how Mr. Houston's difficult Houston 189 Mr. has also failed to dem- present expert testi decision not to counsel's neuropsychologist's per- onstrate Our mony on this issue was unreasonable. anything thorough formance was but coun of the record demonstrates that review competent. The record indicates expert neuropsychologist extensively not to seek an on this testified about sel's decision strategie background the result of a move Mr. Houston's troubled and the issue was theory with the defense's that Mr. consistent impact Al had on his mental health. merey sentencing deserved Houston though she testified that Mr. Houston was accepting responsi having pleaded guilty and troubled, she also that current testified med- Presenting an bility for his own actions. could treat his ications disorders could crime on the expert to blame Mr. Houston's "really make a difference" in his mental and theory have contradicted this YHA staff would neuropsychologist behavioral health. therefore concludethat Mr. Hous We also described detail how Mr. Houston .160 cognitive has failed to demonstrate ineffective as could benefit from behavioral ther- ton therapy regarding this issue. apy type help and how this could sistance counsel develop stop him to skills to his violent Failed to Demonstrate 8. Mr. Houston Has thoughts and reactions. We thus conclude in Fail- that His Counsel Was Ineffective neuropsychologist adequately ad- Mitigation ing to Call a Different Risk mitigation the issue of risk and Mr. dressed Expert dangerousness, Houston's future and it was not unreasonable Mr. Houston's counsel argues that Mr. Houston also rely testimony on her as sufficient. called a his counsel should have different expert mitigation address because the risk core, At its conclude that Mr. we expert that Houston's counsel called was Mr. expert testimony are Houston's claims mere sufficiently qualified to address these ly appellate an assertion that counsel would argues Mr. Houston that had this issues. experts have called and retained different jury, testimony presented been prеsent than trial to to those counsel decided would have made a difference the outcome jury. But we "will not review counsel's it would have rebutted of his case because simply tactical decisions another because "powerful dangerousness" future the State's counsel, lawyer, e.g., appellate would have argument. Again, disagree. we taken a different Mr. Houston's course."1 Our review of the record indicates understanding relied on a common counsel youth expert's opinion an Mr. Hous expert that the Mr. Houston's counsel called strategy" quotation trial sidered sound Strickland, See 466 U.S. at 104 S.Ct. omitted)). (noting marks on an ineffective to succeed claim, of counsel "the defendant must assistance that, Barnes, (Utah presumption under the cir- overcome the 161. Parsons omitted). cumstances, 1994) (internal quotation challenged might action be con- marks calling choosing impartial jury, impartial an an and an ton's mental condition instead explain general development jury to a fair trial an expert to is as essential as Indeed, impartial judge.16 "[vloir dire is properly questioned youth. And his counsel to introduce evidence of YHA staff members provide a ... intended to tool for counsel to calling inadequate supervision instead of its determine, carefully skillfully by inquiry, strategic expert to criticize it. These an prejudices, whether biases and latent as well not deficient and did not de decisions were acknowledged, will interfere with a fair right prive Mr. Houston of his constitutional juror particular trial if a serves it.1 therefore conclude that Mr. to counsel. We jury process great While the selection is of prevail has failed to of his Houston many ways importance, there are to effec that his counsel rendered ineffective claims jurors, tively question and there "are a multi seeking, retaining, present assistance inherently subjective typically tude of factors pro ing expert testimony sentencing at the constituting the sum and substance of an * ceeding. attorney's judgments prospective jur about "jury ors.1 Given that selection is more Myr. C. Houston Has Failed to Show His science,"1 art than "trial counsel should be During Voir Counsel Was Ineffective given in asking considerable latitude voir dire Questioning Dire questions, especially in view of the fact that ¶ 91 Mr. Houston's next ineffective will, beginning, counsel at the have a assistance of counsel claim centers on his type clear overview of the entire case and the 166 Thus, questioning during juror counsel's the initial of evidence to be adduced." when interviews. Mr. Houston contends that his attorney's reviewing questioning and deci displayed ignorance a remarkable "[elounsel keep particular juror, sion to or remove we law, extraordinarily of the and rendered inef presume must that counsel's choices were when, juror during fective assistance initial reasonable, objectively product "the of a con interviews, pre surrendered [counsel] preference," scious choice or and "constitute sumption favoring [a sentence life with of] representation." effective Mr. Houston parole." Specifically, argues Mr. Houston presumption. has failed to rebut this jurors they asking if could "equally" imposing consider a sentence of life First, Mr. Houston has failed to show parole parole, and life without Mr. anything there was unreasonable about Houston's counsel abandoned the directive questioning jurors. his counsel's Dur- juror that a should sentence a defendant dire, ing actively voir Mr. Houston's counsel parole life with unless the State demon participated jurors and asked the a series of prison that a strates sentence of life with questions probe ability their to serve as parole appropriate given out is more impartial jurors. questions These included particular According defendant's case. whether the individuals could consider the Houston, by failing emphasize Mr. parole parole life with and life without sen- ju sentencing presumption, favorable "the equally, they thought tences and whether parole rors were free to vote for life without one sentence was too severe or one was too inclination, upon any based no matter how lenient. Our review of the record demon- slight," certainly and "this undermines confi jurors strates that all of the selected ex- disagree. dence in the result." We pressed openness imposing either sen- presented tence to them recognize impor 192 We were questioning tance of voir dire hearing as "essential to committed to all the evidence before 165. Id. 162. State v. Saunders, 59, ¶ 33, 1999 UT 992 P.2d 951. Saunders, 59, ¶ 34, 166. 1999 UT 992 P.2d 951 ¶ 34 (internal omitted). quotation

163. marks omitted). quotation marks Litherland, 76, ¶ 21, 164. State v. 2000 UT 12 P.3d Litherland, 76, 20, ¶ 2000 UT 12 P.3d 92. excerpts appropriate sentence in this case." We are And the cited making a decision.168 only bolster this that these instructions and re in his brief convinced Mr. Houston open that determine minders from counsel and the court were conclusion. We jurors were unable any misperceptions not mean the that ness does sufficient to cure during may have been created presumptive sen Mr. Houston's unwilling impose or questioning.169 Having simply indicates parole, it counsel's voir dire tence of life with impar ability willingness to serve concludedthat Mr. Houston's counsel did not their unreasonably during questioning tially. act voir dire and that Mr. Houston has failed to show Second, any confu- conclude that 1 94 we reject prejudice performance, from his we may resulted from Mr. Hous- sion that have this ineffective assistance of counsel claim. jurors questions to the was ton's counsel's jury instruction to cured the trial court's D. Mr. Failed to His Houston Has Show parole, with

apply presumption a of life closing argument, which also Counsel Rendered Assistance by counsel's Ineffective Immediately by Foiling Change be- a emphasized this directive. Seek Venue dire, jury conducting individual voir fore Mr. claims that Houston his jurors that prospective trial court advised attorney rendered assistance of ineffective parole a of life with the law favored sentence venue, by failing change counsel to seek parole: over life without analysis" in Mr. or to "even conduct a venue evidence jury presented be will Specifically, case. Mr. Houston Houston's prison in against penalty of life for and negative pretrial contends media presumed It that an parole. without surrounding case-including attention his re not less than prison indeterminate term of crime, ports gruesome details about may will years and which be for life be sympathetic stories about the victim and her imposed upon the defendant unless the outery" family, "community against vio you penalty persuades that a of life State impossible lent sex offenders-made appropriate prison parole without is the proceeding a fair Mr. Houston to have sentence this case. County. disagree. Davis We During closing argument, Mr. Hous- ¶ 97 Under Utah Rule of Crimi jury that ton's counsel reminded the 29, a nal Procedure defendant who "believes parole life with presumptive sentence was impartial fair trial had that a cannot be per- and that the State bore the burden jurisdiction pend in the where the action is jury parole was suading the that life without ing" may "ask to have the trial of the case Finally, at appropriate sentence. jurisdiction."1 transferred to another sentencing proceeding, conclusion of the change counsel should seek a Whether jury penalty court instructed the that "[the question that must evaluated venue is be parole imposed of life without should "totality under the of the cireumstances." jury if the determines that such a sentence is "(1) Relevant considerations include upon that the "burden rests appropriate" and standing persuade jury] that a sen- of the victim and the accused [the the State to community; community; prison parole the size of the tence of life without » ly" presented example, was 168. For when Mr. Houston's counsel before the evidence juror parole they say way right life without asked one whether "couldn't one or other severe, parole or if she felt life with was too too now." you guys light, responded, "Depends on what she response present to a similar in front of us." In (Utah Menzies, v. 889 P.2d 169. See State you juror responded, question, "I think another 1994) (noting "gener- appellate will that an court You have to learn what the circumstances are. ally presume jury will the instruc- follow know, you really judge person can't unless it"). given [to] tions jurors explained you Other hear all the details." appro- they would consider either sentence 29(d)(1). 170. Utah R.Crim. P. circumstances," priate "depending on the "depending we hear" about the evi- on what James, (Utah jurors 171. State Similarly, dence. other noted . 1989) willing [sentence] to consider "either fair- were (3) offense; they impartial despite gravity of the and could be fair and their the nature and publicity." the nature and extent of exposure any pretrial publicity. However, recognizing the of hind benefits Although Mr. Houston referenced sev- sight, posttrial evaluation "the determina graphic newspaper eral articles detailed question is whether defendant was [the] tive case, identify any- about his he has failed to ultimately impartial a fair and tried thing supports that claim the record his jury.1 "pretrial publici This is because coverage pretrial that this resulted in a bi- ty-even publicity-does pervasive, adverse inevitably an unfair trial."1 not lead to juror jury. ased or While have been challenges And when a defendant counsel's prudent attorney for Mr. to seek a Houston's venue, change decision to seek the defen change community of venue due to the small pretrial dant must show that the media cov and concentrated media attention surround- objective, erage prejudicial that it was so was case, ing Mr. Houston's Mr. claim Houston's ly unreasonable for his counsel not to seek a pretrial publicity that affected his sen- change in venue.175 Mr. Houston has not speculative tence is at best. Because Mr. showing. made this objective- Houston has not shown that it was jurors Counsel selected twelve ly change unreasonable not seek two alternates. The record demonstrates venue or that counsel's decision resulted jurors that five of the selected had no knowl sentencing proceeding, an unfair we conclude edge of Mr. exposed Houston were not that this claim of ineffective assistance information about the crimes commit counselfails. jurors ted. Of the nine who had heard of the crime, they that seven indicated had not E. Mr. Houston Has Failed to Demon- opinion formed an about what Mr. Houston's strate that Counsel Was be, punishment should and two indicated Ineffective for Objecting Testimony From a De- they However, opinions. had formed subse partment quent explanations Corrections that Mr. jurors from those two Officer they opin revealed that had formed an Houston Be Could Paroled Serv- Before that, guilt-an ion about Mr. Houston's issue ing Twenty at Least Years in Prison plea, because of Mr. Houston's was not in argues 1100 Mr. Houston next dispute. jurors prede Those thus had not his counsel was ineffective when he failed to termined what Mr. Hоuston's strike, object, move to seek curative be, only should punish that some form of testimony instruction to address from jurors ment appropriate. Both indicated Ford, John an assistant director with the rely could on the evidence to deter Department Utah of Corrections. Mr. Ford appropriate mine the sentence and would be impartial fair testified that if Mr. Houston was sentenced decision-making.176 their Moreover, parole, to life with there awas chance that Mr. Houston's counsel asked de questions jurors, tailed Mr. of all the Houston could be released before serv and the jurors' voir ing dire answers twenty-year prison demonstrated at least a term. 172. During jurors dire, voir one of the two ex- plained really that she did not understand the State, v. 2007 UT ¶ 42, 175 P.3d Lafferty question because did she not realize until later (alteration original) quotation pleaded guilty. that Mr. Houston had She stated omitted). marks any opinion that she did not have about what his "you sentence should be because have to learn Morris, 174. Codianna 660 P.2d 1101, 1111 judge what the circumstances are. ... [Y]ou can't (Utah 1983) Stuart, (quoting Neb. Press Ass'n v. person you unless hear all the details." The 539, 554, U.S. 96 S.Ct. 49 L.Ed.2d 683 juror explained other that she had not (1976)) (internal formed an omitted). quotation marks opinion enough because "I haven't heard ... Archuleta, 73, ¶ 38, 175. See 2011 UT fairly to." She also stated that she could consid- (stating defendant must show both sentencing option. er either objectively performance prejudice deficient prevail on a claim of ineffective assistance of counsel). years prison?" than the 20 Mr. Ford {101 sentencing proceeding, During the responded, "That's correct." called Mr. Ford to counsel Mr. Houston's sentencing system and testify about Utah's argues 104 Mr. Houston that counsel was jury treatment to the the different explain to responding ineffective in to Mr. Ford's testi- pa- to life with inmates sentenced afforded mony. Specifically, argues Houston Mr. parole. Mr. Ford also and life without role objected during counsel should have an individual is sen- explained that when Ford, prosecutor's cross-examination of Mr. possibility parole, it to life with the tenced by bringing up and that the issue back on term, meaning that for an indeterminate redirect, jury counsel reinforced to the period a of time the Board of Pardons after early that Mr. Houston's release was a viable hearing Parole would hold a to deter- nothing possibility. We find ineffective or might paroled. when an individual mine prejudicial about Mr. Houston's counsel's re- The Board of Pardons would also schedule a sponse testimony. to Mr. Ford's hearing future to revisit this determination. objection request 1 105 A formal for a cross-examination, prosecutor I 102 On only objective curative instruction is not the the Board of Par- asked Mr. Ford whether he ly response unexpected dons could release Mr. Houston before reasonable or unfavorable ony.177 before, testim As stated twenty years-in prison jury if served variety ways parole. competently him there are a to sentence to life with chose defendant, "I think responded, represent [the Mr. Ford don't a criminal and no one doing required representat Board of would ever consider Pardons] method is for effective objecting prosecu ion.178 Instead of to the [emergency] a that. Unless there's medical longer is no [the defendant] or unless questioning, tor's line of Mr. Houston's comment, prosecutor threat." After this clarify decided to counsel redirect and emphasize jury following exchange: the likelihood and Mr. Ford had the early Mr. Houston would be released generally speaking, PROSECUTOR: So extremely limited. was When we consider anticipate person you would serve in light presumption this decision years? least 20 competence, we must conclude that Mr. likely MR. FORD: At least that and most Houston's counsel was ineffective and it would be much more than that. emphasize that his decision to the limited guarantee, But PROSECUTOR: it's not early chance of release on redirect "was the clearly, of Pardons because Board strategy." result of conscioustrial power? great has [ 106 We further conclude that Mr. Hous- MR. FORD: Yes. any prejudice ton has failed to demonstrate resulting attorney's response from to Mr. {103 his emphasize To the unlikelihood of a testimony. sentencing, Ford's Before prison release from before Mr. Houston jury judge disregard any instructed twenty years, served at least Mr. Houston's redirect; testimony possible early about release: counsel asked on "It was asked any are not to take into account ac- "[¥Jou guess theory somebody not I whether or prior years. might could be released to 20 tions the Board of Pardons and Parole take the future. Future decisions of the theory possible, likely?" that's but not Mr. merely speculative Board are and are irrele- likely." responded, Ford "Not Mr. Houston's asked, jury's appropri- you vant to determination of "Especially then where counsel This instruction assures us three-person majority the Board ate sentence." [of need weight jury may you improper that the Pardons] indicated it's most spend likely person that the will much more assigned questioning this line of have Templin, 805 P.2d at (Utah 178. See Bullock, 177. See State v. 1989) (concluding trial counsel's decision not testimony object to unfavorable did not consti- Bullock, P.2d at 160. counsel). tute ineffective assistance of aggravating circumstance if it concludedthat and cured the trial properly addressed judge.180 intentionally knowingly "[Mr. Houston] ... caused the death of while [the victim] Has Failed to Demon- F. Mr. Houston engaged attempt in the of or an submission that His Counsel Was stratе Ineffective rape aggravated commit or sexual as- to Objecting Alleged to the Double not judge's made clear sault." The instructions Counting Aggravating an Factor charged that Mr. Houston was with and © Jury Instructions aggravated pleaded guilty to murder because rape, aggravated either or sex- he committed Mr. Houston's next ineffective assault, aggravating ual not These argument stems from but both. assistance of counsel jury object to a factors were read to the in the alterna- his counsel's failure to series tive, thus, jury jury pres- that find instructions. Mr. Houston claims and could instructions, objecting aggravating to these coun an circumstance if it not ence of jury engage improper to in an rape sel allowed the that either or sexual assault concluded counting aggravating factors dur double did not direct the occurred. instruction ing sentencing. disagree. We jury separate aggravating to count these as factors, thus, and Mr. Houston's counsel did ¶ Jury instruction number 18 states objecting not to instructions. err these part: relevant During sentencing proceeding, aggra- if 1110 We further conclude that even vating mitigating pre- and evidence was surrounding aggra- there was some confusion you respect penalty sented to to the instructions, vating jury in the cireumstances imposed. You that to be are instructed any prejudice confusion did not Mr. Houston cireumstances," "aggravating the terms jury weigh because the was instructed factors," "aggravating "aggravating aggravating mitigating circumstances evidence," interchangeably, refer used numbers, not in terms of but rather in terms tending penalty evidence to show that the compelling persuasive of "how or the evi- parole appropriate. without life deciding appropriate dence is when an sen- Jury instruction number states that "[the emphasize the tence." To directive that the pled guilty fact that has [Mr. Houston] jury merely up aggrava- should not count Aggravated aggra- crime of Murder is not an circumstances, mitigating ting and the trial However, vating you may circumstance.... factor, "any aggravating court stated that aggravating consider as circumstances alone, standing persuasive could be more presented aggravating that matters were mitigating than some or all of the factors charge against cireumstances in the the de- hand, mitigating the case. the other one On finally, jury fendant." And instruction num- factor, alone, standing persua- could be more "rape" "aggravated ber 15 lists sexual aggravating sive than some or all of the possible aggravating assault" as two cireum- Therefore, factors." even if Mr. Houston is jury "Aggravat- stances the could consider. jurors correct in his assertion that the count- sexual ed assault" is defined as when rape sepa- ed the and sexual assault as two ..., rape "in individual the course of a causes aggravating finding rate than factors rather bodily injury to the victim or uses or threat- other, presence jurors' of one or the dangerous with the use of a ens victim ultimate decision was still based on what weapon, such as a knife." Mr. Houston ar- compelling persuasive found most gues that these instructions created over- cireumstances, considering totality lapping aggravating factors that skewed the aggravating not the mere number factors weighing process jurors. in the minds of the present evaluating in the case. And in Mr. During sentencing proceeding, prejudice, claim pro- Houston's we must judge jury may assumption told the find an ceed "on the that the decision- Mead, 58, ¶ 50, (noting appellate 180. See State v. 2001 UT 889 P.2d at 401 that an court (holding jury any presumes jury given instruction cured that the follows its instruc prejudice have resulted from the admis tions). Menzies, improper testimony); sion of see also LEE, concurring Associate Chief Justice conscientiously, im reasonably, maker is concurring in part judgment: govern applying the standards partially concludethat We therefore the decision." [ opinion 113 I concur in the of the court in that his has failed show Mr. Houston part affirming and concur in the judgment was deficient or performance counsel's against the conviction entered Mr. Houston. deficiency prejudice. caused him however, express my separately, I write disagreement majority prin- with the on two cipal points: I would not deem Houston's not Demonstrated Mr. Houston Has G. challenge properly pre- to his sentence Error that Undermines Cumulative 22(e) sented under rule of our rules of crimi- in His Sentence Our Confidence (but subject only procedure nal instead Finally, argues %111 Mr. Houston error); plain I review for would sentence under that we should reverse his reject chal- Houston's state constitutional because the the cumulative error doctrine original an lenge to his sentence based on alleged above ineffectiveness of counsel Constitution, understanding the Utah in the sen undermine our confidence should categorically proportion- forecloses the which claim, cumulative error tence. To evaluate a ality challenge advanced in this case. errors, all the identified as well "we consider I. AND UTAH RULE any we have occurred." errors assume PRESERVATION 22(e) OF CRIMINAL PROCEDURE However, the claims are 182 "ilf error, or appeal to not constitute found on Houston failed to raise a constitu errors are found to be so minor as in challenge pro tional to his sentence harm, will not be result in no the doctrine failure, ceedings Despite below. we find that each of applied." Because majority deems the constitutional claims ad ineffective assistance of coun Mr. Houston's appeal properly presented vanced on fails, claims our confidence the fairness sel 22(e) under rule of the Utah Rules of Crimi undermined. There of his sentence is not ¶ 26. Supra provision That nal Procedure.

fore, cumulative error. we find no expressly an authorizes court to "correct sentence, imposed in

illegal or a sentence an illegal time." R.Crim. manner, CONCLUSION 22(e). cases, however, P. recent we have adopted limiting of this rule. {112 constructions beyond that Mr. It is contention Prion, recently, v. 2012 UT Most State extremely tragic. is an Houston's case is This we noted that "rule is jury, considering uncommon case where the rules," based on an antecedent the federal inherent to Mr. mitigating cireumstances and we limited our state rule to the tradition youth, concluded that Houston's nevertheless application al of its federal antecedent.: Id. possibility parole was the life without ¶ 22. Specifically, Prion held that chal appropriate for the crime commit- sentence "illegal lenge to an sentence" under rule properly ted. We hold that Mr. Houston 22(e) limited to the sen is "instances 'when brought challenges to his sen- constitutional statutorily-author imposed tence exceeds the Proce- tence under Utah Rule Criminal limits, Jeopardy ized violates the Double 22(e); however, we conclude that each dure Clause, ambiguous internally contra or is or of his claims fails We also hold Mr. dictory.'" (quoting Id. United States Pav that he Houston has failed to demonstrate (4th Cir.1992)). lico, 961 F.2d of counsel. received ineffective assistance jury's opinion explained, affirm the sentence of the Prion We therefore 115 As parole. (imported traditional limitation from federal prison possibility life in without the (alteration (internal Parsons, original) quotation quotation P.2d at 530 Id. omitted). omitted). marks marks P.3d Maestas, 46, ¶ 363, 182. State v. 2012 UT omitted). 892(internal quotation marks

law) interpreting the federal striking longstanding "a careful balance cases aimed at 22(e)-encom- correcting illegal incorporated goal of sen rule into our rule between encouraging and ... passing on one hand "instances 'when sentence tences finality the other." statutorily-authorized preservation imposed exceeds subjective Clause, is not a limits, the Prion standard Jeopardy Yet violates the Double " balancing Nor does it leave room test. internally contradietory.' ambiguous or or majority-of by the majority in its embraced Id. €22. The is mistaken the standard unpreserved challenges opening door to assertion that Prion "nowhere stated we that are "facial" and not "as- to sentences adopting were the federal limitation" as ¶ 26. Instead, Supra the standard applied." Supra holding of the court. n. 35. We objective one articulated in Prion is we Prion, expressly, repeatedly. See did so (but practice parallel under a ¶15, 21, past based on (noting that 2012 UT 274 P.3d 919 amended) federal rule As subsequently chal grounds" asserted Prion "to "[bloth 22(e) Prion, rule leaves plainly stated lenge his revised sentence are consistent challenges only for to sentences room traditional, for a with the established bases limits, statutory that violate double exceed 22(e) motion," indicating rule that "we ambiguous internally jeopardy, or that are accordingly reject procedural the State's ar Prion, 15, ¶ 22, contradictory. UT gument notwithstanding acknowledge our P.3d 919. ment of the need for a narrow construction of ¶ added)); (emphasis the rule" see also id. 23 standard, majority € 116 The overrules this ("[Prion's] 22(e) ... that motion is one comes replacing allowing it with a standard a "facial rule, within the traditional bounds of the constitutionality challenge" to the of a sen accordingly uphold against we the State's "fact-intensive," foreclosing "as-ap tence but added)). (emphasis procedural attack." 18, 23, Supra plied" challenges. 26. The ¶¶ support to find purports court this stan opinion proper 119 Our Candedo cannot supra in and its antecedents. dard Prion See ly support majority's be read to new ¶ (citing 24-27 Prion and also State v. ¶ standard. Candedo did not establish a stan Candedo, 1008; 2010 UT 232 P.3d State dependent "as-ap dard on the "facial" or 228; Telford, 2002 UT plied" challenge nature of a constitutional (Utah 1995)). Brooks, State v. 908 P.2d 856 Instead, opinion sentence. Candedo prior opinions adopt But none of our simply appeals' reversed the court of deter today. formulation established "illegal" mination that an sentence under rule Granted, opinion the Prion explained 22(e) was limited to cases "where either the the rationale behind this limitation in terms sentencing jurisdiction, ... court has no or emphasized opening the downsides of beyond the sentence is the authorized statu challenges the door to unlimited to the con 32, ¶ 10, tory range." 2010UT 232 P.3d 1008 stitutionality opinion of a sentence. Our (alteration in original) quotation warned, example, of the abuse and anom omitted). doing, marks And so Candedo aly that ensue if our law "elevate[d] would generally stated that "if an offender's sen challenges sentencing proceedings over unconstitutional, tence is the sentence is not parallel challenges guilt phase to the of a conviction,' by "judgment authorized Prion, 15, ¶ 20, trial." UT P.3d ¶ 13. ilegal." and is therefore Id. On specifically against 919. And we cautioned basis, ap Candedo held "that the court of challenge legality "a fact-intensive to the of a peals failing erred to reach the merits of sentencing proceeding long asserted after challenge Candedo's" constitutional "because the time for it in the initial trial or raising illegal the definition of sentence under rule But appeal." quoted language direct Id. 22(e) sufficiently broad to include constitu only explanation policy was of the basis validity tional violations threaten the Prion; for the ‍‌​​‌‌‌​​‌‌‌​​‌​‌‌​​​‌​​​‌​‌‌‌‌‌​‌‌​‌‌‌​‌​‌‌​‌​‌​‍standard we clarified in it was ¶ 14. holding in the sentence." Id. Our Can- not the standard itself. dedo, moreover, did not rest on a distinction standard, rather, challenges 118 The Prion was the to a between as-applied facial imported traditional formulation we from sentence. ¶ 120 Indeed, analysis opinion our constitutional is in approach Brooks line with the against (upholding Candedo's sentence a sub majority and Candedo. As the indi Telford attack) cates, process ultimately opinion due re "nothing stantive Brooks states that by gained remanding is to be the case to the as-applied challenges. jected both facial and ¶ 21 (holding probation "that Utah's trial court" pertinent See id. when "the facts are generally, undisputed purely statute as well as the term of and a legal question with sentenced, probation to which Candedo was respect to which the trial court has no discre rationally legitimate related to the state's tion Cal.Rptr.2d are remains to be decided." 87 interest"); (acknowledging id. that "a 980 P.2d at 860. opinion But the Brooks adopt does not the facial/as-applied distinc successfully challenge pro defendant could truly arbitrary bation sentence that or tion majority. simply embraced It 22(e) holds that rule "per- sometimes discriminatory process under the due clause prove probation or that the statute is cruel appeals ] the court of to consider the mitl unusual, legality but such case is before us of a if sentence even the issue is now"). raised for the first appeal," standard, time on while governing And rejecting applicability of the rule opinion effectively punted the Candedo specific sorts of constitutional claims that context of a claim substance" chal "[iIn 22(e). cognizable lenges could be under rule underlying While conviction and not the [Id. acknowledging argument (explaining the state's that rule sentence. that Brooks's 22(e) claim, styled claims that a challenge countenances sen while as a to his sen "'patently' 'manifestly' tence, illegal," ultimately tence is challenge "con his court the Candedo concluded that it was viction for a lesser included offense"). unnecessary to "reach" that issue if the acknowledge 123 I plausibility claims issue failed on their merits. readings prior alternative of our cases ad (concluding T14 there is no need to majority vanced opinion. As that "reach the issue whether the sentence is opinion suggests, opinion may Candedo 'patently' 'manifestly' illegal" if the claim plausibly be read to have endorsed the viabil "merits"). fails on its ity any "constitutional violations that [121 in validity Our earlier decision is to threaten the of the sentence." See Telford ¶ acknowledged supra Brooks, the same effect. There we that 24 n. 35. As for and Telford challenged per Telford his sentence "on opinions may both those also be understood to ¶51, 2, 22(e) applied grounds," se and as interpreted UT have rule in a manner en 22(e) 228; 48 P.3d noted that rule dorsing operative legal nar an standard-in Tel- exception preservation, ford, row to the rule of that notion the rule is limited to the allowing manifestly the "correction of correction of "manifestly sentences that are 51, ¶ 5, illegal," 228; sentences," 15; 2002 UT in illegal and stopped id. short (of Brooks, defining limiting principle standard what is the rule encom "manifestly illegal") passes challenges because the claims at "pat to sentences that are merits, clearly issue failed on ently illegal," their id. 16 908 P.2d at 860. (rejecting claims under the Sixth Amend 22(e) 1 124 Yet these constructions of rule I, ment and article 12 of section the Utah are untenable. The broad in formulation ground Constitution on the provi these Candedo would our preserva- erase rules of provided sions "no articulable at basis for tion for challenges thereby to sentences and sentence").184

tacking [Telford's] sentencing proceedings treat as somehow $122 majority significant also cites State v. more than trials. That makes no Brooks, (Utah 1995), sense, support 908 P.2d 856 in majority opinion today as even the standard, ¶ 27, supra recognizes. of its new but And the standards Telford point suggest 184. The is not to that the court did sue failed on their And, merits event. not decide whether the claims in given patchwork formulations in our cases at Telford 22(e). properly brought Candedo were under rule the time we Prion, decided it was essential simply clarifying operative I am stan- opinion provide our in that case seek to some relatively dard articulated in these cases was clarity. unimportant, sentencing challenges as the at is- 22(e), which would under rule broad We can assess unworkable. and Brooks are standard policies the law behind illegali- undermine or "manifest" "patent" but illegality; challenges "elevate and would preservation arbitrary inviting decision- concepts ty are parallel chal- sentencing proceedings over making. . trial"). phase of a lenges guilt {125 gap left filled the opinion Prion Our simple, was decision Prion in our 1127 Our set forth competing standards by the I unanimous. would straightforward, untenably formu Facing broad caselaw. I apply it here. And would reaffirm it and prem and the unworkable lation Candedo challenges to his Brooks, accordingly Houston's faced deem Prion was ises of Telford 22(e), by rule as none of conclusively uncovered determining sentence the task of 22(e) ex- a claim that his sentence exception. And be them involve seope of the rule limits, statutory jeop- violated double easily be ceeded could not the claims Prion cause internally meritless, ardy, ambiguous or contra- or was we could aside as brushed Thus, dictory. analyze I would Houston's appropriate easily sidestep the issue of 22(e) un- challenges to his sentence addressing constitutional rule under standard review, which is moreover, plain error clearly and der a standard Prion question, unpreserved to an applies the standard that objective un standard expressly defined that is not covered challenge to a sentence 22(e)-a above, standard, as noted rule der 22(e). under its rule state rule to cases tied our antecedent, that limited the chal federal the court's I also observe that would rule to those lenges countenanced analysis unfaithful to the standard is itself statutory that exceed attacking sentences challenges to postulates. Some of Houston's limits, jeopardy, or that that violate double chal "as-applied" seem to be his sentence contradictory.185 internally ambiguous or are ¶ ¶ 30-82 (addressing lenges. supra See ¶ Prion, 15, 22, P.3d 919. UT supra Apprendi challenge); Houston's (addressing Unnecessary T 149-51 Houston's holding significant. It es- 126 This challenge). claims clear Rigor Clause These historically lim- objective, rooted tablished an 22(c)-a degree analy ly implicate a of fact-intensive terms of rule itation on the broad moreover, may challenges," preserving sis. Even "facial that was essential limitation analysis, in that such require fact-intensive policies and domain of the doctrine litigant absurdity challenges require "establish avoiding and of preservation, that no set of cireumstances exists under preference constitutional regime that would would be valid." United [statute] over constitutional which the challenges to sentences Salerno, 739, 745, 107 S.Ct. challenges underlying to convictions. See id. States (1987).186 If this is the 95 L.Ed.2d [ (warning of a prospect "abuse" unmistakable; justify it was majority's principal attempt standard was clear and in to its 185. The way subject expansion a to or exten rejection in Prion is its no standard of the standard set forth be cited recognition sion if aberrational federal cases could antecedent to our state of the federal (as here). 22(e), majority opinion in the that in the future combined with the assertion rule recognized prin a courts "broader" some federal invoking point the federal caselaw is not The in "generally ciple a 'in vio under which sentence suggest it. Prion to that are bound to follow we " or "based on 'misin lation of the Constitution' objective, adopt on the need to was based magnitude'" of a constitutional could formation 22(e). limiting And the fed- standard under rule challenge subject to under the federal have been was the one we chose to fulfill that eral standard ¶ 23. unsurprising Supra that rule. It is need. general we in Prion federal rule embraced majority telling does not It is that even the subject aberration or have been to an occasional adopt set forth in the outlier federal the standard exception also in the federal caselaw. That is Instead, adopts a it new one cases that it cites. straightfor point. a Prion embraced beside doing repudiates making, a own and in so it of its ward, 22(e) objective limiting rule chal standard square holding to deference. that is entitled lenges attacking sentences that exceed to those limits, jeopardy, statutory majority opinion responds or with the that violate double no 186. The ambiguous internally contradictory. court need not delve into the that are tion that "the 15, ¶ 22, Prion, findings a We of fact' on "facial UT 274 P.3d 919. record or make ¶ 27. Supra majority adopted attack." That strikes rule constitutional rooted that standard in the that "no set of as overstated. To establish them. But the me in federal cases as we understood "as-applied" challenges to a sentence.187 So majority preserve means to sort of claim 22(e), rule the court has not adopted under criminal the standard we have is sure to lead adopting a "limited" standard. succeeded uncertainty arbitrary decisionmaking to and opened It has instead the door to broad going Lastly, perversion forward. is in a quite fact- range of claims that are often legal regime suspends that preser the law of vation for "facial" intensive. challenges constitutional retaining preser sentence while the law of ¶ 129 The back-and-forth between the ma parallel challenges vation for to a comviction. jority dissenting opinions illustrative. anything, That is backwards. If an unconsti cites extensive social science re dissent ought tutional conviction to be more trou support search in of its conclusion that Hous bling. life-without-parole incompa sentence ton's proportionality tible with the standard of ¶ 131Themajority's standard under rule ¶ ¶ 258-269 (cataloguing it advances. 22(e) Infra should not stand. should We amend the juve social science research on the nature of significant problems rule to address cognitive impact nile functions and its on highlighted by today's opinion. are rehabilitation). principles of retribution and majority similarly responses And the offers II HOUSTON'S CONSTITUTIONAL invoking Supra material. social science CLAIMS (addressing special 1158-59 status of reasons, 132 For the above I would ad minors based on "science social science dress Houston's constitutional claims under a research, longitudinal including studies and plain error standard of I review. And would mapping"). background, it brain With this reject standard, all of them under that apparent seems the eruel and unusual Houston has not asserted-аnd cannot con punishment challenge by asserted Houston is ceivably claim-that imposed sentence me, a fact-intensive one. For this under legal runs afoul of established standards. the untenable nature of scores the standard See, Nielsen, e.g., 10, ¶ 58, State v. 2014 UT adopted by today. In the court time the (noting P.3d 645 that for an error to be it, required reject replace court will be nature, "plain" legal it must and an it with a more workable one. I would avoid reasonably dispute" "obvious" error "not problem retaining the standard we omitted)). quotation marks articulated Prion. ¶ 133 That go is as far as we need to Finally, I register plea would immediately my colleagues we through revisit this issue our resolve this case. Because see however, differently, proceed matter rulemaking process. Our it law as stands 22(e) to address the merits of Houston's claims as confusing, under rule as written is 22(e), if were covered rule fuzzy, perverse. The seems confusion is in the appropriate analysis for me to meet their terms of the rule. The rule as it stands is trap unwary litigant. for an We should not its own doing, terms. so I would first 22(e) says assuming note that thing apply retain a rule that one rule and means claims, another. The I fuzziness is the court's stan- Houston's would concur in the ma today. clear, jority's analysis dard as articulated There is no of Houston's federal consti ¶ ¶ 29-63, established distinction between "facial" supra tutional claims. See 69-108. State, sentencing pro Cnty., Emps. circumstances exists" in which a 187. See Am. Fed'n & Mun. of (11th Scott, 851, could be Council 79 v. 717 F.3d 865 valid, Salerno, 745, vision 481 U.S. at Cir.2013) ("[The 2095, as-ap line between facial and questions easily 107 S.Ct. factual could one, plied many relief is a fluid constitution implicated. prime example. This case ais If we challenges may occupy posi al an intermediate gauge assessing are to social science research in spectrum purely as-applied tion on between question proportionality sentencing, of in invalidation."); complete relief and facial Rich surely presentation we could benefit from the of Fallon, Jr., As-Applied ard H. and Facial Chal question evidence on the matter. On this lenges Third-Party Standing, 113 Harv. L.Rev. competing opinions find it sufficient to rest on 1321, (2000) ("There single 1321 is no distinctive science, their own evaluations of social but that facial, category opposed as-applied, of as liti inquiry any does not make the less fact-intensive. gation."). incorporates a ¶ standard asserting a Punishments Clause Houston is the extent 134 To authorizing appellate proportionality of challenge to his sen federal constitutional lawfully imposed a second-guess courts to tence, to follow are of course bound we Supra grounds on of excessiveness. sentence Supreme States of the United precedents dissent, unlike the 64.189 And ¶ Amendment's Cruel Eighth infra under Court ¶ I, 213-251, interpret article I would not And be Punishments Clause. and Unusual this court to consult adopt 9 to authorize appear section precedents cause those review,188 ¶ 255, instinets," we must "proportionality" form of our "humanitarian infra decency "evolving assessing standards our sense standard here apply that same maturing of a soci progress I that mark the claim. constitutional Houston's federal ¶ analysis ety." majority as it opinion's in the concur Infra reject claim. I would this federal applies to Instead, original mean- based on the 1 137 argument Eighth Amendment Houston's I, 9, I would ing the text of article section opinion. forth in the court's the reasons set forbids conclude that the Utah Constitution ¶ ¶ supra 52-63. See only that were those modes time of the repudiated as "cruel" at constitutional claim Houston's state provision and that are "un- adoption of this matter. To the extent Houston is another I, being contrary in the article see- usual" sense challenging his sentence under Constitution, according- I practice. And would is our established tion 9 of the Utah claim ly reject Houston's state constitutional responsibility to prerogative and articulate legal And on that applicable standard. grounds narrower than those embraced by majority. rejecting Houston's point my grounds for ex- challenge to his sentence constitutional First, repudiate the dicta I would majority beyond those set forth tend I, prior interpretations of article this court's opinion. 9, which articulate an unworkable section {136 accordingly majority, I would not standard and do not merit defer- Unlike the under the doctrine of stare decisis. the Utah Cruel and Unusual ence assume concurrence, Kennedy (joined pro separate Justice U.S. Court has invoked 188. The court) opinions. portionality analysis in a number of its indicated an two other members of the - -, Alabama, "gross" See Miller v. U.S. 132 S.Ct. adopt inclination to a limited notion of 2455, 2455, (2012) (striking 1005, 183 L.Ed.2d proportionality. S.Ct. 2680 See id. mandatory parole without sentences down life (Kennedy, concurring concurring J., in part juveniles violating "principle pro Thus, judgment). ap- in the federal caselaw Eighth portionality"' embedded in the Amend "evolving," v. to be as we indicated in State pears Florida, 48, 59, ment); Graham v. 560 U.S. 1372, Mace, (Utah 1996) P.2d 1377 n. 4 (2010) (holding S.Ct. 176 L.Ed.2d 825 "(olur (asserting 'dispropor- use of the term Eighth proportionality principle Amendment express tional' ... is not meant view on parole prohibits imposition of life without sen- evolving jurisprudence, the status of this nor is homicide); juvenile tence on who did not commit present meaning of the term at issue in the Helm, S.Ct. Solem v. 463 U.S. case"). Yet we are bound to follow the court's (1983) (striking down life L.Ed.2d here, holdings-particularly, of relevance the de- felony parole sentence for nonviolent without Miller, cisions in Graham and which consider statute, Eighth holding under recidivism that the society's "objective indicia of standards" and punish- "prohibits Amendment barbaric judgment" evaluating "independent court's ments, disproportion- but also sentences that are "categorical" challenge constitutionality committed"). "precise ate to the crime But the sentencing applied juveniles. a Graham, scheme as proportionality standard are contours" of 560 U.S. at 130 S.Ct. 2011. Michigan, somewhat "unclear." Harmelin 957, 998, 111 S.Ct. 115 L.Ed.2d stop expressing any would also short of I J., (1991) (Kennedy, concurring part juveniles "hope ... that LWOP sentences for will Harmelin, concurring judgment). in the Supra be rare." 167. That sounds well and Scalia, (authored by opinion and lead Justice good empathy. But as a matter of humanitarian joined by Rehnquist) concluded that Chief Justice beyond judges decided, as it strikes me as our role wrongly Eighth that the Solem was and express "hope" any particular for outcome-as Amendment's Cruel and Unusual Punishments verdicts, awards, jury damages or criminal incorporate principle propor did not a Clause proceedings that we review on sentences-in 961-94, or excessiveness. See id. at tionality Scalia, (1991) (lead J.). appeal. opinion of In S.Ct. 2680 Second, adopt originalist concep- I would justification reliance-based is not implicated, precedent I, as where question adopted in a tion of article section 9-a standard that proportionality analysis leaves no room vague standard that is or unworkable. State prohibits only punish- Menzies, (Utah those methods of 393, 1994). v. 889 P.2d I ment are so barbaric or cruel that would decline to defer to the Herrera stan by longstanding practice. barred were law or dard on principal grounds. two standard, Finally, applying this I would re- T142 First fundamentally, and most no ject Houston's state constitutional claim be- majority opinion of this court has ever em challenge cause he raises no to the method of a proportionality state standard of ployed punishment only challenges his but term his that is distinct from the federal standard. grounds of confinement proportionality. standard, Herrera articulated a state but it did in a simply so manner that parroted the Supreme A. Utah Court Precedent governing Thus, federal apply standard. in ¶ 139 Herrera, 64, In State v. 1999 UT ing above-quoted proportion standard of 139, 854, 993 P.2d this court asserted that ality, the Herrera precedent court cited ap prohibition the Utah Constitution's of eruel plying the standard and concluded federal punishments unusual encompasses the federal "appli[ied] standard principle proportionality. In the Herrera equal force to our consideration of Herrera's words, punishment court's "a criminal is eru- claims under the eruel and punish unusual I, el and unusual" under article 9 "if section ment[s] clause the Utah Constitution." disproportionate is so to the ¶64, 38, 1999UT 993P.2d 854. offense committed that it shock{s] moral In support of the standard it em of all sense men reasonable as to what is ployed, the Herrera court cited State v. right proper under the cireumstances." Mace, (Utah 1372, 1996). 921 P.2d 1377-78 (alteration original) Id. 183 quo 64, ¶ 38, 1999 UT 993 P.2d 854. And the omitted). tation marks punishments" "cruel and unusual analysis in ¶ 140 A question threshold for me is expressly Mace is exclusively restricted whether to afford stare decisis deference to Eighth Mace, Amendment. 921 P.2d set forth in standard Herrera. Such ("Mace at 1376 separately has not briefed his presumptive deference is a starting point. claim, state constitutional and we do not Austad, 49, See Austad v. 2 Utah 2d 269 P.2d it.")190 reach That likewise holds for the (1954). 284, good And for reason. "The majority opinion other cited in Herrera-State doctrine of stare ingrained decisis is in our (Utah Copeland, 1988). 765 P.2d law and is entitled to serious consideration." Copeland's proportionality analysis was also underlying "The reason [this doctrine] nature, federal proportionality as was the people should legal know what their analysis in the majority opinions other from rights by judicial are as precedent, defined Copeland's which standards emanate. See having conducted their affairs reliance (citing Hanson, id. State v. 627 P.2d rights, ought on such swept have them (Utah 1981) (federal Eighth Amendment away by judicial fiat." Id. claim; turn, citing, Nance, State v. (articu 2d presumption Utah Yet the stare decisis is rebuttable. itAnd is rebutted where its lating Eighth proportionality Amendment event, opinion Eighth our in Mace best embody propor- Amendment does not support general weak proportionality stan- tionality requirement noncapi- for sentences in dard even as a matter of federal law. There we cases, justices tal and ... three other would expressly acknowledge did "proportionality" "grossly forbid dispro- sentences that are standard opinion in the U.S. Court's portionate" to the crime committed. Our use Helm, Solem v. 103 S.Ct. "disproportional" of the term in the text is not (1983). acknowledged L.Ed.2d 637 But we also express any meant to view on the status of this the feeble foundation of the Solem standard as a evolving jurisprudence, meaning nor is the noting matter of federal constitutional law, present the term at issue in the case. follows: Mace, 921 P.2d at 1377 n. 4. sitting justices [Two of the United States Su- preme Court have articulated the view that the

94 States, in gives that no guishable-a 217 determination v. United under standard Weems standard, (1910)))). significance to the state 544, dependent 349, L.Ed. 793 54 30 S.Ct. U.S. for stare decisis reliance. and thus no basis authority cited T 144 There is one other exception to that rule is Gard And the sole proportion for the state standard Herrera ner, majority of the court refused in which a Herrera, adopted. 1999 UT ality that it See any independent standard. to embrace state Gardner, ¶ 33, (citing State v. 993 P.2d 854 64 where the that reason this is case For 1997)). (Utah 630, the But P.2d 633 defer in favor of stare decisis presumption opinion an that is to portion cited Gardner rebutted, properly litigant no could ence is point-an opin minority on that was in the identify any independent standard under ar Durham, joined only by Justice ion of Justice I, beyond goes that a restate ticle section 9 Gardner, A P.2d at 653. Stewart. See binding ment of the federal standard. majority court declined to embrace {146 rejecting reason for analysis. The second constitutional court's state Gardner A.C.J., it is a Zimmerman, Herrera that the standard identifies ex is (opinion id. See hazy one. This is another and unworkable that the case could be dealt pressing the view rebutting presumption of stare declining ground grounds, while with on federal unpredictable legal An standard decisis.191 dealt constitutional issues "reach Utah simply litigants not one that can use as sweepingly and at is Durham so Justice Russon, affairs. For guidepost organizing their length"); (opinion at 657 such id. J.) long that un J., Howe, (indicating that reason courts have held joined by the view precedents qualify not for stare constitu workable do question that sentence in was precedents decisis deference.192This court's tional, asserting that the state constitu while question properly was not before sentencing an ar proportionality tional on are unworkability. fact re chetype of That given "presented that the defendants court flected in the federal decisions on which our Eighth arguments solely under the their oral legal own cases are based and in commenta to the United States Constitu Amendment ry.1 94 tion"). problem highlighted by the 1147 This Thus, majority has no of this court dissenting opin- forth in adopted independent standard of formulation set

ever I, Quoting 9 of ion in this case. the Nevada Su- proportionality under article section Court, preme proposes a stan- part For the most dissent the Utah Constitution. simply we have conflatedthe state and feder proportionality dard of " that would turn entirely, upon humanitar- 'largely, as indistin if not al standards and treated them See, tionality employs e.g., Dep't Transp. review the Court ... lacks Utah v. Admiral Harmelin, foundation."); principled 501 U.S. at ¶¶ Beverage 275 P.3d 62, 36-42, 2011 UT Corp., 1001, J., (overruling Dep't Transp., (Kennedy, concurring in Ivers v. Utah 111 S.Ct. 2680 19, 802, (noting part concurring judgment) it was 2007 UT both because in the "wrongly holding precedents proportionality its decided" and because on court's practice"). objective distinguish "unworkable be "lack clear standards years"); tween sentences for different terms of Simmons, 551, 8, v. 543 U.S. 616 n. Roper U.S. Id.; Tennessee, see also Payne J., 1183, (2005) (Scalia, S.Ct. 161 L.Ed.2d 808, 842-43, L.Ed.2d 720 111 S.Ct. ('The dissenting) today's case demon cases, votes in (1991) (Souter, J., ("In concurring) prior offending lawyers' of selected mor strate wrongly decid when this Court has confronted a predictable al not a for law- ed, sentiments is basis precedent calling unworkable for some fur one."). less a democratic much we Court, ther action have chosen error, compound original but to overrule the Wickham, precedent."); & Co. v. 382 U.S. Clark, 194. See Bradford R. Constitutional Struc Swift (1965) 86 S.Ct. 15 L.Ed.2d Eighth ture, Discretion, Judicial and the Amend (overruling prior noting caselaw and ment, 81 Notre Dame L.Rev. kept books in the name of "should not (asserting prevailing proportionality stan proved stare decisis once it is to be unworkable highly discretionary impossible to dard is practice"). given on little more than it "rests predict, subjective opinion of five Justices" as to "the Graham, penological propriety of the chal 130 S.Ct. 2011 moral 193. See (Thomas, (''The lenged punishment"). dissenting) categorical propor J. judiciary' "-a para of the standard was to the fundamental and "form[] ian instinets " nation," openly acknowledges by establishing have mount law of the '[wle "certain limits not to be transcended" and nothing guide defining us in what is eruel consciences,'" apart "designed permanent." Marbury from our or and unusual be (1 Cranch) words, beliefs, Madison, 137, 176-77, 178, the "'mosaie of our other (1803) ("[T]hat backgrounds degree may and the of our faith L.Ed. 60 our those limits mistaken, personality.!" dignity forgotten, in the of the human not be or the constitu ¶ written."). State, (quoting Naovarath v. 105 tion is And the Utah Constitution Infra (1989)). part serves,a Nev. No similar function. It establishes the government, of that formulation could sustain reason foundations of our state and the rights able reliance interests. No criminal defen fundamental of our citizens. reliably prosecutor dant or could divinewhat premise originalism 150 This is the judges the "consciences" or "beliefs" of the interpretation. implement constitutional We assessing particular sentencing practice principles originally of the constitution as might any anticipated ap dictate in trial or adopted very point because that is the peal. proportionality The standard as formu having a written constitution. judges When by very lated the dissent is the definition of adapt seize the discretion to amend and

unworkability. possibly It cannot sustain provisions constitution, of the princi those interests, any reasonable reliance and thus ples "paramount cease to be law of the no claim to has stare decisis. nation." they 177. Or at can least no longer thought "permanent" be of as rules Originalist An B. View of that are "not to be transcended." Id. at 176. I, Article Section 9 Thus, "originalism just is not starting a wise reasons, point; For the above I beginning would is the and end of the function, prior pronounce judge's feel bound to follow our and an essential limitation judicial Walker, power." section 9. on I, 2011 UT meaning ments on the article ¶ Instead, (Lee, J., I would take a fresh look at the 267 P.3d 210 concurring). important question meaning of the of the originalist 151 The understands the val Utah Cruel and Unusual Punishments inevitability-of ue-and even the adapta doing, employ Clause. so I would Thus, tion of the law over time. the case originalist interpreting method of the Utah not, originalism as is sometimes as

Constitution. sumed, an founding gen insistence that the monopoly eration had a on In wisdom.195

T149 "Our state and federal constitutions just stead, supreme; they organic are not are originalist simply recognizes or constitutive, respects in that by establish the funda the means which our are laws ground lawmaking mental rules for supposed adapt and fixed under the terms of the (a) against potential tyrannies bulwarks of the constitution. Such means are twofold: Walker, majority." State v. 2011 UT through amendment of the constitution ¶ 35, super-majoritarian procedures (Lee, J., concurring). set forth in 267 P.3d 210 (b) provisions implementation its founding purpose of the U.S. Constitution See, Marshall, e.g., Thurgood which, Case, either shall be valid to all Intents Reflections Constitution, the Bicentennial the United States Constitution, Purposes, as Part of this when (1987) ("I 101 Harv. L.Rev. 1-2 do not believe by Legislatures ratified of three fourths of the meaning that the of the Constitution was forever States, by several Conventions in three fourths Philadelphia 'fixed' at the Convention. Nor do I thereof, as the one or the other Mode of Ratifica wisdom, foresight, justice find the and sense of may proposed by Congress...."); tion be by particularly pro exhibited framers XXIII, ("Any § Utah Const. art. amendment or found."). pro amendments to this Constitution posed Legislature, in either house of the and if ('The Congress, 196. See U.S. Const. art. V when two-thirds of all the members elected to each of ever two thirds of both Houses shall deem it necessary, houses, the two shall vote in favor propose thereof, such shall Amendments to this Constitution, or, proposed amendment or amendments shall be Application Legis on the States, respective journals yeas entered on their with the of two thirds of the several latures shall Amendments, proposing call Convention for Legislature thereon; taken nays through people a document whose overriding the terms of policies embraced limita political branch- fixed very purpose in the was to establish representatives

their adoption of stat- government-by government, es of means reserved on our tions utes, other laws within regulations, and constitutional through process of people to constitution. prescribed in the limitations amend ment.199 ¶ legal adap forms of and other 152These ¶ Thus, and unusual" the words "cruel 153 original- critique of a common tation refute they what meant to taken to mean "must be by a society to rule it shackles ism-that when the 97 the voters of the state the minds of examples illus these As "dead hand.1 adopted." Tintic Standard provision was consign our trate, originalist does 491, Cnty., 15 Mining v. 80 Utah Co. Utah in the found regime stuck society to a static (1982). 633, approach is the to 637 This P.2d change simply that be He demands ing era. interpretation that this court constitutional by the means manner and in the effected exceptions a few notable And he is embraced-with by the constitution.198 has prescribed history.201 0-for most of its judges 20 perils of unelected attuned to the Bush, 40, ¶ repealed"); Am. 2006 UT amended or published in at least the same to be cause shall state, every county (Parrish, newspaper majority of the one J., 66, 140 P.3d 1235 opin- newspaper published, two months is fon) where (explaining not our to "[it that is place" election, general preceding immediately the next "substitutle) judgment value for that of our own or amend- time the said amendment people at which and ratified of Utah when drafted of the to the electors ments shall submitted noting that this does not constitution," while approval rejection, or and if for their constitution"). state "interpreting our amount to voting ap- shall majority the electors thereon of same, amend- prove such amendment or Soc'y Separationists, Compare Inc. v. Constitution."). part of this ments shall become Whitehead, 916, (Utah 1993) 921 n. 6 870 P.2d ("'We encouraged parties briefing state con have Brennan, Jr., Speech to William J. 197. Justice ... sister state law ... stitutional issues to use Georgetown Teaching Symposium, the Text and arguments policy of economic and in the form Washington, D.C., 12, 1985, Oct. University, arriving sociological materials to assist us in and Century (Ste Quarter or Desate 55 A Ortamnarism: provision proper interpretation at a of the ed., ("[The 2005) genius of the Calabresi ven G. Bush, 40, ¶ 12 question."), Am. 2006 UT an. with meaning not in static it Constitution rests 3, ("We intentionally exclud 140 P.3d 1235 have gone, might is dead and have had in a world that arguments suggest policy ed the consideration of adaptability great principles of its to but in the Whitehead, by Soc'y Separationists v. ed - cope problems and current current 916, (Utah 1993)... duty . [O]ur 921 n. 6 is P.2d Moore, needs."); A Natural Law The Michael S. judge people of Utah in not to wisdom 277, ory Interpretation, 58 S. Cal. L.Rev. protec granting withholding or constitutional (1985) (''The past ought not to dead hand of the liberty example, confined dis govern, our treatment of the but, rather, tions accurately intent."). cerning v. Tiede their See also State any theory interpretation speech, of free and mann, 49, ¶¶ 32, 37, theory."). 2007 UT 162 P.3d 1106 it does is a bad that demands (citing Soc'y regard Separationists's standard Lake, City South Salt 2006 UT 198. Am. Bush "policy arguments ing in the form of economic (Parrish, majority J., P.3d 1235 40, ¶ 66, 140 sociological proper materials" as a basis for (noting public opinion) values and "[slocial while assert state constitutional interpretation, time," opinion over but that ... fluctuate ing arguments repre ... do not "[hJistorical people appropriate response is for the to address analysis"); qua sent a sine non in сonstitutional problems "through legislative enactments such ¶ Hoffmann, App & State v. 2013 UT n. ¶¶ 79, constitution"); id. or even to amend our (noting P.3d 225 tension between Tiede- J., (Durrant, concurring) (noting analysis comment about historical mann's "enticing adopt interpretive technique holding point). on the same American Bush's we, whereby judges, as look to our own attitudes protec the contours of the and views to discern Christiansen, Jeremy Thoughts M. Some 201. See state constitution," tive erected our boundary by Originalism: Response, A 2014 Utah on Utah explaining approach akin that this ""ismore but & 26-36, L.Rev. On Law 5-6 & nn. 9-10 nn. 59- judging"). dictating than (citing discussing approach this court's time, over and con constitutional interpretation 267 P.3d 210 Walker, 53, ¶ 30, 199. See 2011 UT cluding prevailing approach largely that the has (Lee, J., concurring) (explaining the "barri originalist (citing Richardson v. Treasure been design," by of our laws are ers to amendment Co., (Utah Mining P. 23 Utah Hill are entitled to "[mJembers and that of the public XII, 1901) (interpreting ex article section rely organize law their affairs around the positively and until the law is amining enacted-unless framers'] discussions "[the upon [ 154 should originalist We reinforce the identical. possesses Each of us a different interpretation method of in this case. We set of "instincts" and Surely "beliefs." I, should construe the terms of article section constitution vary was not meant to from case originally 9 as understood provi when that case accordance with judge panel adopted sion was in 1896. And we should assigned particular to a case. To good make expressly repudiate the methodology of the promise on the of a written document seeur- dissent to the extent it rests on a review of ing fundamental, permanent rights, the con "policy arguments in the form of economic stitution must mean what it originally materials," sociological see (citing meant.204 Soc'y Separationists, Whitehead, Inc. v. "evoly- 1 157 I would accordingly reject the (Utah 1993)), 921 n. 6 or an ing" anti-originalist approach endorsed heady assertion of the prerogative making of Instead, the dissent. I adopt would an inter- by constitutional law imposition of our pretation I, of article section 9 rooted in the "humanitarian "springling} instinets" from understanding provision of this that pre- ¶ 255.202 the mosaic of our Infrge beliefs." vailed the late century. nineteenth For That is the originalist antithesis of an inter explored below, reasons I would conclude pretation of the constitutional text. that understanding does deputize not 1155 A constitution rooted in "evolving the courts second-guess to punishments they arising standards" judge's out of a "humani- deem excessive or lacking in proportionality, tarian instinets" is no constitution at all. Or but proscribe punishment methods of at least it is not a "written" historically rejected as barbaric or torturous. constitution capable of "form[ing] the fundamental and I would base that conclusionon the text and paramount nation," law the or of establish- I, 9; structure of article section history ing "certain limits not to be transcended" and understanding provision's of this federal and "designed permanent." to be Marbury, and state counterparts at the time of its (1 Cranch) 5 U.S. 177. adoption in the late nineteenth century; and drafting history post-ratification and his- judges 156 As we take an uphold oath to tory of provision. and defend the constitution.203 That oath this must something. mean It should be under 1. Text and Structure of protect stood to rights fundamental I, Article Section 9 our citizens. It nothing means of the sort if its content dependent is on the "humanitari I, 1158 Article provides section 9 an instincts" or "beliefs" of judge or "[elxeessive bail shall required; not be exces- panel judges litigant happens to draw in sive fines shall not imposed; nor shall judicial proceeding. No judges two are cruel and punishments unusual be inflicted." subject[ report ] [in the proceed- official thereof, pursuance made in "support, obey ings convention)); of the constitutional Ritchie and defend" the United States and Utah Consti Richards, Utah tutions). P. Batch, J.) (per (interpreting the pro- secret ballot vision of article IV, choosing section "evolving 204. The approach standards" has one meaning of "secret" harmony that was "in it; thing going for transparent. it is But a stan- public thought expression respecting the bal- dard of constitutionality expressly depends systems lot at the time holding of and before the on the "humanitarian instincts" or "beliefs" of convention"); of the constitutional State v. El- judge(s) assigned particular to a case liott, is inco- (1896) (discern- 13 Utah 44 P. herent. The uphold oath that we take to ing the intent "of the framers of our fundamental supposed constitution confirms that it is determining law" in mean scope quo of the "writ of something VIII, objectively concrete 4). warranto" in article discernible. section We premise-and thwart replace it with an credit, 202. To its the dissent also considers his insistence that the constitution will mean differ- ¶¶ 214-17, analysis. torical materials in its things Infra ent in different courtrooms-when we re- short, originalism 227-50. But the dissent's falls pudiate originalism right and insist on our to see for reasons discussed below. that the living constitution evolves as a document over time. IV, 203. Utah § Const. art. (prescribing an oath, to be taken all "officers made elective or appointive by this Constitution or the laws not is and unusual" Clearly "cruel I, § The structure art. Const. Utah (nine relevant The as "excessive." the same against an cut provision

language of is "[dlis- "cruel" century) sense of teenth authorize that would interpretation Webster's pain," "barbarous." give posed of a sen proportionality to assess courts Dictionary (1892).208 ScHoor Common into the inquiry an tence, instead suggest out point does the dissent Tellingly, punishment. method or the nature that re "cruel" usage of the word attested {159 of this the terms cue from The first proportionality. notion flects the two claus In its first structural. provision is relevant In the "unusual." goes for same calls for expressly I, es, section article sim understood term was period, time review-by proscribing "[elx- proportionality uncommon; Id. at usual; rare." ply as "not The es fines." and "excessive bail" cessive un "cruel and Thus, all, excessiveness, comparis after sence of in its barba- uncommon rare or if it is usual" bail or of excessive prohibition on.205 So That pain. tendency to cause rousness principle invocation express fines is proportionality its nothing to do with has proportionality.206 underlying offense. relation however, lim- section 9 Significantly, 1 160 hand, "Exeessive[ness]," other on the 1 162 exces- punishment's criminal of a its review principle reference unmistakable is an punishments, For and fines. to bail siveness term Historically, (like Eighth proportionality. of Utah Constitution any given "[bleyond to mean understood excessiveness; Amendment) says nothing of limit, beyond the com- or or degree, measure that are punishments only those prohibits "[bJleyond proportion" and or mon measure significant. That is unusual." and "cruel beyond morality religion, or and laws of use two clauses parallel of three sets Where fitness, propriety, ex- justice, of the bounds formulations, implication is the clear distinet AmBRICAN utility." WarBsrEr's or pedience qualifiers is intended. that a difference Languack Dictionary 314 THE or exceeding- be "an unusual" would "cruel and added); 1830) communicating (3d see also way" (emphasis oblique of ly vague and ed. Dictionary 118 Common School Webster's I, direct- communicates section 9 what article "intemperance; (defining "excess" as clauses-proportion preceding ly in the two anoth- thing exceeds by which one amount Michigan, 501 U.S. v. ality. Harmelin See point 2680, er"). 836 977, 115 L.Ed.2d the structural 957, This underscores 111 S.Ct. I, 9 J.) article section above. Where (lead Scalia, (offering highlighted (1991) opinion of proportionali- encompassing employs a term the U.S. Constitut under parallel conclusion not in the ion).207 clauses but in two of its ty review ¶ 162. is on its face where resolve, or 205. See infra provision pres- problems parallelism. are lacking Both (3 Call) 44, Va. e.g., Goodall, 7 Bullock v. See, phrase and unusual" clause "cruel here. The ent (1801) (noting fines" that the "excessive 49-50 unparallel with- decidedly from-and distinct to limit Virginia works Constitution clause of bail" clause. and "excessive "excessive fines" by impose.fines ensur courts to the discretion of Thus, approach- basis for the dissent's I see no .... exercised ing "is not that such discretion adjectives two deeming to extend to this canon impose a fine arbitrarily, justly; as to but so (excessive), grammatically and struc- which are injury"); Earl and to the offence commensurate (bail modify turally to the nouns limited 133, 136 State Trials Case, Devon's 11 fines), af- modify (punishments) a third noun pounds" thirty (condemning thousand a "fine of (cruel by adjectives ready its own modified exorbitant"). as "excessive unusual). construction, canon 207. The noscitur infra 1224, contrary support the dissent's yields no Dictionary or THE American See also ambiguities in a term This canon resolves view. 1830) (3d (defining ed. Lancuace parallel- importing points statutory in a list others, give pain "[dlisposed "cruel" as Thayer v. See among terms in the list. other ism torment, vex, mind; willing pleased to body or or ¶ 15, 31, Dist., Cnty. 2012 UT Sch. Wash. inhuman; afflict; compas- pity, destitute or U.S. States, 511 v. United 1142; P.3d Beecham savage; bar- ferocious; fierce; kindness; sion 1669, 368, 371, 128 L.Ed.2d S.Ct. hard-hearted"). barous; (1994). has however, the canon reason, For that ambiguity to application there is no where no clear:; third, message fines, seems Execessive- uniquely concerned pun- of all proportionality ness or review is limited to ishments, imposed will be in a measure out judicial fines, consideration of bail and penal of accord with goals of retribu- broadly not extend punish- does more tion and Imprisonment, deterrence. cor- ments. poral punishment, capital and even punish- ment cost a money; State fines are a {163 The dissent deems this distinction " source of revenue. As we recognized have "unnatural," "incongruous," 'anoma in the context of other provi- constitutional Solem, (quoting lous." 463 U.S. Infra sions, it makes sense to govern- serutinize 3001). 289, And, citing 108 S.Ct. cases mental closely action more when the State interpreting Eighth Amendment of the stands to benefit. Constitution, U.S. the dissent asserts long "[the Court has ... held that Harmelin, 501 U.S. at 978 n. 111 S.Ct. Eighth ... prohibits Amendment dispro (lead J.). Scalia, opinion ¶ portionate punishments." (citing Infra ¶ 164 This entirely in line with our Utah States, 349, 366, Weems United 217 U.S. caselaw, which long has embraced the canon (1910); Solem, 30 S.Ct. 54 L.Ed. 793 independent (or, meaning words, in other 3001; U.S. at 108 S.Ct. O'Neil v. Ver a presumption against superfluous language). mont, 323, 331-32, 339-40, 12 S.Ct. See, e.g., Hi-Country Prop. Rights Grp. v. (1892)(Field, J., 36 L.Ed. 450 dissent Emmer, 33, ¶ 24, 851; UT ing)). disagree I points, on both As to Co., Vota v. Copper Ohio 42 Utah 129 P. precedent, the cases endorsed the dissent (1912). canon, Under this the Cruel question have been called into recently. more and Unusual Punishments Clause should not supra I (describing See 134 n. 5 impact presumed superfluous. to be It should be opinions analysis Harmelin on the independent assumed to have meaning. And Solem). opinion The lead in the court's more give in order to it such meaning, we must pronouncements recent under Eighth the presume that it does than more restate the Amendment, moreover, persuasively refutes bar on "excessive fines" in general more supposed "anomally]" the limiting of the ex- terms. inquiry cessiveness to the terms with which ¶ reasons, 165 For these language the and (bail fines): it is connected and structure of the Utah Constitution are incom logic The quite the mattеr is oppo- the patible with the proportionality standard em If site. "cruel punishments" and unusual Instead, braced the dissent. the terms of disproportionate punishments, included the provision appear to be directed at a separate prohibition of disproportionate standard focused on question the whether a (which fines certainly punishments) are punishment is one that is both "barbarous" would entirely have been superfluous. "disposed give or pain" and "uncommon" (the parts provision When two of a Eighth or "rare." Amendment) use language different to ad- subject matter,

dress the same or similar Original B. Public Meaning of "Cruel in meaning difference is assumed. and Unusual Punishments" But, might argued, why be any would This view is confirmed evidence of person rational be careful original forbid the the public meaning of the Utah Cru disproportionality of provide fines but no el and Unusual Punishments Clause and of protection against disproportionality the English its federal and antecedents. Article punishments? more severe I, Does not section 9 traces its parallel roots to a provision suggest in the one the existence of Eighth U.S. Constitution's the other? Not at provision, good Amendment.209And the federal all. There is reason to be nearly flicted."), I, 209. The two ("Excessive clauses are identical. Com- § with Utah Const. art. pare ("Excessive U.S. Const. amend. VIII required; bail bail shall not be excessive fines shall required, shall not be imposed; nor excessive fines im- not be nor shall cruel and unusual posed, punishments nor punishments cruel and unusual in- be inflicted. Persons arrested or speak event, provisions quoted any in the clause turn, parallel aon was based proportional- policy of aspirational general Rights. English Bill of undoubtedly we punishment; ity in criminal { ad- three highlights background 167 This policy general long embraced have my inform sources historical ditional States, mean but that doesn't the United I, article meaning of understanding judges to requires our law our constitutional (1) origins of the English 9: section legisla- against principle as such enforce punishments, unusual eruel and principle of tively punishments.) endorsed (2) understanding of the federal original Clause, and Punishments and Unusual Cruel understanding original To derive an at the time understanding prevailing constitution, its text must consider we of the All the Utah Constitution. adoption of of the and Un- The Cruel underpinnings. legal prin- incompatiblewith are three sources borrows terms 'Clause Punishments usual by the dis- endorsed proportionality ciple of Rights. English Bill of concepts from the prohibition sent, toward point instead Rights Declaring Act Compare An that are punishment unprece- of modes Subject Settling the of the Liberties nature. in their barbarous dented M., sess., Crown, 1 & 2d W. Succession 1689) ("That (Dec. 16, bail excessive ch. origins protection English a. fines required, nor excessive ought "cruel and unusual against punishments eruel and unusual imposed, nor punishments" inflicted."), Const. amend. VIII with U.S. ¶ that the "maxim I not doubt 168 do ("Excessive required, nor bail shall not be crime" is must fit nor eruel and unusu- imposed, fines excessive sys "reasoned "foundational" matter inflicted."). starting So the punishments al ¶ 214. But justice." of criminal tem Eighth study Infra of the any historical point for concern the presented does not question the under- inquiry into Amendment is an "ven applicability of this general wisdom prevailed his- provision that standing of that ¶ 214, a matter of principle," erable infra torically. Instead, ques public policy. aspirational ¶171 princi of the In initial invocations its prin extent this and to what tion is whether Su the United States ple proportionality, of the incorporated in the terms ciple is open disdain for preme proceeded Court Punishments Clause. and Unusual Cruel Eighth Amend meaningof the original by ref be answered question And that must States, for exam v. United ment. Weems meaning opera original erence acknowledged that it openly ple, the Court of the constitution. tive terms legal embracing "progressive" a stan was ¶ original meaning is not quest for 169 The fastened to the obsolete." dard that was "not deeply embedded histori simply a search 378, Thus, far from 217 U.S. at S.Ct. originalism premise of Again, values. cal up origi view with attempting to connect its worthy of dusty more that a tome is is not a meaning, Court endorsed nal the Weems one, that a writ respect than a modern but "acquire meaning pub as principle that could cementing estab is aimed at ten constitution enlightened by a humane opinion becomes lic until place in unless and principles lished Dulles, 86, justice." Trop Id. U.S. supra or amended. See repealed are (1958), 590, is to the 2 L.Ed.2d 630 S.Ct. historical the venerable 11148-1522. So There the Court formulated same effect. in cited the dissent-see sources infra by dissent in this endorsed principle Hammurabi, ¶ ¶ (quoting the Code of 214-15 in inquiry rooted proportionality case-a Cicero)-are Leviticus, Plato, ultimately decency mark the of "evolving standards sages fact of point. beside ¶ society." maturing progress of Infra in proportionality past embraced centuries 590). 101, at 78 S.Ct. (quoting Trop, 356 U.S. the doctrine sentencing us little about tells ¶ give at least a 1789, decisions 172 More recent in in Constitution embedded the U.S. Helm, majority (And, history. In Solem v. in nod to in 1896. Constitution or the Utah unnecessary imprisoned rigor."). treated with shall not be impose might a sentence that a court later purported

of the Court to base its original proportionality of disproportionate. standard deem to be excessive or Eighth understanding of the Amendment. contrary, To the Blackstone went out of his 3001; 103 S.Ct. see U.S. way emphasize "right to legisla- of the infra (citing proposition for the Solem any country in ture to [eluforee own it Is Eighth explicit prohibi "the Amendment's transgressor." laws the death of thе tions of bail and 'excessive fines' '[elxcessive highlighted key he even And element of the must extend to bar excessive terms im of against judicial case enforcement of a consti- prisonment"). But the Solem court's textual principle proportionality-assert- tutional of analysis sparse. and historical was While ing quantity punishment that "the of can invoking English Rights, Bill of the So- absolutely never be by any determined gave lem no pro court consideration to that rule; standing invariable but must be left vision's differential treatment of "bail" and legislature the arbitration of the to inflict "fines," hand, "punishments on one in penalties such are warranted the laws flicted," on the other. Nor did it examine society, nature and appear and such as practice England pro historical under this be the best calculated to answer the end of pursuit vision serious assessment of precaution against future offences." Id. at | question whether the standard of exces- *12. (as fines) applied siveness to bail and had ¶ 174 These and other shortcomings of the broadly "punish been extended more originalist Eighth case for an Amendment Instead, simply ments." the Solem court principle proportionality highlighted were precedent cited historical English of the opinion the lead Michigan. Harmelin v. in condemning thirty courts "a thou fine Harmelin, opinion the lead chides the pounds'" sand as "'excessive and exorbitant.'" majority Solem for "assum[ing], with no anal (em 46 3 U.S. at 103 S.Ct. 3001 ysis" that English Rights' Declaration of added) Case, phasis (quoting Earl Devon's prohibition on "excessive" bail and fines ex (1689)). And, 11 State Trials from "punishments." tended also to 501 U.S. at there, blithely the Solem court asserted that And, citing S.Ct. 2680. the "histori Eighth 'the "adopted Amendment must have cal contemporaneous context under English principle proportionality," standing English guarantee," presumed which it would punish extend to opinion Harmelin concludes that ‍‌​​‌‌‌​​‌‌‌​​‌​‌‌​​​‌​​​‌​‌‌‌‌‌​‌‌​‌‌‌​‌​‌‌​‌​‌​‍the exces- prison ments in the form of sentences. Id. at siveness historically limitation was under 285-86, 103S.Ct. 3001. fines, stood to be limited to bail and and that ¶ 173 majority, The Solem like the dissent "punishments" restriction on defined ¶ case, in this also cited Blackstone infra by what was "cruel and unusual" in the sense support of its conclusion that Eighth of a form of inflicting aimed at incorporated Amendment principle pro ("cruel") pain contrary precedent and also portionality. Id. at 103 S.Ct. 3001. Yet ("unusual"). although it is true that Blackstone favored a " opinion's The Harmelin basis for this principle designated under which 'pun Oates, conclusion was the 1685 case of Titus ought always ishment proportioned to be " which year was decided the particular serve, adop after the purpose it is meant to ¶ BLACKSTONE, English tion of the Rights. Bill of (quoting Oates was William infre Commentaries on THE Laws or ENGLAND*12 a "Protestant cleric whose false accusations (facsimile ed.1979) (1765-69)), quoted had caused prominent the execution of provisions simply allegedly Catholics for aspirational organizing 'Popish articulated Blackstone, legislative Plot' to policy. King See 4 overthrow II in supra Charles 1679." (indicating at *11 Id. at 969. simply Blackstone's intent Oates was "tried and convicted suggest "to King's a few hints for the before the perjury." consideration Bench for Id. are, crime, become, of such "bearing as or hereafter His against false witness legislators"). They purport do not to limit another, express premeditated de legislature life, discretion of the sign away or to indicate to take his as the so innocent legislature might power lack person executed, had, be condemned and at committing to whipping and Punishments of mur time, species as a treated been one "; Life, Perjury' for the Crime Prison Id. at 969- der, death." punished with and " contrary to Judgments were and that 'said 70. Yet " Practice," and thus 'con- Law and ancient Justice] Jef- sentencing, Chief [Lord [alt ... that excessive trary to the Declaration longer was no that death freys complained required, nor excessive ought Bail not to be "a lamented that penalty available as unusual Punish- imposed, nor cruel nor Fines crime of that punishment proportionable at 111 S.Ct. afflicted" Id. ments stands, law, be as it now our can searce Trial of Titus him." upon Second ¶ 177 inflicted under support of this In further (K.B. Oates, Tr. 10 How. St. Rights pro- English Bill of standing of the 1685). in the not stand The law would punishments, eruel and unusual seription on met, and, ac- judges way, quoted from the however. opinion also the Harmelin unanimous Jeffreys, were in cording to passed in connection with bill discussion nature are "crimes of this agreement Commons, would have which the House according to the discre- punished to be left That discus sentence. Id. annulled Oates's court, judg- that the so far as tion of this the 'cruell again "confirm[ed] sion Ibid. not to life or member." ment extend directed at Punishments' clause was unusuall justice that "we taunted Oates Another others) particular, in (among the Oates case id., you," at special care of taken have disproportionali illegality, rather than and at that he court then decreed 1316. The general." Id. "In all ty, punishment upon each a fine of ©1000marks pay should discussions," contemporaneous these Indictment," "stript of that he should be "a opinion noted that Harmelin Habits," that he should Canonical [his] objectionable because it not considered [was] annually pillory at certain in the stand disproportionate, [was] but because [was] May 20 places, that on specified times and Power,' contrary to Law [Judges'] 'out whipped by "the common should be he 'Precedents' or practice," ancient without Newgate," Aldgate to hangman" "from 'unusual, warrant, 'llegal,' 'express Law to similarly whipped on be that he should discretionary by 'Pretеnce to a imposed or Newgate Tyburn," May 22 "from "Moreover," opinion noted Id. Power'" life. imprisoned that he should phrase [was] 'cruell and unusual that "the Ibid. interchangeable with 'cruel and treated as cruell illegal," "legal that "the such Harmelin, at 111 S.Ct. 2680 prologue of the Declaration's (third Punishments' original). alteration thing the 'cruell and . are the same as in the challenged T his sentence 176 Oates body." Id. unusual Punishments' its Lords, opinions and the Lords' House of (fourth original). alteration opinion's of the Harmelin form the basis The dissent takes issue with English Bill of the content of the sense of trial, history of description of the Oates's against "cruell and unus- Rights' protection House of highlighting statements single peer "'Not a uall Punishments." Id. extravagant thought that all "such an judgment was Lords to affirm that ventured given, or a Judgment ought not to have been the odious legal: much was said about but an En so exorbitant inflicted on appellant,'. and the Lords Punishment character of the minority judgment." Id. "A Subject," affirmed the in the House of Commons glish however, as "ex dissented, that members described the sentence and their the Lords ¶ 234. It "extravagant." meaning of the cessive" and light on the statement sheds Infra legal who cites the work of one scholar clause." also 'cruell and unusual Punishments concluded, part upon his read opinion in has based the lead Specifically, materials, "English ing the that the indicated, dissenting Lords as- of Oates Harmelin " Bench, was and Unusuall Punishments Clause King's 'being a Tem- Cruell that the serted prohibit punish new Court,," originally understood. authority to divest poral had no " "; prior light of ments that were excessive priestly Habit' 'of his canonical Oates " ¶ 233 (quoting F. John practice." 'no Precedent to warrant that there was Infra

103 Stinneford, Rethinking Proportionality punishable by Un to be death. See 4 Black stong, supra (noting at *196 that under "the der the Cruel and Unusual Punishments (2011)). Clause, 899, L.Rev. 937 97 Va. antient common law" it species [sic] was "a of problems There are several with the dissent's killing held to be murder" to "bear[ ] false take on the Oates case. another, against witness express with an pre design life, meditated away to take his so as ¶ 179 First, is not true that Oates's person the innocent be condemned and exe punishment "unprecedented was in its severi cuted"). punishment But such was discontin ¶ 234. ty," puts the dissent it. as It is Infra statutory ued and had no authorization. simply parts the case that of Oates's Thus, problem sentence, (like with Oates's flogging sentence proba that would the view of death) dissenting Lords and the bly have resulted in would have been Commons, House of was its unusualness or disproportionate seen as erime-perju- to his (and result) illegality. ry having with the intent of people fifteen innocent executed. See ¶ 180 Second, the Lords' and Commons'

Harmelin, 4, 501 U.S. at 973 n. 111 S.Ct. references "excessive[ness]" well (Scalia, J.); Anthony 2680 see also F. Gra 2,000 have referred to the marks Oates was nucei, "Nor Cruel and Unusual Punish fined, an "may amount that have been exces Original Meaning, ments The 57 Inflicted:" Granuceli, period, sive" for the time supro at 839, (1969) Calif. L.Rev. n. (citing 4 859, undoubtedly subject and which was Diary (E. Tur Or JOHNEVELYN445 DeBeer the Excessive Fines English Clause of the ed.1955) (noting contemporary opinion that Rights. Case, Bill of See Earl Devon's "punishment Oates's was but what he well (1689) State Trials (condemning a BaBinagronMacaULay, deserved")); 3 THomas thirty pounds" "fine of thousand as "exces History Encranp Ter THE FROM Acors exorbitant."). sive and sion or James II 304 (noting that Finally, "sufferings, great scholars and they might Oates's courts have ¶ 181 seem, overwhelmingly acknowledged trifling had been that historical compared when with crimes"). Indeed, "Enmglishpractice" generally incompati his was reason Lord Chief Jeffreys complained principle Justice ble with a propor- proportionality.210 that "a Af punishment tionable of that crime can searce all, ter "in England punished over 200 law, by stands, death," our as it now be inflicted crimes with and even in 1830 the [Oates]," Oates, upon Second Trial punishable by Titus "class offenses death" en (K.B.1685), 10 How. St. Tr. is that "murder; compassed attempts by to murder the crime of which poisoning, etc.; Oates was convicted stubbing, shooting used adminis- Harmelin, 501 U.S. at 111 S.Ct. 2680 (citing ford. See John F. Stinneford, infra Granucei, (citing Anthony F. "Nor Cruel and Un Rethinking Proportionality Under the Cruel and Original usual Punishments Inflicted:" Unusual Clause, Punishments 97 Va. L.Rev. 899 (1969); Meaning, 57 Calif. L.Rev. (2011)). analysis I find Stinneford's historical Weems, 391-93, (White, U.S. at 30 S.Ct. 544 helpful points, on some but deem his thesis un J., Holmes, J.) ("That dissenting, joined by supported by history that he cites. England any theory it was nowhere deemed that event, it should be noted that Stinneford does not proportional suggested by was freewheeling approach propor endorse the Rights, protest thereby Bill of or that a was tionality by endorsed the dissent. See Stinne- against severity punishments, intended ford, supra (criticizing at 917 the U.S. speaking generally, prac is demonstrated "proportionality jurisprudence" Court's as arbi prevailed England tice punishing which as to trary noting "the lack of a workable method Rights crime from the time of the Bill of measuring punishment"); for the excessiveness of Revolution."); time of the American In re Ba (''The evolving id. at decency standards of yard, (N.Y.Gen.Term.1881) 63 How. Pr. proven test has itself an unreliable and ineffec (recognizing English Rights Bill of cruelty. tive measure of [And] [sJole reliance on "clearly degree pun did not then refer to the independent judgment,' ishment, Court's on the other England criminal law of at disgraced by very that time the infliction of the hand, would be standardless anti potentially (footnote offenses, omitted)); (ar gravest punishment slight democratic." for the id. even petit death"). larceny being punishable guing proportionality then as determined "the prior practice). principal bounds" of the common law and A source for the dissent's view of originalism is the reseаrch of Professor Stinne-

104 Scalia, (opinion 2680 of abortion; sodomy; at 111 S.Ct. U.S. poison procure tering omitted). all, J.) (citation "[s]hortly After classes of statutory rape, and certain rape; Rights, Bill of the First forgery." proposing the after of punishment the Congress" extended analysis of Thus, careful the more T182 crimes, range of by hanging" on a "death Amend- Eighth the English origins of the seeuri including "forgery of United States understanding in line with indicates an ment vessel, ship ties, 'run{[ning] away or [a] I, section of article and structure the terms the value of any goods or merchandise to or pro- of impose principle it did not 9-that dollars, treason, murder on the fifty and only a limitation on "cruel" but portionality, 980-81, at 111 S.Ct. 2680 high seas." Id. in "unusual" punishment that were of forms (second original) in third alterations and by past prec- being unauthorized the sense of 114). Significantly, (quoting "[the 1 Stat. edent. the time are devoid of indication law books of newly enacted anyone considered these that Original understanding of b. by their virtue of penalties unconstitutional Eighth Amendment 981, 111 disproportionality." Id. at S.Ct. ¶ is also confirmed 183 This conclusion 2680. in prevailed practice and debate the time of the at or around United States commentary is Early legal American lead framing. In state conventions federal One commentator along the same lines. States ing ratification of the United prohibition of eruel and un spoke "[Itlhe Constitution, objection was example, an "mark[ing] im punishments" as usual (then without raised that the Constitution age, would not proved spirit of the which restrained" Con Rights) Bill of "nowhere stake, or the use of the rack or tolerate inventing the most eruel and gress "from torture, horrid modes of devised of those annexing and them punishments, unheard-of gratification ingenuity for human Elliot, Debates of to crimes." Jonathan Bayard, A Brief passion." Jams fiendish 1854). (2d ed. the Federal Constitution Exposition Constitution And, context, the reference to such "cruel (2d 1840). ed. Another United States punishments" not about and unheard-of Eighth Cruel and spoke of the Amendment's about form-a concern proportionality, but prohibiting Punishments Clause as Unusual check," without such a "constitutional punish various barbarous and cruel "[the might inclined turn to eruel Congress be of some other ments inflicted under the laws gibbets," as "racks and punishments such wheel, countries," "[bJreaking on the such as "may amongst the most mild instru which horses, alive, flaying rendering asunder with imaginable. Id.212 ments" in species various of horrible tortures [and] ¶ "maiming, inquisition," Congress, flicted such 184 "The actions of the First Benja mutilating scourging to death." persuasive evidence of which are of course Rights Oniver, of an American any doc min L. means, what the Constitution belie (1832).213 Harmelin, proportionality." 501 Citizen 186 trine of inflicting of not ... cruel and the restriction at S.Ct. 2680 Harmelin, 501 U.S. Fitjames History "tortures, punishments," by allowing or (citing A of tas unusual 1 James Encranp Harmelin, (1883), noting punishment"); cruel and barbarous Law or Crminat 979-80, (citing "during English capital U.S. at S.Ct. 2680 discussion of his reform, sources). discussing Stephen men these does not once and Unusuall Punishments tion the Cruel JosEph Story, it," Clause, on THE though 213. See also 3 Commentaries certainly he was aware of suitability § States Constrrurion tar also that "in his discussion (asserting Eighth Amendment was [likewise] Blacksione does punishments, Declaration"). departments "adopted all as an admonition to mention against government, them national to warn Elliot, (Patrick place supra proceedings, as had taken at 447 Hen such violent also 3 See Convention, arbitrary reigns speaking England of some of the ry, Virginia in the Harmelin, added)); against (emphasis prohibition Stuarts" without a "cruel concern that punishments," (discussing like that set and unusual forth these and 981-82, S.Ct. 2680 commentaries, concluding Virginia Rights, Congress "loose other Bill of could

105 commentary original meaning This confirms what is of the €186 federal Cruel and historical cited indicated the other sources Clause, question Unusual Punishments Pun- The federal Cruel and Unusual above: yield presented straightforward here would a widely was understood not ishments Clause I, 9, originally answer: Article section as prescribe proportionali- an assessment of to 1896, adopted in judicial is not a license for prohibit punish- of ty, simply but modes proportionality assessment of the of criminal being in that were "cruel" the sense of ment punishment; merely prohibition it of being in and "unusual" the sense of barbaric punishment unprecedented modes of that are unprecedented. in their tendency barbarousness or to inflict pain. public understanding c. The at the framing

time of the Utah consistently 1188 State and federal courts prohibition conceived of the constitutional of understanding 1187 This same of "cruel punishments cruel way,214 and unusual in this punishments" prevailed and unusual at the expressly rejecting often framing type propor time of the of the Utah of Constitution. tionality analysis Thus, advocated the dissent.215 even if there were doubt about (1890) (concluding despite 35 that the extreme "contain[] no reference or disproportionate excessive sentences" and indicate that the severity statutory rape Cruel punishment, aof the court and Unusual Punishments Clause was under- "say could not that the statute is void that "designed particular stood as outlaw modes of "[iJmprisonment peni- reason" and that in the punishment"). tentiary at hard labor is not a cruel or of itself unusual but that the Kansas Cruel punishment," Williams, 310, (1883) 214. State v. 77 Mo. 312-13 and Unusual Punishments Clause "relates to the (holding that cruel and not unusual does refer punishment inflicted, kind to be and not to its prison punishment a mode as but sentences added)); State, (emphases duration" Foote v. only punishments to "such as amount to torture" 264, (1883) (upholding Md. 266-68 defendant's "drawing quartering" "burning such as and or jail lashing people sentence and because "the stake"); him at ex rеl. Kemmler v. People who made [the Constitution, who and Maryland] (Sup.Ct. Durston, 7 N.Y.S. Gen. Term 813, presumed meaning must be to understand the 1889) (holding provision that the bans modes of use, have, the terms from the time these punishment lingering that "involve torture and incorporated, words were first in 1776 down to death"); In re Kemmler, 145, 7 NY.S. 149-50 1882," (Co.Ct.1889) punishment never considered "the clearly against [death as whipping" punishment] punish- to be "a a mode 'cruel or unusual the constitution is " punishments dealing directed" rather it extends ment' such and that the court was "not "crucifixion, water, oil, lead, boiling expediency, justice, as in efficacy or punish- or of this mouth, blowing burning, breaking from cannon's ment, but with the true interpretation Constitution"); burying wheel, dismemberment, on the People, terms of the [and] Cummins v. Commonwealth, alive."); Serg. James v. & 142, 305, (1879) (rejecting 42 Mich. 3 N.W. 220, (Pa.1825) (holding Rawle that "the argument "unusually that a sentence was ducking-stool" illegal punishment was an under light severe, that, in the of all facts, provisions ''the humane of the constitutions of [the violation of Cruel and Unusual Pun- the United Sates and of as to [Pennsylvanial, Clause,]" holding ishments "[the sentence State, punishments"); Ligan cruel and unusual v. statute, permitted by was not in excess of that (1871) (upholding 50 Tenn. KKK mem- and w hen within the statute this court has no feloniously ber's conviction and sentence "for supervising control over the that shall prowling travelling disguise" holding added)); (emphasis Borgs State v. inflicted." "imprisonment penitentiary in the for a trom, 69 Minn. 72 N.W. 803-04 longer period, year twenty ten to ... is neither (rejecting prison claim that a sentence "was alto unusual, cruel nor in the sense of the Constitu- gether disproportionate charged" to the offense omitted)). quotation tion" marks [and] therefore "cruel unusual" under holding punish state constitution and e.g., See, Whitten v. State, Ga. 300-01 "prohibited by ments our constitution" are the (1872) (rejecting argument defendant's that sen punishments "cruel" and "inhuman" such as "entirely disproportionate tence was to the na "loading weights," "drown[ing], holding him with disem ture and character of the offense" and bowel[ment]," being up "sewed in a leather long [legislators] "[slo as do not provide cock, dog, viper, ape, sack with a live and an cruel and unusual such as dis punishments, sea"); Ketchum, Territory and cast into the graced ages, the civilization of former and make 718, 718, (1901) (expressing N.M. 65 P. one shudder with them, horror to read of doubt," etc., "great drawing, quartering, burning, based on the then-state of consti the Constitu- put any upon legislative tion does not limit dis- courts, tutional law that "the case, have White, cretion"); power legislative State v. 44 Kan. 25 P. to review discretion in de- case, explained Indiana Court century, nineteenth Throughout prohibition 'cruel, understood the when considered generally word "[the courts aas punishments" unusual "cruel and place it found relation to the time when punish meant, methods impris limitation on barbaric rights, not a fine or the bill of length of a ment, that the emphasizing while onment, both, that inflicted at or but such as legislative matter for disc a prison term was burning at whipping post, pillory, in the the Supreme the In the words of retion.216 stake, wheel, breaking ete." Id. at the on the Massachusetts, ques "[the Court of Judicial And, importantly, the Hobbs court severe, too punishment is tion the whether prohibition of on to conclude that the went offense, for the to the disproportionate and punishments" unusual "does not "cruel and 217 to determine." legislature imprisonment for legislation providing affect throughout the prevailed view €189 This years." Id.218 life or for including in century, the decade nineteenth in approach was reflected 190 This same adopted. was in our Utah Constitution which commentary in "Punishments" State, legal the era. v. exemplary decision was Hobbs An (1893). 404, that 1019 they in- Ind. 32 N.E. 133 as "cruel when were understood crime, Ct.1824) termining severity punishment (upholding of for the on conviction of sentence long larceny; rejecting challenge avoid as all forms of torture have been under the Cruel and so 415, ed"); Territory, 417-19 Virginia v. 1 N.M. Garcia Declara- Unusual Punishments Clause of (1869) stealing lashing (upholding of for sentence Rights, explaining tion of and that the clause grounds that cruel and unusual a mule on the designed Legislative to control the "was never only process punishment to "the of has reference right adequacy upon ad to determine Hibitum the de and that it was otherwise "never torture" merely applicable punishment, to the of but is by signed abridge or limit the selection to punishment"); v. Mas- modes of see also Pervear law-making power punishment of such kind of as sachusetts, 475, 475, 480, 5 Wall. 72 U.S. 18 punishment most effective in the was deemed (1866) involving (upholding L.Ed. 608 sentence crime"); People suppression ex rel. Kem and of imprisonment $50 at fine of and hard labor for Durston, 569, 6, 119 N.Y. 24 N.E. 8 mler v. charge maintaining a three months on of "tene- ("We (1890) regard entertain no doubt illegal illegal keeping ment for the sale and legislature change power of the to manner of intoxicating holding Eighth liquors"; that general pow- inflicting penalty of death. The "apply did not to State but to Na- Amendment legislature crimes, over and its er of power legislation," opining, dicta, tional while also murder, punish the crime of is not define and excessive, cruel, "nothing or that there was or disputed."); Hogan, v. and cannot be State punishment given unusual" in this that the mat- 202, 218, (1900) ("Impris- Ohio St. 58 N.E. 572 "wholly State ter was within the discretion of onment at hard labor is neither cruel nor unusu- legislatures"). severe, instance, may given in the but al. It be lawmaking power."); question that is for Hitchings, 71 Mass. at 486. Woodward, 385, v. 68 W.Va. 69 S.E. 66, State (1910) (holding that "cruel and unusual 388-89 legislation provid- punishment" does "not affect Smith, 644, People 218. See also v. 94 Mich. years" ing imprisonment that it for life or 487, 487, (1893) (affirming N.W. sentence of "inhuman, only applies inflictions" barbarous five-year imprisonment term of for crime of re- engaging proportionality re- but nonetheless ceiving property stolen "of the value of one dol- Proportional Punishments view under state's lar"; rejecting challenge to sentence on the Clause). ground punish- that it was "cruel and unusual" ment, particularly light the fact that Hitchings, v. 71 Mass. 216. See Commonwealth thief himself could have been sentenced to (1855) involving (affirming sentence year; explaining imprisonment for one imprisonment for unlawful sale of intox- fine legislature "[ulpon the alone is conferred the icating liquor explaining length that the power to fix the minimum and maximum of the imprisonment legislature a matter "for the crimes," punishment that a "law for all determine"); People, 20 Johns. Barker provides greater penalty which maximum (N.Y.1823) (affirming punishment of disenfran- receiving property larceny stolen than for the dueling, rejecting chisement on conviction it cannot be held to authorize cruel and unusual punishments challenge on cruel and unusual "(tlhe punishment"); States, Jackson v. United 102 F. grounds explaining while disfran- (9th Cir.1900) ("The general rule is well punish- a citizen is not an unusual chisement of the sentence and im- settled treason, and of ment; it was the consequence posed upon a defendant for violation of the altogether and it was discre- crimes, infamous legislature punish- tionary extend that in the statute, which is within provisions statute, punishment provided cannot offences"); Aldridge ment to other v. Common- wealth, Cas.) 447, (Va.Gen. (2 unusual."). 4 Va. Va. 449-50 regarded excessive, cruel, as or lingering torture or a death." 3 Weems volve[d] (1910), United States Dictionary (8th Law proportionality Bowuvier's Court had never endorsed re ed.1914). question punish- of "[what On Eighth view under the Amendment. Weems offence," specified to a more- ment is suited subsequent Supreme Court caselaw rec over, prevailing view was that that mat- Weems, ognize as much. at U.S. general ter "must be determined (basing holding S.Ct. 544 "progres its on a Thus, legislature." Id. for a "[slentence legal sive" standard "not fastened to the exceeding prescribed by term not stat- "aequir[ing] meaning public obsolete" but "regarded ute" as a cruel unusual opinion enlightened by becomes a humane \ punishment." justice"); Georgia, Furman v. {[ 265-66, 92 S.Ct. 191 It be a bit of an overstatement 33 L.Ed.2d 346 say nineteenth-century view ("Had (Brennan, J., concurring) point the courts on this was "universal." See interpretation historical of the Cruel and Un Harmelin, 984, at U.S. S.Ct. 2680 prevailed, usual Punishments Clause the J.) Scalia, view); (opinion (articulating of this effectively would Clause have been read out Weems, 402, (White, 217 U.S. at 30 S.Ct. 544 Bill Rights.... of the of But this Court in (same). J., dissenting) At or around the time decisively repudiated Weems the historical adopted, the Utah Constitution was some interpretation quota of the Clause" courts had endorsed the view that the consti (Mar omitted)); tion marks id. at 322-25 prohibition pun tutional of cruel and unusual J., shall, concurring) (concluding that "the encompassed a of ishments standard review history clearly of the clause establishes that proportionality prison for of terms.219 And prohibit it punish was intended to eruel couple legal begun at least a of treatises had ments," noting tide-change and then the in light to embrace this But in view.220 the Eighth Amendment instigated by law above, authority ap extensive cited (em majority O'Neil dissent and the Weems proach surely have been would seen our added)). phasis reading The dissent's of rel Utah framers as aberrational. is, prior view, evant caselaw my Weems in - disagrees, asserting 192 The dissent that in error. preponderance" "the of courts in the nine my reading €193 The dissent derides century adopted approach teenth it takes "unduly Pervear as strained" and ¶ 244. somehow today. in concluding, But so Infra meant proposition sustain the that ignores-or at dissent least fails to refute Supreme proclaiming punish Court "was distinguish-a significant segment or of the imposed by ments statute to be immune body from supra of cases cited above. See ¶ 239. First, ¶ ¶ Supra constitutional review." any 188-89 & nn. 31-35. And in event the claiming I am not authority support legislative it cites does not that a enact this con ment can never be eruel and unusual. And dissenting opinion clusion. Before the in (1892) any thing.221 no court ever held such majority O'Neil and then the in Vermont, 323, 339-40, punishment 219. See v. when the so or is excessive so O'Neil 693, (1892) (Field, J., 12 S.Ct. 36 L.Ed. 450 disapproval cruel as to meet the and condemna- dissenting) (asserting Eighth gener- that Amend tion of the conscience and reason of men "directed, ally."). only against punishments" ment is nature, unduly painful of a barbarous or but also Dictionary (8th "against punishments all which their exces 220. See 3 Bouvier's Law ed. 1914) ("[T}he length severity greatly dispropor- very sive extraordinary or are case must be in charged"); legislature's] judgment [the tioned to the offenses which McDonald v. could be Oliver, ¶ 185, brought question."); supra Commonwealth, 173 Mass. 53 N.E. (asserting "imprisonment (1899) ("[It for an unrea is in the possible imprisonment prison long years might length state for a term of be so time[] sonable is ... contrary disproportionate to the offense as to constitute of the {and] constitution ... must be con spirit trary to the intention framers of the consti punishment."); cruel and unusual State v. Beck er, tution"). (1892) ("[I]t 3 S.D. 51 N.W. is upon legislature certain that it devolves to fix crime, reason, critique and that in the exer 221. For this the dissent's States, judgment great cise of their latitude must be cases like Jackson v. United 246 n. infra ¶ my opinion also misses its mark. Neither nor allowed; and the courts can interfere reasonably (1878). Driver, 1896); N.C. 423 State prohibition stead, simply that the my point is others, moreover, goes to none are of punishments" unusual "cruel and Of or torturousness of the to its thesis. At least one the barbarousness material aid length of the and not to the punishment, applying propor appears to be cited cases Second,my reading оf confinement. term of fine,223 is ex tionality analysis to a which "strained"; hardly the Court Pervear subject Fines pressly to the Excessive adopted" did hold that mode "[the that case cases, the courts ulti And other Clause. wholly dis punish a crime "is within the mately «upheldthe sentence under review Pervear, 72 legislatures." cretion State proportionality only as a matter of alluded to Third, it the dissent at 480. U.S. arguendo In McDonald v. Common dicta. beyond seope Pervear what stretches wealth, example, Supreme Judicial "implic by concludingthat the Court it bears merely allowed that of Massachusetts Court understanding that exces itly recognized its imprisonment in the state possible "it is punishments be cruel and unusual sive years might prison long for a term of be so ¶ 238. little There is punishments." Infra disproportionate to the offense as to consti why indicated that question the Court punishment," tute a and unusual while cruel cruel, excessive, nothing or "perceive[d] question. ultimately upholding the sentence Pervear, 72 unusual" Pervear's sentence. 53 N.E. 1 73 Mass. argued had at 480. Pervear U.S. added).224 The Vermont (emphasis by penalties imposed and inflicted "fines Jugs v. approach Court's State Four of "excessive, cruel, and the law" were State Intoxicating Liquor along lines. is similar added). (emphasis at And unusual." Id. 479 (1886). 140, 2 58 A. 586 There the court Vt. Eighth expressly the Amendment because penalty simply acknowledged that the "[ilf fines," quoted lan prohibits the "excessive unreasonably single severe for a of were simply a nod to the guage Pervear is fense, question might the constitutional bail and fines on the one distinction between again upholding urged," while the sentence punishments on the other.222 hand and (second emphasis at add question. 593 ¶ 194 by Of the various cases cited the ed). establishing purportedly dissent the authori finally, by other the 195 And cases cited ty judiciary dispropor of the to overturn a sentence, sharply against position-not- actually dissent cut its tionate two of them withstanding attempts the dissent's to dis- prisoner's a sentence. overturned See State (La. Smith, Whitaker, 644, People Garvey rel. v. So. 457 credit them. v. 94 Mich. ex 19 (1896) ("[The any upon imposed claimed fine on the defendant case which it relies ever ""support proposition the extreme that statute excessive, nor the inflicted was punishment unusual."). prescribe pun cruel and could never a cruel and unusual ¶ 246 e.g., Whitten, ishment." n. 2. 47 See, Infra ("So long [legislators] Ga. at as do not 301 MacDonald, 150, In re 4 33 P. 21 18, Wyo. provide punishments, and unusual such cruel as (1893) (explaining phrase that the cruel and un- disgraced ages, and the civilization of former punishments prevent usual was aimed "to the them, one read obsolete, make shudder with horror to painful, degrading imposition of etc., drawing, quartering, burning, as the Consti holding "[wle and then that do punishments," put any upon legislative tution does not limit imposed upon petitioner not think that fine discretion."); Ketchum, 718, excessive, at 10 N.M. 65 P. punish- the trial court was nor the ("It would, growing pay, ment out of the failure to or se- indeed, 169 seem to be a matter doubt, great foregoing expressions fine, view of the paid, cured to be that is cruel or unusual" courts, opinion subject, added)). on this whether the {emphasis case, power legislative to review have determining severity punish discretion in dictum, moreover, 224. Even this represented long crime, ment so as all forms of torture departure prior practice. clear from See Sturtev avoided."). have been Commonwealth, 598, ant v. 158 Mass. 33 N.E. 648, (1893) (holding 649 that the "cruel or un "courts, punishments applied clause usual" 178, State v. S.C. 32 S.E. See 54 Sheppard, (1899) ("[W]e certainly say Hitchings, legislature"); 148 cannot that not to the 71 Mass. (''The question punishment whether the is 486 'excessive,' such a fine was or that punish "); ment inflicted was either 'cruel or unusual." offence, is severe, and disproportionate determine."). legislature Keeler, Ex 45 S.C. 23 S.E. parte law), (1893), that statute or common so too unequivocally stated authorized 54 N.W. Virginia judge be constrained in fix would power had "the legislature alone" "the operated sentencing illegal someone who punish maximum of the minimum and many game being card from lashed so times at 488. The dis all crimes." Id. ment for effectively sentenced to "death he by a decision as undermined views this sent produced by the most eruel Id. at torture." "just years two later"- handed down case analysis entirely 700. This consistent with Whitney, 105 Mich. 63 N.W. People v. approach opinion. outlined in this ¶ 246. (1895). But the Whit- Infra court confirmed that the constitutional re "might mey reference to "cases" court's legality straint was on the mode and of the imposed by an punishment when the arise sentence, subjective punishment and not a the courts act is so cruel and unusual proportionality. assessment of rights protect interfere and would support 1 197 Further for this view can be id., entirely consistent with the party," prominent found in the most cruel and un original meaning principle of cruel and usual case out of Utah in the late I it. punishments understand unusual Wilkinson, century, People nineteenth v. "cases," all, easily after could The referenced (Utah Terr.1877), Utah 158 sub nom. aff'd encompassing imposition be aimed at Utah, 130, 136, Wilkerson U.S. 25 L.Ed. punishment. modes of barbarous (1878). case out This arose convic (2 Commonwealth, Aldridge v. 4 Va. first-degree tion of murder and a sentence of Cas.) (Va.Gen.Ct.1824), un also Va. appeal death. The issue concerned the the case the dissent's view. And dermines legality death-specifical of the sentence of properly be dismissed on the "racial cannot ly, proviso imposed by judge the trial grounds charged by the dissent. animus" by being "public that Wilkinson be executed ¶ ¶ Granted, an 248-49. element of Infra ly challenging shot." Utah at 159. In Aldridge analysis was on thе court's based sentence, judge's Wilkinson asserted Rights apply that the Bill of did not notion determination of the "mode" of execution was Aldridge, 4 at 449. African Americans. Va. statutes, a violation of territorial Utah the But the court also articulated an alterna law, Eighth common and the Amendment of expressly legitimate-ground: tive-and It point, the Constitution. that latter U.S. On and held that the Cruel Unusual Punish affirmed, Supreme in Territorial Court bearing "[had thie] ments Clause nol approach in terms line with the set forth provision case" because the did not "control above: right adequacy to determine ... of question presents The ... itself: "Is the punishment, merely applicable but [wals us, designated manner in the case before punishment." to the modes of Id. at 450. by shooting, that of death a cruel and And, subsequent in the case of Common punishment?" unusual We do not think Rand.) (6 (Gen Wyatt, 27 wealth v. Va. it, appellant so considers nor do we .Ct.1828), simply it is not true-as the dissent adopted think he could. It is the mode for charges-that army enforcing the court held that "sentenc in discipline; it is a ing judges constitutionally recognized practiced mode in other were restrained laws; civilized countries to enforce criminal sentencing from an individual to an excessive and, seen, ¶ 249. approved by as we have it was Instead, stripes." number of Infra express Territory nearly of this statute punishment the court concluded that "[t]he quarter century, history of a and as tells odious, by stripes certainly offences is but us, the manner is of death of which Wyatt, to cannot be said be unusual." Territory criminals this made choice in Thus, Va. at 701. as far as the discretion of modes, preference hang- to other such as went, by the lower court it was restrained ing beheading. That manner cannot always by exercised "the discretion Common prefer, which be eruel eriminals imprisonment." Law Courts to inflict fine and adopted. cannot be unusual which is often way Accordingly, Id. the same that Titus flogging multiple Oates's sentence times (such approach The Wilkinson court's effectively that he was sentenced crime) (un noneapital illegal entirely historically accepted death for a in line with the not eruel within the punishment death is assessing above. Instead view outlined meaning that word as used in the constitu of the or excessiveness proportionality implies something inhuman and bar tion. -It analysis court's punishment, Wilkinson barous,-something more than the mere ex- "cruel[ty]" go to the element of deems the Id. at 10 S.Ct. 930 tinguishment of life." punishment, and that of "unusu "manner" of added). (emphasis extent be addressed to the al[ness]" to by "adopted" law and punishment which prevailing public under- 201 This was the practice. common punishments" unusual standing of "cruel and framing of the Utah Con- at the time of the Court's Supreme 199 The United States dissenting author of the stitution. As the Supreme affirming the Territorial decision "egal opinion today opined previously, assessing even clearer. Far from Court is jurists accept continued to scholars and excessiveness, or the Su proportionality un- understanding phrase of the ['eruel its consideration of preme Court directed century throughout the nineteenth de- usual'] punishment involving "cruelty" to methods of expand spite attempts occasional the cruel "terror, "torture," pain, or or other words prohibit punishments and unusual clause to Wilkerson, Thus, at 135. disgrace." disproportionate to the punishments deemed by firing affirming the of death sentence Gardner, crime." State v. squad, Supreme made reference to Court 1997) (Utah (Durham, J., plurality opinion) of barbarous such as modes 842). Granucel, (citing supra at At that time prisoner dragged "where the was drawn judges a few isolated and commentators had execution," place or "where he was theory alluded to a of constitutional review alive, beheaded, quartered." embowelled overwhelming proportionality, but conceptualizing Id. And in "the extent of majority contrary-foreclos- view was to the provision provides which constitutional ing only punish- methods of not be those barbarous punishments cruel and unusual shall inflicted," rejected by practice. Supreme pun "that ment law and common Court held majority approach And the had been en- ... ishments of torture and all others by Supreme Territorial Court in dorsed our unnecessary cruelty, are forbid same line Supreme opinion affirmed the U.S. [sic] den that emendment to the Constitu Court. "[nlothing Id. at 136. Because tion." case, kind" was involved in this I, History of Article Section affirmed, rejecting theory ... Court "the possessed authority pre that the court no I, history of article section 9 holding scribe the mode of execution" while supports this same construction. As the dis by by shooting" that "death no means indicates, proposed sent constitutions for the punishment. (a cruel and unusual Id. at 136- them, of of from State Deseret series 37. 1872) broadly provided penalties to that "[alll punishments proportion and shall be in to the suppose 1200 I it's true that the Wilker VII, 8;§ art. in- offence." DesErET Const. did not "define with son decision exactness general proviso 1216. But this never fro Amendment, Eighth the [full] extent" of state, By became law. the time we became "punishments but held of torture people of Utah had abandoned the broad ¶ . it. are forbidden" Infra principle proportionality proposed in of Wilkerson, 136). (quoting 99 U.S. But They adopted constitutions. instead Deseret quoted are the sum and statements sub in provision limits the excessiveness analysis Eighth stance of the court's of the quiry imposition of bail and fines. See Amendment, they no to make reference I, § Utah Const. art. event, any in proportionality. And interprets drafting in In 1203 The dissent this doubts about Wilkerson were resolved Kemmler, 436, history preserve principle pro re to a broad of S.Ct. ¶¶ (1890), unequivocally portionality. 216-17 & a. 1. I L.Ed. 519 which held See infra light "[plunishments they w ken see no basis for that conclusion. of are cruel death; I, language I lingering plain or a of article section involve torture but 1 205 The formulation in other way conclude that our constitution consti no state see tutions-separately requiring pen that "[alll principle proportionality of a broad embraced punishments." proportioned In- ... penalties and alties be to the nature of for "all prohibiting the offense" and "cruel and un stead, interpret provision as I would usual punishments"-presupposes replac- repudiating general principle provisions independent meaning. have two (restrict- limited standard ing it with more See, e.g., Hi-Country Prop. Rights Grp. v. to bail and ing review for excessiveness Emmer, 33, ¶ 24, UT fines). (interpreting presumption statute "under the constitutions-including 1204 Other state (and/or converse, independent meaning of its founding many place at the time of the of presumption against surplusage)"); Vota the formulation in the this state-embrace Co., Copper v. Ohio Utah 129 P. Many proposed provision.225 Deseret ("It (1912) duty give is our effect to provisions expressly require propor those every phrase word or contained in stat [a] tionality prohib addition to ..."). suggests pro ute. That alone that the iting and unusual." And courts the "cruel punishments" hibition "cruel and unusual interpreted in accordance with their them something requirement other than a Woodward, indicates, proportionality. terms. In State v. 68 W.Va. It implica also (1910), example, tion, 69 S.E. 385 West framers the Utah Constitu Virginia Supreme Court concluded that its rejected principle proportionality tion they proportion-- when declined to include the Punishments Clause did Cruel Unusual I, ality provision in article section 9. legislation providing imprison "not affect years," applied only ment for life or but ¶ 206 I suppose it is conceivable that "inhuman, inflictions." Id. at 388- barbarous framers of the Utah Constitution were aware went on to 89. Yet the court then examine of the outlier cases identified above-cases year propriety of a six month to one embracing proportionality review as an ele "Sunday" prison sentence for violations of prohibition ment of the constitutional of cruel laws, Virginia noting the West Constitution punishments. supra and unusual See "{plenaities propor commanded that shall be n. But adopted & 40. the text our framers degree character and tioned to the of the highly unlikely strikes me as a mode em Significantly, offense." Id. at 389. the court bracing theory. they this aberrational And if emphasized provision that this did not "refer prevailing had intended to buck view punishment, but jurisdictions the mode of to the de operating parallel other under extent, gree, quality." Id.226With that clauses, likely they it seems would have ad openly I, dressed the matter debate-as background, the terms of article section 9 points dispute.227 did on other such Yet adopted telling. are See, I, e.g., penalties proportioned §§ Ga. Const. art. flicted.... All shall be ("'[N]or Ill., punishments offense."); shall cruel unusual be the nature of the W. Va. Const. art. inflicted."; penalties proportioned (1872) ("Excessive "All shall be required, § 5 bail shall not offence."); II, to the nature of the Ill. Constr. art. nor excessive fines nor cruel and un imposed, (1870) ("All penalties proportioned § 11 shall be punishments usual inflicted. Penalties shall be ..."); to the nature of the offense. Ind. Const. art. proportioned degree to the character and (Excessive (1851) §I, bail shall not be re offence."). quired. imposed. Excessive fines shall not be punishments Cruel and unusual shall not be in acknowledged 226. The court the words penalties proportioned flicted. All shall be to the "cruel been and unusual" had held to ban im- offense."); I, § nature of the Me. Const. art. time," prisonment long a that was "too but the (1820) ("Sanguinary passed: laws shall not be all only authority the court cited was Weems. State penalties punishments proportioned shall be Woodward, at 69 S.E. 389. to the offence: excessive bail shall not be re quired, imposed, nor excessive fines nor cruel inflicted."); Report punishments See 1 PROCEEDINGSAND nor unusual Nes. Const. Orrictar tue (1895) (debates I, ("All Desartes or tue Convention 429-92 penalties propor § art. shall be (debates offense...."); suffrage); over women's id. 326-38 to the nature of Onto tioned the VIII, 13, (1803) (Excessive damaged" Takings phrase §§ over the "or into the Const. art. bail Clause); (debates permitting required; id. at 294-97 over a shall not be excessive fines shall not be imposed, punishment jury nor cruel and unusual in of less than twelve to have less-than-unani- {208 newspaper reports of the constitutional convention is Local of the the record "agitat[ion] decision in Utah noted I, Weems signifi That on article section 9. silent supreme over the action of the court of the things being suggests, all other cant. It inaugurating desig United States what is endorsing framers were equal, that our a era in the of nated as mrew unusual prevailing approach to "cruel and requiring punishment criminals-that embracing a punishments," and were of proportionate to the New Era offense." theory proportionality. burgeoning of Commences, Penology in Criminal Salt That conclusion is confirmed Herald, 1910) (May (emphasis Lake at 1 history provision in post-ratification added).228 of this impossible That account Supreme Court's deci the wake of U.S. square with the notion of "cruel and unusual punishments" incorporating longstanding sion in The Weems decision was the a Weems. principle proportionality. genera If the Supreme Court's first articulation of a U.S. framing tiоn that witnessed the of the Utah Eighth principle proportionality under the Constitution viewed the decision as Weems of the Amendment U.S. Constitution. "inaugurating punish a new era ... in the 380-81, popular U.S. at 30 S.Ct. 544. As the criminals," they certainly ment of would not indicates, however, reaction to Weems I, embracing article section have viewed 9 as hardly confirming an decision was viewed as principle.229 pun established view of "cruel and unusual Instead, ishments." Weems was seen as point At least one other data cements working an innovation in law. constitutional specific in the this conclusion context of And the reaction in Utah and elsewhere thor (challenging imposi claim like Houston's oughly concept undermines the view that the parole tion of a of life without sentence punishments" of "cruel and unusual was his juvenile): At framing the time of the many years Utah Constitution and for there torically encompass principle understood to after, proportionality. juvenile convicted of murder230 Times, cases). 9, 1910) virtually Philippine Official, (May mous verdicts in civil Yet noth- N.Y. at 4 I, ing during (noting Supreme about article section 9 was said that the Court had "[flor debates over our constitution. See id. at 257 history" first time in its overturned a sentence on (noting reading punishment grounds cruel and unusual and that I, of article section one Clause, objection Unnecessary Rigor to the some musty precedents past" only "the of the used the response objection, striking to that and the "prohibit words "cruel and unusual" to a resort clause). torture"). causing bodily to inhuman methods for Penology 228. See also New Era in Criminal Com founding I have no doubt that the generation 1910) (May Hera, mences, Satz Lake at 1 have Utah would bristled at the notion of the (''The eighth court has determined that death sentence "for a minor infraction such as states, applicable amendment is not ¶ 226. public intoxication." And it would Infra compelled hence the states will not be to follow surprising not be to hear that some of them added)); principles." (emphasis the new sentence, thought colloquially, have of such a OopEn (May Stanparp, Court Arouses at 7 Lawyers, ¶ 226. Presumably why "cruel." that's ("It 1910) Infra was admitted that the constitution adopt disproportionate didn't such a sen phrase only prohibit makers have used this ultimately nothing tence. But that tells us about causing bodily resort to inhuman methods for original understanding of the constitutional prevent torture. It had been used to a return ... punishments." of "cruel and unusual construct English disemboweling custom of traitors instead, Thai an examination burning question, requires alive women who committed trea founding generation's understanding regard prece son. The court decided to these legal term of art. dents as milestones in the advance of civilization phrase."); and not as limitation on the Criminals News, Punishment, founding and Their at 7 Deseret Evenms 230. From the time of the of the Utah ("Much 1910) (May speculation separate exists as to the Constitution until Utah had no system adjudicating effect of the decision.... ... Most the states crimes committed mi (establish provisions have in their constitutions similar to nors. See 1907 Laws of Utah 207-14 eighth ing juvenile system). amendment and it is believed the court And even after 1907, powerful felony decision will have influence in the a minor who committed a was tried courts, interpretation (emphasis juvenile system. of these." add in the district not the future Crime, See, ed)); 208, ("[Juvenile] Penalty e.g., § Must Fit the Sart Lake Tris- 1907 of Utah 2 Laws Couri(s] ung, jurisdiction 1910); have no (May shall cases in 9, at 1-2 Holds Punishment Thus, volving felony."). Cruel: Court Orders Release Convicted the commission of of

113 challenges only the excessiveness of subject the death Houston to either have been would term, a claim possi prison his he has not asserted prison life in without the penalty or to well-established, originally the Utah Constitution as bility pgrole.231 This under of sentencing reject scheme renders I would that claim on widely applicable understood. that basis. unconstitutionality highly claim of Houston's jus founding-era our

questionable. Because clearly expressly required system DURHAM, tice dissenting: Justice murder to be sentenced juvenile convicted of disagree majority's I with the conclu- 218 worse, I life-without-parole to a sentence sentencing juveniles to life without sion that that such sentence find it difficult to believe (LWOP) parole possibility of is not cruel "cruel and unusu have been viewed as would I, and unusual under article section 9 of the founding.232 al" at the time our of view, my Utah Constitution. the dimin- juveniles, culpability ished of combined with I, 9 Claim c. Houston's Article Section exceeding harshness and irreversible na- ¶ 210 reasons, For all of the above LWOP, ture of makes this sentence unconsti- of and Unusual Punishments Clause Cruel tutionally disproportionate and inconsistent bars those meth the Utah Constitution "evolving decency standards of punishment that are "cruel" ods of progress maturing society." mark the of a being of barbaric or torturous sense Dulles, 101, 86, 590, Trop 356 78 U.S. S.Ct. being contrary in the of "unusual" sense (1958). 2 L.Ed.2d 630 practice. longstanding Houston's law state constitutional claim fails under I. UTAH'S CRUEL AND UNUSUAL standard. PUNISHMENTS CLAUSE AND PRO- does not-and cannot- Houston PORTIONAL SENTENCING complain about torturous or barbarous Principle Proportionality A. The claim, instead, punishment. goes His form of alleged prison excessiveness of his «[ theory Perhaps no alleges, "im specifically, term. He that his system more foundational to a reasoned maturity, vulnerability, impetuosity, and un justice than maxim that criminal derdeveloped render him less cul character punishment must fit the crime. This venera fully developed pable than adult with principle can ble be traced back the Code systems," brain and value and as a result his of Hammurabi and the Mosaiccodes found pun "disproportionаte constitutes sentence Testament. of Hammurabi Old Code ishment." (c. B.C.E.) ("If destroy § a man man, destroy cognizable eye 4 212 of another one shall his This is not a constitutional ("Breach I, breach, eye."); claim under article section 9. Because Leviticus 24:20 for hereby to each minor like Houston would have been "liable to dons is authorized to extend con any period punished vict than ... a be under the laws of this state." Utah sentenced less life sentence, period reduction of the as hereinaf Comp. § 4072. 1907, Laws added)); provided" (emphasis ter Connors v. 258, Pratt, 399, (1910) (not 38 Utah 112 P. ("All Comp. § 1907, See Utah Laws per pardons power ing that board of was without capable committing ex sons are crimes sentence). reduce a life cept. age years; ... under the of seven [clhildren ages years between the of seven [children years, proof fourteen in the absence of clear Harmelin, 501 U.S. at 111 S.Ct. Cf. Scalia, J.) ("[The committing charged against (opinion of actions at the time of the act Congress persuasive wrongfulness."); § ... evidence them knew its id. First are .."); person ("'Every guilty in the de what the Constitution means.. M'Culloch v. of murder first 316, 401-02, death, or, (4 Wheat) gree upon Maryland, shall suffer recommen (1819) imprisoned (relying jury, may L.Ed. 579 fact that dation of the hard power to establish a national bank "was exer- life, in the state in the discretion labor prison Thorne, court."); congress" see also State v. 39 Utah [aln cised the first and that exposi- (1911) (same); Camp, In re De 117 P. constitution, tion of the established deliberately legislative ought lightly (same); acts ... to be Utah 15 Utah 49 P. disregarded"). ("The Comp. § Laws 1686x13 board of par per- punishment malpractice hath is a form of eye, tooth for tooth: as he eye for by the state: man, formed in so shall it be done a blemish caused Raphael Cohen, quackery government, Morris It is a kind of again."); to him see AanNp (1950) ("But skill, apply argues a want of solid to if ... an Law 58 Reason remedy, the ultimum the same universal eye for a sounds eye tooth[ ] for an tooth penalty], every supplicium death to [the put ... today, may we not too barbaric is, owned, difficulty. case of It it must be Everyone punished alike in thus: is to be extirpate much easier to than to amend gravity his offense proportion to the of yet magistrate mankind: must be es- ?"). . The ancient Greeks and Romans surgeon, a weak and a cruel teemed both just acknowledged punishments in a so also limb, every through who cuts off which ciety proportional to the crime. must be attempt ignorance or indolence he will not Dialogues Plato, XI, at in 5 The Laws bk. ingeniously to cure. It has been therefore (B. trans., New of P lato Jowett proposed, every a scale of state 1892) (c. York, MacMillan & ed. Co.3d formed, should be with a corre- crimes ("[Thhe B.C.E.) law, archer, good like a descending sponding punishments, scale of right punish aim at the measure of should greatest ... from the least. ment, punish and in all cases at the deserved BrackstoN®s, *17- Wiuuram CoOMMENTARIES Cicero, ment."); I, XXV, De bk. ch. Offices (footnote omitted). *18 (Walter trans., at 91 Miller Harvard Univ. early 1 216 of the Terri settlers Utah 1997) (44 B.C.E.) ("We Press take should tory "deeply intended that the com rooted" punishment care also shall be principle proportional punishment mon law of proportion out of to the offense. ..."}. constitutionally protected. resi Consequently, principle that a "[the dents of what would become the Utah Terri punishment proportionate should be tory prepared proposed state constitution deeply frequently crime is rooted and re guaranteeing penalties punish "[alll peated jurisprudence." in common-law So proportion ments shall be in to the offence." Helm, Constitution or THs Stats or Deseret 10 277, 284, lem v. 103 S. (1988). Indeed, 1849). (Kanesville, 77 L.Ed.2d 637 Hyde Orson Constitu Ct. tional pro conventions held 1856 and 1862 Magna guaranteed rights Carta of 1215 proposed containing duced state constitutions proportional punishment: "A man free shall guarantees proportional punish identical of offence, except not be for a trivial [fined] Deseret, ment. Constitution the State offence; degree accordance with the of News, 2, 1856, 30; April Deseret at Sen. and for a [fined] serious offence he shall be 35-240, (1858); Misc. Doc. No. H.R. Hout, according gravity...." to its J.C. Macna (1862). 37-78, (2d ed.1992). Misc. Doc. No. at 5 C arta Blackstone later ... "[the elaborated method of inflict principle propor 1 217 The fundamental always ing punishment ought propor to be punishment tional was carried forward into particular purpose tioned to the it is meant punishments Utah's eruel and unusual clause. serve, no means exceed it." 4 The draft constitutions of 1872 and 1882 and Brackstone, "12; Williaam CommENTARIES adopted the state constitution in 1895 re Balmer, Thoughts see also Thomas A. placed Some explicit guarantee propor the more Proportionality, 87 Or. L.Rev. 787T- prior tional found draft consti (2008). Thus, language Blackstone reasoned that Eighth tutions drawn from the severe Amendment of the Constitution: "Ex- application disproportionately aof U.S. omitted)); quotation 1. The 1872 draft constitution was modeled after marks see H.R. Misc. Doc. 42-165, (1872) ("The recently approved Nevada Constitution as No. at 4 constitution of the part Territory's ongoing of the Utah efforts to Congress] State, [to which is proposed presented despite opposition obtain statehood national herewith, looks to the of those im- development practice polygamy. Soc'y Separation provements political science which elsewhere ists, Inc. v. Whitehead, attention; P.2d 928 n. 31 excite for it will be observed public (Utah 1993) ("In provides minority representation, 1872 the constitutionаl conven that it im- partial suffrage, public equal tion borrowed constitution of Nevada as the educational facilities, race, color, basis its constitution." without distinction reli- proposed

115 Rights, of the Bill of both on account of their required; not be excessive bail shall cessive kind."). degree and nor shall eruel imposed; not be fines shall inflicted." punishments and unusual {219 that have similar Other states eruel I, 9;§ art. accord H.R. Misc. Const. Urax punishments clauses in their and unusual 42-165, (1872); at 5 Constrrurion Doc. No. interpreted clause to constitutions have this (Salt City, 20 Lake THE State or oF against disproportionate protect sentences. 1882). News Co. DessrET See, Commonwealth, e.g., 173 McDonald v. language long held that identical Court has 322, 874, (1899); In Mass. 53 N.E. 875 re Eighth prohibits found in the Amendment 410, 217, Lynch, Cal.Rptr. 8 Cal.3d 105 503 Solem, 463 disproportionate punishments. (1972). 921, Although interpre P.2d 930 ("[A] 290, 103 3001 criminal U.S. at S.Ct. given tation to similar or even identical lan the crime proportionate must be sentence guage found the federal Constitution or the defendant has been convict for which the constitutions of our sister states is not States, 349, Weems v. United ed."); binding, interpretations we look to these (1910)("[I)t 544, is 30 54 L.Ed. 793 S.Ct. Soc'y construing when Utah's Constitution. justice precept punishment Whitehead, Separationists, Inc. v. 870 graduated proportioned and crime should be (Utah 1993). P.2d 921n. 6 Vermont, offense."); 144 O'Neil v. U.S. recognized This court has also 339-40, 323, 331-32, 36 L.Ed. S.Ct. punishments the cruel and unusual clause of (1892) (Field, J., dissenting) (although provides protections the Utah Constitution majority address the issue of declined to against disproportionate punishments similar proportionality Eighth under the Amend safeguards provided by Eighth to the ment because it was not briefed because Thus, punishment "[a] Amendment. criminal yet had not been extended to the amendment I, is cruel and unusual under article section 9 states, the dissent reasoned that disproportionate if it is so to the offense punish Eighth proseribes Amendment "all that it the moral shock{s] committed sense of length ments which their excessive or right all reasonable men as to what severity greatly disproportioned to the are proper under the circumstances." State v. charged"). offenses (sec 19, ¶ 73, Lofferty, 2001 P.3d UT original) quotation alteration ond principal 1 218 Courts have cited two rea omitted). marks Given the deference we af interpreting Eighth text of the sons for sentencing judges right ford of the guarantee proportional pun Amendment legislature to mandate maximum sen Some courts have held that ishment. given long tence for offense-so as it does Eighth explicit prohibitions Amendment's stray beyond constitutional bounds-this "[elxcessive bail" "excessive fines" must type proportionality of individualized review imprison extend to bar excessive terms of justifiably limited. Solem, ment as "cruel and unusual." courts U.S. S.Ct. Other Punish, B. Utah's Cruel and Unusual disproportionately harsh have held sen Dispropor- ments Clause Prohibits are both "cruel" and "unusual" within tences tionate Punishments Weems, meaning of those terms. concurring opinion, (A 1221 In his Justice 364, 377, U.S. at 30 S.Ct. 544 sentence of years painful argues twelve of "hard and labor" for Lee that we should abandon our case- making affirming false entries in an official document law the eruel and unusual imprisonment punishments was "cruel in its excess of clause of the Utah Constitution accompanies imprison disproportionate that which and follows forbids sentences. The con- ment. It is unusual in its character. Its that both the text of currence asserts this understanding punishments come under the condemnation clause and the historical 42-165, (1872), gion, citizenship.") The cruel and unusual Doc. No. at 5 with Nev. Const. art. I, punishments language § clause contained in the 1872 draft 6. The found in the Nevada Consti- corresponding Eighth clause found in tution was taken from the Amendment of is identical Compare Nevada Constitution. HR. Misc. the U.S. Constitution. language adopted the Utah Constitution "requires meaning which that the doubtful understanding to a more limited point phrases light words or in the be determined of and take their character from associated punishments." and unusual Under "cruel Giles, interpretation, phrases." words or Heathman v. the Utah Constitution (1962)(inter that are barbar- Utah 2d methods of bans ic, prohibit applica- omitted). but does not an excessive concept quotation nal marks This drawing meaning permissible tion of an otherwise mode of of from the context of asso adopted by punishment. ciated terms has been the United Supreme interpreting States Court in [ I, court, majority along with a of this nearly Eighth identical Amendment: disagree. The text of the cruel and unusual recognized Eighth We have punishments clause demonstrates that dis- imposes "parallel Amendment limitations" punishments-not just proportionate barbar- bail, fines, punishments, and other prohibited. punishment-are ic methods of may explicit the text is that bail and fines Moreover, understanding the historical of the not be excessive. It would be anomalous punishments" term "cruel and unusual at the punishment indeed if the lesser of a fine affirms, adopted time Utah its constitution greater punishment and the of death were from, reading than of rather detracts this subject proportionality analysis, both to text. punishment impris- but the intermediate of onment were not. 1. Text of Pun- Utah's Cruel and Unusual ishments Clause Solem, (cita 463 U.S. at S.Ct. omitted). tion I, 1223 Article section 9 of the Utah Con- ¶ provides: stitution "Excessive bail shall not 225 The mnoscitura sociis canon is also required; be excessive fines shall not be more appropriate long-stand because of its imposed; punish- nor shall cruel ing application and unusual lan to this constitutional guage. It was first used Justice Field's ments be inflicted." This section contains parallel three clauses. The first two clauses Vermont, influential 1892 dissent in O'Neil v. prohibit "[eJxcessive bail" and "excessive where he reasoned: "The whole inhibition is expressly incorporate principle fines" and against that which is excessive either in the proportionality. They require of required, the amount bail imposed, punishment or fine or inflicted." 144 U.S. at S.Ct. 693 money may required of be to defendant. deposit security free, Weems, to remain (quoted as well as 217 U.S. at 30 S.Ct. 544). the amount fines that a convicted individu- applied Because this canon was before required pay, I, al adopted to be commensu- Utah article section it is more prohibition appropriate rate the crime. The third apply the moscitur a sociis against punishments" "cruel and unusual provision. canon to this constitutional explicit not contain pro- does an reference to plain meaning 226 The un of "cruel and portionality. punishments" usual this structural reinforces Invoking independent interpretation. the canon of The concurrence looks to meaning, century the concurrence asserts this several nineteenth definitions of the structure indicates that argues framers of the word "cruel" and of because none protect dictionary Utah Constitution intended to citi- expressly these definitions incor fines, disproportionate from porate zens but not ex- concept proportionality, of Utah citizens would have understood "cruel" to prison dispropor- cessive sentences or the (both ¶ 161. application penalty tionate Supra death exclude this notion. Under Utah). accepted punishment logic, methods of Utahns in 1895 would not have § Swpra reading " 158-65. imposed This structural understood a death sentence for a I, 9, however, produces article section public minor infraction such as intoxication punishment as a "cruel" because the death incongruous unnatural and A result. more appropriate canon apply penalty inherently of construction to was not deemed to be an parallel penalty. list items is that of noscitur a barbarous This cannot be the case. sociis, associates," enough or "it is known from its The definition of "cruel" is broad inflicted," disproportionate punish grossly include cruell and unusuall Punishments Declaring Rights and Liberties of An Act to be punishments can be said ments. Such Subject Setleing the Succession compassion or "inhuman;" pity, "destitute Crowne, or tHE®REALM148 in 6 Statutes kindness;" Webster's "hard-hearted." (1819). correctly power legisla- of the upon restriction brother, King II. Harmelin v. his Charles example, prescribe 969, department, tive Michigan, 501 U.S. S.Ct. by hanging for a misde- penalty the death J.). Scalia, (opinion of 115 L.Ed.2d 836 meanor, the courts would be com- and that in the execution These accusations resulted impose penalty. Yet such a pelled to Id. Oates was found of fifteen individuals. a crime would be punishment for such court sentenced him to life guilty, and the by extremely cruel and unusual considered imprisonment annually pillory and to stand in right-mined people. all whipped through the streets of Lon and be Shortly Id. at 111 S.Ct. 2680. don. (Ind.1932) State, 181 N.E. Cox deposed II was the Glorious after James omitted). marks quotation English Bill and the of Revolution and Understanding of "Cruel 2. Historical petitioned Rights passed, Oates the. Punishments" Unusual House of Lords to overturn his sentence. judg argues though the Lords considered concurrence also that the Even 227 The and "ex ment of sentence to be "erroneous" Constitution would not framers of the Utah orbitant," I, majority House of Lords prohibi- article section 9's have understood the sentence. 10 H.C. punishments" declined to overturn "cruel and unusual tion of (1689). Instead, Lords deemed Supra disproportionate punishments. Jour. forbid "prevent ... a bill to it sufficient to introduce 11166-67. Most of the historical evidence concurrence, however, merely like by the Judgments cited the future." Id. Mem up took of the House of Commons was bers phrase that this supports the conclusion however, cause, passed a bill and traditionally to imceludebarbaric Oates's understood punishment. This evidence does modes of to reconsider. urging the House of Lords Id. at 251. by theory not advance the advocated un- the term "cruel and concurrence: ¶ proceedings before 230 The record of the punishments" traditionally excluded

usual the House of Lords and the House Com eruelly disproportionate applications of oth- mons reveals that the debate over Oates's A acceptable punishment. modes of erwise by poli largely fate was driven the sectarian understanding proper historical of "cruel and prejudices of time. Members of tics and punishments" unusual includes both argued that Oates's the House of Commons severity im- and the method corrupt should be set aside as conviction posed. the trial was called for the re because "Papist" King II after cently deposed James English Rights Bill of a. The corrupt, unqualified Persons "partial, and returned, concurrence, Id. at supra were and served on Juries." by the 1228 As noted also asserted that the un- 248. House Members language for Utah's cruel and testimony gave against novices who originated clause Jesuit punishments usual their not be trusted honor Rights provides which Oates could English Bill of superiors because their ought to be re- oaths as witnesses excessive Baile "[that to lie in order instructed them imposed nor would have quired nor excessive Fines Plot; Popish they judgment against "to discredit the Evidence of the asserted that disparage "contrary who had to Law and ancient those Parliaments Oates was Practice, erroneous, prosecuted Vigour." ought it much Id. The with so therefore urged Hоuse ‍‌​​‌‌‌​​‌‌‌​​‌​‌‌​​​‌​​​‌​‌‌‌‌‌​‌‌​‌‌‌​‌​‌‌​‌​‌​‍of Commons further the House to be reversed." Id. Members of the House denying unprece- of Lords to consider whether Oates's of Commons likewise decried the great Step petition "interpreted would be punishment, calling dented nature of the sen- Plot," disavowing Popish "illegal" "against towards as tence Law." 10 H.C. (1689). already powers had been understood rival Jour. 247 Sea," "beyond contemplate and to whether ¶ 233 The lesson concurrence this tacit admission would "be so much for takes from these statements certain Nation, Religion." the Honour of our or our objected only members of Parliament Lords, Id. at 247. Members of the House of illegal unprecedented nature of Oates's - hand, on the other seemed to view Oates and sentence, disproportionality and not improbable conspiracy his theories (including ¶ 177. punishment. Supra But this is a committing perjury "in other Matters" such punishments pre false distinction. accusing Queen conspiring as the former unsupported by scribed were "Precedents" King, nobody to kill the "which could believe "contrary and were to Law and ancient Prac her") something of an international punishments tice" because exceeded the swept rug. embarrassment under the previously meted out for similar crimes. As Although Id. at 249. the Lords conceded legal put one commentator it: "Titus Oates' that Oates's improper, sentence was English Case demonstrates that the Cruell it, explaining declined to reverse the origi and Unusuall Punishments Clause was great Oates case Expecta- "was Matter of nally prohibit punish understood to new Eyes Hwrope upon tion: That the of all were light prior ments that were excessive in of it: And that it would be the Occasion of Stinneford, practice." Rethinking John F. Censures, great up if he should be set Proportionality Under the Cruel and Un again, Witness without a full Examination of Clouse, usual Punishments 97 Va. L.Rev. the whole Affair." Id. (2011). 899,937 concurrence, 1231 As noted the both €234 This concern that Oates's sentence members of the House of Commons and the cruel was and unusual because it un dissenting proffered legal argu Lords also precedented severity in its is reflected in the overturning ment for Oates's sentence based Parliamentary dissenting record. The upon recently the passed English Bill of Lords, argued who that Oates's sentence ¶ ¶ 176-77. Rights. Supro Giventhe extent overturned, should have been asserted that to which religious politics per national and "barbarous, inhuman, the sentence was debate, however, vaded this it is somewhat unchristian" because "there is no Precedents degree difficultto discern the to which these to warrant whipping the Punishments of political legal concerns reasoning colored the Life, committing to Prison for for the Crime in found the record. But pre the comments (1689). Perjury." of 14 H.L. Jour. 228 legislative served in undoubtably the record majority, Even the in Lords the who af provide insight original some into the mean prevent firmed Oates's sentence in order to ing prohibition against "cruel and un "so ill a Man" serving from as witness in the punishments" English usual contained the future, conceded that "there was not one Rights. Bill of Lord, thought erroneous, but Judgments dissenting argued satisfied, 232 The fully Lords that the and was That such an extrava imposed upon gant sentence Oates should Judgment ought giv be over not to have been en, turned punish under the cruel and unusual or a Punishment so exorbitant inflicted upon English Subject." an 10 H.C. Jour. English ments clause of Bill Rights of (1689) (first because there were "no Precedents to war emphases and second add ed). Members of the House of Commons rant whipping the Punishments of and com Life, mitting to Prison for for the Crime likewise described the sentence as "cruel and "excessive," ignominious," (1689). Thus, "severe and ex- Perjury." H.L. Jour. extravagant Judg- intoxicating liquors was illegal sale of and "an traordinary," "excessive, cruel, unusual" under disproportion- descriptions of ment"-all at 479-80. The Eighth Amendment. Id. at the sentence. nature of ate claim because declined to resolve this Court Parliamentary over debates Thus Eighth Amendment did not it held Oates, which were con- Titus the sentence legislation. Id. The Court apply to state recently passed context of in the ducted however, if opine, that even on to went origi- demonstrate Rights, Bill of English Eighth invoke the Amend defendant could pun- "cruel and unusual understanding of nal ment, argument would fail on the defendant's pro- concept includes ishments" that not ex the sentence was its merits because portionality. excessive, nothing perceive cessive: "We cruel, defendant's sen- [the or unusual understanding of the cruel and b. The Thus, implic the Court Id. at 480. tencel." contempo- clause punishments unusual punishments itly recognized that excessive adoption of the Utah rancous punishments. cruel and unusual Constitution concurrence, however, draws 1239 The course, meaning assigned to T236 Of opinion. from this different conclusion in the En- punishments" and unusual "cruel Rights does not control on the Court's subse Bill of concurrence focuses glish objective liquor quent that the observation means in the phrase question of what community licensing protect laws is "to The rele- Constitution. context of the Utah intemperance" against the manifold evils words meant when what these vant issue is adopted, prohibiting and that mode "[the and ratified was drafted our Constitution keeping for sale penalties the sale and under contemporaneous precedents of 1895. The license, intoxicating liquors, is the without (1) examining Supreme Court the U.S. adopted many, perhaps, all of mode Amendment, nearly usual identical which Eighth wholly the discretion I, It is within the States. language of article section 9 to the relevant concurrence legislatures." Id. The of State courts that examined supreme state that the interprets language to mean reveal that the clauses similar constitutional licensing enforeing liquor laws "mode" of was punishments" and unusual phrase "cruel of the state completely within the discretion plain interpreted in line with its generally deemed eruel and could never be legislature pun- harsh meaning: disproportionately that long legislature does unusual so as the punish unusual were cruel and ishments inherently pun employ cruel methods not ments. reading is Supra n. 33. This ishment. (i) Supreme Contemporaneous U.S. unduly There is no indication strained. precedent Court liquor licensing stated that when the Court "wholly within the discretion laws were majority Although the of the U.S. T237 legislatures" proclaiming that it was State the squarely not address Supreme Court did by imposed a statute to punishments Eighth Amendment question of whether More review. immune from constitutional disproportionately punish- harsh prohibited over, justification for there is no textual adoption of the Utah prior to the ments inherently eru- drawing a distinction between Constitution, precedent indi- Supreme Court disproportion punishment el methods that a the Court had assumed cates that former is ately such that the cruel sentences cru- harsh sentence was a disproportionately constitutionally while the latter is prohibited sentence. el and unusual not. propor addressed a The Court first ¶ just years before 240 In three argument under punishments tional ratified, Supreme Constitution in Pervear v. Massachu Utah Eighth Amendment (5 Wall.) setts, 608 Court challenge 18 L.Ed. again addressed under of a sentence (1866). argued proportionality in that case The defendant The defendant Eighth Amendment. fifty fine and of a dollar that his sentence amounting to challenged a sentence at hard labor for O'Neil imprisonment three months Supreme der in the Territory Court of the fifty-four years imprisonment at hard la Utah, intoxicating sale of arguing bor for the unauthorized statutes force at permit time did not him to be executed liquor unconstitutionally excessive. Wilkinson, by firing squad. People 327, 339, again, U.S. at S.Ct. 693. Once (Utah Terr.1877). majority of the court declined to address Utah The territo Eighth a claim under Amendment be rial supreme sponte court considered sua cause concluded this amendment did carrying whether the manner of out the exe by cution, apply punishments applied not by shooting," "death was cruel and 331-32, unusual. Id. at 164. The court concluded states. Id. at 12 S.Ct. 693. Justice Field, however, lengthy authored a dissent by firing squad that death was not cruel and issue, squarely which he addressed the stat unusual because it was not an unusual meth ing that the Cruel and Unusual Punishments od and it was not less humane than other Clause accepted forms of execution. Id. The U.S. granted directed, Court certiorari and con only against punishments sidered the same rack, question. constitutional

of the character mentioned [the Wilkerson, 99 at thumb-serews, boots, U.S. 130. The Court con stretching iron "[dlifficulty ceded that would attend the ef limbs], against punishments but all fort to definewith exactness the extent of the length severity which their excessive or provision provides constitutional which greatly disproportioned are to the offenses cruel and punishments unusual charged. shall not be against The whole inhibition is inflicted." Id. at 135-36. It that which nonetheless is excessive either in the bail that, minimum, concluded at required, "it is safe imposed, punishment or fine punishments affirm that of torture ... inflicted. are by" Eighth forbidden Amendment. Id at 339-40, Id. at separate S.Ct. 693. A Court, therefore, 136. The determined that dissenting opinion authored Justice Har the method execution-firing squad-was joined by lan and expressed Justice Brewer constitutional because it was not in the vein view, declaring similar that a sentence of of barbarous methods of execution sometimes fifty-four years which, "inflicts past, used in the such as disembowelment or view of the character of the offenses commit being burned alive. Id. at 135-36. ted, must be deemed cruel and unusual." at 12 S.Ct. 693. 1 243 While preceding Wilkerson and the $241 opinion certainly territorial princi- affirm the purpose For the inquiry ple inherently punish- eruel methods of prevailing issue here-the understanding of phrase punishments" "cruel and proscribed by unusual ment are Eighth Amend- ment, opinions provide these do when the Utah Constitution this was drafted and is the outer protections limit of the ratified in afforded importance 1895-it is of little by this Field, amendment. The opinions Harlan, the Court did not con- Justices sider whether disproportion- execution was a binding precedent. Brewer are not The un- ately punishment first-degree harsh challenged opinion mur- Supreme of three Court justices simple der for the reason that this claim disproportionate that a was sentence is Indeed, never raised. argument such an just also a cruel and cer- unusual sentence three years adopted tainly would have before Utah its constitution is been deemed frivolous in convincing evidence of how contemporaries

would phrase. have understood this (ii) Contemporaneous supreme state The U.S. Court case that precedent court

the upon, concurrence relies Wilkerson v. Utah, 130, (1878), 25 L.Ed. 345 does 1244 preponderance of state courts proportional punishments addressed the not contradict understanding this of "cruel punishments." and unusual supra question See under identical state constitutional ¶ ¶ 197-99. The defendant in that case chal provisions agreed reading with the of "cruel lenged the manner in which he was sen punishments" expressed by and unusual Jus- first-degree Field, Harlan, tenced to be executed for mur tices Brewer O'Neil v.

121 " t ¢ "'excessive, and unusual tutionally cruel opin that rendered courts State Vermоnt. "greater than [had] was soon the sentence prior to or because subject either ions on or inflicted" prescribed or known drafted and been ever Constitution after the Utah offense). disproportion indicated that in 1895 or similar ratified the same unconstitutionally may be punishments ate by the concur The state cases cited 245 v. Common McDonald and unusual. cruel undermine these significantly do not rence 874, wealth, 322, 875 53 N.E. Mass. 173 pronouncements that a dis contemporaneous (1899) ("[Ilt imprisonment possible that may be a eruel and sentence proportionate years long term prison for a the state concurring opinion sentence. The unusual the offense disproportionate to might so be opinions that state older state cites several punish and unusual a eruel as to constitute severity of a general proposition that Constitu the Massachusetts [under ment legislature. See Com is left to the sentence Whitaker, 19 tion]."); Garvey v. ex rel. State (5 Gray) Hitchings, 71 Mass. v. monwealth 1896) (La 457, (citing 457, Justice 459 So. (1855) ("The 482, question whether 486 v. Vermont dissent O'Neil Field's severe, disproportion is too punishment six-year for tres sentence overturning a near offence, legislature is for the ate under Louisiana's public park in a passing determine."); People, v. 20 Johns. Barker be punishments clause unusual cruel and ("[It 457, (N.Y.Sup.Ct.1823) was alto punishment); severity of the cause of the discretionary legislature to ex gether 622, Whitney, Mich. 63 N.W. People v. punishment disenfranchisement] [the tend (1895) although "[ujpon 765, (noting that offences."). pronounce These broad to other power alone is conferred legislature legislature has the discretion that the ments of the minimum and maximum fix the severity of sentences do not to determine the crimes," "[iJt nevertheless for all punishment that a directly to the conclusion sen lead pun when the might cases arise is true that never statute could tence authorized eruel and by an act is so imposed ishment Indeed, unconstitutionally disproportionate. interfere and the courts would unusual New York Massachusetts and courts both In re Mac rights party"); protect of the disproportionately se that a later announced (1893) 18, Donald, 150, 20-21 Wyo. 33 P. set as cruel and could be aside vere sentence "eruel or punishment is not (noting that Commonwealth, 53 unusual. McDonald v. un Wyoming constitution unusual" under 73, 77 875; Bayard, How. Pr. In re N.E. law is provided punishment "the less 1881) (N.Y. (holding that "cruel Term Gen. as to shock disproportionate to the offense so "pun include punishments" and unusual (internal quo people" of the the moral sense disproportioned to the offense as so ishments Becker, omitted)); v. State tation marks community"). the sense of the to shock (noting N.W. S.D. [ Michigan Su- opinion, In a terse uncon may be set aside as punishment that a rejected claim that a cases, also preme Court very where "in extreme stitutional by stating was cruel and unusual and out of sentence proposed is so severe legislature alone is conferred public "[uJpon to shock to the offense as proportion minimum and maximum power to fix the judgment of rea and violate sentiment People all crimes." punishment for Jugs In v. Four people"); State sonable (1893). Smith, 94 Mich. 54 N.W. 2 A. Liquor, Vt. toxicating clarified just years two later the court (1886) But aggregate the (rejecting a claim that legislature's power was that the state separate of for numerous prison sentence acknowledging legisla- the pun absolute. While and unusual a cruel fenses constituted minimum and authority to "fix the ishment, conceding penalty the ture's "[ilf that but crimes," all punishment for single maximum of the a of unreasonably severe for were legislative pre- that the concluded fense, might be the court question the constitutional determining appropriate the of Driver, rogative v. 78 N.C. urged"); State particular crime punishment for a amount of (1878) impris of (overturning a sentence punish- by cruel and unusual limited the a years payment and $500 of five onment Michigan Constitution: of the ments clause battery as unconsti- security for assault ¶ might "It is true that cases arise however, when the reasoning Aldridge, punishment imposed by an act is so cruel and does not reflect the understanding common of "cruel and punishments" may unusual unusual the courts would interfere and explained by Indeed, protect rights best be the party...." Whitney, racial animus. of the 63 N.W. at 766.2 just years four Virginia later a court contra Aldridge dicted In Commonwealth v. ¶ 247 The concurrence cites several cases (6 Rand.) 694, (Va.Gen.Ct. Wyatt, 27 Va. adopted decided before Utah its constitution 1828), the court permit examined a statute directly support proposition the that the ting judge person guilty to sentence a phrase punishments" "cruel and unusual re operating illegal an game card whipped to be exclusively fers to the mode and not the any times, number of long so thirty- ¶ ¶ degree punishment. Supra 188-89. stripes nine were inflicted at a time. Ad But these utility cases are of limited in deter dressing argument the per statute mining commonly the meaning understood mitted punishments, cruel and unusual the term, constitutional do not court concluded that the statute was not outweigh the Court prec and state face, unconstitutional on its suggested but supporting proportionality edent review. that sentencing judges constitutionally were ¶ Commonwealth, Aldridge 248 In v. 4 Va. sentencing restrained from an individual (2 Cas.) 447, (Va.Gen.Ct.1824), Va. 447-48 an excessive stripes. number of Id. at 700 . challenged defendant constitutionality -701 Virginia authorizing statute punishment his " ¶ State, 250Hobbs v. aas 'free man 133 Ind. 32 N.E. of color'" convicted of larce ny to be whipped thirty-nine lashes, sold is likewise of limited usefulness slavery, into transported beyond in determining bor generally acceрted mean ders of the United States. The court ing denied of "cruel and punishments." unusual In the defendant's challenge, constitutional addressing ar challenge prison to a sentence guing Eighth that the Amendment was Constitution, never under the Indiana that state's intended to extend to slaves or "free blacks supreme court stated that previ it had not and mulattoes." Id. at 449. The ously court went analyzed the eruel and punish unusual dicta, opine however, on to that the consti any ments clause in depth. Id. at 1020. The prohibition tutional against cruel and unusual court therefore Joseph Story's cited treatise punishments designed "was never proposition control for the the Cruel and Un Legislative right to determine ad libitum usual Punishments Clause of the U.S. Consti upon adequacy punishment, but prohibits tution the violent pun methods of merely applicable punish to the modes of ishment place that "had England taken ment." Id. at 449-50. arbitrary reigns of the Stuarts." Id. at 2. The concurrence also cites a federal Ninth Cir could determine age, "previous the defendant's cuit general case, which "[the states that rule is character," or "the circumstances under which well punishment settled sentence and committed," the crime was "say, it could not as a imposed upon a defendant for violation of law, matter of years that a sentence of 50 in the statute, provisions which is within the prison territorial manslaughter for the crime of punishment statute, provided by cannot degree per the first se cruel and inhuman." regarded as excessive, cruel, or unusual." as noted remaining above, Finally, cases cit States, (9th Jackson v. United 102 F. (5 ed the Jackson by court-Pervear, Cir.1900). But by none of the cases cited Wall.) at 480; Becker, 51 N.W. at 1022; support Jackson proposition court the extreme Whitney, 766-actually 63 N.W. at support that a prescribe statute could never a cruel and proposition dispropor that courts reverse a Ligan unusual punishment. State, 50 Tenn. tionately cruel and unusual sentence authorized (3 Heisk.) 159, (1871), simply the court de ¶¶ 238, Moreover, Supra statute. termined that the was not cruel and claim made imposed in Jackson that a sentence given unusual the "character of acts" committed pursuant to a statute can never be cruel or un the defendant and stated that it would "feel plainly wrong. usual is hesitancy interpre Even under the enforcing sternly penalties no Likewise, provided by tation of the cruel and unusual statute." in Jones v. punishments 45, 1072, Territory, (Okla. concurrence, 4 Okla. clause 43 P. advocated a statute Terr.1896), providing the court noted that because punishment there for a barbaric mode of nothing in the record from which the court would be unconstitutional. wheth omitted). I now examine punishments, unusual (internal marks quotation took this violates juvenile to LWOP then Supreme Court sentencing a Indiana er The have As we independently protection. step further this constitutional one thesis punish and unusual "cruel Lofferty v. recognized concluded State previously exclusively prohibit read to be should ments" cruel and is punishment criminal "[al and that punishment methods barbaric I, 9 if it is so section under article unusual legislation pro not affect language "does committed the offense this disproportionate years." life or for imprisonment viding of all reason sense shock{s] moral however, represent does not holding, Id. This proper right to what men as able understanding this constitution a common ¶ 73, 19, 2001 UT cireumstances." under the not cite court did language because al (second original) alteration P.3d 342 proposition. this supporting any caselaw omitted). But an marks quotation came to this Supreme Court Indiana The under review proportionality individualized Indeed, the court its own. conclusion only kind of not the Lafferty standard is numer entirely unaware to be seemed Arti analysis. proportionality constitutional disproportionate holding that a cases ous consid I, requires courts to 9 also section cle unconstitutional be an could prison sentence is uncon particular a er whether ¶ 244. Supra ly eruel sentence. applied to when stitutionally disproportionate this of individuals-in culpable class a less 8. Conclusion case, juveniles. meaning, "cruel plain its 1251 Under disproportion recognized includes has Supreme Court punishments" unusual And an examina punishments. ately harsh two embodies Eighth Amendment that the was understood phase this of how tion review. proportionality types of distinct interpretation reveal does not First, that a may determine courts sentence meaning. At mini plain this diverges from given unconstitutionally disproportionate, however, adhere mum, this court should indi of an particular cireumstances all of recognized have where we prior precedents Florida, 48, 560 U.S. v. vidual case. Graham I, Constitu 9 of the Utah section that article 59-60, 176 L.Ed.2d 130 S.Ct. sentences. disproportionate prohibits tion (2010). is similar This kind of review 342; 19, ¶ 75, 20 P.3d Lafferty, 2001 UT See standard. the conscience" "shocks Utah's 37, 993 Herrera, P.2d 1999 UT ¶ State v. recognized that cer Second, has the Court long interpretation has An identical 854. dispropor categorically are tain sentences Eighth courts applied federal been class of particular applied to when tionate Weems, at 217 U.S. Amendment. 2011; 60-61, see 130 S.Ct. Id. at individuals. in long-standing light S.Ct. 551, 575, Simmons, 543 U.S. Roper v. also we language, given to identical terpretation (2005)(prohib 161 L.Ed.2d 125 S.Ct. prior holdings our depart from should not juveniles); Atkins iting penalty death "clearly convine[ing] that is not because it 304,321, 122S.Ct. Virginia, 536 U.S. v. is no originally erroneous rule was the death (prohibiting 153 L.Ed.2d changing condi because longer sound disabilities). mental persons with penalty for Menzies, tions." State review proportionality type of This second 1994) (internal (Utah omit quotation marks sentencing de particular evaluate a does not ted). cision, specific sen whether but assesses group of individu applied to a tence OF II. PROPORTIONALITY that makes defining characteristic als LWOP JUVENILE than the culpable group of that less members in Relation Proportionality A. Graham, population. general Class Juveniles Defined 61-62, 130S.Ct. recognized that has Utah T252 Because ¶ analysis categorical proportionality 254 A I, the Utah Constitution 9 of article section I, article section under warranted is likewise eruel and disproportionately against protects 9 of the Utah Constitution.3 At judgment." least one Supreme Id. As the Nevada engaged other state Court has a similar has noted: class- More than provision other in the Con- based examination under its state constitu Commonwealth, tion. stitution prohibition Workman v. the of eruel and un- 374, (Ky.1968) (holding punishment S.W.2d 377-78 usual depends largely, if entirely, upon the humanitarian instinets of rape LWOP categorically sentence for judiciary. nothing We guide have Kentucky violated the Constitution's ban on in defining us what is cruel and unusual punishment" "cruel applied juve when apart from our consciences.... Our deci- niles). And, noted, already because necessarily sion must spring from the mo- Utah's cruel and punishments unusual clause beliefs, saic of our our backgrounds and Amendment, is rooted in Eighth it is degree of our faith in dignity of the highly persuasive that the language federal personality. human has interpreted been to include such a cate- State, 525, Naovarath v. 105 Nev. 779 P.2d gorical analysis. (1989) (internal 944, 947 quotation marks 11255 In conducting categorical omitted). propor judicial "The indepen exercise of tionality analysis, judgment courts have dent requires addressed two consideration of the (1) questions: culpability of the "community whether offenders at in light consen issue characteristics, their crimes and along sus" favors or application disfavors the of a severity punishment question." given (2) penalty particular to a group and Graham, 67, 560 U.S. at 130 S.Ct. 2011. whether penalty disproportionate based on a independent court's assessment. Independent B. Assessment of First, courts have statutory asked whether Proportionality or sentencing enactments practices disfavor a Juvenile LWOP particular punishment, indicating a consensus ¶ 256 "To be constitutionally proportion penalty is disproportionate when ate, punishment must be tailored to a defen applied particular Graham, to a class. personal dant's responsibility and moral 66-67, U.S. at (finding S.Ct. 2011 a con guilt." Harmelin Michigan, 957, against juvenile sensus LWOP for nonhomi 1023, 2680, 111 S.Ct. 115 L.Ed.2d 836 offenses); cide Roper, 567, 543 U.S. at (White, J., dissenting); accord Williams v. (consensus S.Ct. 1183 against pen the death York, 241, New U.S. 69 S.Ct. alty juveniles); Atkins, for 536 U.S. at (1949) ("[The 93 L.Ed. 1337 punishment (consensus 122 S.Ct. 2242 against the execu should fit the offender merely and not persons disabilities). tion of with mental In- crime."); Barker, United States v. 771 F.2d society's dicia of disapproval punishment of a (9th Cir.1985) ("In case, each suggest penalty disproportionate criminal sentence must reflect an individual "unusual" Eighth under Amendment. ized assessment of a particular defendant's However, "[clommunity consensus, while en culpability rather than a applica mechanistic great titled to weight, is not itself determina given tion of a given sentence to a category tive of punishment whether a is eruel and crime."). Court recog has Graham, unusual." 560 U.S. at 130 S.Ct. nized that categories individuals, certain omitted). quotation marks persons such as with mental disabilities and The ultimate responsibility determining juveniles, must be differently treated when whether a violates constitutional evaluating constitutionality of a sentence protections province remains of the because members of these classes are less courts, which must "independent exercise culpable Atkins, than other individuals.4 In State v. Gardner, constitutionally disproportionate Eighth on the this court plurality reasoned that Utah's punish- cruel and unusual (Zimmerman, Amendment. Id. at 653 A.CJ., categorically ments clause prohibited concurring). the death penalty aggravated for the crime of assault while prison. (Utah 1997) (plu- An also, 4. The example, long law has recognized rality opinion). court, majority A howev- serious mental illness as a source of diminished capacity holding er, based its concepts culpability tailored both sentence was un-

125 311, 317, 321, (prohib 2242 U.S. at S.Ct. deserving punish are less of the most severe 122 (internal omitted)); quotation ments." marks iting penalty persons death for mental disabilities because of the reduced Oklahoma, Thompson see also v. 487 U.S. 815, 835, 2687, 108 S.Ct. culpability mentally 101 L.Ed.2d 702 of "relative retarded fenders"); 571, 578, (1988) ("[L]ess Roper, 543 U.S. at 125 (plurality opinion) culpability (prohibiting penalty S.Ct. 1183 the death should attach to a crime committed juveniles eulpa- because of their "diminished juvenile comparable than to a crime commit bility"). In the context of offenders under adult."). rely ted upon These cases age eighteen, "imposition of a State's juveniles three fundamental characteristics of penalties juvenile most severe offenders (1) separate them from adults: a lack of proceed though they cannot were not chil (2) maturity, greater vulnerability nega - Alabama, -, dren." Miller v. U.S. influences, juve tive and the fact that a (2012). 2455,2466, 132 S.Ct. 183L.Ed.2d 407 nile's character is less fixed than an adult. - Miller, -, U.S. at 132 S.Ct. at 2464. cases, T 257 In several recent mitigating youth characteristics of must recognized appro Court has sentences proportionality also inform a analysis under priate may applied for adult offenders not be the Utah Constitution. Simmons, juveniles. Roper juveniles may subject Court held that not be First, juveniles culpable arе less be penalty "dispro ed to the death because it is they maturity cause exhibit "a lack of and an portionate punishment for offenders under underdeveloped responsibility." sense of Id. 18." 543 at U.S. S.Ct. 1183. The (internal omitted). quotation marks The un subsequently in Court held Graham v. Flori derdeveloped juvenile's nature of a moral juvenile da that a could not be sentenced to compass merely is not a matter of common LWOP for a nonhomicidecrime. 560 U.S. at "any parent sense that knows"-it is rooted Finally, 130 S.Ct. 2011. in Miller v. in the science of brain development. Id. Alabama, may the Court held that LWOP (internal omitted). quotation marks Due to a imposed not be on a minor under a mandato maturity, lack of "'adolescents are overre - ry -, sentencing statute. U.S. at 132 presented statistically virtually every cate explicitly S.Ct. at 2469. The Miller Court gory Roper, of reckless behavior'" consider, however, declined to whether (quoting Jeffrey S.Ct. 1183 Ar- Eighth categorically Amendment bars an nett, Reckless Behavior A Adolescence: juveniles, LWOP sentence for leaving that Developmen Developmental Perspective, 12 question open under the federal constitution. (1992)).5 tal Rev. An adolescent's propensity activity for reckless and criminal Graham, Roper, attributable, part, Miller are at least in to an under upon special developed founded "[DJlevelopments psy circumstances brain: juveniles childhood that culpable chology make less and brain science continue to show constitutionally different juvenile from adults. fundamental differences between - Miller, -, U.S. at at 2464 example, parts S.Ct. and adult minds. For of the ("[C]hildren constitutionally are different brain involved behavior control continue purposes sentencing. Graham, from adults for through Be mature late adolescence." juveniles 560 U.S. at 130 S.Ct. 2011. "Scientists cause have culpability diminished greater prospects they reform ... have found clear evidence that the brain Arnett, Jeffrey 5. See also sentencing accordingly. Reckless Behavior in e.g., See, Utah Code 76-2-305(1)(b) ("Mental § may illness ... be evi Developmental Perspective, Adolescence: A 12 De velopmental mitigation penalty capital dence in in a ("Even Rev. when factors felony may special mitiga ... and be evidence of such as education, size, occupation, family reducing tion the level of a criminal homicide or account, quality of home life are taken into offense...."); attempted criminal homicide Ar age pre association of with criminal behavior is chuleta v. Galetka, 73, ¶ 95, 2011 UT ..."). eminent. ("[E]vidence physical and sexual abuse capacities compose and diminished mental history kind of troubled diminish moral omitted)). culpability." quotation marks continues to through mature neighborhood adolescence and they or, which great live twenties, early into the with large extent, scale peers with whom associate. SremnBBro, change structural taking place during this ELIzABETHS. Scort &LaurENcE period lobes, in the frontal importantly most (2008). REtuinkinc Juveniu® Justice prefrontal cortex,.... within the [which] juveniles Nor abusive, do choose neglectful, central to ... advanced thinking processes family chaotic lives that are all too often that employed are in planning ahead and associated with criminal behavior in minors. controlling impulses, and in weighing the Given their susceptibility increased to influ costs and benefits of decisions acting." before they control, ences "juveniles cannot have a StemBErgq, EnizasEtH S. Scort &Laurence greater claim than adults to forgiven be (2008); RETHINKINGJUVENILEJUSTICE44 see failing escape negative to influences in their ("Recent also id. at 45 studies show substan- whole Roper, 570, environment." 543 U.S. at changes tial during [adolescence early and 125S.Ct. 1183. in regions adulthood] brain systems and as- Third, juvenile's a character is less impulse control, sociated with the calibration fixed than an adult likely and is less to be reward, of risk and regulation and the of in mired depravity irretrievable psycho emotions."). logical damage. Id. Studies have shown that recognition 1260 "In comparative majority juvenile of "age offenders out" of immaturity irresponsibility juveniles, of criminal behavior as mature into adult almost every prohibits State those under 18 hood. Steinberg Laurence & Elizabeth S. years age of from voting, serving juries, on Seott, Guilty by Less Reason Adolescence: or marrying parental without consent." Developmental Immaturity, Diminished Re Roper, 569, 543 U.S. at 1183; 125 S.Ct. ac sponsibility, and the Juvenile Death Penal Thompson, cord 823, 487 U.S. at 108 S.Ct. ty, 1009, (2003) 58 Am. PsrcHonocaist (plurality opinion) ("Examples of this ("For teens, most [antisocial] behaviors are juveniles distinction [between and adults] fleeting; they cease with maturity as individ abound in contracts, torts, our law: in identity ual Only becomes settled. a rela criminal procedure, law and in criminal sane- tively small proportion of adolescents who rehabilitation, tions and and in right experiment risky illegal or activities devel vote and to hold office." quotation op patterns problem behavior entrenched omitted)). marks The same markers of im persist that ..."); into adulthood. Terrie E. maturity underlying the denial of certain Moffitt, Adolescence-Linmuited and Life- rights juveniles enjoyed are by adults Course-Persistent Antisocial Behavior: A support juveniles conclusion that are Psycroun Developmental Taxonomy, comparatively blameworthy less for crimes 674, ("The Rav. majority of erimi- they may commit. Thompson, 487 U.S. at nal offenders are teenagers; by carly 835,108 (plurality S.Ct. 2687 opinion). 20s, the of active offenders decreases number Second, juveniles are more 50%, vulnera over age almost 85% of ble negative influences and generally are former delinquents desist from offend unable to extricate ..."). themselves from ing. crime- Given the fleeting often nature of ridden Roper, environments. 543 U.S. at juvenile tendencies, criminal is "[it difficult 569, 125 S.Ct. 1183. "[Y]outh is more than a expert even for psychologists to differentiate chronological fact. It is a time and condition juvenile between the offender whose crime person life when a may be suscepti most reflects yet unfortunate transient immatu ble to influence and to psychological rity, dam juvenile the rare offender whose age." Eddings Oklahoma, crime irreparable reflects 455 U.S. corruption." Roper, (1982). 102 S.Ct. 71 L.Ed.2d 1 This 43 U.S. at 125 S.Ct. 1183. Because 5 susceptibility to negative influences is almost the adult who serves a life sentence will invariably coupled juvenile's with a inability likely not be person the same who committed change his or her environment. Juveniles even a heinous crime youth, while their dependent are juveniles upon parents their are less deserving of the harsh guard ians for support and are unable to choose the sentence of LWOP. always will an individual determination youth characteristics com crimes society based danger to un adults than culpable less juveniles

make given very difficult juvenile is awhile for an mitted justifications penological dermine juvenile criminal nature transient lacking the often "A sentence sentence. LWOP ¶ 262. reliable Absent Supra by its is tendencies. justification penological legitimate be dan forever juvenile will offense." indicators disproportionate nature 2011; severely incapacitation 130 S.Ct. Graham, goal of at gerous, 560 U.S. 318-20, 122 S.Ct. Atkins, undermined. accord (the persons penalty for death not does likewise LWOP T266 Juvenile because excessive disabilities mental goal of de penological adequately serve penological legitimate further does maturi juveniles lack "Because terrence. not ade Thus, does penalty goals). responsibility underdeveloped sense ty legitimate one of at least serve quately ill-consid impetuous and result . often in punishment-rehabilitation, goals of social decisions, like they are less actions ered deterrence, and retribution-is capacitation, into consid punishment possible ly to take "unnecessary and than the more nothing Graham, making decisions." when eration Utah's and violates pain" infliction wanton (alteration in 2011 130 S.Ct. at 560 U.S. State clause. punishments and unusual cruel (internal omitted) (citation quotation original) 1997) (Utah Gardner, P.2d 634 v. Atkins, omitted); U.S. at also see marks (internal marks quotation opinion) (plurality (the penalty for death 319-20, 122 S.Ct. ade omitted). not does LWOP Juvenile fur does not disabilities mental persons justifications traditional these further quately because goal of deterrence ther punishment. for ability control have a diminished often pur rehabilitative no serves 264 LWOP legal pen upon potential based conduct their be never will the defendant pose, because alties). Thus, juvenile offenders potential - Miller, society. participate allowed possibili by the deterred likely to be are ("Life without -, at 132 S.Ct. at U.S. sentence. ty of an LWOP rehabilitative altogether the forswears parole omitted)), (internal marks quotation

ideal." {267 does not also goal of retribution often are serving LWOP Indeed, individuals of the "The heart juvenile LWOP. justify programs to rehabilitation access denied criminal sen that a is rationale retribution never they will simple reason for the prison person directly related must tence Nellis, The Lives Ashley be released. Ti offender." of the criminal culpability al National Findings Juvenile 137, 149, Arizona, 107 S.Ct. from Lifers: 481 U.S. son Sentencing 23-24 Survey, Tus (1987). juve Because L.Ed.2d (Mar.2012), http://sentencingproject.org/doc/ adults, than inherently culpable less are niles publications/jj_The_Lives_of_Juvenile_ strong with not as is for retribution "the case - Lifers.pdf. Miller, U.S. an adult." as with a minor (internal quotation -, at 2465 132 S.Ct. at hand, sen an LWOP other theOn omitted). less blame are Juveniles marks of inca goal penological does serve tence suscep immaturity, of their worthy because committing fu from the individual pacitating they cannot influences tibility negative prison. The least outside ture erimes-at to reform. control, capacity increased however, only val rationale, incapacitation ¶ ¶ soci weakens greatly This 259-62. Supra commit individual would if the confined id where retribution-especially ety's claim incarcer or her for his crimes but additional incarcer permanent involves parole [under justify life without "To ation. justifica Thus, a weak retribution assumption ation. theory] on incapacitation sufficient Absent LWOP. juvenile tion be a will forever juvenile offender ra traditional any of the within justification requires the sentencer society danger to incorrigible." con juvenile LWOP punishment, tionales for juvenile is judgment make a inflic wanton "unnecessary and stitutes ham, 130 S.Ct. at Gra Gardner, P.2d at 634 pain." See however, making a tion above, As noted (internal (plurality opinion) quotation marks is relevant analysis to an of the constitution omitted). ality juvenile In gauging communi LWOP. consensus, ty Finally, Court has looked conducting when constitu proportionality tional analysis, courts must "objective to whether indicia society's weigh culpability particular of a class of standards, expressed in legislative enact against individuals severity penal ments practice, and state show a national ty. case, juveniles In this are not less against consensus a sentence for particular culpable adults; than an LWOP sentence is - Miller, class of -, offenders." U.S. at disproportionate because it pen is a harsher (internal 132 S.Ct. at quotаtion marks alty juveniles than it is for adults. omitted). LWOP sentences "share some characteristics with death sentences that are shared no ¶ 271 The first society's indication of stan other sentence[ ]" because "[iJmprisoning an dards-legislation regarding juvenile offender until he dies alters the remainder of LWOP-is inconclusive. In a vast majority his life a forfeiture that is irrevocable." of states the federal system, criminal - Miller, -, U.S. 132 S.Ct. at 2466 sentencing permit juvenile laws LWOP.6 quotation omitted). marks An Graham, ("Six 560 U.S. at 130 S.Ct. 2011 juveniles LWOP sentence for "means denial jurisdictions do not allow life of hope; it good parole means that without behavior and any juvenile sentences for improvement character immaterial; are offenders [as 2010]."); State-By-State means that whatever Legal Resource might future hold in store for the spirit mind and convict], Guide, [the Univ. or S.F. Prossot to End Juvenile he will prison remain in for the rest of his (Nov. Life Without Parole 2012), days." Graham, 560 atU.S. 130S.Ct. https://www.usfea.edu/law/jIwop/resource._ (alteration (internal 2011 original) in quota guide/ (juvenile prohibited LWOP eight in omitted). tion marks "Under this sentence a states and the District of Columbia as of juvenile offender average will on serve more 2012). November Simply tallying juris the years greater and a percentage of his life in permit dictions that prohibit penalty, this prison than an adult offender." Id. An adult however, "present[s] a distorted view." Mil juvenile and a sentenced to LWOP "receive - ler, -, US. at 132 S.Ct. at 2472. the punishment same only." name Id. Most legislation state permitting juvenile Thus, in weighing the reduced culpa LWOP does so indirectly. typ Statutes bility juveniles against severity ju ically juveniles authorize certain to be tried LWOP, venile I conclude such a sentence is as adults and sentence, receive an adult but unconstitutionally disproportionate under transfer typically statutes do Utah's eruel not punishments address unusual clause. particular whether a appropriate sentence is C. Community Consensus applied when juvenile.7 to a -, Id. at S.Ct. at Although 2472-73. Statutes that determine community consensus re garding punishment a determinative, not it the conditions juvenile under which a may be interpretations 6. Unlike of the United States consensus would be always circular and favor Constitution, which promulgated affect laws the State in order for a convict to chal- because legislatures states, the state fifty of all when we lenge sentence, the constitutionality of a the Utah address a question, Utah constitutional only Utah Legislature must have pun- first authorized the implicated. laws are analyzing legislative When ishment. gauge enactments to community consensus re- garding particular punishment, however, a it is recently, 7. Until among Utah was appropriate still analyze the states that laws from other only permitted gauge juvenile Gardner, states to through national LWOP consensus. its trans (in (plurality opinion) P.2d at 640 evaluating fer 78A-6-602(3), statutes. §§ See Utah Code constitutionality punishment of a however, under a 78A-6-702. legislature state provision, constitutional courts should com- aggravated amended the speci murder statute to pare challenged penalty "the punish- with the fy juvenile that subject defendants are not prescribed ments for the ju- same in other offense penalty, death but be sentenced to either " quotation risdictions omitted)). twenty-five marks years to life or LWOP.2013 Utah ~ Indeed, we analysis if confined our legis- to Utah ‘ Laws 317. lative enactments, this measure of community infrequency of ¶273 Thus, the extreme system tells criminal adult transferred indicates in Utah sentence juvenile LWOP "to juvenile considered the states us disapproval societal court criminal tried to be enough be old within is "unusual" the sentence (or dealt to be old too erimes serious punish unusual ervel meaning of Utah's court), tells us but juvenile effectively Houston Indeed, to Mr. prior clause. ments States these judgment nothing about he erime for a sentence receiving an LWOP pun appropriate regarding made have pun juvenile, the he was while committed youthful such ishment offenders." real. than hypothetical more ishment 24, 108 S.Ct. n. at 826 U.S. Thompson, serving a only person is the Houston Mr. Thus, statuto "the opinion). (plurality Juvenile in Utah. sentence LWOP juvenile for life offender juvenile of a eligibility ry (JLWOP), Con Natu Parole Without Life indicate does parole without (Feb. LEreistaturES oF Stats FERENCE through deliber endorsed has been penalty 2010), http://www.nesl.org/documents/cj/ consider legislative full ate, express, Esti Distribution State jlwopchart.pdf; 67, 130 S.Ct. Graham, at U.S. ation." Serving Ju 2,589 Juvenile mated Offenders RigHts Parol, HumaN Without venile Life Warcg (2004), http;//www.hrw.org/sites/ case, consideration ¶ second 272 In default/files/related_material/updatedJLWOP community consensus-fc- measuring when every indication there 10.09.pdf.And more practices-provides sentencing tual LWOP, as well juvenile despite the fact "Actual of consensus. indication definite before penalty death part of important are sentencing practices unconstitutional, long has declared Court Id. consensus." into inquiry [an] juvenile transfer through the available been where jurisdictions Thus, even S.Ct. only juvenile statute, is the Houston Mr. particular permit enactments legislative harsh sen such a receive to ever offender punish imposition infrequent penalty, Frubhwirth, To Die Jesse in Utah. tence dis popular indicate may nonetheless ment StanparRbp-ExaminERr, 6, 2007, at May Prison, (infrequent punishment. approval its despite rarely imposed so A sentence 1A. nonhomicide for juvenile LWOP of imposition enactment legislative through availability "is penalty the where jurisdictions crimes gar never has punishment this demonstrates a consensus discloses statute permitted in Utah.9 approval wide-spread nered 567, 125 at use"); 543 U.S. Roper, its against consensus death of the the international imposition Finally, (infrequent €274 S.Ct. my conclu confirms LWOP juvenile against to contributed juvenile offenders on penalty disap society unusual. and that is cruel conclusion this sentence the Court's sion that Atkins, at particu regarding 536 U.S. practice); consensus proved International determining relevant may of be imposition penalty (infrequent lar 316, 122 S.Ct. and unusual. is cruel punishment mental with persons whether on penalty the death ([Alt 575, 125 S.Ct. at disapproval). Roper, 543 U.S. community indicated disabilities decision the Court's the time of from may also indicate least imposed sentence rarely A laws of referred within has Trop, the Court "unusual" is punishment authori to international countries eruel other ban constitutional meaning of of Atkins, interpretation its as instructive ties punishments.8 unusual 'cruel prohibition Eighth Amendment's 122S.Ct. opinion, State this publication of imposed After infrequently of an effect deterrent 8. The one other the records with reduced, provided this court undermining greatly also is sentence to LWOP been sentenced prisoner had who Utah penalty in the imposing the justification for his before two months he committed a crime Georgia, 408 U.S. Furman See instance. first addi- of one birthday. existence eighteenth 238, 311, 33 L.Ed.2d 92 S.Ct. he a crime LWOP for person sentenced ("[The penalty tional J., death (White, concurring) my con- not alter juvenile does aas committed would cease imposed that it so seldom could within "unusual" a sentence that such clusion measurably con- deterrent a credible to be I, the Utah 9 of section meaning article in the other end tribute Constitution. system."). justice criminal punishments.'"); unusual Thompson, ment U.S. Rules on Sentencing Juve- 487 U.S. at 830 n. (plurali S.Ct. 2687 niles, 1 Hum. Rts. & GLOBALIZATIONL.REv. ("We ty opinion) (2008). previously have recognized the relevance of the views of the internation community

al D. determining pun whether a Conclusion unusual."). ishment is eruel and agree 1277 I with the majority's holding 1275 In the juvenile case of LWOP, Utah Rule of 22(e) Criminal Procedure international against consensus requires penalty this court to review Mr. Houston's all but unanimous. The United States is the unpreserved constitutional challenges to his only country in the world currently sen- sentence. I agree also with the majority that juveniles tences imprisonment a life the cruel and punishments unusual clause of no chance of release. Connic Vega de la & the Utah Constitution forbids disproportion- Leighton, Michelle Sentencing Our punishments-not Children ate just pun- methods of to Die in Prison: Practice, Global Law and ishment that are barbaric. Both this court's (2008). U.S.F. L.Rev. Only ten prior caselaw and analysis of the text and other countries have laws illovving juvenile history of this clause confirm that a dispro- LWOP sentence: Antigua Barbuda, Ar portionate sentence be both cruel and gentina, Australia, Belize, Brunei, Cuba, unusual. Dominica, Saint Vincent Grenadines, and the ¶ 278 I disagree, however, with majori Islands, Solomon and Sri Lanka. Id. at ty's conclusion juvenile LWOP is not 990. But researchers have been unable to unconstitutionally disproportionate. Both identify any juveniles serving an LWOP sen the extreme infrequency juvenile of a LWOP tence in countries, these indicating that, sentence in Utah global rejection per practice, the United States only is the nation manent incarceration for crimes committed to actually impose irreversible life-long im before adulthood my confirm independent as prisonment on minors. Id. at 1004-07. juvenile sessment LWOP is cruel and 276 International treaties confirm the in unusual under the Utah Constitution. I ternational community's ju condemnation of would remand with instructions to administer venile LWOP. The U.N. Convention on other sentence available at the time Rights of the (CRC), Child adopted by al of Mr. Houston's conviction: twenty years to most every nation in world, provides prison. life in See Utah 76-5-202(2) § Code capital "[n]either punishment nor impris life (2005); §id. 76-3-207(5)(a)-(c) (2005). Mr. onment without possibility of release shall be irretriey- Houston may prove well to be an imposed for offences committed persons ably depraved individual, and a parole board eighteen below years of age." GA Res. may never deem him fit rejoin society. 44/25, Annex, GAOR, U.N. Sess., 44th Supp. Under seenario, Mr. Houston just would No. 49 at A/44/49, U.N. 37(a) Doc. at art. ifiably spend the rest of days his behind bars. (Nov. 20, 1989). The United States and So I find it eruel unusual, however, to make malia are the only countries that have not an irreversible determination that he should ratified the CRC. Connie de la Vega & Mi prison die in upon based even a heinous Leighton, chelle Sentencing Our Children to crime committed while he was a minor.10 Die in Prison: Global Practice, Law and special youth, cirenmstances of which U.S.F. L.REv. (2008); Yun, Lisa S. juveniles make less blameworthy ‍‌​​‌‌‌​​‌‌‌​​‌​‌‌​​​‌​​​‌​‌‌‌‌‌​‌‌​‌‌‌​‌​‌‌​‌​‌​‍-and more The United States Stands Alone: An Inter capable of reform adults, than require the national Against Consensus Juvenile Life justice system to treat children differently. Without Sentences, Parole 20 S. Cal. Inter disc. L.J. (2011); Jelani Jefferson & Head,

John W. In Whose "Best Interests"?

An International Comparative Assess- I note that the replete record is with evidence release, his access to treatment and services that Mr. Houston suffers from mental illness and would be enhanced, therefore, perhaps, his the psychological damage created history ability and motivation to transform his life. neglect. abuse and option With the of eventual also notes The concurrence English Lan- Dictionary of the American "eruel"). may glean understanding 1830) that we some (8d (defining guage 210 ed. meaning "cruel and unusual original by the Indiana Court: noted As case. punishments" from the Titus Oates astounding contrary A view leads impossible impose result ¶ King II ascended to the 229 When James long so and unusual cruel throne, perjury he had Oates tried modes of none of the old and discarded falsely accusing prominent English Catholics used; and that there is no punishment are organizing "Popish Plot" to overthrow

Case Details

Case Name: State v. Houston

Court Name: Utah Supreme Court

Date Published: Mar 13, 2015

Citation: 353 P.3d 55

Docket Number: 20120625

Court Abbreviation: Utah