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Excessive Sentencing:

NACDL's Proportionality Litigation Project

NACDL is pleased to offer, as a resource for its members and as a service to the public, a collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences.

 

Alabama

Updated: 10/16/2014 - Print the Alabama entry.

Posted: 2/8/13 

  • Alabama has retained parole, however it is not available for all sentences.
  • Alabama imposes mandatory LWOP and JLWOP. See Ala. Code § 13A-5-40 (LWOP for murder).
  • Minimum age for transfer of a juvenile to adult court is age 14.
  • The offender must currently exhibit sub-average intellectual functioning (an IQ of or below 70), currently exhibit deficits in adaptive behavior, and these problems must have manifested themselves before the age of 18. Ex parte Smith, 2010 Ala. LEXIS 210 (Ala. Oct. 22, 2010). Defendant bears the burden of proving mental retardation. Id.
State Constitution

Alabama Const. Art. I, Sec. 15 (2012)

Section 15: Excessive fines; cruel or unusual punishment. That excessive fines shall not be imposed, nor cruel or unusual punishment inflicted.

NOTE: Art. 1, Sec. 15 has been treated as the equivalent of the Eighth Amendment . While the dissent in In Ex parte Hester, 473 So. 2d 1054 (Ala. 1985) treated Section 15 as broader than the Eighth Amendment, no controlling authority has done so.

Statutes
  1. Sentencing Guidelines System – “Initial Voluntary Sentencing Standards”

    Alabama has a voluntary sentencing guidelines system, the Initial Voluntary Sentencing Standards, which allows a judge to depart from the recommended sentence based on the facts of the case. Worksheets available at:  http://sentencingcommission.alacourt.gov/sent_standards2006.html
     
  2. Proportionality Review for Death Sentences: Ala. Code 13A-5-53(b)(3) (1994) –

    (b) In determining whether death was the proper sentence in the case the Alabama Court of Criminal Appeals, subject to review by the Alabama Supreme Court, shall determine:

    (1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;
    (2) Whether an independent weighing of the aggravating and mitigating circumstances at the appellate level indicates that death was the proper sentence; and
    (3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
     
  3. Habitual Offender Act - Code of Ala. § 13A-5-9. Repeat or habitual offenders; generally.
    • Alabama’s Habitual Felony Offender Act does not violate the federal and state constitutions’ prohibitions against cruel and unusual punishment. Wilbourn v. State, 457 So. 2d 1001 (Ala. Crim. App. 1984).   
Case Law

State Constitution & Proportionality 

"While this court may rule a fine or sentence excessive, the separation of powers doctrine forces this court not to substitute its own judgment for that of the legislature unless those constitutional guarantees of the Eighth Amendment to the U.S. Constitution or of Article I, § 15, 1901, Alabama Constitution are clearly violated.” Wilson v. State, 830 So. 2d 765, 771 (Ala. Crim. App. 2001) (quoting Cabble v. State, 347 So. 2d 546 (Ala.Cr.App.), cert. denied, 347 So. 2d 551 (Ala.1977)); Eldridge v. State, 418 So. 2d 203 (Ala. Crim. App. 1982).

While appellate courts are generally prohibited from reviewing sentences within the statutory range, courts may review such a sentence if it is “so disproportionate to the offense charged that it constitutes a violation of the defendant’s Eighth Amendment rights.”
 Wilson v. State, 830 So. 2d 765, 777 (Ala. Crim. App. 2001) (citing Ex parte Maddox, 502 So. 2d 786 (Ala. 1986)).

Under any statute which does not provide a sentencing range, the court’s sentence “must not be grossly disproportionate to the severity of the crime, or be shocking to the sense of justice or the conscience of reasonable persons, or outrage the moral sense of the community,” as required by § 15 of the 1901 Alabama Constitution and the Eighth Amendment. Dickerson v. State, 414 So. 2d 998 (Ala. Crim. App. 1982).

While Alabama courts have “not consistently interpreted and applied Harmelin” in regards to proportionality analyses, Justice Kennedy’s narrow proportionality analysis appears dominant. Wilson v. State, 830 So. 2d 765, 777-78 (Ala. Crim. App. 2001).

The death penalty does not violate the prohibition against cruel and unusual punishment under the Alabama Constitution. Death by electrocution also does not violate the prohibition against cruel and unusual punishment under the Alabama Constitution. Hocker v. State, 840 So. 2d 197 (Ala. Crim. App. 2002).

 The following cases mention both the Eighth Amendment and Article 1, Section 15 of the Alabama Constitution, but do not provide a significant separate analysis for Article 1, Section 15:

  • Harris v. State, 352 So. 2d 479 (Ala. 1977) –
  • State v. Adams, 2010 Ala. Crim. App. LEXIS 104 (Ala. Crim. App. Nov. 5, 2010) – Holding that a statute which requires sex offenders to provide an actual address at which they will reside violates the prohibition against cruel and unusual punishment. The statute punished offenders based on their homeless status.
  • Connell v. State, 7 So. 3d 1068 (Ala. Crim. App. 2008) – Failure to properly raise below.

Leading Court Discussions of Graham and Miller 

Ex parte Henderson, 1120140, 2013 WL 4873077 (Ala. Sept. 13, 2013)( Discretionary LWOP sentence to a juvenile charged with capital murder is constitutional because Miller does not categorically bar LWOP but just mandated individualized sentencing for juveniles; Even only two punishments, i.e. death penalty and LWOP, are permissible under § 13A–5–39, Ala.Code 1975, court can apply the principle of Supreme court decision and consider parole eligibility for juveniles) (This case has an interesting discussion about the meaning of “mandatory”) 

Severe Sentences 

  • Ex parte Hester, 473 So. 2d 1054 (Ala. 1985) – Relying on Alabama’s Habitual Felony Offender Act, Code 1975, § 13A-5-9, the court refused to find that a 99-year sentence of imprisonment for possession of a forged check constituted cruel and unusual punishment.

Project Overview | State Comparison  

Alaska

Updated: 5/14/2013 - Print the Alaska entry.

  • Alaska does not have a death penalty, and does not have LWOP or JLWOP. Parole is available. 
  • Alaska Statute 12.55.125 requires mandatory 99-year sentences for enumerated crimes and discretionary 99-year sentences in others. However, after serving half of the sentence, the statute permits an inmate one opportunity to apply for modification or reduction of sentence.
  • Alaska does not have a minimum age for transfer of a juvenile to adult court.
  • Under Alaska Statute 47.12.030(a), when a sixteen-year-old minor commits certain serious felonies, including murder, the minor "shall be charged, held, released on bail, prosecuted, sentenced, and incarcerated in the same manner as an adult." Gray v. State, 267 P.3d 667, 669 (Alaska Ct. App. 2011).
    • This automatic waiver statute does not constitute cruel and unusual punishment, at least when eventual eligibility for parole exists.
State Constitution

Section 1.12 - Criminal Administration: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Criminal administration shall be based upon the following: the need for protecting the public, community condemnation of the offender, the rights of victims of crimes, restitution from the offender, and the principle of reformation.

NOTE – Largely interpreted as an equivalent to the Eighth Amendment.

Sentencing Statutes
  • Habitual Offender Statute  – Alaska does not have a habitual offender statute
  • Sentencing Guidelines System –
    Alaska has a presumptive sentencing scheme which limits judicial discretion which does not cover all offenses. The guidelines are not mandatory for the offenses they cover, but the court is required to complete a sentencing report. Significant variances from these presumptive sentence ranges require the trial judge to refer the matter to a sentencing panel of three judges. The defendant or the state may appeal based on a departure
     
  • Sentences that fall within the presumptive range are not considered excessive. See Shinault v. State, (2011) Alaska App., 258 P.3d 848.

Alaska Sentencing factors 

Alaska Statute § 12.55.005. Declaration of purpose

The purpose of this chapter is to provide the means for determining the appropriate sentence to be imposed upon conviction of an offense. The legislature finds that the elimination of unjustified disparity in sentences and the attainment of reasonable uniformity in sentences can best be achieved through a sentencing framework fixed by statute as provided in this chapter. In imposing sentence, the court shall consider

(1) the seriousness of the defendant's present offense in relation to other offenses;
(2) the prior criminal history of the defendant and the likelihood of rehabilitation;
(3) the need to confine the defendant to prevent further harm to the public;
(4) the circumstances of the offense and the extent to which the offense harmed the victim or endangered the public safety or order;
(5) the effect of the sentence to be imposed in deterring the defendant or other members of society from future criminal conduct;
(6) the effect of the sentence to be imposed as a community condemnation of the criminal act and as a reaffirmation of societal norms; and
(7) the restoration of the victim and the community.

Case Law

General 

Incarceration of person found guilty but mentally ill does not amount to cruel and unusual punishment; punishment is imposed for conduct, not mental illness, and is based on risk to public presented by that conduct. AS 12.47.030; AS 12.47.050; U.S.C.A. Const.Amend. 8; Const. Art. 1, §§ 1, 12; Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Alaska has consistently upheld maximum sentences for murder in the first degree, including sentences for juvenile offenders. Ling v. State, A-9228, 2008 WL 2152028 (Alaska Ct. App. May 21, 2008)

State Constitution & Proportionality 

In determining whether sentence is excessive, the Alaska Supreme Court is guided by Const. art. 1, § 12 which states that "penal administration shall be based on the principle of reformation and upon need for protecting the public." Newsom v. State, 533 P.2d 904 (Alaska 1975); Const. art. 1, § 12.

Alaska courts acknowledge the similarities between Article 1, Section 12 of the Alaska Constitution and the Eighth Amendment of the federal constitution. In Schmidt v. State, 2005 Alas. App. LEXIS 35 (Alaska 2005), the court held that while "the Eighth Amendment prohibits 'extreme sentences that are 'grossly disproportionate' to the crime,'" the "Alaska Constitution similarly forbids punishments that are 'so disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice.' Id. at 22-23. SeealsoPorterfield v. State, 2003 Alas. App. LEXIS 80 (Alaska Ct. App. 2003); Hillman v. Municipality of Anchorage, 941 P.2d 211 (Alaska Ct. App. 1997).

The Alaska Supreme Court has noted that while the Alaska Constitution "has no specific provision requiring that penalties shall be proportioned to the nature of the offense," Solem requires Alaska Courts to consider proportionality. Dancer v. State, 715 P.2d 1174, fn.6 (Alaska Ct. App. 1986)(citing Green v. State, 390 P.2d 433, 435 (Alaska 1964)). However, when the excessiveness of a sentence is based on the characteristics of the defendant, the appropriate test is whether the sentence violates "the evolving standards of decency that mark the progress of a maturing society." Gray v. State, 267 P.3d 667, 671 (Alaska Ct. App. 2011) (quoting Abraham v. State, 585 P.2d 526, 531-33 (Alaska 1978)).

The Alaska Supreme Court has consistently held that the Alaska Constitution does not require that penalties be proportionate to the offense. Only punishments that are "so disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice' may be stricken as cruel and unusual under Alaska's Constitution." McNabb v. State, 860 P.2d 1294 (Alaska Ct. App. 1993); SeeThomas v. State, 566 P.2d 630, 635 (Alaska 1977); Green v. State, 390 P.2d 433, 435 (Alaska 1964). Moore v. State, 262 P.3d 217 (Alaska 2011).SeealsoSikeo v. State, 258 P.3d 906, 912 (Alaska Ct. App. 2011).

The Alaska Supreme Court has ruled that "the bare fact that a sentence is within the maximum prescribed by the legislature does not prevent it from violating the constitutional ban against cruel and unusual punishment." Furthermore, "in extraordinary circumstances a sentence, although within the limits prescribed by law, may be so 'disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice,' and thus would amount to an unconstitutional cruel and unusual punishment." Faulkner v. State, 445 P.2d 815, 818 (Alaska 1968) (holding that a 36-year sentence for passing bad checks was disproportionate to the offense).

Alaska does not consider the possibility of parole when deciding whether a sentence is excessive. Bordewick v. State, 569 P.2d 184, 185 (Alaska 1977); SeeHuff v. State, 568 P.2d 1014 (Alaska 1977).

In determining whether a given sentence is excessive or overly lenient, Supreme Court will consider total sentence entered including any period of suspension or deferred imposition. Andrews v. State, 552 P.2d 150 (Alaska 1976).

The following cases briefly mention Const. Art. 1, § 12 in conjunction with the Eighth Amendment:

  • Bush v. Reid, 516 P.2d 1215
  • Lanier v. State, 486 P.2d 981,
  • Thompson v. State, 496 P.2d 651

Citations to Graham 

The following cases acknowledge the holding of Graham, but do not provide significant analysis:

  • Gray v. State, 267 P.3d 667 (Alaska Ct. App. 2011).

Severe Sentences 

  • Gray v. State, 267 P.3d 667 (Alaska Ct. App. 2011) –
    16-year old Defendant was convicted of first degree murder and kidnapping. She was sentenced to 99-years imprisonment (44 years suspended) for the murder, and a consecutive 10-year sentence for the kidnapping. However, the defendant would be eligible for parole after serving 25 years of her sentence.
     
  • Sikeo v. State, 258 P.3d 906, 907 (Alaska Ct. App. 2011) –
    Defendant was convicted of first-degree sexual abuse of a minor after having intercourse and impregnating his girlfriend's eleven year old daughter. Because Defendant had two prior sexual felonies, he fell within the purview of AS 12.55.125(i), and received a 99-year presumptive sentence. (This case also mentions Const. Art. 1, § 12).

Project Overview | State Comparison  

Arizona

Updated: 5/14/2013 - Print the Arizona entry.

  • As of 1994, Arizona has effectively abolished parole.
  • Arizona allows for both LWOP and JLWOP.
  • Arizona does not have a minimum age for transfer of a juvenile to adult court, but the minimum age for a JLWOP sentence is 14.
State Constitution

Article 2, Section 15: Section 15. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

NOTE: Article 2, Section 15 has been interpreted as the equivalent of the Eighth Amendment. However, the court has stated that it may consider Section 15 individually were a defendant to provide authority for a different interpretation.

Statutes
  • Sentencing Guidelines System – None

Arizona does not have sentencing guidelines. However, A.R.S. § 13-701 describes when maximum and minimum sentences may be applied and what aggravating factors and mitigating factors the fact finder consider before sentencing a defendant.

  • Habitual Offender Statute – A. R. S. § 13-703

§ 13-703. Repetitive offenders; sentencing 

Case Law

General 

The trial court has discretion in sentencing. Unless the trial court has clearly abused its discretion, the trial court’s sentence will be upheld if it falls within the statutory limits.  State v. Stadie, 112 Ariz. 196, 197 (Ariz. 1975).

Arizona ceased comparative proportionality review of death sentences in 1992 because “proportionality review is fraught with problems and not constitutionally required.” State v. Nelson, 273 P.3d 632, 639 (Ariz. 2012).

The death penalty is not a cruel and unusual punishment under Article 2, Section 15. State v. Endreson, 108 Ariz. 366, 370 (Ariz. 1972).

State Constitution 

Arizona courts have interpreted Article 2, Section 5 of the Arizona Constitution identically to Eighth Amendment of the federal constitution. The Arizona Supreme Court “has declined to interpret Arizona's prohibition against cruel and unusual punishment to provide protection greater than does the Eighth Amendment.”  State v. Kasic, 228 Ariz. 228, 231 (Ariz. Ct. App. 2011) (citing State v. Davis 206 Ariz. 377, ¶ 12 (2003)). See also State v. Berger, 209 Ariz. 386 (Ariz. Ct. App. 2004) (overturned on other grounds); State v. Soares, 2010 Ariz. App. Unpub. LEXIS 501 (Ariz. Ct. App. 2010).

Arizona Courts “do not follow federal precedent blindly.” State v. Davis, 206 Ariz. 377, 380-381 (Ariz. 2003). However, they will not interpret Arizona’s Article 2, Section 5 differently from the Eighth Amendment without a compelling reason. Id. See also State v. Long, 207 Ariz. 140 (Ariz. Ct. App. 2004);State v. Jones, 2011 Ariz. App. Unpub. LEXIS 1052 (Ariz. Ct. App. 2011).

In the absence of authority to support a defendant’s claim that Article 2, Section 15 should be applied differently than the Eight Amendment, Arizona courts refuse to find such a difference between the state and federal constitutional provisions. See State v. Lujan, 184 Ariz. 556, 562 (Ariz. Ct. App. 1995); See also State v. Zimmer, 178 Ariz. 407 (Ariz. Ct. App. 1993).

The following cases mention both Article 2, section 15 of the Arizona Constitution and the Eighth Amendment, but do not provide significant separate analysis of the Arizona Constitution:  

  • State v. Bartlett, 164 Ariz. 229, 241 (Ariz. 1990) –
  • State v. Mulalley, 127 Ariz. 92, 97 (Ariz. 1980) –
  • Wigglesworth v. Mauldin, 195 Ariz. 432 (Ariz. Ct. App. 1999) –
  • State v. Jones, 188 Ariz. 534 (Ariz. Ct. App. 1996) –
  • State v. Smith, 183 Ariz. 424 (Ariz. Ct. App. 1995) –
  • State v. DePiano, 187 Ariz. 41 (Ariz. Ct. App. 1995) –
  • State v. Hamilton, 177 Ariz. 403 (Ariz. Ct. App. 1993) –
  • State v. Delgadillo, 174 Ariz. 428 (Ariz. Ct. App. 1993) –
  • State v. Lammie, 164 Ariz. 377 (Ariz. Ct. App. 1990) –

Proportionality 

Review of a cruel and unusual punishment challenge to a criminal sentence invokes an objective three-prong test: (1) comparison of the gravity of the offense to the harshness of the penalty; (2) comparison of the sentence with sentences imposed on other criminals in Arizona; and (3) comparison of the sentence imposed with sentences imposable in other jurisdictions for commission of the same offense. State v. Waits, 163 Ariz. 216, 786 P.2d 1067 (Ct. App. 1989); See State v. Wise, 164 Ariz. 574, 795 P.2d 217 (Ct. App. 1990).   

As long as the punishment is approximately proportionate to the type of crime and not so severe as to shock the moral sense of the community, its extent is necessarily within the discretion of the legislature." State v. Taylor, 82 Ariz. 289, 294 (Ariz. 1957); See also State v. Davolt, 2010 Ariz. App. Unpub. LEXIS 558 (Ariz. Ct. App. 2010).This proportionality analysis is applicable for both Eighth Amendment and Article 2, Section 15 cruel and unusual punishment claims. State v. Espinosa, 101 Ariz. 474, 477 (Ariz. 1966) (upholding a five to six year sentence without the possibility of parole for the sale and use of narcotics).

When no inference of gross disproportionality arises, “no intra-or inter-jurisdictional analysis is required.”State v. Mott, 187 Ariz. 536, 547 (Ariz. 1997).

In Berger II, 134 P.3d 378 (Ariz. 2006), the Arizona Supreme Court held that consecutive mandatory minimum 10-year sentences for possession of child pornography, reaching a total of 200 years, did not violate the Eighth Amendment or Article 2, Section 15. See State v. McPherson, 228 Ariz. 557, 562-63 (Ariz. Ct. App. 2012).

Citations To Graham 

  • State v. Nelson, 273 P.3d 632 (Ariz. 2012) – Defendant was sentenced to death for the murder of  his niece. His death sentence was based on a single aggravator, that the murdered juvenile was under 15 years of age. A.R.S. § 13-751(F)(9). Relying on Graham, Defendant argued that the court should find a categorical restriction on imposing the death penalty when the sentence is solely based on this aggravator. However, the court noted that Graham only acknowledged two subsets of categorical rules, “one determining that capital punishment is impermissible for nonhomicide crimes against individuals and the other turning on the offender's characteristics.” Id. at 639.
  • State v. Kasic, 228 Ariz. 228, (Ariz. Ct. App. 2011) – Defendant was sentenced to a total of 139.75 years in prison for a number of arsons and attempted arsons, some of which occurred when he was a juvenile. The court held that this term of years punishment did not violate the Eighth Amendment's prohibition against cruel and unusual punishment under Graham. Id. at 229.
  • State v. Moyers, 2012 Ariz. App. Unpub. LEXIS 160 (Ariz. Ct. App. 2012) –

Relying on Graham, the defendant argues that his lengthy prison term-of-years for crimes he committed as a juvenile and his prosecution in adult court for these crimes constituted cruel and unusual punishment under both the Eighth Amendment and Article 2, Section 5. The court stated that Graham did not protect the defendant here.

  • State v. Vasquez, 2012 Ariz. App. Unpub. LEXIS 45 (Ariz. Ct. App. 2012) –

Neither Graham nor Roper suggests a juvenile offender has a constitutional right to have his or her case adjudicated in the juvenile justice system. 

Severe Sentences 

  • State v. Waits, 163 Ariz. 216, 786 P.2d 1067 (Ct. App. 1989) –

Defendant's contention that life imprisonment was a disproportionate penalty for the sale of cocaine valued at $20 held meritless, where the defendant committed the class 2 felony while on probation. 

Project Overview | State Comparison  

Arkansas

Updated: 10/16/2014 - Print the Arkansas entry.

  • Arkansas allows for parole. A.C.A. § 16-93-615.
  • Arkansas has both discretionary and mandatory LWOP. A.C.A. § 5-4-602. Arkansas also allows JLWOP.
  • Minimum age for transfer of a juvenile to adult court is age 14, and the minimum aged for JLWOP is also 14.  A.C.A. § 9-27-318(c)(2) 
State Constitution

Article 2, Section 9:

Section 9: Excessive bail shall not be required; nor shall excessive fines be imposed; nor shall cruel or unusual punishments be inflicted; nor witnesses be unreasonably detained.  Ark. Const. Art. 2, § 9 (2012).

NOTE: The case law generally interprets this section as the equivalent of the federal Eighth Amendment.

Sentencing Statutes
  • Sentencing Guidelines System - Arkansas’s sentencing guidelines are voluntary, and a defendant may not appeal sentence for a deviation from the guidelines. See http://www.state.ar.us/asc/pdfs/ 2003benchbook.pdf.
  • Habitual Offender Statute - A.C.A. § 5-4-501 Arkansas’s Habitual Offender statute is A.C.A. § 5-4-501.A sentence of 300 years under the Habitual Offender statute did not exceed life imprisonment since the only sentences greater than life would be life without parole and death.Franklin v. State, 308 Ark. 539, 542 (Ark. 1992). Arkansas law does not prohibit “a sentence of years that exceeds the usual life span of human beings.” Id.
Case Law

General  

In 1916, the Arkansas Supreme Court held that Article II, Section 9 of the Arkansas Constitution is “directed against the cruel or unusual character of punishment, and not against the duration of the punishment.” Williams v. State, 125 Ark. 287, 291 (Ark. 1916).

The Arkansas Supreme Court has declined to hear arguments that were raised for the first time on appeal, even if those arguments were constitutional claims. Strong v. State, 2000 Ark. App. LEXIS 488 (Ark. Ct. App. June 28, 2000); SeealsoWright v. State, 327 Ark. 455 (Ark. 1997).

Punishment, simply because it is severe, is not cruel and unusual. Pridgeon v. State, 266 Ark. 651 (Ark. 1979) (citing Blake v. State, 244, Ark. 37, 423 S.W. 2d 544 (1968)).

Arkansas law requires courts to undertake a comparative proportionality review of capital cases to ensure that a death sentence is “not imposed in a freakish, capricious, or whimsical manner.” Sheridan v. State, 313 Ark. 23, 39-40 (Ark. 1993).  The court compares death sentence appeals to death sentence appeals, and does not include any other capital murder cases. Id. at 40.

State Constitution & Proportionality 

Jackson v. Norris, 2011 Ark. 49 (Ark. 2011), was overturned in Miller v. Alabama, 132 S. Ct. 2455, 2459 (U.S. 2012).

The Arkansas Supreme Court “has interpreted the provisions in both the state and federal constitutions identically on the issue of the prohibition against cruel and unusual punishment.” Bunch v. State, 344 Ark. 730, 739-740 (Ark. 2001). However, other legal authority or persuasive argument could change the court’s interpretation. See Id.

The following cases mention both the state and federal constitutions, but do not provide any separate state constitutional analysis:

  • Buckley v. State, 341 Ark. 864 (Ark. 2000) -
  • Thompson v. State, 280 Ark. 265 (Ark. 1983) -
  • Wilson v. State, 251 Ark. 900 (Ark. 1972) - Defendant, relying on Article II § 9 of the Arkansas Constitution, appealed his sentence of 24 years imprisonment for two counts of forgery and two counts of uttering. The court upheld this sentence under the state constitution, noting that such sentences are permitted under the Arkansas habitual criminal act.

In accordance with Eighth Amendment case law, “if the sentence fixed by the trial court is within legislative limits, we are not free to reduce it even though we might consider it to be unduly harsh.” Bunch v. State, 344 Ark. 730, 739-740 (Ark. 2001). SeealsoWilliams v. State, 320 Ark. 498 (Ark. 1995); Parker v. State, 302 Ark. 509 (Ark. 1990). However, the Arkansas Supreme Court has “carved out extremely narrow exceptions to this general statement of the law: (1) where the punishment resulted from passion or prejudice; (2) where it was a clear abuse of the jury's discretion; or (3) where it was so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Bunch at 40. None of these three narrow exceptions applies where the punishment is both mandated by the legislature and have been approved of by the Supreme Court as consistent with the Eight Amendment. Id.

In Arkansas, courts “will not reduce or compare sentences that are imposed within the statutory limits. Unless the punishment is a barbarous one unknown to law or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community, the court will not find that punishment authorized by statute is cruel or unusual.” Dunlap v. State, 303 Ark. 222, 230 (Ark. 1990). See also Parker v. State, 290 Ark. 94 (Ark. 1986)

Leading Court Discussions of Graham and Miller 

    Cox v. State, 2011 Ark. 96 (March 3, 2011) (Graham does apply to non-homicide offense; no distinction between accomplices and principals offender with regard to criminal culpability; Claims under Eighth Amendment is not within the scope of error coram nobis proceeding.) 

    Bell v. State, 2011 Ark. 379 (September 22, 2011) (Graham does apply to non-homicide offense; no distinction between accomplices and principals offender with regard to criminal culpability) 

    Hundley v. State, 2011 Ark. 380 (September 22, 2011) (Graham does apply to non-homicide offense; Graham does not bar LWOP) 

    Murry v. Hobbs, 2013 Ark. 64 (Feb 14, 2013) (Miller does not apply to non-mandatory cases and does not require a transfer hearing for the imposition of LWOP) 

    Mosley v. Hobbs, 2013 Ark. 142 (April 4, 2013) (Graham does not forbid the imposition of a life sentence on offender whose status as a habitual offender was established when he was a juvenile.) 

    Whiteside v. State, 2013 Ark. 176, 426 S.W.3d 917 (April 25, 2013) (Miller applies to all criminal cases still pending on direct review; the “without parole” language in statute cannot be severed; Miller did not address the issue about intent to kill but focus on the mandatory nature) 

    Hobbs v. Turner, 2014 Ark. 19, 431 S.W.3d 283 (Jan 23, 2014) (In Arkansas, where life means LWOP, parole-eligibility statute could not be severed to comply with Graham and Miller, and court can only reduce the sentence to maximum year of imprisonment; Graham does not mandate a resentencing procedure that takes into account a juvenile offender’s age and categorically ban prohibiting is sufficient consideration for offender’s age.) 

    Britt v. State, 2014 Ark. 134 (March 20, 2014) (a sentence of LWOP imposed by jury from a range of possible punishments is not mandatory so Miller is not applicable) 

    Hobbs v. Gordon, 2014 Ark. 225 (May 15, 2014) (Challenge under Miller to legality of LOWP for capital murder while juvenile is cognizable in habeas corpus; State’s argument that Miller does not apply retroactively was not adopted.) 

    Ford v. State, 2014 Ark. 257 (May 29, 2014) (relief under Graham would be appropriate in writ of habeas corpus rather than Rule 37 .1 of Arkansas Rule of Criminal Procedure.) 

    Brown v. Hobbs, 2014 Ark. 267 (June 5, 2014) (Miller requires consideration of offender’s age in only mandatory sentencing cases.) 

    Bowen v. Hobbs, 2014 Ark. 271 (June 5, 2014) (Miller does not apply to non-mandatory cases so no consideration of offender’s youth is required in non-mandatory cases.) 

     

California

Updated: 10/16/2014 - Print the California entry.

  • California has very limited parole. 
  • California allows for discretionary LWOP and JLWOP 
  • Juveniles can be tried in adult court at age 14. 
State Constitution

Cal Const, Art. I § 17 (2012)

§ 17. Cruel or unusual punishment; Excessive fines

Cruel or unusual punishment may not be inflicted or excessive fines imposed.

NOTE:  Article I, Section 17 of the California Constitution is considered broader than the Eight Amendment because it prohibits either cruel or unusual punishments.

Sentencing Statutes
  1. Sentencing Guidelines System -- California does not have sentencing guidelines
  2. Habitual Offender Statute --
    • Cal Pen Code § 667 (2012)
      § 667.  Habitual criminals; Enhancement; Exceptions
    • Cal Pen Code § 667.7 (2012)
      § 667.7.  Habitual offender
     
  3. Proportionality Review for Death Sentences -- While California does not require intra-case proportionality review for capital defendants, the defendant may request one. People v. Weaver, 26 Cal. 4th 876, 989 (Cal. 2001). Furthermore,  if the defendant so requests, the court will review the particular facts of the case to determine if the death penalty is proportionate to the defendant’s culpability: “To determine whether a sentence is cruel or unusual as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including its motive, the extent of the defendant's involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant's acts. The court must also consider the personal characteristics of the defendant, including age, prior criminality, and mental capabilities. If the court concludes that the penalty imposed is grossly disproportionate to the defendant's individual culpability, or, stated another way, that the punishment shocks the conscience and offends fundamental notions of human dignity, the court must invalidate the sentence as unconstitutional.” People v. Leonard, 40 Cal. 4th 1370, 1375 (Cal. 2007);
Case Law

General 

The Legislature’s foremost duty is to define crime and determine punishment.  The validity of these actions should not be challenged unless their unconstitutionality “clearly, positively, and unmistakably appears.” People v. Sullivan, 151 Cal. App. 4th 524, 569-570 (Cal. App. 1st Dist. 2007) (quoting People v. Kinsey, 40 Cal. App. 4th 1621, 1630 (Cal. App. 2d Dist. 1995)).

State Constitution

The Eighth Amendment states that “cruel and unusual punishments” shall not be inflicted, while the parallel, Article I, Section 17 of the California Constitution, states that “cruel or unusual punishment may not be inflicted.” This distinction “is purposeful and substantive rather than merely semantic,” and therefore Section 17 is construed separately from the Eighth Amendment.  People v. Carmony, 127 Cal. App. 4th 1066, 1085 (Cal. App. 3d Dist. 2005) (citing People v. Anderson, 6 Cal.3d 628, 634--637, (Cal. 1972); People v. Weddle, 1 Cal. App. 4th 1190, 1196, fn. 5 (Cal. App. 4th Dist. 1991)); seePeople v. Haller, 174 Cal. App. 4th 1080, 1092 (Cal. App. 3d Dist. 2009).

Article I, Section 17 is construed separately from the federal prohibition against cruel and unusual punishment. People v. Carmony, 127 Cal. App. 4th 1066, 1085 (Cal. App. 3d Dist. 2005) (citing People v. Cartwright, 39 Cal. App. 4th 1123, 1135--1136 (Cal. App. 3d Dist. 1995); Raven v. Deukmejian, 52 Cal. 3d 336, 355 (Cal. 1990).

The Supreme Court of California has “never suggested that article I, section 17 employs a different or broader definition of “punishment” itself than applies under the Eighth Amendment.” In re Alva, 33 Cal. 4th 254, 290-292 (Cal. 2004).

  • Mandatory sex offender registration is not punishment for purposes of Article I, Section 17 of the California Constitution. In re Alva, 33 Cal. 4th 254, 292 (Cal. 2004).

Proportionality 

“Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.” People v. Sullivan, 151 Cal. App. 4th 524, 569-570 (Cal. App. 1st Dist. 2007) (quoting People v. Martinez, 76 Cal. App. 4th 489, 496 (Cal. App. 2d Dist. 1999) ).

Because a defendant must overcome a considerable burden to show that his sentence is disproportionate to his offense, courts rarely find sentences disproportionate. People v. Em, 171 Cal. App. 4th 964, 972 (Cal. App. 4th Dist. 2009)

A reviewing court determines whether a punishment “‘is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity, thereby violating the prohibition against cruel and unusual punishment of the Eighth Amendment of the federal constitution or against cruel or unusual punishment of article I, section 17 of the California Constitution.” People v. Cole, 33 Cal. 4th 1158, 1235 (Cal. 2004) (citing Solem v. Helm, 463 U.S. 277, 290--292 (1983) (internal citations removed)); seePeople v. Young, 34 Cal. 4th 1149, 1231 (Cal. 2005); People v. Dennis, 17 Cal. 4th 468, 511-512 (Cal. 1998); People v. Bunyard, 45 Cal. 3d 1189, 1240 (Cal. 1988).

To determine whether, under Article I, Section 17 of the California Constitution, a sentence is cruel and unusual as applied to a particular offender, “a reviewing court must examine the circumstances of the offense, including its motive, the extent of the defendant's involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant's acts. The court must also consider the personal characteristics of the defendant, including age, prior criminality, and mental capabilities.” People v. Young, 34 Cal. 4th 1149, 1231 (Cal. 2005) (citing People v. Hines 15 Cal. 4th 997, 1078 (Cal. 1997)); People v. Leonard, 40 Cal. 4th 1370, 1375-1427 (Cal. 2007) (citing People v. Dillon, 34 Cal. 3d 441 (Cal. 1983) (overruled on other grounds)); People v. Panah, 35 Cal. 4th 395 (Cal. 2005); People v. Cole, 33 Cal. 4th 1158, 1235 (Cal. 2004); People v. Lucero, 23 Cal. 4th 692, 739-740 (Cal. 2000); People v. Hines, 15 Cal. 4th 997, 1078 (Cal. 1997); seePeople v. Em, 171 Cal. App. 4th 964, 976 (Cal. App. 4th Dist. 2009).

To determine whether punishment is disproportionate in violation of the cruel or unusual punishment clause of the California Constitution, California courts rely on a three-prong test. The court examines: (1) the nature of the offense and the offender, with particular regard to the danger both present to society; (2) punishments imposed within California for more serious offenses; and (3) punishments imposed by other jurisdictions for the same offense. People v. Em, 171 Cal. App. 4th 964, 972 (Cal. App. 4th Dist. 2009) (quoting (In re Lynch, 8 Cal. 3d 410, 425 (Cal. 1972)); In re Grant, 18 Cal. 3d 1, 8-9 (Cal. 1976); seePeople v. Blackwell, 202 Cal. App. 4th 144 (Cal. App. 1st Dist. 2011). 

In regards to the first prong, the court must consider not only the offense as defined by statute, but also the facts of the actual offense. This includes the motive of the offense, the manner of commission, the extent of the offender’s involvement, and the consequences of his behavior. The court “must also consider the defendant's individual culpability in light of his age, prior criminality, personal characteristics, and state of mind.” People v. Uecker, 172 Cal. App. 4th 583, 600 (Cal. App. 3d Dist. 2009) (quoting People v. Crooks, 55 Cal. App. 4th 797, 806 (Cal. App. 3d Dist. 1997)).

When arguing that his sentence is grossly disproportionate to his offense, the defendant should compare his sentence to the punishments for more serious offenses within California and also to the punishments for the same offense in other jurisdictions or the court may perceive the failure to address these points as a concession that the defendant’s sentence withstands a constitutional challenge on these grounds. People v. Retanan, 154 Cal. App. 4th 1219 (Cal. App. 3d Dist. 2007).

A sentence of life without parole does not automatically raise an inference of gross disproportionality. SeePeople v. Murray, 203 Cal. App. 4th 277 (Cal. App. 2d Dist. 2012). 

The Supreme Court of California has never held that a sentence longer than a human lifespan is inherently cruel and unusual. People v. Retanan, 154 Cal. App. 4th 1219 (Cal. App. 3d Dist. 2007); seePeople v. Leon, 181 Cal. App. 4th 452, 469 (Cal. App. 2d Dist. 2010).

Leading Court Discussions of Graham and Miller 

  People v. Caballero, 55 Cal. 4th 262, 266, 282 P.3d 291(August 16, 2012) (Graham and Miller applies to attempt murder in this case and the reason is explained in detail in concurrence; Graham also applies to sentence equivalent to LWOP so sentence of life with a parole eligibility date that falls outside the juvenile offender's natural life expectancy, e.g. 110 years in this case, also violates Graham)  

People v. Gutierrez, 58 Cal. 4th 1354, 1360, 324 P.3d 245 (May 5, 2014) (Presumption in favor of LWOP is unconstitutional; A trial court must consider five categories of factors before imposing LWOP to juveniles; mentioned Miller’s admonition of the limited utility of transfer hearing in concurrence.) 

Severe Sentences 

  • People v. Leon, 181 Cal. App. 4th 452 (Cal. App. 2d Dist. 2010) -- A sentence of 145 years to life (later reduced to 105 years to life) was not grossly disproportionate to the defendant’s homicide offenses.

Project Overview | State Comparison  

Colorado

Updated: 10/16/2014 - Print the Colorado entry.

  • Colorado allows for parole. See C.R.S. 17-22.5-403.
  • Colorado allows for mandatory LWOP. Colorado banned JLWOP in 2006, but the ban did not apply retroactively.  Juveniles with a LWOP sentence may, however apply for parole after serving forty years of their sentence. See C.R.S. 18-1.3-401(4)(b) (2010). 
  • Minimum age for transfer of a juvenile to adult court is age 12.
State Constitution

Colo. Const. Art. II, Section 20 (2012)

Section 20. Excessive bail, fines or punishment - Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

NOTE:  Article II, Section 20 is the equivalent of the Eighth Amendment. It is not more expansive.

Sentencing Statutes
  • Sentencing Guidelines System – Colorado does not have sentencing guidelines
  • Habitual Offender Statute – C.R.S. 18-1.3-801 (2012). Punishment for habitual criminals
Case law

State Constitution & Proportionality 

Unless the defendant clearly asserts a violation of Article II, Section 20 of the Colorado Constitution, the court will not address the challenge. SeePeople v. Cisneros, 855 P.2d 822 (Colo. 1993);People v. Gaskins, 825 P.2d 30 (Colo. 1992).

As the Colorado Supreme court has not treated Article II, Section 20 of the Colorado Constitution as more expansive than the Eighth Amendment, Colorado courts should look to federal authority for guidance to determine what constitutes cruel and unusual punishment. Pueblo Sch. Dist. No. 70 v. Toth, 924 P.2d 1094, 1099 (Colo. Ct. App. 1996). 

Although the state constitution may mirror the protections of the federal constitution, this does not abrogate the responsibility of Colorado courts “to engage in an independent analysis of state constitutional principles in resolving a state constitutional question.” People v. Young, 814 P.2d 834, 842 (Colo. 1991); People v. Young, 814 P.2d 834, 842 (Colo. 1991).

The following cases mention both Article II, Section 20 of the Colorado Constitution and the Eighth Amendment, but fail to provide any significant, separate analysis of Section 20:

  • People v. Mershon, 874 P.2d 1025 (Colo. 1994) – The Court refused to consider the Colorado Constitutional claim because it was brought improperly.
  • Juarez v. People, 855 P.2d 818, 820 (Colo. 1993) –
  • People v. Coolidge, 953 P.2d 949, 951 (Colo. Ct. App. 1997) –
  • People v. Coolidge, 953 P.2d 949 (Colo. Ct. App. 1997) –
  • People v. Gaskins, 923 P.2d 292 (Colo. Ct. App. 1996) –
  • People v. Nieto, 715 P.2d 1262 (Colo. Ct. App. 1985) –

A mandatory life sentence is not per se cruel and unusual punishment in violation of Article II, Section 20 of the Colorado Constitution. People v. Gutierrez, 622 P.2d 547, 557 (Colo. 1981).

Where a defendant asserts that his sentence is grossly disproportionate to his crime, a proportionality review is required under Article II, Section 20. People v. Mandez, 997 P.2d 1254 (Colo. Ct. App. 1999) (citing People v. Smith, 848 P.2d 365 (Colo. 1993)).

Colorado’s habitual offender statute may be applied in a way that results in excessive punishment, violating the Eighth Amendment and the Colorado Constitution. The habitual offender statute was held unconstitutional as applied to a defendant who pled guilty to two habitual offender counts and one possession of criminal tools count, and received a twelve to fourteen year sentence. People v. Anaya, 194 Colo. 345, 348 (Colo. 1977). The Colorado Constitution does not require mitigating factors to be considered when sentencing habitual criminals. People v. Gutierrez, 622 P.2d 547 (Colo. 1981).  

In Colorado, “proportionality review requires a comparison of the nature and number of offenses committed with the severity of the punishment inflicted upon the defendant.” People v. Anaya, 894 P.2d 28, 32 (Colo. Ct. App. 1994) (citing People v. Mershon, 874 P.2d 1025 (Colo. 1994)).

While conducting a proportionality review, courts “should be guided by objective criteria including the gravity of the offense and the harshness of the penalty, the sentences imposed on other criminals in the same jurisdiction, and the sentences imposed for the commission of the same crime in other jurisdictions.” People v. Anaya, 894 P.2d 28, 32 (Colo. Ct. App. 1994) (citing Solem).

A defendant sentenced under the habitual offender statute is entitled to a proportionality review. Alvarez v. People, 797 P.2d 37 (Colo. 1990); People v. Anaya, 894 P.2d 28, 32 (Colo. Ct. App. 1994).

When the defendant has committed grave or serious offenses supporting a habitual offender sentence, only an abbreviated proportionality review is necessary. SeePeople v. Cisneros, 855 P.2d 822 (Colo. 1993). Similarly, when a defendant challenges a life sentence under the habitual offender statute, the defendant is only entitled to an abbreviated proportionality review. Alvarez v. People, 797 P.2d 37, 40-41 (Colo. 1990).

An abbreviated proportionality review requires “a scrutiny of the offenses in question to determine whether in combination they are so lacking in gravity or seriousness as to suggest that a life sentence is constitutionally disproportionate to the crime.” People v. Anaya, 894 P.2d 28, 32 (Colo. Ct. App. 1994) (citing People v. Gaskins, 825 P.2d 30 (Colo. 1992)). The need for an extended review is rare; an extended review becomes necessary when the felonies supporting a life sentence under the habitual offender statute are “lacking in inherent gravity.” People v. Anaya, 894 P.2d 28, 32 (Colo. Ct. App. 1994).

The court may consider a subsequently amended criminal statute when considering the proportionality of a criminal sentence. People v. Anaya, 894 P.2d 28, 32 (Colo. Ct. App. 1994).

Leading Court Discussions of Graham and Miller 

Banks v. People, No. 12SC1022, 2013 WL 3168752 (Colo. June 24, 2013) (remand this issue for consideration whether a sentence of a sentence of mandatory life sentence with the potential for parole after forty years violates Miller; whether the court may severe the parole eligibility in Colorado) 

People v. Tate, No. 12SC932, 2013 WL 3323179 (Colo. July 1, 2013) (whether court should resentence or remand under Miller) 

Project Overview | State Comparison  

Connecticut

Updated: 10/16/2014 - Print the Connecticut entry.

  • Connecticut allows for parole.
  • Connecticut allows for mandatory LWOP and JLWOP. See Conn. Gen. Stat. Ann.§ 53a-53a.
  • Juveniles can be transferred to adult court at age 14.
State Constitution

The Connecticut Supreme Court has interpreted the Connecticut Constitution’s due process clauses to prohibit cruel and unusual punishment. These clauses are as follows:

Conn. Const. Art. I., Sec. 1 (2011)

Sec. 1 That the great and essential principles of liberty and free government may be recognized and established, WE DECLARE: (Equality of rights.)

Sec. 1. All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.

Conn. Const. Art. I., Sec. 8 (2011)

Sec. 8 (Rights of accused in criminal prosecutions. What cases bailable. Speedy trial. Due process. Excessive bail or fines. Presentment of grand jury, when necessary.)

Sec. 8. In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.

Conn. Const. Art. I., Sec. 9 (2011)

Sec. 9 (Right of personal liberty.)

Sec. 9. No person shall be arrested, detained or punished, except in cases clearly warranted by law.

NOTE:  While the Connecticut Supreme Court has not yet found the due process clauses of the Connecticut Constitution to be broader than the Eighth Amendment, it has reserved the right to adopt a broader interpretation as the needs and expectations of Connecticut citizens change.

Sentencing Statutes
  • Sentencing Guidelines System – Connecticut does not have sentencing guidelines
  • Habitual Offender Statutes – 
    • Conn. Gen. Stat. § 53a-40 (2012) -- Sec. 53a-40. Persistent offenders: Definitions; defense; authorized sentences; procedure.
    • Conn. Gen. Stat. § 53a-40d (2012) -- Sec. 53a-40d. Persistent offenders of crimes involving assault, stalking, trespass, threatening, harassment, criminal violation of a protective order or criminal violation of a restraining order. Authorized sentences.
Case Law

General 

Unless clearly invalid, a statute is presumed to be constitutional. State v. Kyles, 169 Conn. 438, 442 (Conn. 1975) (citing Schwartz v. Kelly, 140 Conn. 176, 179 (Conn. 1953)).

State Constitution & Proportionality 

The due process clauses of the Connecticut Constitution (Sections 1, 8, and 9) impliedly prohibit cruel and unusual punishments. State v. Webb, 238 Conn. 389, 402 (Conn. 1996) (citing State v. Ross, 230 Conn. 183, 245-47 (Conn. 1994)); State v. Santiago, 305 Conn. 101, 249-253 (Conn. 2012); State v. Reynolds, 824 A.2d 611, 757 (Conn. 2003).

In some instances, Connecticut courts have found that the state constitution affords more protection than its federal counterpart. SeeState v. Geisler, 222 Conn. 672, 684-685 (Conn. 1992); State v. Rizzo, 303 Conn. 71, 136 (Conn. 2011).

The Supreme Court of Connecticut considers the changing “needs and expectations” of the citizens of Connecticut as it interprets the state constitution over time. State v. Webb, 238 Conn. 389, 410-411 (Conn. 1996). Furthermore, the Connecticut Constitution “should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness” for all citizens of Connecticut. Id. (citing State v. Dukes, 209 Conn. 98, 115 (Conn. 1988)).

When advocating for a new interpretation of the Connecticut Constitution, a party should bring forth persuasive evidence showing the changing needs and expectations of citizens and also showing an impairment of “the contemporary effectiveness” of the Connecticut Constitution. State v. Webb, 238 Conn. 389, 411 (Conn. 1996).

When interpreting the state constitution, the court considers the following six factors: (1) the text of the constitutional provisions; (2) related Connecticut precedents; (3) persuasive federal precedents; (4) persuasive precedents of other state courts; (5) historical insights into the intent of our constitutional forebears; and (6) contemporary understandings of applicable economic and sociological norms. State v. Geisler, 222 Conn. 672, 684-685 (Conn. 1992); State v. Santiago, 305 Conn. 101, 249-253 (Conn. 2012); State v. Webb, 238 Conn. 389, 402 (Conn. 1996); State v. Ross, 230 Conn. 183, 249 (Conn. 1994).

Not every factor will be relevant in all cases. State v. Santiago, 305 Conn. 101, 249-253 (Conn. 2012) (citing Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 271 (Conn. 2010) (plurality opinion)).

These six factors have two purposes. First, they allow the opposing party to better respond to a state constitutional argument. Second, they encourage the principled development of the Connecticut Constitution.  State v. Santiago, 305 Conn. 101, 251 n.127 (Conn. 2012).

The death penalty is not categorically forbidden by the California Constitution. State v. Webb, 238 Conn. 389, 402 (Conn. 1996) (citing State v. Ross, 230 Conn. 183, 245-52 (Conn. 1994)). A death sentence, however, must be imposed within the state and federal constitutional restraints. State v. Webb, 238 Conn. 389, 404-406 (Conn. 1996).

Section 1 of the Connecticut Constitution does not provide an absolute natural right to life. The legislature may impose the death penalty within state and federal constitutional limits. State v. Webb, 238 Conn. 389, 411 (Conn. 1996).

Leading Court Discussions of Graham and Miller 

State v. Riley, 308 Conn. 910, 61 A.3d 531 (Feb 20, 2013) (remand the lower court to address whether total sentence of 100 years imprisonment was proper under Eighth Amendment) 

 

Project Overview | State Comparison  

Delaware

Updated: 10/16/2014 - Print the Delaware entry.

  • Delaware abolished parole in 1990.  
  • Delaware has mandatory LWOP. Also allows for JLWOP.
    • Under 11 Del. C. § 4209(a), “any person who is convicted of first-degree murder shall be punished by death or by imprisonment for the remainder of the person's natural life without benefit of probation or parole or any other reduction, said penalty to be determined in accordance with this section.”
     
  • Delaware has no minimum age for children to be transferred to adult court or for a JLWOP sentence.
State Constitution

Article 1, §11. Excessive bail or fines; cruel punishments; health of prisoners.

Section 11. Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted; and in the construction of jails a proper regard shall be had to the health of prisoners.

NOTE:While sometimes interpreted as the equivalent of the federal Eighth Amendment, the case law indicates that Section 11 may offer less protection than the Eighth Amendment.

Sentencing Statutes
  • Sentencing Guidelines System – SENTAC
    • In 1983, Delaware created the Delaware Sentencing Accountability Commission (SENTAC), a voluntary and non-binding sentencing guidelines system. Generally, a sentencing worksheet must be completed for each offense, and departures must be noted. However, the defendant has no right to appeal a sentencing departure.
  • Proportionality Review for Death Sentences - 11 Del. C. § 4209(g)
    • Under 11 Del. C. § 4209(g), this Court must independently review a sentence of death to determine whether: (1) the evidence supports, beyond a reasonable doubt, the jury's finding of at least one statutory aggravating circumstance; (2) the sentence was arbitrarily or capriciously imposed or recommended; and (3) the sentence is disproportionate to the penalty imposed in similar cases.” Sykes v. State, 953 A.2d 261, 273 (Del. 2008). In addressing proportionality, the court reviews the “universe” of cases. Id. at 274.
  • Habitual Criminal Statute - 11 Del. C. § 4214
    • “11 Del. C. § 4214 subjects repeat felons to enhanced punishment. The extent of that enhanced punishment depends on the number and gravity of the habitual offender's prior crimes as well as the gravity of the crime for which the offender is being sentenced. The General Assembly designated certain crimes as "violent" felonies for purposes of enhanced sentencing. The listed felonies do not always involve violence, but they are dangerous crimes that place innocent people at risk of harm. Escape after conviction, even in its most benign form, properly falls into that category.” Forehand v. State, 997 A.2d 673, 676 (Del. 2010).
    • Consideration of Mitigating Factors
      • The Supreme Court “has expressly refused to extend the individualized capital sentencing doctrine to an ‘individualized mandatory life in prison without parole sentencing doctrine.’ The courts in Delaware have followed this reasoning and have held that there simply is no consideration of mitigating factors once the State establishes that the defendant qualifies for habitual offender status under 11 Del. C. § 4214(b) and, therefore, the court has no sentencing discretion.” State v. McLaughlin, 1997 Del. Super. LEXIS 442 (Del. Super. Ct. Aug. 8, 1997)(emphasis added).
    • Proportionality under the Habitual Criminal Statute
      • Delaware “utilizes a two-step analysis to determine whether a habitual offender's sentence is grossly disproportionate to the crime being punished. First, we compare the sentence imposed to the crime committed. Only if that comparison leads to an inference of gross disproportionality will the Court proceed to the second step -- i.e., a comparison of the defendant's sentence with those in similar cases.” Hall v. State, 937 A.2d 139 (Del. 2007) (citing Crosby v. State, 824 A.2d 894, 908 (Del. 2003)); Forehand v. State, 997 A.2d 673, 676 (Del. 2010).
Case Law

State Constitution & Proportionality 

In Delaware, “proportionality review is restricted to those rare cases in which a threshold comparison of the crime and the sentence leads to an inference of gross disproportionality.” Bednash v. State, 2012 Del. LEXIS 324 (Del. June 19, 2012). 

Proportionality under Article I, Section 11 “does not preclude a properly instructed jury from imposing the death penalty in the face of a claim of irresistible impulse.” Sanders v. State, 585 A.2d 117 (Del. 1990). 

Article I, Section 11 of the Delaware Constitution relates only to the mode of punishment and not the length of a sentence authorized by the Legislature. De Shields v. State, 534 A.2d 630, 647 (Del. 1987) (citing State v. Ayers, 260 A.2d 162, 169 (Del. 1969)) (emphasis added). Article I, Section 11 has always “accorded substantial deference to the judgment of the General Assembly.” Sanders v. State, 585 A.2d 117, 144 (Del. 1990) (citing Ayers, 260 A.2d at 169; State v. Cannon, 55 Del. 587 (Del. 1963)). See State v. Kelson, 1990 Del. Super. LEXIS 109, 9-11 (Del. Super. Ct. Mar. 20, 1990).

The Delaware Supreme Court has also stated that Article I, Section 11 is and should continue to be guided by the “same general principles that have guided the Supreme Court's interpretation of the Eighth Amendment.” Sanders v. State, 585 A.2d 117 (Del. 1990) (citing DeShields v. State, 534 A.2d 630, 638-40 (Del. 1987); State v. Dickerson, 298 A.2d 761 (Del. 1972)).

The following cases mention both the Federal and Delaware Amendments, and suggest that they should be interpreted similarly:

  • State v. Wonnum, 2006 Del. Super. LEXIS 399 (Del. Super. Ct. Sept. 22, 2006) (overturned on other grounds) –
  • State v. Jones, 2004 Del. Super. LEXIS 301 (Del. Super. Ct. Aug. 31, 2004) –  

Proper Article 1, Section 11 Claims 

Delaware courts have refused to hear conclusory Article 1, Section 11 claims where filings have failed to address substantial matters such as “as textual language of the statute in question, legislative history, and structural differences among statutes.” State v. Torres, 2008 Del. Super. LEXIS 455, 1-2 (Del. Super. Ct. Sept. 2, 2008). Merely mentioning “other areas where the General Assembly has established an age at which a person is considered to be an adult” is conclusory. Id.   

  • Sykes v. State, 953 A.2d 261, 267 (Del. 2008)(Court declined to address Delaware constitutional or eighth amendment claims because they were improperly raised)
  • Wallace v. State, 956 A.2d 630 (Del. 2008) (Defendant failed to properly raise a claim under the Delaware Constitution).

In Wallace v. State, the court described what constitutes a “proper presentation” of a violation of the Delaware Constitution. It “should include a discussion and analysis of one or more of the following non-exclusive criteria: ‘textual language, legislative history, preexisting state law, structural differences, matters of particular state interest or local concern, state traditions, and public attitudes.’ Simply reciting that his sentence of life without parole violates Article I, section 11, without more, is a conclusory statement. Wallace v. State, 956 A.2d 630, 637-638 (Del. 2008). 

Leading Court Discussions of Graham and Miller  

Twyman v. State, 26 A.3d 215 (Del. July 25, 2011) (Attempted murder is within the category which LWOP may be imposed under Graham; Graham does not apply to non-homicide cases.)  

Severe Sentences 

  • Wallace v. State, 956 A.2d 630 (Del. 2008) – 15 year old juvenile sentenced to life without parole for murder of a child. Resentencing might be required under Miller.
  • State v. Rivera, 1997 Del. Super. LEXIS 350 (Del. Super. Ct. July 31, 1997) – As a habitual offender, defendant was sentenced to four life sentences without the possibility of parole for burglary.

Project Overview | State Comparison  

District of Columbia

Updated: 10/16/2014 - Print the District of Columbia entry.

  • Since 2004, the District of Columbia Superior Court has imposed sentences under the Voluntary Sentencing Guidelines for all felony offenses. 
  • DC eliminated parole via the Sentencing Reform Amendment Act of 2000 
State Constitution

The District of Columbia does not have its own unique local constitution.

Key Sentencing Provisions

The new sentencing rules, which apply to all offenses committed on or after August 5, 2000, resulted in not only a shift from an “indeterminate” sentencing system to a “determinate” sentencing system for all criminal offenses, but also adjusted the authorized penalties for offenses that carried a maximum sentence of life imprisonment:

  • Generally, the court may impose a prison sentence of up to 60 years for first degree murder, up to 40 years for second degree murder, and up to 30 years for other offenses that carried a maximum sentence of life imprisonment.
  • If the prosecutor meets certain procedural requirements and if an “aggravating factor” is found, the court may impose a prison sentence in excess of 60 years for first degree murder or first degree murder while armed, in excess of 40 years for second degree murder while armed, or in excess of 30 years for carjacking while armed, first degree sexual abuse, first degree sexual abuse while armed, first degree child sexual abuse, or first degree child sexual abuse while armed.
  • The court may impose a sentence of life without release upon conviction of the following offenses: murder of police officer and the third conviction for a crime of violence.
  • The court may, if there is an aggravating circumstance, impose a sentence of life without release upon conviction of the following offenses: first degree murder, first degree sexual abuse, and first degree child sexual abuse.
  • The court may, if there is a finding of an aggravating circumstance, impose a sentence in excess of 60 years upon conviction of the following offense: first degree murder.
  • The court may, if there is a finding of an aggravating circumstance, impose a sentence in excess of 40 years upon conviction of the following offense: second degree murder.
  • The court may, if there is a finding of an aggravating circumstance, impose a sentence in excess of 30 years upon conviction of the following offenses: first degree sexual abuse, first degree sexual abuse while armed, first degree child sexual abuse, first degree child sexual abuse while armed, and carjacking while armed (but not more than 45 years).
Case Law

General 

The D.C. Voluntary Sentencing Guidelines can be ignored or even misapplied, with no avenue for appellate relief, in part because D.C. Code § 3-105(c) provides that these Guidelines “shall not create any legally enforceable rights in any party”.   See also Speaks v. United States, 959 A.2d 712, 717-720 (D.C. 2008):

“D.C.Code § 3–105 means what it says — that the guidelines are voluntary, they are “not binding on [trial] judges,” they create no “legally enforceable rights” for either appellant or the government, and consequently, a trial judge “in an individual case may impose any sentence that does not exceed the maximum term prescribed by law.”  Inasmuch as the sentences imposed on appellant by the trial court concededly conformed to the statute, they may not be assailed on the sole ground that they are not compliant with the guidelines....

“As this court very recently held in another case where a trial judge's sentence was challenged based upon an assertion that the judge misinterpreted the guidelines, it is not our business to interpret the guidelines where they create no legally enforceable rights....  By design, the Voluntary Sentencing Guidelines are entirely voluntary, and judges are free to apply or ignore them as they see fit without interference by this Court.”

Johnson v. United States, 26 A.3d 758 (D.C. 2011): 

“DC Code § 24–403.01(a) presents a list of factors for a court to consider when sentencing an offender, ... provid[ing] that a court “shall” impose a sentence reflecting the seriousness of the offense, providing for just punishment, and providing educational or vocational training....  In some cases, there will simply not be a sentence that could accommodate all three statutory provisions, and in those situations a sentencing judge has no choice but to balance them.”

Proportionality 

Because DC does not have its own unique local constitution, its proportionality jurisprudence has tracked the ups-and-downs of the U.S. Supreme Court’s Eighth Amendment jurisprudence.   This has essentially meant, in turn, that constitutional claims to attack lengthy prison sentences have not be successful in the District of Columbia courts.

For example, in Crawford v. United States, 628 A.2d 1002 (D.C. 1993), the D.C. Court of Appeals relied on  Harmelin v. Michigan, 501 U.S. 957 (1991), to summarily reject claim of disproportionate punishment for an "aggregated sentence of minimum term of 51 years and eight months and maximum term of 155 years" for a defendant convicted of two counts of enticing minor, one count of indecent liberties with minor and seven counts of sodomy of minor based, in part, on the age of the victim and the defendant's criminal history.

Similarly, in Cook v. United States, 932 A.2d 506 (D.C. 2007), the Court cited Harmelin v. Michigan, 501 U.S. 957 (1991), and Ewing v. California, 538 U.S. 11 (2003), to support its ruling that a sentence of 12 years in prison for unlawful possession of heroin with intent to distribute did not violate the Cruel and Unusual Punishment Clause of the Eighth Amendment.

Leading Court Discussions of Graham and Miller 

 James v. United States, 59 A.3d 1233 (D.C. January 24, 2013) (avoid the question whether Miller and Graham can be applied retroactively; LWOP for mandatory minimum of 30 years does not violate Miller because D.C. Code has already take youth into consideration by limiting the minimum sentence to 30 years for juvenile offenders; execution style murder is vicious so is not grossly disproportionate under Eighth Amendment) 

Project Overview | State Comparison  

Florida

Updated: 10/16/2014 - Print the Florida entry.

  • Florida has abolished parole.Fla. Stat. § 921.002(1)(e)(2003). Incentive and meritorious gain-time may be available, but a defendant must serve 85 percent of his or her sentence.
  • Florida has mandatory LWOP and allows for JLWOP.
  • Florida does not require children to reach a minimum age before they are transferred to adult court. Fla. Stat. § 985.225 specifies when a juvenile defendant must be treated as an adult. A juvenile must be treated as an adult for any offenses punishable by death or life imprisonment.
  • Flor. Stat. § 921.137(1) provides a three-prong test for determining mental retardation of defendants. The defendant’s IQ must be 70 or below to meet the first prong of this test. See State v. Herring, 76 So. 3d 891 (Fla. 2011).
State Constitution

§ 17.  Excessive punishments  

Excessive fines, cruel and unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are forbidden. The death penalty is an authorized punishment for capital crimes designated by the legislature. The prohibition against cruel or unusual punishment, and the prohibition against cruel and unusual punishment, shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution. Any method of execution shall be allowed, unless prohibited by the United States Constitution. Methods of execution may be designated by the legislature, and a change in any method of execution may be applied retroactively. A sentence of death shall not be reduced on the basis that a method of execution is invalid. In any case in which an execution method is declared invalid, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method. This section shall apply retroactively. Fla. Const. Art. I, § 17 (2012) (Emphasis added).

NOTE: This amendment was made in 2002. See Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007). While this version requires conformity to the Eighth Amendment precedent, the pre-2002 may have been broader than the Eighth Amendment. See Adaway v. State, 902 So. 2d 746, 747 (Fla. 2005).However, the Supreme Court of Florida never actually decided the issue.

Pre-2002 § 17  

Excessive fines, cruel or unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are forbidden. (Under pre-2002 Article 1, Section 17, the death penalty could not be applied to juveniles under 16-years old. Allen v. State, 636 So. 2d 494 (Fla. 1994); Brennan v. State, 754 So. 2d 1 (Fla. 1999)).

Sentencing Statutes
  • Sentencing Guidelines System – NONE
    • Florida repealed its sentencing guidelines for all offenses that occurred on or after October 1, 1998. See Florida Department of Corrections, Overview of Florida's Sentencing Policies, http://www.dc.state.fl.us/pub/sg_annual/0001/intro.html. Instead, the criminal code controls.
  • Habitual Criminal Statute -  Fla. Stat. § 775.084
    • Fla. Stat. § 775.084 addresses violent career criminals, habitual felony offenders, habitual violent felony offenders, three-time violent felony offenders, and enhanced penalties or mandatory minimum prison terms.
Case Law

General  

The Eighth Amendment to the United States Constitution and article I, section 17 of the Florida Constitution have historically provided protection relative to the mode and method of punishment, not the length of incarceration. Hall v. State, 823 So. 2d 757, 760 (Fla. 2002).

Mandatory minimums have been consistently upheld by the Supreme Court of Florida despite their severity and despite constitutional attacks. Paey v. State, 943 So. 2d 919, 926 (Fla. Dist. Ct. App. 2d Dist. 2006). The Supreme Court of Florida has “affirmed its commitment to the principle that the legislature, and not the judiciary, determines maximum and minimum penalties for violations of the law.” Id. (citing State v. Benitez, 395 So. 2d at 518 (Fla. 1981)).

State Constitution & Proportionality 

The Eighth Amendment forbids extreme sentences that are “grossly disproportionate” to the offense. Hall v. State, 823 So. 2d 757, 760 (Fla. 2002).

Proportionality analysis under the Eighth Amendment “includes consideration of: (i) the gravity of the offense and the harshness of the penalty, (ii) the sentences imposed on other criminals in the same jurisdiction, and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Jones v. State, 861 So. 2d 1261 (Fla. Dist. Ct. App. 4th Dist. 2003).

Parole eligibility is not relevant in Florida for determining an unduly harsh or disproportionate sentence, even though the Supreme Court considered parole eligibility in Rummel. Adaway v. State, 902 So. 2d 746 (Fla. 2005).

The defendant’s age is a factor that must be considered when conducting a proportionality review of the defendant’s sentence. Phillips v. State, 807 So. 2d 713, 718 (Fla. Dist. Ct. App. 2d Dist. 2002).

Florida requires comparative proportionality analysis for death sentences. See Tillman v. State, 591 So. 2d 167 (Fla. 1991); Sinclair v. Florida, 657 So. 2d 1138, 1142 (Fla. 1995).

The imposition of a life sentence with a minimum of 25-years imprisonment before eligibility for parole for sexual battery of a child is not cruel or unusual punishment in Florida. Jones v. State, 861 So. 2d 1261

Leading Court Discussions of Graham and Miller  

Treacy v. Lamberti, 141 So. 3d 174 (Fla. October 10, 2013) (In Florida where defendants charged with offense punished by life are not entitled to bond, Graham makes juveniles entitled to bond as a matter of right; attempted murder is not homicide and Graham is applicable) 

Severe Sentences 

  • Adaway v. State, 902 So. 2d 746 (Fla. 2005) –Defendant was sentenced to life imprisonment without parole for the crime of oral union with the genitals of a child under the age of twelve.  
  • Andrews v. State, 82 So. 3d 979 (Fla. Dist. Ct. App. 1st Dist. 2011) – The court upheld defendant’s consecutive ten-year sentences for failure to report a temporary residence. These sentences were the result of defendant’s acquired  habitual violent felony offender (HVFO) status.
  • Morrow v. State, 856 So. 2d 1043, 1044 (Fla. Dist. Ct. App. 5th Dist. 2003) – The court upheld defendant’s sentence of life imprisonment for illegally possessing a firearm under Florida’s Three Strikes Violent Felony Offender Act. Such harsh punishment is permissible under the Eighth Amendment.
  • Tate v. State, 864 So. 2d 44, 55 (Fla. Dist. Ct. App. 4th Dist. 2003) –  The court upheld a sentence of life without parole for a 12-year old who was convicted of murdering a 6-year old. (new trial granted on other grounds).

Project Overview | State Comparison  

Georgia

Updated: 10/16/2014 - Print the Georgia entry.

  • Georgia retains a parole system, but does not allow discretionary parole for the most violent offenders or certain habitual offenders. See O.C.G.A. § 17-10-6.1  (2012). 
  • Allows for discretionary LWOP and JLWOP.  
  • Georgia has no minimum age for transfer of a juvenile to adult court. However, "[a] person shall not be considered or found guilty of a crime unless he has attained the age of 13 years at the time of the act, omission, or negligence constituting the crime." O.C.G.A. § 16-3-1.
State Constitution

Article I, Section I:

Paragraph XVII.  Bail; fines; punishment; arrest, abuse of prisoners. 
Excessive bail shall not be required , nor excessive fines imposed, nor cruel and unusual punishments inflicted ; nor shall any person be abused in being arrested, while under arrest, or in prison.

NOTE: The cruel and unusual punishment clauses of the Federal and Georgia constitutions are similar. Nevertheless, Georgia courts have recognized that the Eighth Amendment provides minimum standards, and that Georgia’s Article I, Section I, Paragraph XVII may be interpreted differently in the future.

Sentencing Statutes
  1. Sentencing Guidelines System – Georgia does not have a guidelines system.
  2. Habitual  Offender Statute – O.C.G.A. § 17-10-7 (2012)
    § 17-10-7.  Punishment of repeat offenders; punishment and eligibility for parole of persons convicted of fourth felony offense 
Case Law

General  

The defendant bears the burden of proving mental retardation by a preponderance of the evidence. Fleming v. Zant, 259 Ga. 687, 691 (Ga. 1989). Furthermore, “[t]he jury shall not be bound by the opinion testimony of expert witnesses or by test results, but may weigh and consider all evidence bearing on the issue of mental retardation.” Id. If the jury finds the defendant mentally retarded, any sentence of death will be vacated and the defendant will instead be sentenced to life imprisonment. Id.

State Constitution & Proportionality 

“Legislative enactments constitute the clearest and most objective evidence of how contemporary society views a particular punishment,” and unless the sentence shocks the conscious, courts should defer to legislative discretion. Johnson v. State, 276 Ga. 57, 62 (2002);Widner v. State, 280 Ga. 675 (Ga. 2006).

Appellate courts “will not review for legal error any sentence which is within the statutory limits. Any question as to the excessiveness of such a sentence should be addressed to the sentence review panel as provided in O.C.G.A. § 17-10-6."  Small v. State, 243 Ga. App. 678, 680 (Ga. Ct. App. 2000) (citing Harden v. State, 239 Ga. App. 700, 702 (Ga. Ct. App. 1999).

"Federal constitutional standards represent the minimum, not the maximum, protection that this state must afford its citizens.” Fleming v. Zant, 259 Ga. 687, 690 (1989). The Supreme Court of Georgia has “explicitly held that in interpreting the prohibition against cruel and unusual punishment found in the Georgia Constitution, the applicable standard is ‘the standard of the people of Georgia, not the national standard.’” Dawson v. State, 274 Ga. 327, 328 (Ga. 2001) (quoting Fleming v. Zant, 259 Ga. 687, 690 (1989)). 

The Supreme Court of Georgia “has acknowledged that "whether a particular punishment is cruel and unusual is not a static concept, but instead changes in recognition of the ‘evolving standards of decency that mark the progress of a maturing society.’" Dawson v. State, 274 Ga. 327, 329 (Ga. 2001) (citing Fleming v. Zant, 259 Ga. 687, 689 (1989)).

Under both the federal and Georgia constitutions, “a sentence is cruel and unusual if it is grossly out of proportion to the severity of the crime."Bragg v. State, 296 Ga. App. 422 (Ga. Ct. App. 2009).

To perform a proportionality analysis, "a court must first examine the gravity of the offense compared to the harshness of the penalty and determine whether a threshold inference of gross disproportionality is raised." Bragg v. State, 296 Ga. App. 422, 424 (Ga. Ct. App. 2009) (citing Humphrey, 282 Ga. 520, 525 (2007). An inference of gross disproportionality is rare. Id.

Punishment is unconstitutionally excessive if it: “(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” Cox v. State, 241 Ga. 154, 155 (1978); Widner v. State, 280 Ga. 675 (Ga. 2006);Campbell v. State, 268 Ga. 44, 45 (Ga. 1997); Fleming v. Zant, 259 Ga. 687 (Ga. 1989).

The “mere fact that the Legislature has spoken on the issue of the method of execution does not preclude or in any manner limit this Court's evaluation of the selected method to determine whether it comports with the constitutional prohibition against cruel and unusual punishment.” Dawson v. State, 274 Ga. 327, 328 (Ga. 2001).

A mandatory sentence is not cruel and unusual simply because it is mandatory. Ortiz v. State, 266 Ga. 752, 753 (Ga. 1996); Campbell v. State, 268 Ga. 44, 45 (Ga. 1997); Widner v. State, 280 Ga. 675 (Ga. 2006).

The Supreme Court of Georgia has declined to hold a mandatory life sentence under § 16-13-30 (d) (distribution of a controlled substance) cruel and unusual punishment for purposes of Article I, Section I, Paragraph XVII of the Georgia Constitution.Stephens v. State, 261 Ga. 467, 468 (Ga. 1991).

The following cases mention a distinction between Article I, Section I, Paragraph XVII of the Georgia Constitution and the Eighth Amendment, but do not provide significant separate analysis:

  • Widner v. State, 280 Ga. 675 (Ga. 2006) – States that Georgia’s Article I, Section I, Paragraph XVII “comparable” to the Eighth Amendment.     
  • Ortiz v. State, 266 Ga. 752, 754 (Ga. 1996) –
  • Sims v. Balkcom, 220 Ga. 7, 12 (Ga. 1964) –
  • Carey Can. v. Hinely, 181 Ga. App. 364, 372 (Ga. Ct. App. 1986) –  

Leading Court Discussions of Graham and Miller 

Gandy v. State, 290 Ga. 166, 718 S.E.2d 287 (November 21, 2011) (Graham does not apply to adults, homicide and sentence of terms of life without possibility of parole) 

Foster v. State, 294 Ga. 383, 754 S.E.2d 33 (January 21, 2014) (Graham and Miller do not categorically bar LWOP; OCGA § 16–5–1(d) does not mandate life without parole, but instead gives the sentencing court discretion over the penalty.) 

Williams v. State, 291 Ga. 19, 727 S.E.2d 95 (April 24, 2012) (Graham does not apply to adults) 

Moore v. State, 293 Ga. 705, 749 S.E.2d 660, 661 (October 7, 2013) (Defendant's voluntary entry of plea agreement, consenting to imposition of life sentence and waiving all rights to post-conviction review, did not waive defendant's right to challenge sentence as illegal and void) 

Project Overview | State Comparison  

Hawaii

Updated: 5/14/2013 - Print the Hawaii entry.

  • Hawaii has abolished the death penalty. Hawaii also allows for discretionary parole.
  • Hawaii allows mandatory LWOP. See HRS § 706-656 (2012) (mandatory LWOP for first degree murder). Hawaii allows for JLWOP. 
  • Hawaii does not require that juveniles reach a minimum age before transfer to adult court. 
State Constitution

Article I, Section 12:

Bail; Excessive Punishment

Section 12.  Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.  The court may dispense with bail if reasonably satisfied that the defendant or witness will appear when directed, except for a defendant charged with an offense punishable by life imprisonment.

Note:Article I, Section 12 of the Hawaii Constitution and the Eighth Amendment have a similar analysis. However, the Hawaiian Supreme Court has indicated that it would expand the protections of Section 12 should the need arise.  

Sentencing Statutes
  • Sentencing Guidelines System – Hawaii does not have sentencing guidelines
  • Habitual Offender Statute – HRS § 706-606.5 (2012): Sentencing of repeat offenders.
Case Law

General  

"Parole is a matter of legislative grace, and the denial of it to certain offenders is within legislative discretion." State v. Freitas, 61 Haw. 262, 270, 602 P.2d at 921 (1979). The fact that the legislature may have determined that a person who commits numerous felonies with the use of a deadly weapon should be subject to imprisonment without the possibility of being paroled during his lifetime does not, in our opinion, ‘shock the conscience of reasonable persons’ nor ‘outrage the moral sense of the community.’" State v. Kumukau, 71 Haw. 218, 226-227 (Haw. 1990).

State Constitution & Proportionality 

While the Section 12’s "cruel or unusual punishment" prohibition is in the disjunctive form and the Eighth Amendment’s "cruel and unusual punishment" prohibition is in the conjunctive form, the difference is not of substance. State v. Kido, 3 Haw. App. 516, 654 (Haw. Ct. App. 1982).

While federal decisions have provided guidance where the language of Article I, Section 2 has failed, the Supreme Court of Hawaii “shall not hesitate to ‘extend the protections of the Hawaii Bill of Rights beyond those of textually parallel provisions of the Federal Bill of Rights when logic and a sound regard for the purposes of those protections.’” Huihui v. Shimoda, 64 Haw. 527, 531 (Haw. 1982) (quoting State v. Miyasaki, 62 Haw. 269, 280 (Haw. 1980); State v. Manzo, 58 Haw. 440, 452 (Haw. 1977); State v. Kaluna, 55 Haw. 361, 369 (Haw. 1974).

If a judge concludes that a sentence will be cruel and unusual as applied, he should not apply the sentence. State v. Kido, 3 Haw. App. 516 (Haw. Ct. App. 1982).

Although “cruel and unusual punishment” used to refer only to barbarous forms of punishment, modern Hawaiian courts properly also apply this term to sentences which “shock the conscience of reasonable persons or outrage the moral sense of the community, in light of the developing concepts of decency.” State v. Iaukea, 56 Haw. 343, 359-360 (Haw. 1975).

Notwithstanding the facial validity of a statute, in a few extreme cases sentences have been held to be unconstitutionally cruel and unusual as applied to the particular circumstances and to the particular defendant. State v. Kumukau, 71 Haw. 218(Haw. 1990). When a statute is constitutionally valid, constitutional challenges to the length of a sentence “fail more often than they succeed.” State v. Iaukea, 56 Haw. 343, 359-360 (Haw. 1975).

The cruel and unusual punishment clause of the Hawaii Constitution mandates the following proportionality analysis: "whether, in the light of developing concepts of decency and fairness, the prescribed punishment is so disproportionate to the conduct proscribed and is of such duration as to shock the conscience of reasonable persons or to outrage the moral sense of the community." State v. Kahapea, 111 Haw. 267, 282 (Haw. 2006); State v. Guidry, 105 Haw. 222 (Haw. 2004); State v. Jenkins, 93 Haw. 87, 114 (Haw. 2000);  State v. Davia, 87 Haw. 249, 258 (Haw. 1998); State v. Loa, 83 Haw. 335, 357 (Haw. 1996); State v. Freitas, 61 Haw. 262, 267-68 (Haw. 1979);State v. Iaukea, 56 Haw. 343 537 (Haw. 1975); State v. Aspili, 2004 Haw. LEXIS 572 (Haw. Aug. 30, 2004); State v. Hart, 2004 Haw. LEXIS 573, 4-6 (Haw. Aug. 30, 2004); See State v. Yuen, 2004 Haw. LEXIS 584 (Haw. Aug. 30, 2004).

Sentencing discretion lies with the legislature, and the courts will not interfere with its exercise, unless the punishment prescribed appears clearly and manifestly to be cruel and unusual.'" State v. Solomon, 107 Haw. 117, 131-132 (Haw. 2005) (citing State v. Jenkins, 93 Haw. 87, 114 (Haw. 2000)).

To determine if a punishment is “clearly and manifestly” cruel and unusual, the court must consider the following three factor test: “(1) the nature of the offense and/or the offender, with particular regard to the degree of danger posed by both to society; (2) the extent of the challenged penalty as compared to the punishments prescribed for more serious crimes within the same jurisdiction; and (3) the extent of the challenged penalty as compared to the punishment prescribed for the same offense in other jurisdictions.” Id. at 132 (citing State v. Jenkins, 93 Haw. 87, 114 (Haw. 2000)); State v. Jenkins, 93 Haw. 87, 114-115 (Haw. 2000).

Consecutive sentencing does not constitute cruel and unusual punishment under either the federal constitution or the Hawaii Constitution. State v. Avilla, 2004 Haw. LEXIS 151 (Haw. Mar. 3, 2004).

Consecutive mandatory minimums are not per se unconstitutional. State v. Kumukau, 71 Haw. 218, 227 (Haw. 1990).

The sex offender registration requirements under HRS chapter 846E are not punitive in nature and therefore, they do not constitute cruel and unusual punishment under the Hawaii Constitution. See State v. Guidry, 105 Haw. 222 (Haw. 2004). 

Sentencing of defendants to a minimum period of incarceration without possibility of parole for a period of five years under the repeat offender statute did not offend the cruel and unusual punishment provisions of the federal and state Constitutions. State v. Freitas, 61 Haw. 262 (Haw. 1979).

Citations To Graham 

  • No Hawaiian cases cite to Graham.

Project Overview | State Comparison  

Idaho

Updated: 10/16/2014 - Print the Idaho entry.

  • Idaho allows for discretionary parole. See Idaho Code § 19-2513. 
  • Idaho allows for mandatory LWOP and JLWOP. See Idaho Code § 18-4004. 
  • Idaho does not provide a minimum age for juvenile transfer to adult court. See Idaho Code § 20-509(4). 
State Constitution

Idaho Const. Art. I, § 6 (2012)

§ 6. Right to bail -- Cruel and unusual punishments prohibited 

All persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great. Excessive bail shall not be required, nor excess fines imposed, nor cruel and unusual punishments inflicted.

NOTE: The Eighth Amendment and Art. I, § 6 require very similar proportionality tests.  Art. I, § 6 tracks the Eighth Amendment.

Sentencing Statutes
  • Sentencing Guidelines System – Idaho does not have sentencing guidelines
  • Habitual Offender Act – Idaho Code § 19-2514  (2012)
    • § 19-2514. Persistent violator -- Sentence on third conviction for felony. Any person convicted for the third time of the commission of a felony, whether the previous convictions were had within the state of Idaho or were had outside the state of Idaho, shall be considered a persistent violator of law, and on such third conviction shall be sentenced to a term in the custody of the state board of correction which term shall be for not less than five (5) years and said term may extend to life.
  • Post Conviction Relief Act – Uniform Post-Conviction Procedure Act, I.C. § 19-4901
    • The Uniform Post-Conviction Procedure Act, I.C. § 19-4901, provides a civil remedy for criminal offenders sentenced to cruel or unusual or illegal sentences. The offender must prove, by a preponderance of evidence, the allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Evans v. State, 127 Idaho 662, 664 (Idaho Ct. App. 1995)(citing Russell v. State, 118 Idaho 65, 67 (Idaho Ct. App. 1990)). 
    • To determine what constitutes cruel and unusual punishment under the Uniform Sentencing Act, Idaho courts treat “the minimum period of incarceration as the duration of confinement.” State v. Shanahan, 133 Idaho 896, 899 (Idaho Ct. App. 1999) (citing State v. Matteson, 123 Idaho 622, 62 (Idaho 1993); State v. Daniel, 127 Idaho 801, 804 (Idaho Ct. App. 1995)).
  •  Death Penalty Proportionality –
    • Under I.C. § 19-2827 (review of death sentences), the Supreme Court is required to “independently review the sentence and determine (1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether the evidence supports the judge's findings of a statutory aggravating circumstance; and (3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” State v. Card, 121 Idaho 425 (Idaho 1991); see also State v. Dunlap, 125 Idaho 530, 537-538 (Idaho 1993); State v. Lankford, 116 Idaho 860, 877-878 (Idaho 1989).
    • Regarding the third prong of the death sentence review, the court makes a de novo determination of the proportionality of the sentence after reviewing the (1) nature and motive of the defendant; (2) heinous nature of the crime; and (3) nature and character of the defendant. State v. Dunlap, 125 Idaho 530, 538 (Idaho 1993).
Case Law

General  

"When a sentence is within the statutory limits, we will review the sentence for an abuse of discretion." State v. Farwell, 144 Idaho 732, 734-35 (Idaho 2007) (citing State v. Knighton, 143 Idaho 318, 319 (Idaho 2006)).

State Constitution & Proportionality 

Generally, the issue of excessiveness may not be considered for the first time on appeal. Evans v. State, 127 Idaho 662, 664 (Idaho Ct. App. 1995) (citing State v. Fodge, 121 Idaho 192, 195 (Idaho 1992); Sanchez v. Arave, 120 Idaho 321, 322 (Idaho 1991)).

Nevertheless, the Idaho Supreme Court “has customarily and routinely considered claims that sentences violate the Eighth Amendment because of excessive length where that constitutional challenge was not presented to the trial court.” State v. Jensen, 138 Idaho 941, 945-946 (Idaho Ct. App. 2003); see also, State v. Shanahan, 133 Idaho 896, 899 (Idaho Ct. App. 2000); State v. Thomas, 133 Idaho 682, 688 (Idaho Ct. App. 1999); State v. Rogerson, 132 Idaho 53, 57 (Idaho Ct. App. 1998).

The burden of demonstrating that a sentence is cruel and unusual is on the person asserting the constitutional violation. Gibson v. Bennett, 141 Idaho 270, 275 (Idaho Ct. App. 2005)(citing State v. Clay, 124 Idaho 329, 332 (Idaho Ct. App. 1993)).

Ordinarily, if a sentence falls within the statutory limits, the sentence will not be considered cruel and unusual punishment. State v. Kelly, 106 Idaho 268, 279 (Idaho Ct. App. 1984) (citing Watkins v. State, 101 Idaho 758 (Idaho 1980)).

The Idaho Supreme Court’s “analysis of whether a sentence violates Article I, Section 6, has traditionally tracked the U.S. Supreme Court's Eighth Amendment jurisprudence.” State v. Draper, 151 Idaho 576, 599 (Idaho 2011).

The “gross proportionality” test is equivalent to the test under the Idaho Constitution, which asks whether the defendant’s punishment is “out of proportion to the gravity of the offense committed and such as to shock the conscious of reasonable people.” State v. Brown, 121 Idaho 385, 394 (Idaho 1992); Gibson v. Bennett, 141 Idaho 270, 275 (Idaho Ct. App. 2005); State v. Olivera, 131 Idaho 628 (Idaho Ct. App. 1998); State v. Matteson, 123 Idaho 622, 626-627 (Idaho 1993).

If an inference of “gross proportionality” is found, the court must conduct a subsequent proportionality analysis. Id. See also State v. Matteson, 123 Idaho 622, 626, 851 P.2d 336, 340; State v. Olivera, 131 Idaho at 632, 962 P.2d 399, 403.

An "intra- and inter-jurisdictional" analysis is "appropriate only in the rare case" where the sentence is grossly disproportionate to the crime committed. State v. Wright, 147 Idaho 150 (Idaho Ct. App. 2009) (citing State v. Grazian, 144 Idaho 510, 517 (Idaho 2007); State v. Matteson, 123 Idaho 622, 626 (Idaho 1993)).

“To establish that the sentence imposed was improper, the defendant must show that in light of the governing criteria, [the] sentence was excessive under any reasonable view of the facts.” State v. Brown, 121 Idaho 385, 392-393 (Idaho 1992)(quoting State v. Broadhead, 120 Idaho 141, 143-145 (Idaho 1991)).

The objectives of sentencing, against which the reasonableness of a sentence is to be measured are: (1) the protection of society; (2) the deterrence of crime; (3) the rehabilitation of the offender; and (4) punishment or retribution. State v. Wright, 147 Idaho 150, 161 (Idaho Ct. App. 2009). In examining the reasonableness of a sentence, we conduct an independent review of the record, focusing on the nature of the offense and the character of the offender. Id.

"A sentence is reasonable if at the time of imposition it appears necessary to achieve 'the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to the given case.'" State v. Draper, 151 Idaho 576, 599-600 (Idaho 2011) (quoting State v. Lundquist, 134 Idaho 831, 836 (Idaho 2000)).

Where reasonable minds might differ regarding the appropriateness of a sentence, the discretion vested in the sentencing court will be respected. State v. Brown, 121 Idaho 385, 393 (Idaho 1992).

Idaho courts perform proportionality analysis in death penalty cases and “to those cases which are ‘out of proportion to the gravity of the offense committed’ in the cruel and unusual punishment setting similar to the ‘grossly disproportionate’ analysis” of Kennedy in Harmelin. The court must compare defendant’s crimes and the sentence to determine if gross disproportionality exists, a threshold question. State v. Moore, 127 Idaho 780, 783-784 (Idaho Ct. App. 1995); State v. Shanahan, 133 Idaho 896, 899 (Idaho Ct. App. 1999); State v. Jenkins, 133 Idaho 747 (Idaho Ct. App. 1999); State v. Toney, 130 Idaho 858, 861 (Idaho Ct. App. 1997); State v. Robertson, 130 Idaho 287, 289 (Idaho Ct. App. 1997); State v. Pugsley, 128 Idaho 168, 179 (Idaho Ct. App. 1995); State v. Schneider, 126 Idaho 624 (Idaho Ct. App. 1995).

When conducting a proportionality analysis, consideration must be given to the youth and immaturity of the offender, as teenagers are less able to evaluate the consequences of their actions and are must more likely than adults to be motivated by peer pressure. State v. Moore, 127 Idaho 780, 783-784 (Idaho Ct. App. 1995).

Under the Idaho Constitution, a court may sentence a defendant to a penalty for a lesser included offense that exceeds the maximum penalty authorized for a greater offense. State v. Goodrick, 102 Idaho 811, 813 (Idaho 1982).           

Leading Court Discussions of Graham and Miller  

State v. Windom, 150 Idaho 873, 253 P.3d 310 (March, 2011) (Graham does not apply to non-homicide cases so LWOP is proper; dissent does not agree, arguing court should apply the principle of Graham, i.e. juveniles are less culpable than adults.) 

State v. Draper, 151 Idaho 576, 261 P.3d 853 (September 13, 2011) (fixed life sentence is not categorically barred by Graham) 

Project Overview | State Comparison  

Illinois

Updated: 10/16/2014 - Print the Illinois entry.

  • As of 2011, Illinois has abolished the death penalty. 
  • Illinois abolished discretionary parole in 1978. 
  • Illinois allows for mandatory LWOP and JLWOP. See 730 Ill. Comp. Stat. Ann. 5/5-8-1. 
  • Juveniles may be transferred to adult court as young as age 13. See Illinois Juvenile Court Act, 705 ILCS 405/5-130 (2012). The automatic transfer provision of the Illinois Juvenile Court Act does not violate the proportionalities clause of the Illinois Constitution. This provision is procedural, and imposes no punishment on the defendant. People v. Jackson, 965 N.E.2d 623, 630 (Ill. App. Ct. 1st Dist. 2012).
State Constitution

Illinois Const., Art. I, § 11 (2012)

Section 11. Limitation of Penalties After Conviction -- All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. No conviction shall work corruption of blood or forfeiture of estate. No person shall be transported out of the State for an offense committed within the State.

NOTE:  Article I, Section 11 of the Illinois Constitution is broader than the Eighth Amendment because it explicitly recognizes the need for proportionality and promotes rehabilitation over other goals of punishment.

Sentencing Statutes
  1. Sentencing Guidelines System – Illinois does not have a guidelines system
  2. Habitual Offender Statute –
    • § 730 ILCS 5/5-4.5-95 (2012):  General Recidivism Provisions

      Sec. 5-4.5-95. General Recidivism Provisions. (a) HABITUAL CRIMINALS.
       
    • § 720 ILCS 5/24-1.7 (2012): Armed habitual criminal

      Sec. 24-1.7. Armed habitual criminal. (a) A person commits the offense of being an armed habitual criminal if he or she receives, sells, possesses, or transfers any firearm after having been convicted a total of 2 or more times of any combination of the following offenses:

      (1) a forcible felony as defined in Section 2-8 of this Code [720 ILCS 5/2-8];

      (2) unlawful use of a weapon by a felon; aggravated unlawful use of a weapon; aggravated discharge of a firearm; vehicular hijacking; aggravated vehicular hijacking; aggravated battery of a child as described in Section 12-4.3 or subdivision (b)(1) of Section 12-3.05 [720 ILCS 5/12-4.3 or 720 ILCS 5/12-3.05]; intimidation; aggravated intimidation; gunrunning; home invasion; or aggravated battery with a firearm as described in Section 12-4.2 [720 ILCS 5/12-4.2 (now repealed)] or subdivision (e)(1), (e)(2), (e)(3), or (e)(4) of Section 12-3.05; or

      (3) any violation of the Illinois Controlled Substances Act [720 ILCS 570/100 et seq.] or the Cannabis Control Act [720 ILCS 550/1 et seq.] that is punishable as a Class 3 felony or higher.

      (b) Sentence. Being an armed habitual criminal is a Class X felony.
Case Law

General  

A challenge to the constitutionality of a statute can be raised at anytime, even if the defendant failed to raise the issue at sentencing or in a motion to reconsider. People v. Hindson, 301 Ill. App. 3d 466, 479-480 (Ill. App. Ct. 2d Dist. 1998).

The Illinois Supreme Court has repeatedly recognized that the legislature has discretion to define crimes and determine their penalties. Nevertheless, statutes may not prescribe penalties that violate constitutional constrictions. People v. Miller, 202 Ill. 2d 328 (Ill. 2002).

“A reviewing court may not alter a defendant's sentence absent an abuse of discretion by the trial court.”  People v. Alexander, 239 Ill. 2d 205, 212 (Ill. 2010); People v. Pettis, 2011 Ill. App. Unpub. LEXIS 2499, 14-15 (Ill. App. Ct. 1st Dist. 2011); seePeople v. Hindson, 301 Ill. App. 3d 466, 477-479 (Ill. App. Ct. 2d Dist. 1998); People v. Krankel, 131 Ill. App. 3d 887, 897 (Ill. App. Ct. 4th Dist. 1985).

State Constitution & Proportionality 

Rehabilitation is an important state policy. Unlike the Eighth Amendment, the proportionalities clause of the Illinois Constitution clearly “provides for punishment to be proportionate to the seriousness of an offense with the objective of restoring the offender to useful citizenship.” People v. Boyce, 228 Ill. App. 3d 87, 92 (Ill. App. Ct. 1st Dist. 1992); seePeople v. Harlow, 246 Ill. App. 3d 196, 199 (Ill. App. Ct. 4th Dist. 1993).

The Eighth Amendment and Article I, Section 11 of the Illinois Constitution are not identical. The Illinois Constitution focuses on rehabilitation, and goes beyond the Eighth Amendment. People v. Clemons, 968 N.E.2d 1046, 1057 (Ill. 2012). Article I, Section 11 places two limitations on sentences: (1) penalties must be determined “according to the seriousness of the offense,” and (2) penalties must be determined “with the objective of restoring the offender to useful citizenship.”Id. at 1055-56.

Illinois  courts are hesitant to disturb sentence that falls within the statutory limits unless that sentence is a great variance with “the purpose and spirit of the law,” or is “manifestly disproportionate to the nature of the offense.”People v. Alexander, 239 Ill. 2d 205, 212 (Ill. 2010) (quoting People v. Stacey, 193 Ill. 2d 203, 210, 737 N.E.2d 626, 250 Ill. Dec. 4 (2000)); People v. Pettis, 2011 Ill. App. Unpub. LEXIS 2499, 14-15 (Ill. App. Ct. 1st Dist. 2011); seePeople v. Sprinkle, 56 Ill. 2d 257 (Ill. 1974); People v. Michels, 72 Ill. App. 3d 182 (Ill. App. Ct. 3d Dist. 1979).

Under Article I, Section 11 of the Illinois Constitution, a sentence is disproportionate in three circumstances: (1) where the punishment for the offense is “cruel, degrading, or so completely disproportionate to the offense for which it is imposed as to shock the moral sense of the community; (2) where, after the punishment for the offense is compared to the punishments for other offenses in Illinois, the court finds the offense to be less severe and more harshly punished than the other offenses; and (3) where the penalties for identical offenses differ. People v. Sharpe, 216 Ill. 2d 481, 487 (Ill. 2005); People v. Pizano, 347 Ill. App. 3d 128, 132 (Ill. App. Ct. 1st Dist. 2004).

Comparison of defendants in different cases is only appropriate when the circumstances of the defendants are “substantially identical.” People v. Hindson, 301 Ill. App. 3d 466, 479-480 (Ill. App. Ct. 2d Dist. 1998).

To determine whether a proportionality comparison between two offenses is appropriate, an appellate court should consider the following two factors: (1) whether the offenses share a common statutory purpose; (2) whether the offense with the harsher penalty is less severe than the offense with the less severe penalty. People v. Sharpe, 216 Ill. 2d 481, 488 (Ill. 2005);People v. Austin, 349 Ill. App. 3d 766, 772 (Ill. App. Ct. 2004).

The sentencing court is not required to articulate the process by which it concluded that the penalty imposed was appropriate, nor is it required to articulate its consideration of mitigating factors. People v. Jarrell, 248 Ill. App. 3d 1043, 1051 (Ill. App. Ct. 1st Dist. 1993).

Statutes which establish mandatory minimums are an appropriate exercise of legislative power, even though such minimums reduce the discretion of the judiciary in sentencing. SeePeople v. Sharpe, 216 Ill. 2d 481, 525 (Ill. 2005). Mandatory minimums are not per se unconstitutional under Article I, Section11. People v. Gomez, 120 Ill. App. 3d 545 (Ill. App. Ct. 3d Dist. 1983).

The Illinois Supreme Court has held that a multiple-murder statute which imposed mandatory life imprisonment without parole on juveniles violated the proportionate penalties clause of the Illinois Constitution. The statute was unconstitutional as applied to the 15-year old offender who was less culpable than the other participants in the homicides. Mandatory life imprisonment without the chance of parole may still be an appropriate sentence for a juvenile offender who actively participated in the death of two or more people. People v. Miller, 202 Ill. 2d 328, 341-343 (Ill. 2002).

A sentencing court is not obligated to impose identical sentences for each count of a crime.
People v. Hindson, 301 Ill. App. 3d 466, 479-480 (Ill. App. Ct. 2d Dist. 1998). Consecutive sentencing does not per se violate the proportionate penalties clause of the Illinois Constitution. SeegenerallyPeople v. Conley, 306 Ill. App. 3d 1 (Ill. App. Ct. 1st Dist. 1999).

 While the following cases mention both Article I, Section 11 of the Illinois Constitution and the Eighth Amendment, they provide no significant, separate analysis of Section 11:

  • People v. Adams, 198 Ill. App. 3d 74, 83 (Ill. App. Ct. 2d Dist. 1990) –
  • People v. Brooks, 141 Ill. App. 3d 889, 890 (Ill. App. Ct. 1st Dist. 1986) –
  • People v. Lenhart, 90 Ill. App. 3d 502, 504 (Ill. App. Ct. 3d Dist. 1980) –

Leading Court Discussions of Graham and Miller  

People v. Davis, 2014 IL 115595 (May 20, 2014) (Miller applies retroactively; statute that does not allow consideration of age is not facially unconstitutional under Miller because it can be applied to adults and it does not prohibit this consideration; Graham does not categorically bar LWOP) 

Severe Sentences 

  • People v. Arrieta, 2011 Ill. App. Unpub. LEXIS 2201 (Ill. App. Ct. 2d Dist. 2011) – The court refused to extend Roper, Graham, and People v. Miller, 202 Ill. 2d 328 (Ill. 2002)], when it refused to “find mandatory life sentences unconstitutional as applied to actively participating-multiple-murdering defendants under the age of 18.”

Project Overview | State Comparison  

Indiana

Updated: 10/16/2014 - Print the Indiana entry.

  • Indiana abolished discretionary parole in 1977. 
  • Imposes mandatory LWOP and JLWOP. Minimum age for JLWOP is 16. Ind. Code Ann. § 35-50-2-3.
  • Indiana does not provide a minimum age for juvenile transfer to adult court
State Constitution

Ind. Const. Art. 1, § 16 (2012)

§ 16. Excessive bail, punishment, and penalties. -- Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense.

NOTE: Article 1, Section 16 of the Indiana Constitution is broader than the Eighth Amendment. It contains an independent proportionality clause.

Ind. Const. Art. 1, § 18 (2012)

§ 18. Reformation as basis of penal code. -- The penal code shall be founded on the principles of reformation, and not of vindictive justice.

Sentencing Statutes
  1. Sentencing Guidelines System – Indiana does not have sentencing guidelines.
  2. Habitual Offender Statute – Burns Ind. Code Ann. § 35-50-2-8 (2012) -- 35-50-2-8.  Habitual offenders.
Case Law

State Constitution  

Article I, Section 16 of the Indiana Constitution “goes beyond the protection against cruel and unusual punishment contained in the Eighth Amendment to the U.S. Constitution.” Taylor v. State, Ind., 511 N.E.2d 1036 (Ind. 1987).

Unlike the Federal Constitution, the Indiana Constitution requires a proportionality analysis. This analysis considers the nature and gravity of the present offense as well as the nature of the prior offenses. Moore v. State, 515 N.E.2d 1099, 1105 (Ind. 1987).

Article 1, Section 16 of the Indiana Constitution “can provide more protections than the United States Constitution provides.” Conley v. State, 2012 Ind. LEXIS 642, 30-31 (Ind. July 31, 2012) (citing Justice v. State, 552 N.E.2d 844, 847 (Ind. Ct. App. 1990)).

The following cases mention both Article I, Section 16 of the Indiana Constitution and the Eighth Amendment, but do not provide significant, separate analysis of Section 16:

  • Prentice v. State, 474 N.E.2d 496, 502 (Ind. 1985) –
  • Hernandez v. State, 439 N.E.2d 625, 631 (Ind. 1982) –
  • Arnold v. State, 436 N.E.2d 288 (Ind. 1982) –
  • Comstock v. State, 273 Ind. 259, 263 (Ind. 1980) –
  • Richardson v. State, 270 Ind. 566 (Ind. 1979) –
  • Thomas v. State, 264 Ind. 581 (Ind. 1976) –
  • Vacendak v. State, 264 Ind. 101, 105 (Ind. 1976) –
  • Person v. State, 764 N.E.2d 743, 751 (Ind. Ct. App. 2002) –

Compare with conflicting, older case law:

  • The language of the Eighth Amendment and Article I, Section 16 of the Indiana Constitution are very similar; Indiana courts have no reason to create a greater or lesser standard under Section 16 than there is under the Eighth Amendment. Norris v. State, 271 Ind. 568, 576 (Ind. 1979); Hall v. State, 273 Ind. 425, 435 (Ind. 1980).

Proportionality 

The constitutional prohibition against cruel and unusual punishments proscribes atrocious or obsolete punishments and is aimed at the kind and form of the punishment, rather than the duration or amount. SeeDunlop v. State, 724 N.E.2d 592, 597 (Ind. 2000).

The legislature determines appropriate penalties for criminal acts. Rowe v. State, 262 Ind. 250 (Ind. 1974); Lowe v. State, 260 Ind. 610 (Ind. 1973). Indiana courts will disturb such a determination only upon a showing of clear constitutional infirmity. Vacendak v. State, 264 Ind. 101, 105 (Ind. 1976); McGowan v. State, 671 N.E.2d 872, 884 (Ind. Ct. App. 1996). 

However, the fact that a defendant’s sentence falls within the statutory range does not relieve the court of its constitutional duty to review the duration of that sentence because the statute may still be unconstitutional as applied. Even if a sentence falls within the statutory sentencing range, a defendant is still entitled to a proportionality review under Article 1, Section 16 of the Indiana Constitution. Clark v. State, 561 N.E.2d 759, 765-766 (Ind. 1990).

I. Standard Proportionality Test

Under Article I, Section 16, a “punishment is excessive and unconstitutional it if (1) makes no measurable contribution to acceptable goals of punishment but rather constitutes only purposeless and needless imposition of pain and suffering, or (2) is grossly disproportionate to the severity of the crime.” Dziepak v. State, 483 N.E.2d 449, 453 (Ind. 1985) (citing Douglas v. State, 481 N.E.2d 107, 112 (Ind. 1985)); Stader v. State, 453 N.E.2d 1032 (Ind. Ct. App. 1983); Burch v. State, 450 N.E.2d 528, 530-531 (Ind. 1983); Inman v. State, (271 Ind. 491, 498 (Ind. 1979); SeeMcElroy v. State, 592 N.E.2d 726, 731-732 (Ind. Ct. App. 1992); Frappier v. State, 448 N.E.2d 1188, 1190 (Ind. 1983). 

The Indiana Constitution requires that a sentence be proportionate to the nature of the offense. Harrison v. State, 699 N.E.2d 645, 651 (Ind. 1998). However, this does not require the court to compare the offender’s sentence to the sentences of other offenders convicted of the same crime. Farris v. State, 753 N.E.2d 641, 648 (Ind. 2001) (citing Gambill v. State, 675 N.E.2d 668, 678 (Ind. 1996)). SeeRoche v. State (1992), Ind., 596 N.E.2d 896; State v. Alcorn, 638 N.E.2d 1242, 1246 (Ind. 1994).

Life imprisonment without parole does not constitute cruel and unusual punishment. Conley v. State, 2012 Ind. LEXIS 642 (Ind. July 31, 2012) (internal citations omitted). Similarly, use of the death penalty does not constitute cruel and unusual punishment. Thompson v. State, 492 N.E.2d 264 (Ind. 1986); Adams v. State, 259 Ind. 64, 73 (Ind. 1971).

The execution of a mentally retarded individual is not a per se violation of the Indiana Constitution. Rondon v. State, 711 N.E.2d 506 (Ind. 1999).

Under Art. 1, § 16, “the penalty for the lesser included offense may not be greater than that provided for the greater offense." Rector v. State, 264 Ind. 78, 82 (Ind. 1976) (citing Clark v. State, (1974) 160 Ind. App. 206, 311 N.E.2d 439 at 440)). Nevertheless, “the legislature may properly impose on separate and distinct offenses penalties not proportionate to one another. “ Rector v. State, 264 Ind. 78, 82 (Ind. 1976).

Proportionality in sentencing does not require comparison between the statute the offender was sentenced under and the revised version of that statute. Johnson v. State, 654 N.E.2d 788, 790-791 (Ind. Ct. App. 1995). 

II. Habitual Offender Proportionality Test

Indiana’s habitual offender statute does not violate the prohibition against cruel and unusual punishment by vesting discretion in the prosecutor. Funk v. State, 427 N.E.2d 1081, 1086 (Ind. 1981). Furthermore, a properly imposed sentence under Indiana’s habitual offender statute is not per se disproportionate. Traylor v. State, 420 N.E.2d 887, 890 (Ind. 1981). 

The proportionality analysis of a habitual offender penalty has two components: First, a reviewing court should judge the nature and gravity of the present felony, and second, the court should consider the nature of the prior offenses. Taylor v. State, 511 N.E.2d 1036, 1039 (Ind. 1987); Conner v. State, 626 N.E.2d 803, 806 (Ind. 1993); Clark v. State, 561 N.E.2d 759, 765-766 (Ind. 1990).

Leading Court Discussions of Graham and Miller   

Conley v. State, 972 N.E.2d 864 (Ind. July 31, 2012) (As one of the 15 jurisdictions where LWOP for juveniles is discretionary and therefore not unconstitutional under Miller) (dissent: Miller decision does not preclude a conclusion that discretionary sentence can also be unconstitutional. Miller shows Supreme Court’s underpinned recognition that juveniles are less culpable than adults and therefore are less deserving of the most severe punishments.)  

Fuller v. State, 48S02-1406-CR-364, 2014 WL 2466325 (Ind. June 2, 2014) (Apply underpinned principle in Miller and Graham to non-mandatory cases and remand a sentence of years to juvenile of 150 years to 85 years because it is not particularly heinous. 150 years is a denial of hope under Graham.) 

Brown v. State, 48S02-1406-CR-363, 2014 WL 2466322 (Ind. June 2, 2014) (revise the sentence from 150 to 80 according to Graham and Miller’s underpinned principle that juveniles are less culpable than adults) 

Knapp v. State, 28S00-1305-LW-327, 2014 WL 2617279 (Ind. June 12, 2014) (Challenge under Eighth Amendment are never successful in intentional homicide cases. “Narrow proportion principle” apply to non-capital cases.) 

Severe Sentences 

  • Ellis v. State, 736 N.E.2d 731, 2000 Ind. LEXIS 973 (2000) – A defendant’s 165-year sentence was not disproportional to the nature of the offenses committed when reviewed under the Indiana Constitution
  • Slone v. State, 496 N.E.2d 401, 1986 Ind. LEXIS 1253 (1986) – It was not a cruel and unusual punishment to sentence a 19-year-old man to a 60-year sentence, although he did not directly commit the murder himself, as this sentence was within the bounds of the statutory limits and not unreasonable based on the facts and circumstances of defendant's conduct. 
  • Taylor v. State, 511 N.E.2d 1036, 1987 Ind. LEXIS 1031 (1987) – Thirty-two-year sentence for the theft of $50 worth of merchandise, when the conviction was defendant's fifth nonviolent felony, did not constitute cruel and unusual punishment. 

Project Overview | State Comparison  

Iowa

Updated: 10/16/2014 - Print the Iowa entry.

  • Iowa has abolished the death penalty, and also allows for parole.  
  • Iowa imposes mandatory LWOP and JLWOP. The minimum age for JLWOP is 14. 
  • Minimum age for transfer of juvenile to adult court is age 14. Iowa Code § 232.45(6)(a). 
State Constitution

Iowa Const., Art. I § 17

SEC. 17. Bail -- punishments.

Excessive bail shall not be required; excessive fines shall not be imposed, and cruel and unusual punishment shall not be inflicted.

NOTE: While Iowa Constitution Article I, Section 17 is generally interpreted as the equivalent of the Eighth Amendment, the Iowa Supreme Court interprets “gross disproportionality” more broadly than the United States Supreme Court.

Sentencing Statutes
  • Sentencing Guidelines System – Iowa does not have guidelines
  • Habitual Offender Statute –  Iowa Code § 902.8 (2012)

902.8 Minimum sentence -- habitual offender.

An habitual offender is any person convicted of a class "C" or a class "D" felony, who has twice before been convicted of any felony in a court of this or any other state, or of the United States. An offense is a felony if, by the law under which the person is convicted, it is so classified at the time of the person's conviction. A person sentenced as an habitual offender shall not be eligible for parole until the person has served the minimum sentence of confinement of three years.

Case Law

General 

“A defendant may challenge an illegal sentence at any time.” State v. Oliver, 812 N.W.2d 636, 639 (Iowa 2012) (citingState v. Bruegger, 773 N.W.2d 862, 869 (Iowa 2009)); State v. Ragland, 812 N.W.2d 654, 658 (Iowa 2012).

State Constitution 

Unless the defendant suggests a distinction between the analyses under Article I, Section 17 and the Eighth Amendment, the court will apply the Eighth Amendment analysis to the Section 17 claim.State v. Bruegger, 773 N.W.2d 862, 882-886 (Iowa 2009); State v. Musser, 721 N.W.2d 734, 749 (Iowa 2006); See In re Detention of Garren, 620 N.W.2d 275, 280 n.1 (Iowa 2000); State v. Ostrander, 2010 Iowa App. LEXIS 760, 9-10 (Iowa Ct. App. July 14, 2010); State v. Jorgensen, 785 N.W.2d 708, 713 (Iowa Ct. App. 2009).

Although the Iowa Supreme Court has the authority to interpret the language of the Iowa Constitution “to expand on the personal liberties guaranteed by similar or identical provisions in the federal Constitution, [the Court has] been reluctant to exercise this authority, in part out of a desire for consistency." State v. Ramirez, 597 N.W.2d 795, 797 (Iowa 1999); State v. Quintero, 480 N.W.2d 50, 51 (Iowa 1992); State v. DeVries, 2001 Iowa App. LEXIS 330 (Iowa Ct. App. May 23, 2001). 

In general, Article I, Section 17 is interpreted as the equivalent of the Eighth Amendment. State v. Musser, 721 N.W.2d 734, 749 (Iowa 2006). However, the Iowa Supreme Court has held that “review of criminal sentences for ‘gross proportionality’ under the Iowa Constitution should not be a ‘toothless’ review and adopt a more stringent review than would be available under the Federal Constitution. State v. Bruegger, 773 N.W.2d 862, 882-883 (Iowa 2009).

Proportionality 

Punishment may be cruel and unusual because it inflicts torture, is otherwise barbaric, or is so excessively severe it is disproportionate to the offense charged. State v. Lara, 580 N.W.2d 783, 784-85 (Iowa 1998).

In general, “a sentence that falls within the parameters of a statutorily prescribed penalty does not constitute cruel and unusual punishment.” State v. Cronkhite, 613 N.W.2d 664, 669 (Iowa 2000) (citing State v. Kyle, 271 N.W.2d 689, 693 (Iowa 1978)).

To determine whether a sentence is grossly disproportionate to the offense, the Iowa Supreme Court has adopted the Solem three-step analysis. The first step is a threshold test, requiring the court to determine whether the sentence leads to an inference of gross disproportionality. If the sentence leads to such an inference, the court must then compare the sentence to the sentences for other crimes within the jurisdiction. The court must then compare the sentence to the sentences in other jurisdictions for the same or similar crimes. If these intra and interjurisdictional analysis support the initial inference of gross disproportionality, the sentence is grossly disproportionate and thus cruel and unusual. State v. Lyle, 2012 Iowa App. LEXIS 617, 9-12 (Iowa Ct. App. Aug. 8, 2012); See State v. Oliver, 812 N.W.2d 636 (Iowa 2012).

When determining whether a sentence leads to an inference of gross disproportionality, the court should give substantial deference to the legislature and should recognize that a recidivist offender is more deserving of a harsher sentence. Additionally, the court should recognize that a sentence is only rarely grossly disproportionate for purposes of the three-factor proportionality analysis. However, unique circumstances can “converge to generate a high risk of gross disproportionality.” State v. Lyle, 2012 Iowa App. LEXIS 617, 9-12 (Iowa Ct. App. Aug. 8, 2012) (quoting Bruegger 773 N.W.2d 862 (Iowa 2009)); See State v. Oliver, 812 N.W.2d 636 (Iowa 2012).

The Iowa Supreme Court has held that a “sentence will more likely be found disproportionate to the crime where a defendant is ‘inadvertently caught by a broadly written statute.’” State v. Pearson, 2012 Iowa App. LEXIS 620, 9-10 (Iowa Ct. App. Aug. 8, 2012) (quoting Oliver, 812 N.W.2d 636, 651 (Iowa 2012)).

In some instances, offenders who are convicted of acts of lesser culpability that fall within the scope of broad criminal statutes may make an as-applied cruel and unusual punishment challenge to the sentence. State v. Bruegger, 773 N.W.2d 862, 884 (Iowa 2009). Such a challenge is appropriate when the criminal statute makes no distinction between serial pedophiles, statutory rapists, and those convicted of incest. Id. (citing State v. Davis, 79 P.3d 64, 72-73 (Ariz. 2003)). An offender may otherwise show that he is exceptional, that the sentence was not meaningfully tailored to the offense, or that he otherwise has diminished culpability. Id; See State v. Pearson, 2012 Iowa App. LEXIS 620, 7-8 (Iowa Ct. App. Aug. 8, 2012); State v. Medved, 805 N.W.2d 397 (Iowa Ct. App. 2011).

As-applied review is particularly appropriate when ususual circumstances exists, such as the “convergence of a broadly-defined criminal statute, the use of a juvenile adjudication [to enhance a] sentence, and the dramatic increase in his punishment as a result the enhancement.” State v. Bruegger, 773 N.W.2d 862, 885 (Iowa 2009).

In general, courts do not take an offender’s age into consideration when determining the severity of a term-of-years sentence. See State v. Brustkern, 2005 Iowa App. LEXIS 188, 7 (Iowa Ct. App. Mar. 16, 2005) (citing State v. Laffey, 600 N.W.2d 57, 61-62 (Iowa 1999)).

However, when juveniles make cruel and unusual punishment challenges, the sentencing courts should make individualized sentencing determinations before imposing life without parole. State v. Pearson, 2012 Iowa App. LEXIS 620 (Iowa Ct. App. Aug. 8, 2012).

Before the Supreme Court decided Miller, the Iowa Supreme Court decided that age should be a factor for cruel and unusual punishment under the Iowa Constitution in Bruegger. State v. Pearson, 2012 Iowa App. LEXIS 620 (Iowa Ct. App. Aug. 8, 2012).

Mandatory sentences do not automatically violate the cruel and unusual punishment clause of the Iowa Constitution. See State v. Bruegger, 773 N.W.2d 862, 882-83 (Iowa 2009) (citing State v. Phillips, 610 N.W.2d 840, 843-44 (Iowa 2000) (holding ten-year mandatory sentence for second-degree robbery does not rise to cruel and unusual punishment); August, 589 N.W.2d at 744 (finding forty-two-and-one-half-year mandatory, consecutive sentence for kidnapping in the second-degree and first-degree robbery not cruel and unusual); State v. Lara, 580 N.W.2d 783, 786 (Iowa 1998) (finding mandatory minimum sentence of over twenty-one years for first-degree robbery permissible)).

Consecutive sentencing for separate crimes does not constitute cruel and unusual punishment in Iowa. State v. Pearson, 2012 Iowa App. LEXIS 620, 12 (Iowa Ct. App. Aug. 8, 2012) (citing State v. August, 589 N.W.2d 740, 744 (Iowa 1999)).

The following cases mention both the Eighth Amendment and  Article I, Section 17 of the Iowa Constitution, but do not provide any significant, separate analysis:

  • State v. Seering, 701 N.W.2d 655, 670 (Iowa 2005) –
  • State v. Phillips, 610 N.W.2d 840, 843-844 (Iowa 2000) –
  • State v. Bennett, 2012 Iowa App. LEXIS 542, 10-11 (Iowa Ct. App. July 11, 2012) –
  • State v. Kehoe, 804 N.W.2d 302 (Iowa Ct. App. 2011) –
  • State v. Lang, 808 N.W.2d 756 (Iowa Ct. App. 2011) –
  • Keene v. State, 2011 Iowa App. LEXIS 408 (Iowa Ct. App. June 15, 2011) –
  • State v. Smith, 2006 Iowa App. LEXIS 949, 3-4 (Iowa Ct. App. Aug. 9, 2006) –
  • State v. Carroll, 2005 Iowa App. LEXIS 198 (Iowa Ct. App. Mar. 16, 2005) –
  • State v. Mauer, 2001 Iowa App. LEXIS 291 (Iowa Ct. App. May 9, 2001) –

Leading Court Discussions of Graham and Miller   

Bonilla v. State, 791 N.W.2d 697 (Iowa, December 17, 2010) (juvenile offender convicted of kidnapping and sentenced to LWOP is squarely within Graham; the parole eligibility provision is severable so the offender will continue serving life with potential of parole.) 

State v. Oliver, 812 N.W.2d 636 (Iowa March 30, 2012) (Discussed the methodology of analyzing a challenge under Eighth Amendment; a Challenge under Eighth Amendment is analyzed in “category approach”) 

State v. Null, 836 N.W.2d 41(Iowa, August 16, 2013) (the court has an overview of how juveniles are treated in U.S. legal system, cruel and unusual punishment under Eighth Amendment and how cruel and unusual punishment concepts are applied to juveniles under Eighth Amendment, and held that the application of Miller is not “crime-specific” and that Miller can apply to lengthy term-of-year sentences such as 52.5-year imprisonment, including lengthy sentence as a result of aggregate sentences) 

State v. Pearson, 836 N.W.2d 88 (Iowa, August 16, 2013) (Eighth Amendment requires individualized sentence for imposition of 35 years imprisonment without possibility of parole) 

State v. Ragland, 836 N.W.2d 107 (Iowa August 16, 2013) (Miller applies retroactively to cases on direct and collateral review; LWOP for 60 years is unconstitutional) 

State v. Hoeck, 843 N.W.2d 67 (Iowa 2014) (life in prison with immediate possibility of parole does not violate federal constitution) 

State v. Lyle, 11-1339, 2014 WL 3537026 (Iowa July 18, 2014) (applying mandatory minimums to juveniles is not unconstitutional under Miller) 

Project Overview | State Comparison  

Kansas

Updated: 10/16/2014 - Print the Kansas entry.

  • Kansas eliminated discretionary parole for most offenses in 1993, but this does not apply retroactively .
  • murder and intentional second degree murder.) 
  • Kansas has mandatory LWOP, but does not permit JLWOP: Kan. Stat. Ann. § 21-4622 (2007) prohibits LWOP as a sentence for capital murder or first-degree murder where defendant is younger than 18 years. 
  • Juveniles 10 years-old or older may be transferred to adult court.
State Constitution

Kan. Const. B. of R. § 9

§ 9. Bail; fines; cruel and unusual punishment. All persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.

NOTE: Section 9 of the Kansas Constitution is generally interpreted the same as the Eighth Amendment.

Sentencing Statutes
  • Sentencing Guidelines System – Kansas has a discretionary guidelines system, available at http://www.kansas.gov/ksc/2011desk/2011_DRM_Text.pdf.  A sentencing judge may only depart from the guidelines if she provides, on the record, substantial and compelling reasons for the departure.  The state or the defendant may appeal any departure.
  • Habitual Offender Statute – Kansas no longer has a general habitual offender statute. However, Kansas has a habitual sex offender statute, K.S.A. § 21-6626 (2011): Aggravated habitual sex offender; sentence to imprisonment for life without parole. 
Case Law

General  

A statute is presumed constitutional, and should be construed as constitutionally valid if reasonably possible. State v. Cameron, 281 P.3d 143, 147 (Kan. 2012); State v. Ross, 2012 Kan. LEXIS 459, 4-5 (Kan. Aug. 31, 2012); State v. Laturner, 289 Kan. 727, 735 (Kan. 2009); State v. Baber, 44 Kan. App. 2d 748, 749 (Kan. Ct. App. 2010).

While constitutional issues cannot generally be raised for the first time on appeal, three exceptions exist: "(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason." Ortega-Cadelan, 287 Kan. 157, 159 (Kan. 2008); State v. Gomez, 290 Kan. 858, 862 (Kan. 2010); State v. Thomas, 288 Kan. 157, 160 (Kan. 2009).

While the primary duty for adequate fact-finding lies with the district judge, an offender “who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge's duty under Rule 165, if necessary.” State v. Seward, 289 Kan. 715, 721 (Kan. 2009); State v. Berriozabal, 291 Kan. 568, 591-592 (Kan. 2010).

State Constitution & Proportionality 

Despite slight textual differences, Section 9 of the Kansas Constitution and the Eighth Amendment of the United States Constitution are substantively equivalent. State v. Proctor, 280 P.3d 839, 843-844 (Kan. Ct. App. 2012). Nevertheless, the Kansas Supreme Court reserves the power to reexamine state constitutional protections. Id.; State v. Scott, 286 Kan. 54, 93-94 (Kan. 2008); Van Dyke v. State, 31 Kan. App. 2d 668, 677 (Kan. Ct. App. 2003).

"Under § 9 of the Kansas Constitution Bill of Rights, a punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” State v. Gomez, 290 Kan. 858, Syl. ¶ 9 (Kan. 2010); see State v. Berriozabal, 291 Kan. 568, 590-591 (Kan. 2010).

When determining whether a sentence is cruel and unusual under the Kansas Constitution, the district court must make legal and factual determinations. On appeal, the appellate court applies a bifurcated standard of review, first reviewing (but not reweighing) all of the evidence to determine if it supports the district court’s factual findings, and then reviewing the district court’s legal findings de novo.  State v. Ross, 2012 Kan. LEXIS 459, 4-5 (Kan. Aug. 31, 2012); State v. Cameron, 281 P.3d 143 (Kan. 2012).

The Kansas Supreme Court has adopted a three-factor test to determine if a sentence is cruel and unusual under the Kansas Constitution: "(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;"(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and"(3) A comparison of the penalty with punishments in other jurisdictions for the same offense." State v. Ross, 2012 Kan. LEXIS 459, 4-5 (Kan. Aug. 31, 2012) (quoting State v. Freeman, 223 Kan. 362, 367 (Kan. 1978)).

None of the three factors in the three-factor Freeman test is controlling: consideration should be given to each factor, although “one consideration may weigh so heavily that it directs the final conclusion.” State v. Mossman, 281 P.3d 153, 159-160 (Kan. 2012) (quoting Ortega-Cadelan, 287 Kan. 157, 161 (Kan. 2008)); see State v. Woodard, 280 P.3d 203 (Kan. 2012).

This Freeman test does not apply where the method of punishment is challenged as cruel and unusual, rather than the length of a sentence. State v. Mossman, 281 P.3d 153, 159-160 (Kan. 2012); State v. Baber, 44 Kan. App. 2d 748, 750 (Kan. Ct. App. 2010).

While postrelease supervision does limit an offender’s liberty and privacy, it is a less severe penalty than prison time, and should be recognized as such in a proportionality review. SeeState v. Mossman, 281 P.3d 153, 162 (Kan. 2012). Furthermore, lifetime postrelease supervision is not per se unconstitutional. See State v. Cameron, 281 P.3d 143 (Kan. 2012).

Despite a retreat by the United States Supreme Court, Kansas courts have consistently allowed proportionality challenges to term-of-years sentences under Section 9 of the Kansas Constitution. State v. Gomez, 290 Kan. 858, 867 (Kan. 2010). The Kansas Supreme court continues to follow the three-factor Freeman test. Id.; State v. McDaniel & Owens, 228 Kan. 172, 184-85 (Kan. 1980).

The following cases mention both the Eighth Amendment and Section 9 of the Kansas Constitution, but provided no significant separate analysis of Section 9:

  • In the Interest of A.R.M., 2007 Kan. App. Unpub. LEXIS 797 (Kan. Ct. App. Mar. 30, 2007) –  
  • McComb v. State, 32 Kan. App. 2d 1037 (Kan. Ct. App. 2004) –

Leading Court Discussions of Graham and Miller 

State v. Gomez, 290 Kan. 858, 235 P.3d 1203 (July, 2010 (Defendant’s failure to preserve for review on direct appeal claim that sentence was cruel and unusual under Eighth Amendment preclude Supreme Court’s review on this issue because it is not purely a question of law: not retroactive application on direct appeal?) 

State v. Mossman, 294 Kan. 901, 281 P.3d 153 (July 27, 2012) (Two types of challenge under Eighth Amendment; Kansas remain open on this issue whether Graham analysis may be extended to cases other than death penalty and juveniles sentenced to LWOP, and whether Graham analysis should apply depends on the nature of the offense or class of offender; life time postrelease supervision is not disproportionate under Eighth Amendment.) 

State v. Cameron, 294 Kan. 884, 281 P.3d 143 (July 27, 2012) (defendant can raise a categorical proportionality challenge under Eighth Amendment for his lifetime postrelease supervision but such supervision for defendant convicted of sex exploitation of child is not excessive.) 

State v. Cervantes-Puentes, 297 Kan. 560, 303 P.3d 258 (June 14, 2013) (categorical challenge under Eighth Amendment can be raised on appeal because it is just a question of law; defendant must demonstrate the existence of a valid categorical argument under Graham, which cannot be a virtually a case specific challenge.) 

State v. Seward, 296 Kan. 979, 297 P.3d 272 (March 22, 2013) (hard 25 years LWOP is not disproportionate to offense of rape and aggregate criminal sodomy) 

State v. Florentin, 297 Kan. 594, 303 P.3d 263 (June 14, 2013) (categorical challenge under Eighth Amendment can be raised on appeal because it is just a question of law.) 

State v. Ruggles, 297 Kan. 675, 304 P.3d 338 (June 21, 2013) (A categorical analysis under Eighth Amendment is a question of law so can be raised for the first time on appeal; Eighth Amendment does not categorically prohibit a hard 25 life sentence from being imposed on an adult who committed sex abuse to his stepdaughters) 

State v. Williams, 298 Kan. 1075, 1086-87, 319 P.3d 528 (March 7, 2014) (defendant can raise a categorical proportionality challenge under Eighth Amendment for his lifetime postrelease supervision but such supervision for defendant convicted of sex exploitation of child is not excessive. “First time offender” is a proper category).   

State v. Brown, 2014 WL 3973505 (Kan. Aug. 15, 2014) (A hard 20 LWOP for juvenile does not violate Miller and Graham) 

Project Overview | State Comparison  

Kentucky

Updated: 10/16/2014 - Print the Kentucky entry.

  • Kentucky allows for discretionary parole, but requires minimum sentences for certain violent offenders.
  • Kentucky allows for discretionary LWOP, but JLWOP is no longer permitted. A youthful offender may be sentenced, however, to life without parole for 25 years. KRS § 640.040.
  • Juveniles may be transferred to adult court at age 14.
State Constitution

Ky. Const. § 17 (2012)

§ 17. Excessive bail or fine, or cruel punishment, prohibited. -- Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishment inflicted.

NOTE: Section 17 of the Kentucky Constitution is interpreted as the equivalent of the Eighth Amendment. While Section 17 has been interpreted to be broader than the Eighth Amendment with regards to JLWOP, the gap between the constitutions seems to have narrowed or even disappeared after Graham and Miller 

Sentencing Statutes
  1. Sentencing Guidelines System – Kentucky does not have sentencing guidelines
    • Sentencing in Kentucky requires a two step procedure. First, after considering the statutory range and the facts and circumstances relating to the crime, the jury sets a punishment tailored to the crime. Second, the Judge requests and reviews a Pre-Sentence Investigation Report, and decides whether the jury recommended sentence is too severe. Hampton v. Commonwealth, 666 S.W.2d 737, 741 (Ky. 1984).
     
  2. Habitual Offender Statute – KRS § 532.080 (2012) -- 532.080. Persistent felony offender sentencing.
Case Law

General 

Kentucky courts will generally not disturb a sentence that falls within the limits prescribed by statute, even if the penalty prescribed is quite harsh. SeeHampton v. Commonwealth, 666 S.W.2d 737, 741 (Ky. 1984); Turpin v. Commonwealth, 350 S.W.3d 444, 448 (Ky. 2011); Weber v. Commonwealth, 303 Ky. 56, 64 (Ky. 1946).

While setting criminal penalties is primarily a legislative function, the Supreme Court of Kentucky still retains the power “to determine whether or not an act of the legislature violates the provisions of the Constitution.” Workman v. Commonwealth, 429 S.W.2d 374, 377 (Ky. 1968).

State Constitution & Proportionality 

Section 17 of the Kentucky Constitution provides protections “parallel to those accorded by the Eighth Amendment.” Turpin v. Commonwealth, 350 S.W.3d 444, 448 (Ky. 2011).

The variation between Section 17’s “cruel punishment” and the Eighth Amendment’s “cruel and unusual punishments” is “a distinction without difference.” Riley v. Commonwealth, 120 S.W.3d 622, 633 (Ky. 2003); Edmondson v. Commonwealth, 2002 Ky. LEXIS 271, 17-18 (Ky. Dec. 19, 2002). Section 17 of the Kentucky Constitution “affords no greater protections in this area than its Federal counterpart.” Sanford v. Commonwealth, 2011 Ky. Unpub. LEXIS 109, 12-13 fn.6 (Ky. Dec. 22, 2011).

  • Nevertheless, Section 17 appears to provide broader protections for juveniles: In Workman v. Commonwealth, 429 S.W.2d 374 (Ky. 1968), the Supreme Court of Kentucky found that the JLWOP sentence of two 14-year old boys convicted of rape and other offenses shocked the conscience of society and therefore violated Section 17 of the Kentucky Constitution. The court held that “life imprisonment without benefit of parole for two fourteen-year-old youths under all the circumstances shocks the general conscience of society today and is intolerable to fundamental fairness.” Id. at 378. It further noted that “it is impossible to make a judgment that a fourteen-year-old youth, no matter how bad, will remain incorrigible for the rest of his life.” Id.

Under the Kentucky Constitution, “cruel punishment” can relate to severity of punishment either in duration or amount. Riley v. Commonwealth, 120 S.W.3d 622, 633 (Ky. 2003). However, if the sentence falls within the range specified by statute, the courts will generally not disturb that sentence. Id.

Although unusual, a sentence may be “so disproportionate to the offense committed as to shock the moral sense of the community,” thereby falling within the prohibition of Section 17. Workman v. Commonwealth, 429 S.W.2d 374, 377 (Ky. 1968).

To determine whether a sentence is disproportionate, Kentucky courts follow the federal three-prong test: (1) The court compares the “gravity of the offense and the severity of the sentence” and determines whether this comparison “leads to an inference of gross disproportionality;” (2) If the court finds an inference of gross disproportionality, the court then compares the offender’s sentence with the sentences imposed on other offenders in the same jurisdiction; (3) the court compares the offender’s sentence with those imposed on other offenders for the same crime in other jurisdictions. Turpin v. Commonwealth, 350 S.W.3d 444, 447-448 (Ky. 2011) (quoting Harmelin v. Mich., 501 U.S. 957 (1991)).

A sentence to a term-of-years is not per se unconstitutional under Section 17 of the Kentucky Constitution. Cole v. Commonwealth, 2005 Ky. App. Unpub. LEXIS 1004 (Ky. Ct. App. Oct. 14, 2005).

Whether to run the sentences concurrently or consecutively is generally within a trial court’s discretion. KRS 532.110(1) (2012); Hampton v. Commonwealth, 666 S.W.2d 737, 741 (Ky. 1984).

The following cases mention both the Eighth Amendment and Section Seventeen of the Kentucky Constitution, but fail to provide any significant separate analysis of Section Seventeen:

  • Guy v. Commonwealth, 2004 Ky. Unpub. LEXIS 173 (Ky. Jan. 22, 2004) –
  • Harrison v. Commonwealth, 858 S.W.2d 172, 177 (Ky. 1993) –
  • Brown v. Commonwealth, 818 S.W.2d 600 (Ky. 1991) –
  • Commonwealth v. Hayes, 2011 Ky. App. Unpub. LEXIS 403 (Ky. Ct. App. May 13, 2011) –
  • Hess v. Commonwealth, 2010 Ky. App. Unpub. LEXIS 477 (Ky. Ct. App. June 11, 2010) –
  • Caudill v. Commonwealth, 2010 Ky. App. Unpub. LEXIS 311 (Ky. Ct. App. Apr. 9, 2010) –
  • Covington v. Commonwealth, 2009 Ky. App. Unpub. LEXIS 248 (Ky. Ct. App. Mar. 20, 2009) –
  • Praete v. Commonwealth, 722 S.W.2d 602 (Ky. Ct. App. 1987) –
  • Collett v. Commonwealth, 686 S.W.2d 822, 824 (Ky. Ct. App. 1984)

Leading Court Discussions of Graham and Miller 

Campbell v. Com., 2009-SC-000489-MR, 2011 WL 1642028 (Ky. Apr. 21, 2011)(Graham is limited to addressing the issue of LWOP for a non-capital crime and LWOP for 25 years gives defendant meaningful opportunity of release; Graham does not require LWOP 25 be scrutinized under the same standard.) 

Sanford v. Com., 2011-SC-000143-MR, 2011 WL 6826405 (Ky. Dec. 22, 2011) (Age consideration is not relevant to cruel and unusual punishment analysis when defendant is 21 when committing the crime.) 

Project Overview | State Comparison  

Louisiana

Updated: 10/16/2014 - Print the Louisiana entry.

  • Louisiana allows discretionary parole for most crimes.
  • Louisiana allows for mandatory LWOP and JLWOP. See La. R.S. 14:30 (2012). 
  • Juveniles can be transferred to adult court at age 14.
State Constitution

La. Const. Art. I, § 20 (2012)

§ 20. Right to humane treatment -- No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment. Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.

NOTE:  Article I, Section 20 is broader than the Eighth Amendment.

Sentencing Statutes
  • Sentencing Guidelines System –  Louisiana Sentencing Guidelines -- While sentencing reports are required, a sentencing judge may impose any proportionate sentence on the offender within the appropriate statutory range.  The judge must state his reasons for departure on the record. Departures are not appealable.
  • La. C.Cr.P. Art. 894.1 (2012) -- Art. 894.1. Sentencing guidelines; generally 
  • Habitual Offender Statute – La. R.S. 15:529.1 (2012) -- § 15:529.1. Sentences for second and subsequent offenses; certificate of warden or clerk of court in the state of Louisiana as evidence 
  • Proportionality Review for Death Sentences – La. C.Cr.P. Art. 905.9 (2012)

    Art. 905.9. Review on appeal 

    The Supreme Court of Louisiana shall review every sentence of death to determine if it is excessive. The court by rules shall establish such procedures as are necessary to satisfy constitutional criteria for review.

    “C.Cr.P. art. 905.9 requires a review of every death sentence in Louisiana. The criteria for this review are found in La. Sup. Ct. Rule 28, § 1: Every sentence of death shall be reviewed by this court to determine if it is excessive. In determining whether the sentence is excessive the court shall determine:

    (a) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and
    (b) whether the evidence supports the jury's finding of a statutory aggravating circumstance, and
    (c) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.“

    State v. Reeves, 11 So. 3d 1031, 1083 (La. 2009).
Case Law

General 

In general, statutes are presumed to be constitutional. Therefore, the party challenging the statute bears the burden of proving the statute unconstitutional. State v. Fleming, 2012 La. App. LEXIS 781, 3-4 (La.App. 4 Cir. May 30, 2012) (citing State v. Hatton, 985 So.2d 709, 719 (La. 2008); State v. Fleury, 799 So.2d 468 (La. 2001)).

State Constitution 

Unlike the Eighth Amendment, Article I, Section 20 explicitly prohibits excessive sentences. This explicit prohibition allows Louisiana courts to determine whether the range of available sentences is excessive and whether the sentence is excessive as applied to a particular offender. State v. Baxley, 656 So. 2d 973, 976-977 (La. May 22, 1995); State v. Perry, 610 So. 2d 746, 762 (La. 1992). SeeState v. Jones, 639 So. 2d 1144, 1154 (La. July 5, 1994).

The excessive punishment provision of the Louisiana Constitution “adds a protection which surpasses those provided by the federal constitution.” State v. Jones, 639 So. 2d 1144, 1154 (La. July 5, 1994). Article I, Section 20 goes “beyond the scope of the Eighth Amendment in some respects” and provides at least the same level of protection in all others. State v. Perry, 610 So. 2d 746 (La. 1992) (citing State v. Sepulvado, 367 So.2d 762 (La. 1979)).

To determine excessiveness under both the Eighth Amendment and Article I, Section 20, “the harshness of the penalty must be compared with the severity of the offense.”State v. Goode, 380 So. 2d 1361, 1364 (La. 1980).

The “cruel and unusual” provisions of Article I, Section 20 prohibits the arbitrary infliction of harsh punishments. Conversely, the “excessive” provision of Section 20 prohibits punishment that does measurably contribute to Louisiana’s goals of punishment or any punishment that is grossly disproportionate to the severity of the offense. State v. Jones, 639 So. 2d 1144, 1154 (La. July 5, 1994) (citing State v. Perry, 610 So. 2d 746, 764 (La. 1992); State v. Lobato, 603 So. 2d 739, 751 (La. 1992); State v. Bonanno, 384 So. 2d 355 (La. 1980)).

Proportionality 

When reviewing an excessive sentence claim, the proper question is whether the trial court abused its discretion, not whether a different sentence is more appropriate. The court should not set aside a sentence that the record supports. State v. Boudreaux, 2012 La. App. LEXIS 987, 7-9 (La.App. 4 Cir. July 25, 2012).

To review a sentence for excessiveness, Louisiana courts pass a two-prong test: (1) The record must reflect that the court established a factual basis for the sentence in compliance with Louisiana’s Sentencing Guidelines under La. C. Cr. P. Art. 894.1; and (2) the sentence must not be grossly disproportionate to the offense and must not purposelessly and needlessly inflict suffering on the offender. State v. Barton, 80 So. 3d 713 (La.App. 2 Cir. 2011) (citing State v. Dorthey, 623 So. 2d 1276 (La. 1993)); SeeState v. Boudreaux, 2012 La. App. LEXIS 987, 7-9 (La.App. 4 Cir. July 25, 2012).

The goal of Art. 894.1 is to ensure that an adequate factual basis for the sentence exists, and does not require strict mechanical compliance with its provisions. If such a factual basis exists, resentencing is not necessary, even if the court has not fully complied with the provisions of Art. 894.1. State v. Coleman, 828 So. 2d 1130, 1141 (La.App. 4 Cir. Oct. 2, 2002) (citing State v. Lanclos, 419 So. 2d 475, 478 (La.1982)); State v. Boudreaux, 2012 La. App. LEXIS 987, 7-9 (La.App. 4 Cir. July 25, 2012); State v. Davis, 448 So.2d 645, 653 (La. 1984).

Once the court has determined that the trial court complied Art. 894.1, the court must then determine if the sentence is excessive. State v. Boudreaux, 2012 La. App. LEXIS 987, 7-9 (La.App. 4 Cir. July 25, 2012).  A sentence is excessive if it is grossly disproportionate, “if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals.” State v. Barton, 80 So. 3d 713 (La.App. 2 Cir. 2011) (citing State v. Guzman, 769 So. 2d 1158 (La. 2000));   State v. Skinner, 84 So. 3d 764, 767-768 (La.App. 3 Cir. 2012); State v. Davis, 666 So. 2d 400, 407 (La.App. 1 Cir. Dec. 15, 1995); State v. Campbell, 404 So.2d 1205 (La. 1981).

The Supreme Court of Louisiana has identified four factors useful for determining whether a sentence is grossly disproportionate: (1) the nature of the offense and the offender; (2) the comparison of the offender’s punishment to the punishments imposed for similar crimes; (3) the legislative purpose of the offender’s punishment; and (4) the comparison of the offender’s punishment to those punishments imposed for the same offense in other jurisdictions. State v. Fleming, 2012 La. App. LEXIS 781, 10-11 (La.App. 4 Cir. May 30, 2012) (internal citations removed); SeeState v. Jarreau, 921 So. 2d 155, 160 (La.App. 4 Cir. Dec. 14, 2005); State v. Bonanno, 384 So. 2d 355 (La. 1980).

Although a sentence may fall within the statutory limit, it may still violate a defendant's constitutional right against excessive punishment that is enforceable on review. State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979); State v. Boudreaux, 2012 La. App. LEXIS 987, 7-9 (La.App. 4 Cir. July 25, 2012); State v. Every, 35 So.3d 410, 417 (La. App. 4 Cir. March 24, 2010); State v. Davis, 666 So. 2d 400, 407 (La.App. 1 Cir. Dec. 15, 1995).

Statutory minimums, such as those provided by the habitual offender statute, can also be excessive.  State v. Kingston, 668 So. 2d 395, 397 (La.App. 4 Cir. Jan. 19, 1996); State v. Dorthey, 623 So. 2d 1276 (La. 1993).

Leading Court Discussions of Graham and Miller  

  • State v. Shaffer, 77 So. 3d 939 (La. 2011) – Case is a consolidation of three appeals to review life imprisonment sentences for aggravated rape convictions committed while under age. Inmates sought to have their convictions set aside and to be resentenced in light of Graham. The Supreme Court of Louisiana held that Graham does not require the state to release and resentence inmates, but requires the state to delete restrictions on parole eligibility.

In the following cases, inmates sought to have conviction set aside and/or resentenced in light of Graham:

  • State v. Macon, 86 So. 3d 662 (La.App. 2 Cir. 2012) – Convicted of aggravated rape as a juvenile. Cited Shaffer, listed above, with same result.
  • State v. Mason, 89 So. 3d 405 (La.App. 4 Cir. 2012) – Same, but inmate was eligible for parole consideration immediately. The court directed the Dept. of Corrections to reflect an immediate eligibility date for consideration by the Board of Parole.
  • State v. Richards, 78 So. 3d 864 (La.App. 4 Cir. 2011) – Cites & relies on Shaffer.
  • State v. Skipper, 79 So. 3d 1011 (La. 2012) – 
  • State v. Handley, 79 So. 3d 1010 (La. 2012) – 
  • State v. Straub, 2012 La. App. LEXIS 1187 (La.App. 1 Cir. Sept. 21, 2012) – 
  • State v. Smith, 2012 La. App. Unpub. LEXIS 579 (La.App. 1 Cir. Sept. 21, 2012) – 
  • State v. V. L. G., 2011 La. App. Unpub. LEXIS 721 (La.App. 3 Cir. 2011) –

While the following cases mention Graham, they provide no significant analysis of Graham:

State v. Dyer, 77 So. 3d 928 (November 23, 2011) (Amend the sentence to a juvenile convicted of rape by deleting restriction on parole eligibility under Graham) (dissent:  ad hoc exercise of the executive's power of commutation does not afford juveniles sufficient protection, and such inmates have nowhere else to go for relief other than the judiciary; these cases should be remanded with order to resentence to a fixed term of years.) 

State v. Leason, 77 So. 3d 933 (November 23, 2011) (same as Dyer) 

State v. Shaffer, 77 So. 3d 939 (November 23, 2011) (same as Dyer) 

 

***After Dyer, Leason and Shaffer, the court consistently strike down all applications of rehearing under Graham in following cases and Justice Johnson dissent in every case for same reason in Dyer.  

State v. Hanley, 79 So. 3d 1009 (February 1, 2012) 

State v. Skipper, 79 So. 3d 1011 (February 2, 2012) 

State v. Hanley, 85 So. 3d 681 (April 9, 2012)  

*** In following cases, court remand cases pending in collateral review for Graham to district cases for consideration for both Graham and Miller 

State v. Simmons, 99 So.3d 28 (Oct. 12, 2012) 

State v. Graham, 99 So.3d 28 (Oct. 12 2012)  

State ex rel. Landry v. State, 106 So.3d 106 (Jan 18, 2013) 

*** The following judgments were issued on the same day and all remanded cases pending in direct review under Miller. 

State v. Williams, 108 So. 3d 1169 (March 8, 2013)  

State v. R. Williams, 2013 WL 857334 (March 8, 2013) 

State v. Williams, 109 So.3d 351 (March 8, 2013)  

State v. Jones, 134 So.3d 1164 (Feb 28, 2014)  

State v. Brown, 118 So.3d 332 (May 7, 2013) (Defendant was sentenced to imprisonment of 40 years without possibility of parole for 40 years. The court hold that Graham does not address the issue of multiple convictions and does not apply to sentence of years without the opportunity of parole, even when the imprisonment matches or exceeds offender’s life expectancy. ) 

State v. Tate, 130 So. 3d 829 (November 5, 2013) (Miller does not apply retroactively in state cases on collateral review because it is a new rule of criminal constitutional procedure that is neither substantive nor a watershed rule that alters understanding of the bedrock procedural elements essential to the fairness of a proceeding.)  

*** Following Tate, Louisiana Supreme Court consistently strike down all application of collateral review under Miller.  Chief Justice wrote the same dissenting opinion for each case. 

State v. Williams, 2014 WL 2818650(March 8, 2013) 

State v. Williams, 2014 WL 281887(March 8, 2013) 

State v. Shaw, 140 So.3d 1163 (June 20, 2014) 

State v. Funches, 140 So. 3d 1165 (June 20, 2014)  

State v. Collins, 141 So. 3d 264 (June 20, 2014) 

State v. Montgomery, 141 So.3d 264 (June 20, 2014) 

State v. Gillam, 141 So.3d 265 (June 20, 2014) 

State v. Toca, 141 So.3d 265 (June 20, 2014) 

State v. Olivier, 141 So.3d 266 (June 20, 2014) 

State v. Landry, 2014 WL 2818874(June 20, 2014) 

State v. Huntley, 2014 WL 2818876(June 20, 2014) 

State v. Williams, 2014 WL 2818886(June 20, 2014) 

State ex rel. Johnson v. State, 2014 WL 3858544 (Louisiana, July 31 2014) 

State ex rel. Davis v. State, 2014 WL 3858545 (Louisiana, July 31 2014) 

State ex rel. Humble v. State, 2014 WL 3858546(Louisiana, July 31 2014) 

State ex rel. Czere v. State, 2014 WL 3858547(Louisiana, July 31 2014) 

State ex rel. Sneed v. State, 2014 WL 3858548(Louisiana, July 31 2014) 

State ex rel. Thomas v. State, 2014 WL 3858549(Louisiana, July 31 2014) 

State ex re. Hauser v. State, 2014 WL 3858550(Louisiana, July 31 2014) 

State ex rel. Thomas v. State, 2014 WL 3858551(Louisiana, July 31 2014) 

State ex rel. Hall v. State, 2014 WL 3858553 (Louisiana, July 31 2014) 

State ex rel. Sullivan v. State, 2014 WL 3858554(Louisiana, July 31 2014) 

State ex rel. Tolliver v. State, 2014 WL 3859583 (Louisiana, July 31 2014) 

State ex rel. Fasola v. State, 2014 WL 3859585(Louisiana, July 31 2014) 

Project Overview | State Comparison  

Maine

Updated: 5/14/2013 - Print the Maine entry.

  • Maine has abolished the death penalty, and no longer allows discretionary parole.
  • Maine allows for discretionary LWOP and JLWOP. See 17-A M.R.S. § 1251.
  • Maine has no minimum age for transfer of a juvenile to adult court.
State Constitution

Me. Const. Art. I, § 9 (2011)

§ 9.  Sanguinary laws, excessive bail, cruel or unusual punishments prohibited

Section 9. Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.

Note: While often discussed in conjunction with the Eighth Amendment,  Article I, Section 9 contains a separate proportionality clause. Maine Courts have not foreclosed the possibility that Article I, Section 9 may be broader than the Eighth Amendment.

Sentencing Statutes
  • Sentencing Guidelines System – Maine does not have a guidelines system.
  • Habitual Offender Statute – Maine does not have a specific statute which addresses recidivist sentencing.
Case Law

General 

The illegality of a sentence may be raised on direct appeal as a matter of right. State v. Ward, 2011 ME 74, P14 (Me. 2011).

All acts of the Legislature are presumed constitutional. State v. Gilman, 2010 ME 35, P13 (Me. 2010). The challenging party bears the burden of proving unconstitutionality by “strong and convincing reasons.” Id.

Upon plea of guilty, a defendant does not have a right to review of the conviction by direct appeal unless he challenges “the sufficiency of the indictment, the jurisdiction of the court to try him, or the excessive or cruel and unusual nature of the punishment.” State v. Vane, 322 A.2d 58 (Me. 1974)

State Constitution & Proportionality 

Maine looks primarily to the language of the Maine Constitution to interpret its meaning. State v. Gilman, 2010 ME 35, P16-P17 (Me. 2010). If the language is unambiguous, the plain meaning of the provision should stand. Looking to the plain language of Article I, Section 9, the provision requires that “punishments shall be proportioned to the offense,” and does not require reference to the individual characteristics of the offender. Id.; State v. Ward, 2011 ME 74, P15 (Me. 2011).

Unlike the Eighth Amendment, the Article I, Section 9 of the Maine Constitution contains a proportionality clause separate from the prohibition against cruel and unusual punishment. Me. Const. art. I, § 9, cls. 2, 5. Nevertheless, Maine recognizes that these concepts are related. State v. Gilman, 2010 ME 35, ¶ 14 n.6; State v. Ward, 2011 ME 74, P15 (Me. 2011).

Maine has established a two-part test to determine whether a sentence violates Article I, Section 9:  First, the court should ask whether the sentence imposed is greatly disproportionate to the offense. Second, the court should ask whether the sentence offends prevailing notions of decency, shocking the conscious of the public or our collective or respective sense of fairness. If the sentence satisfies either part of the test, the sentence is unconstitutional. State v. Ward, 2011 ME 74, P15-P18 (Me. 2011); SeeState v. Frye, 390 A.2d 520, 521 (Me. 1978) (a “sentence is not cruel and unusual punishment unless the sentence is greatly disproportionate to the offense or the punishment offends prevailing notions of decency.").

Only the most extreme punishment established by the Legislature may be found unconstitutionally disproportionate. State v. Ward, 2011 ME 74, P15-P18 (Me. 2011); State v. Gilman, 2010 ME 35, P22-P23 (Me. 2010).

A mandatory sentence may not be unconstitutionally disproportionate under Article I, Section 9 of the Maine Constitution. State v. Gilman, 2010 ME 35, P14 (Me. 2010).

When a felony statute does not specify a mandatory sentence, the sentencing court must first consider the nature and the seriousness of the crime, and determine a basic sentence. Then, the court must consider any aggravating or mitigating factors to determine a maximum sentence for the offender. Finally, the court must determine if any of the maximum sentence should be suspended before arriving at a final sentence. State v. Gilman, 2010 ME 35, P20 (Me. 2010).

Consecutive sentencing does not increase the penalties for the individual crimes, and do not become a single sentence by virtue of their consecutive nature. State v. Ward, 2011 ME 74, P22 (Me. 2011) (citing State v. Keene, 2007 ME 84, ¶¶ 25-26 (Me. 2007)). Therefore, in a proportionality challenge to consecutive sentences, the offender is limited to challenging each individual sentence separately. Id.

While the following cases mention the cruel and unusual punishment provisions of both the federal and Maine Constitutions, the courts do not provide any separate, significant analysis of Article I, Section 9 of the Maine Constitution:

  • State v. Mudie, 508 A.2d 119, 121 (Me. 1986) – Court declined to address constitutional issues because they were raised for the first time on appeal.
  • State v. Alexander, 257 A.2d 778, 783 (Me. 1969) –
  • Duncan v. Ulmer, 159 Me. 266, 285 (Me. 1963) –

Citations To Graham 

  • State v. Ward, 2011 ME 74, P16-P19 (Me. 2011) – Court uses Graham to discuss narrow proportionality principle of the Eighth Amendment.

Project Overview | State Comparison  

Maryland

Updated: 5/14/2013 - Print the Maryland entry.

  • Maryland allows for parole, although certain types of violent or recidivist offenders are excluded.
  • Maryland allows discretionary LWOP and JLWOP. See Md. Code Ann., Crim. Law §§ 2-202, 2-203, 2-304
  • No minimum age for the transfer of a juvenile to adult court.
State Constitution

Md. Dec. of R. art. 16 (2012)

Article 16. Sanguinary laws to be avoided; cruel and unusual punishment

That sanguinary Laws ought to be avoided as far as it is consistent with the safety of the State; and no Law to inflict cruel and unusual pains and penalties ought to be made in any case, or at any time, hereafter.

Md. Dec. of R. art. 25 (2012)

Article 25. Excessive bail, fines and punishment

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted, by the Courts of Law.

NOTE:  Articles 16 and 25 of the Maryland Declaration of Rights do not grant broader rights than the Eighth Amendment.

Sentencing Statutes
  1. Sentencing Guidelines System – The Maryland Sentencing Guidelines

    Maryland’s guidelines system is voluntary. Judges may depart from a guidelines sentence, but must document the reason for the departure on the guidelines worksheet.  Code of Maryland Regulations 14.22.01.05(A).  A defendant may not appeal a departure. The guidelines are available at: http://www.msccsp.org/Guidelines/Default.aspx
  2. Habitual Offender Statute – Md. CRIMINAL LAW Code Ann. § 14-101:

    (c) Fourth conviction of crime of violence. --

    (1) Except as provided in subsection (g) of this section, on conviction for a fourth time of a crime of violence, a person who has served three separate terms of confinement in a correctional facility as a result of three separate convictions of any crime of violence shall be sentenced to life imprisonment without the possibility of parole.

    (2) Notwithstanding any other law, the provisions of this subsection are mandatory.
Case Law

General  

An issue is waived if a party fails “to discuss or specifically argue an issue in briefs or oral argument, or to set forth the authority for a proposition.” Oken v. State, 378 Md. 179, 186 (Md. 2003).

Maryland inflicts punishment in order to “promote the essential purposes of public justice.” Terrible crimes ought to be met with punishment that will check, if not prevent, their commission. Thomas v. State, 333 Md. 84, 93-97 (Md. 1993); seeDutton v. State, 123 Md. 373, 384-386 (Md. 1914).

State Constitution  

Article 25 of the Maryland Declaration of Rights is directed at action by the courts, while Article 16 of the Maryland Declaration of Rights is directed toward legislative action. Thomas v. State, 333 Md. 84, 92 (Md. 1993). 

Articles 16 and 25 of the Maryland Constitution are in pari material with the Eighth Amendment, and therefore should be discussed together. Brooks v. State, 104 Md. App. 203, 213 (Md. Ct. Spec. App. 1995).

"Because the prevailing view of the Supreme Court recognizes the existence of a proportionality component of the Eighth Amendment, we perceive no difference between the protection afforded by that Amendment and by the 25th Article of our Declaration of Rights." Thomas v. State, 333 Md. 84, 103 n. 5 (Md. 1993); Thomas v. State, 98 Md. App. 580, 581 (Md. Ct. Spec. App. 1993).

The following cases mention both the Maryland constitutional provisions and the Eighth Amendment, but do not provide any significant, separate analysis of those state provisions:

  • State v. Stewart, 368 Md. 26, 33 (Md. 2002) –
  • State v. Bolden, 356 Md. 160 (Md. 1999) –
  • Minor v. State, 313 Md. 573, 584 (Md. 1988) –
  • Tichnell v. State, 287 Md. 695, 729 (Md. 1980) –

Proportionality  

Proportionality is a requirement of Article 25 of the Maryland Declaration of Rights, as well as the Eighth Amendment. While punishments need not be perfectly proportioned to the offense, gross disproportionality is prohibited. Epps v. State, 333 Md. 121, 126-127 (Md. 1993).

As long as a punishment conforms “with the basic concept of human dignity” and is neither “cruelly inhumane nor disproportionate,” there is no violation of Articles 16 and 25 of the Maryland Declaration of Rights. Phipps v. State, 39 Md. App. 206, 211 (Md. Ct. Spec. App. 1978).

Because sentencing decisions require many considerations, stringent and rigid standards for proportionality reviews are inappropriate. The sentencing court is “virtually always better informed of the particular circumstances” of a sentencing decision, and appellate courts should rarely interfere with such a decision. Thomas v. State, 333 Md. 84, 93-97 (Md. 1993).

When looking for gross disproportionality, the court considers the specific facts of the offense in addition to the elements of the offense. Proportionality is measured by comparing the sentence with the behavior of the offender and the consequences of his actions. Epps v. State, 333 Md. 121, 126-127 (Md. 1993).

Simply because a lengthy prison sentence may be disproportionate for most assault convictions does not mean that would be grossly disproportionate for all assault convictions. No bright-line formula is available: proportionality cannot be litigated in the abstract, but must be assessed on a case-by-case basis. Thomas v. State, 333 Md. 84, 93-97 (Md. 1993) (citing Walker v. State, 53 Md. App. 171 (Md. Ct. Spec. App. 1982)).

In addressing a proportionality challenge, a court must first determine whether the sentence is grossly disproportionate to the offense. The court should look to the seriousness of the offender’s conduct, the seriousness of relevant past conduct (recidivism), “any articulated purpose supporting the sentence, and the importance of deferring to the legislature and to the sentencing court.” Thomas v. State, 333 Md. 84, 93-97 (Md. 1993).

If the above factors do not lead to a suggestion of gross disproportionality, the proportionality review is complete. If, however, the factors lead to a suggestion of gross disproportionality, the court should engage in a detailed “Solem-type” analysis. Thomas v. State, 333 Md. 84, 93-97 (Md. 1993). The court should remember that under the principles of federalism, the Maryland legislature may choose to enact more severe penalties than other states. Id. 

A reviewing court may also consider other relevant factors, such as the ramifications of the offense on society, any improper motive on the part of the sentencing judge, or the penological theory of Maryland. Thomas v. State, 333 Md. 84, 93-97 (Md. 1993).

Even where the law provides a sentencing range or sentencing limits, a sentence may still violate Article 25. If the statutory punishment is grossly disproportionate to the offense “so that the sentence is evidently dictated not by a sense of public duty, but by passion, prejudice, ill-will or any other unworthy motive,” the sentence is improper. Thomas v. State, 333 Md. 84, 93-97 (Md. 1993) (citing Mitchell v. State, 82 Md. 527, 533-34, 34 A. 246 (1896)); seeBrooks v. State, 38 Md. App. 550, 554-555 (Md. Ct. Spec. App. 1978); Washington v. State, 2 Md. App. 633 (Md. Ct. Spec. App. 1967).

Citations to Graham 

  • Maryland courts have not cited to Graham 

Project Overview | State Comparison  

Massachusetts

Updated: 10/16/2014 - Print the Massachusetts entry.

  • Massachusetts has abolished the death penalty. It also allows for parole in most cases, excluding some sex offenders.
  • Massachusetts allows for mandatory LWOP and JLWOP. See Mass. Gen. Laws Ann. ch. 265, § 2.
  • Juveniles may be transferred to adult court at age 14.
State Constitution

ALM Constitution Pt. 1, Art. XXVI (2012)

Art. XXVI. Excessive Bail or Fines, and Cruel Punishments Prohibited. 

No magistrate or court of law, shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments. No provision of the Constitution, however, shall be construed as prohibiting the imposition of the punishment of death. The general court may, for the purpose of protecting the general welfare of the citizens, authorize the imposition of the punishment of death by the courts of law having jurisdiction of crimes subject to the punishment of death.

NOTE:  Although the Massachusetts Supreme Judicial Court has never officially decided the issue, Article 26 is treated as the equivalent of the Eighth Amendment.

Sentencing Statutes
  • Sentencing Guidelines System – Massachusetts Sentencing Guidelines -- A sentencing judge may depart from the Massachusetts Sentencing Guidelines if the court finds that any mitigating or aggravating circumstances exist.  The judge must describe the circumstances for the departure in writing. Either party may appeal a departure.  The Massachusetts Sentencing Guidelines are available here: http://www.mass.gov/courts/formsandguidelines/sentencing/intro.html 
  • Habitual Offender Statute –  ALM GL ch. 279, § 25 (2012) -- § 25.  Punishment of Habitual Criminals.
Case Law

General  

Massachusetts courts give broad discretion to the legislature to determine what conduct is criminal and what punishments are appropriate for that criminal conduct. Commonwealth v. Alvarez, 413 Mass. 224, 233-234 (Mass. 1992); Commonwealth v. Morrow, 363 Mass. 601, 610-611 (Mass. 1973); McDonald v. Commonwealth, 173 Mass. 322, 328 (Mass. 1899).

State Constitution & Proportionality 

The Massachusetts Supreme Judicial Court has never decided whether Article 26 is equivalent to the Eighth Amendment. Michaud v. Sheriff of Essex County, 390 Mass. 523, 533-534 (Mass. 1983); SeeCommonwealth v. Diatchenko, 387 Mass. 718, 722 n.2 (1982); Cepulonis v. Commonwealth, 384 Mass. 495, 496-497 n.2 (Mass. 1981); Commonwealth v. Diatchenko, 387 Mass. 718, 722 (Mass. 1982). Nevertheless, Article 26 is at least as broad as the Eighth Amendment. Michaud v. Sheriff of Essex County, 390 Mass. 523, 533-534 (Mass. 1983).

Article 26, like its federal counterpart, draws meaning from “the evolving standards of decency that mark the progress of a maturing society." Michaud v. Sheriff of Essex County, 390 Mass. 523, 533-534 (Mass. 1983) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).

The defendant has the heavy burden of establishing that his punishment is disproportionate to his offense. Commonwealth v. Alvarez, 413 Mass. 224, 233-234 (Mass. 1992) (citing Commonwealth v. O'Neal, 369 Mass. 242, 248 (Mass. 1975) (Tauro, C.J., concurring)); Commonwealth v. Sanchez, 405 Mass. 369, 379-380 (Mass. 1989); Cepulonis v. Commonwealth, 384 Mass. 495, 497 (Mass. 1981).

When considering the proportionality of any sentence other the death penalty, the standard of review is “whether the statute bears a reasonable relation to a permissible legislative objective." Commonwealth v. Diatchenko, 387 Mass. 718, 726-727 (Mass. 1982)(internal citations omitted). 

The defendant’s punishment must be so disproportionate to the offense that it "shocks the conscience and offends fundamental notions of human dignity." Commonwealth v. Alvarez, 413 Mass. 224, 233-234 (Mass. 1992) (quoting In re Lynch, 8 Cal. 3d 410, 424 (Cal. 1972)); Commonwealth v. Tart, 408 Mass. 249, 266-267 (Mass. 1990); Commonwealth v. Jackson, 369 Mass. 904, 910 (Mass. 1976); Commonwealth v. Marcus, 16 Mass. App. Ct. 698, 699 (Mass. App. Ct. 1983); Opinion of Justices to House of Representatives, 378 Mass. 822, 830 (Mass. 1979). 

In deciding whether a punishment is disproportionate to the offense, Massachusetts courts use a three-part test: (1) the nature of the offender and offense in light of the degree of harm to society; (2) sentencing provisions in other jurisdictions for similar offenses; and (3) sentences for more severe offenses within the Commonwealth. Commonwealth v. Alvarez, 413 Mass. 224, 233-234 (Mass. 1992); Commonwealth v. Therriault, 401 Mass. 237, 240 (Mass. 1987); Cepulonis v. Commonwealth, 384 Mass. 495, 497 (Mass. 1981), appeal dismissed, 455 U.S. 931 (1982); Commonwealth v. Bianco, 390 Mass. 254, 260-262 (Mass. 1983).

In regards to the third prong of this test, sentencing disparities between Massachusetts and other states may be no more that “different exercises of legislative judgment,” rather than unrestrained legislative action Commonwealth v. Bianco, 390 Mass. 254, 260-262 (Mass. 1983) (quoting Cepulonis v. Commonwealth, 384 Mass. 495,498 (1981)). Such a sentencing disparity does not violate Article 26 of the Massachusetts Constitution. Id.  

Imprisonment for a long term of years “might be so disproportionate to the offense as to constitute a cruel or unusual punishment." Commonwealth v. Alvarez, 413 Mass. 224, 233-234 (Mass. 1992) (quoting McDonald v. Commonwealth, 173 Mass. 322, 328 (Mass. 1899)); Commonwealth v. Sanchez, 405 Mass. 369, 379-380 (Mass. 1989); Commonwealth v. Bianco, 390 Mass. 254, 260-262 (Mass. 1983); Commonwealth v. Dunn, 43 Mass. App. Ct. 58, 62-63 (Mass. App. Ct. 1997).

Mandatory life imprisonment is not a per se violation of the Massachusetts Constitution. Commonwealth v. Diatchenko, 387 Mass. 718, 723 (Mass. 1982).

The following appellate cases mention both Section 26 and the Eighth Amendment, but do not provide any significant analysis of Section 26:                              

  • Commonwealth v. Rivera, 2011 Mass. App. Unpub. LEXIS 81 (Mass. App. Ct. Jan. 19, 2011) –
  • Commonwealth v. Farley, 6 Mass. L. Rep. 175 (Mass. Super. Ct. 1996) –
  • Commonwealth v. Silva, 21 Mass. App. Ct. 536, 542-543 (Mass. App. Ct. 1986) –

Leading Court Discussions of Graham and Miller 

 Com. v. Walczak, 463 Mass. 808, 979 N.E.2d 732zh (December 12, 2012) (concurring) (Graham and Miller show juveniles are different so court may give them additional protection by instructing grant jury)(another concurring opinion says this is not a constitutional requirement because this is not mentioned in the Miller trilogy) 

Chardin v. Police Com'r of Boston, 465 Mass. 314, 989 N.E.2d 392 (June 4, 2013) (Eighth Amendment does not apply to regulatory statutes like issuance of firearm license) 

Diatchenko v. Dist. Attorney for Suffolk Dist., 466 Mass. 655 (December 24, 2013) (Miller applies retroactive to cases on collateral review because it is substantive. Grant broader protection to juveniles by holding that mandatory imposition of LWOP on juveniles violates U.S. constitution and discretional LWOP violates Massachusetts Constitution.) 

Com. v. Keo, 467 Mass. 25 (January 21, 2014) (LWOP imposed on juvenile offender charged with first degree murder violates U.S. Constitution and Massachusetts Constitution and should be remanded to life with possibility of parole) 

Com. v. Ray, 467 Mass. 115, 140 (February 12, 2014) (following Diatchenko, remand the LWOP sentence on juvenile convicted first degree murder to district on the parole eligibility) 

Project Overview | State Comparison  

Michigan

Updated: 10/16/2014 - Print the Michigan entry.

  • Michigan has abolished the death penalty. It also allows for parole, even for certain drug offenders sentenced to life.
  • Michigan allows for mandatory LWOP and JLWOP. See MCLS § 791.234 (2012).
  • Juveniles may be transferred to adult court at age 14. See MCLS § 712A.4 (2012).
State Constitution

MCLS Const. Art. I, § 16 (2012)

§ 16.  Bail; fines; punishments; detention of witnesses.

Sec. 16. Excessive bail shall not be required; excessive fines shall not be imposed; cruel or unusual punishment shall not be inflicted; nor shall witnesses be unreasonably detained.

NOTE: Article I, Section 16 of the Michigan Constitution may be broader than the Eighth Amendment. Under Michigan’s proportionality analysis, courts look to the penological purpose of the punishment in addition to the other three Solem-like factors.

Sentencing Statutes
  1. Sentencing Guidelines System – MCLS § 769.34 (2012) -- Michigan Sentencing Guidelines:  Worksheet completion is mandatory, and sentences should fall within the provided guideline range. Judges may depart from the guidelines for compelling reasons, but must note the reason for departure on the record. Defendants may not appeal departures. Michigan’s sentencing manual is found here: http://courts.michigan.gov/mji/resources/sentencing-guidelines/2012/manual.pdf 
  2. Habitual Offender Statute – MCLS § 769.11 (2012) -- § 769.11.    Punishment for subsequent felony following conviction of 2 or more felonies; sentence for term of years considered indeterminate sentence; use of conviction to enhance sentence prohibited.

The Legislature requires a sentence to be proportional to “the seriousness of the circumstances surrounding the offense and the offender.” People v. McElrath, 2010 Mich. App. LEXIS 2284, 15-16 (Mich. Ct. App. Nov. 30, 2010) (citing People v. Babcock, 469 Mich. 247, 262 (Mich. 2003)).  The Michigan sentencing guidelines recommend a sentencing range which takes into account the seriousness of the offense and the circumstances surrounding the offender. Id.

A sentence which falls within the sentencing guidelines range is presumed proportionate. People v. Wash., 2011 Mich. App. LEXIS 1972, 10-11 (Mich. Ct. App. Nov. 8, 2011); People v. McElrath, 2010 Mich. App. LEXIS 2284, 15-16 (Mich. Ct. App. Nov. 30, 2010); People v. Sanchez, 2009 Mich. App. LEXIS 2047, 12-13 (Mich. Ct. App. Sept. 29, 2009); People v Powell, 278 Mich App 318, 323 (Mich. Ct. App. 2008); People v Broden, 428 Mich 343, 354-355 (Mich. 1987).

Case Law

General  

United States Supreme Court cases provide only persuasive authority for purposes of interpreting Michigan’s Constitution. Therefore, the Michigan Supreme Court may choose to rely upon the reasoning of dissenting justices of the United States Supreme Court when interpreting the Michigan Constitution. People v. Bullock, 440 Mich. 15, 27-29 (Mich. 1992).

Simply because the Michigan Supreme Court has the authority to interpret the Michigan Constitution more expansively than the US Constitution does not meant that the Michigan Supreme Court will choose to exercise that authority. People v. Bullock, 440 Mich. 15, 27-29 (Mich. 1992).

State Constitution & Proportionality 

The prohibition of punishment that is unusual but not necessarily cruel carries an implication that unusually excessive imprisonment is included in that prohibition. People v. Lorentzen, 387 Mich. 167, 172 (Mich. 1972); People v. Bullock, 440 Mich. 15, 31 (Mich. 1992).

If a punishment "passes muster under the state constitution, then it necessarily passes muster under the federal constitution." People v. Benton, 294 Mich. App. 191, 204 (Mich. Ct. App. 2011) (quoting People v. Nunez, 242 Mich App 610, 618-619 n 2 (Mich. Ct. App. 2000)).

“The dominant test of cruel and unusual punishment is that the punishment is in excess of any that would be suitable to fit the crime.” People v. Lorentzen, 387 Mich. 167, 176 (Mich. 1972); People v. Coles, 417 Mich. 523, 530-533 (Mich. 1983). 

A proportionate sentence is neither cruel nor unusual. People v. Jipping, 1996 Mich. App. LEXIS 1692 (Mich. Ct. App. Dec. 20, 1996).

To determine whether a sentence is excessive under Article 16 of the Michigan Constitution, the Michigan Supreme Court follows the three-part Lorentzen test. In this test the court considers the following: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed for other offenses within Michigan and the sentences imposed by other states for the same offense; and (3) the penological purpose in establishing the punishment. People v. Ball, 2011 Mich. App. LEXIS 582 (Mich. Ct. App. Mar. 24, 2011); People v. Bullock, 440 Mich. 15, 33-35 (Mich. 1992);SeePeople v. Fernandez, 427 Mich. 321, 335 (Mich. 1986); People v. Lorentzen, 387 Mich. 167, 176 (Mich. 1972); People v. Benton, 294 Mich. App. 191, 204 (Mich. Ct. App. 2011); People v. Walker, 146 Mich. App. 371, 374-376 (Mich. Ct. App. 1985).

Under the second prong, “the definition of cruel or unusual punishment becomes a flexible one, changing with the evolving standards of decency as expressed by similar penal statutes.” People v. Coles, 417 Mich. 523, 530-533 (Mich. 1983).

The penological goal of rehabilitation cannot be met by a sentence of life imprisonment without parole. However, this does not render the sentence cruel or unusual; life imprisonment without parole meets other important goals of punishment, such as deterrence of others, deterrence of the offender, and punishment of the offender. People v. Fernandez, 427 Mich. 321, 338-339 (Mich. 1986).

A mandatory life sentence without parole is not per se unconstitutional. SeePeople v. Fernandez, 427 Mich. 321, 335 (Mich. 1986).

A minimum sentence violates the prohibition against cruel and unusual punishment when it is “demonstrably and grossly excessive, in the light of the depravity of the criminal as shown in the commission of the act and in light of the usual and customary disposition of those convicted of like conduct.” People v. Sinclair, 387 Mich. 91, 153 (Mich. 1972).

At sentencing, a trial court must articulate its reasons for imposing a particular sentence. While not an exhaustive list, “the proper criteria for determining an appropriate sentence include: (1) the disciplining of the wrongdoer, (2) the protection of society, (3) the potential for reformation of the offender, and (4) the deterring of others from committing like offenses.” People v. Coles, 417 Mich. 523, 530-533 (Mich. 1983) (citing People v Snow, 386 Mich 586, 592 (Mich. 1972)). The sentencing court must identify which criteria were considered and which criteria supported its sentencing decision. Furthermore, upon defendant’s appeal, an appellate court will review the sentencing court’s exercise of discretion, and may afford relief to the defendant if the appellate court finds that the sentencing court abused its discretion in a manner that “shocks the conscience” of the appellate court. People v. Coles, 417 Mich. 523, 530-533 (Mich. 1983).

When a sentence falls within the sentencing guidelines, consecutive sentencing does not overcome a strong presumption of proportionality. The sentencing court “is not required to consider the cumulative length of consecutive sentences” when performing proportionality reviews. People v. Wash., 2011 Mich. App. LEXIS 1972, 10-11 (Mich. Ct. App. Nov. 8, 2011) (quoting People v. St. John, 230 Mich. App. 644, 649 (Mich. Ct. App. 1998)).

The following cases mention both Article 16 of the Michigan Constitution and the Eighth Amendment, but do not provide any significant, separate analysis of Article 16:

  • People v. Ellis, 2008 Mich. App. LEXIS 923 (Mich. Ct. App. May 8, 2008) –
  • People v. Johnson, 1997 Mich. App. LEXIS 3091 (Mich. Ct. App. Aug. 1, 1997) –

Leading Court Discussions of Graham and Miller 

People v. Carp, 2014 WL 3174626 (July 8, 2014) (Miller does not apply retroactively; Neither Eighth Amendment or Michigan Constitution categorically bar imposition of LWOP on juveniles) 

Project Overview | State Comparison  

Minnesota

Updated: 10/16/2014 - Print the Minnesota entry.

  • Minnesota has abolished the death penalty. Minnesota also abolished discretionary parole in 1980.
  • Minnesota allows for mandatory LWOP and JLWOP. See Minn. Stat. § 609.106 (2012). (Minnesota calls LWOP “life in prison without the possibility of release,” or LWOR).
  • Juveniles may be transferred to adult court at age 14. See Minn. Stat. § 260B.125 (2012).
State Constitution

Minn. Const., Art. I, § 5 (2012)

Sec. 5. No excessive bail or unusual punishments. -- Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.

NOTE:  Article I, Section 5 is technically broader than the Eighth Amendment. The Eighth Amendment prohibits “cruel and unusual” punishment, while Section 5 prohibits “cruel or unusual” punishment. Nevertheless, in regards to proportionality challenges, Minnesota courts borrow from federal precedent.

Sentencing Statutes
  1. Sentencing Guidelines System – Minnesota Sentencing Guidelines -- The guidelines require sentencing worksheets to be filled out, and departures from the guideline sentence are permitted only for compelling circumstances. Judges must disclose the reasons for any departure, and the defendant may appeal the departure.  The Minnesota guidelines can be found here: http://www.msgc.state.mn.us/guidelines/2012%20MN%20Sentencing%20Guidelines%20and%20Commentary.pdf.
  2. Habitual Offender Statute –  Minn. Stat. § 609.1095(2012) -- 609.1095 INCREASED SENTENCES FOR CERTAIN DANGEROUS AND REPEAT FELONY OFFENDERS  
Case Law

General 

Minnesota’s legislature has the power to determine criminal offenses and their punishments through statutes. Karius v. State, 2003 Minn. App. LEXIS 1230, 11-12 (Minn. Ct. App. Oct. 7, 2003).

Statutes are presumed constitutional, and therefore, the party who challenges the constitutionality of a statute bears the burden of “showing that our culture and laws emphatically and well nigh universally reject the sentence” imposed by the statute. State v. McDaniel, 777 N.W.2d 739, 753 (Minn. 2010) (quoting State v. Chambers, 589 N.W.2d 466, 479-80 (Minn. 1999); State v. Heden, 719 N.W.2d 689, 698 (Minn. 2006); State v. Pedersen, 679 N.W.2d 368, 377-378 (Minn. Ct. App. 2004); State v. Gutierrez, 667 N.W.2d 426, 438 (Minn. 2003). 

State Constitution & Proportionality 

The courts should not disturb the acts of the legislature unless the proscribed punishment is “out of all proportion to the crime so as to constitute a violation of the constitutional proscription against cruel and inhuman punishment.” State v. Christie, 506 N.W.2d 293, 299-300 (Minn. 1993).

Ordinarily, cruel punishment refers to mental and physical agony, or a punishment sentence of such duration that it is out of all proportion to the nature of the crime. State v. Christie, 506 N.W.2d 293, 299-300 (Minn. 1993).

Article 1 of the Minnesota Constitution prohibits "cruel or unusual punishments." Minn. Const. art. I, § 5. The language differs from the United States Constitution provision, which provides that no "cruel and unusual punishments" should be inflicted. U.S. Const. amend. VIII (emphasis added). We have explained that "[t]his difference is not trivial," and the Minnesota Constitution provides more protection than the U.S. Constitution. State v. Mitchell, 577 N.W.2d 481, 488 (Minn. 1998).

Article 1, Section 5 of the Minnesota Constitution prohibits “cruel or unusual punishments,” while the Eighth Amendment of the United States Constitution prohibits “cruel and unusual punishments.” This difference is not trivial. The “Minnesota Constitution provides more protection than the U.S. Constitution.”State v. McDaniel, 777 N.W.2d 739, 753 (Minn. 2010) (citing State v. Mitchell, 577 N.W.2d 481, 488 (Minn. 1998)). Under Article I, Section “a court should prohibit a punishment if it is either cruel or unusual.” State v. Martin, 773 N.W.2d 89, 98-99 (Minn. 2009) (citingState v. Mitchell, 577 N.W.2d 481, 488 (Minn. 1998)) (emphasis added).  

“Although the clauses are different, we rely on the United States Supreme Court's construction of the Eighth Amendment to guide our interpretation of Article 1, Section 5, of the Minnesota Constitution.” State v. McDaniel, 777 N.W.2d 739, 753 (Minn. 2010).

When determining whether a sentence is cruel or unusual, Minnesota courts look to the proportionality of the offense to the punishment issued. State v. McDaniel, 777 N.W.2d 739, 753-754 (Minn. 2010). A court determines whether the punishment comports with “evolving standards of decency that mark the progress of a maturing society.” Id. (citing Trop v. Dulles, 356 U.S. 86, 101 (1958).

Compare with seemingly contradictory older case law:

  • Karius v. State, 2003 Minn. App. LEXIS 1230, (Minn. Ct. App. Oct. 7, 2003) – “Although the Minnesota Supreme Court has not applied the comparable clause of the Minnesota Constitution to guarantee proportionality in sentencing, the court has indicated that any application would also focus on proportionality for which the threshold would be high.“ Id. at 11-12 (citations removed).
  • State v. Christie, 506 N.W.2d 293, (Minn. 1993) – The Minnesota Supreme Court “has never tied the ‘cruel or unusual punishments’ clause to a guarantee of proportionality in sentencing.” Id. at 299-300.

We do not believe the guidelines were meant to function as constitutional mandates. The Minnesota Sentencing Guidelines were not “meant to function as constitutional mandates.” State v. Christie, 506 N.W.2d 293, 299-300 (Minn. 1993).

In “cruel or unusual” reviews of sentences, the court does not differentiate between offenders who were principal actors and those who were aiders and abettors where criminal intent is present. State v. McDaniel, 777 N.W.2d 739, 754 (Minn. 2010) (citing State v. Crow, 730 N.W.2d 272 (Minn. 2007).

When courts sentence offenders convicted under habitual offender statutes, they must punish the criminal behavior in light of the offenders past behavior. SeeState v. Combs, 504 N.W.2d 248, 252 (Minn. Ct. App. 1993).

A sentence of LWOR is not per se unconstitutional for a 17-year old juvenile defendant convicted of murder. State v. Martin, 773 N.W.2d 89, 99 (Minn. 2009).

Leading Court Discussions of Graham and Miller 

Chambers v. State, 831 N.W.2d 311 (Minn. May 7, 2013) (Graham does not apply to juvenile offender convicted of first degree murder; Miller does not apply retroactively because it's a new procedural rule and not subject to the watershed exception) (Dissent: Miller is substantive in nature.) 

Roman Nose v. State, 845 N.W.2d 193 (Minn. April 16, 2014) (follows Chambers and hold Miller does not apply retroactively) 

State v. Vang, 847 N.W.2d 248 (Minn. May 7, 2014) (sentence of LWOP 30 years to juvenile does not violate Eighth Amendment.) 

Ouk v. State, 847 N.W.2d 698 (Minn. June 11, 2014) (sentence of LWOP 30 years to juvenile does not violate Eighth Amendment.) 

Project Overview | State Comparison  

Mississippi

Updated: 10/16/2014 - Print the Mississippi entry.

  • Mississippi has abolished discretionary parole for crimes committed after 1995.
  • Mississippi allows for discretionary LWOP and JLWOP. Miss. Code Ann. § 97-3-21 (2012).
  • Juveniles can be transferred to adult court at age 13.
State Constitution

Miss. Const. Ann. Art. 3, § 28 (2012)

§ 28. Cruel or unusual punishment prohibited 
Cruel or unusual punishment shall not be inflicted, nor excessive fines be imposed.

NOTE:  Article 3, Section 28 is interpreted as the equivalent of the Eighth Amendment.

Sentencing Statutes
  1. Sentencing Guidelines System – Mississippi does not have sentencing guidelines
  2. Habitual Offender Statutes –
    a. Miss. Code Ann. § 99-19-81 (2012)

    § 99-19-81. Sentencing of habitual criminals to maximum term of imprisonment 

    Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

    b. Miss. Code Ann. § 99-19-83 (2012)

    § 99-19-83. Sentencing of habitual criminals to life imprisonment 

    Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.
Case Law

State Constitution & Proportionality 

 In Mississippi, “cruel or unusual” punishment is an evolving concept. Punishments may be set aside as national consensus on what constitutes cruel and unusual punishment changes over time. Foster v. State, 639 So. 2d 1263, 1296 (Miss. 1994).

Unless a sentence is “manifestly disproportionate,” a sentencing court that imposes a sentence within the statutory range will not be held in error. Edwards v. State, 615 So. 2d 590, 597 (Miss. 1993); Nichols v. State, 826 So.2d 1288, 1290 (P10) (Miss. 2002); seePresley v. State, 474 So. 2d 612, 620 (Miss. 1985); Evans v. State, 2011 Miss. App. LEXIS 343 (Miss. Ct. App. June 14, 2011).

Mississippi follows three-factor Solem proportionality test to determine if a sentence violates the federal and Mississippi constitutions’ prohibition against cruel and/or unusual punishment. SeeDavis v. State, 724 So. 2d 342, 348 (Miss. 1998). Under this test, the court must first engage in a threshold comparison of the criminal offense to the imposed sentence to determine if the sentence leads to an inference of “gross disproportionality.” In the rare instance that “gross disproportionality” is found, the court should apply the three-factor test. Hoops v. State, 681 So.2d 521, 538 (Miss. 1996); Kleckner v. State, 2012 Miss. App. LEXIS 302, 37-38 (Miss. Ct. App. May 22, 2012). 

The Solem factors are as follows: “(1)the gravity of the offense and the harshness of the penalty; (2) a comparison with the sentences imposed on other criminals in the same jurisdiction; and (3) a comparison with the sentences imposed for commission of the same crime in other jurisdictions. Tate v. State, 946 So. 2d 376, 386 (Miss. Ct. App. 2006) (citing Solem, 463 U.S. at 291-92).

Although trial courts lack power to sentence under Mississippi’s habitual offender statutes, a trial court may still review the sentence to ensure that it is constitutionally proportional. Clowers v. State, 522 So. 2d 762 (Miss. 1988). A proportionality analysis for a habitual offender status must consider the present offense within the habitual offender status. Oby v. State, 827 So. 2d 731, 734-735 (Miss. Ct. App. 2002) (citing Bell v. State, 769 So. 2d 247, 251 (Miss. Ct. App. 2000).

The Supreme Court of Mississippi has “never found a maximum penalty in a drug case - even if the sentences were to run consecutively - to be cruel and unusual punishment." Johnson v. State, 950 So. 2d 178, 184 (Miss. 2007) (citing Braxton v. State, 797 So.2d 826, 829 (Miss. 2000)). 

The following cases mention both Article 3, Section 28 and the Eighth Amendment, but do not provide any significant, separate analysis of Section 28: 

  • Tate v. State, 912 So. 2d 919, 933 (Miss. 2005) –
  • Branch v. State, 882 So. 2d 36, 79 (Miss. 2004) –
  • Jackson v. State, 860 So. 2d 653, 664-65 (Miss. 2003) –
  • Nichols v. State, 826 So. 2d 1288, 1292 (Miss. 2002) –
  • Jackson v. State, 740 So. 2d 832, 835 (Miss. 1999) –
  • Vance v. Lincoln County Dep't of Public Welfare, 582 So. 2d 414 (Miss. 1991) –
  • Jenkins v. State, 483 So. 2d 1330, 1333 (Miss. 1986) –
  • Lewis v. State, 905 So. 2d 729 (Miss. Ct. App. 2004) –
  • Womack v. State, 827 So. 2d 55, 58 (Miss. Ct. App. 2002) –
  • Williams v. State, 784 So. 2d 230, 235 (Miss. Ct. App. 2000) –
  • Robert v. State, 756 So. 2d 806 (Miss. Ct. App. 1999) –
  • Espinoza v. State, 1998 Miss. App. LEXIS 618 (Miss. Ct. App. July 28, 1998) –
  • Kraft v. State, 1998 Miss. App. LEXIS 462 (Miss. Ct. App. May 12, 1998) –

Leading Court Discussions of Graham and Miller  

Parker v. State, 119 So. 3d 987 (June 6, 2013) (Miller apply to case pending in direct review; although murder does not carry specific sentence of LWOP, the legislative mandates are equal to LWOP when reading together, so the sentence violates Miller; possibility of being eligible for “conditional release” at the age of 65 does not satisfy the requirement of Miller because conditional release is more like clemency and different from parole as a matter of law.) 

Jones v. State, 122 So. 3d 698 (July 18, 2013) (Miller applies retroactively on collateral review because it is a substantive rule.) 

Project Overview | State Comparison  

Missouri

Updated: 10/16/2014 - Print the Missouri entry.

  • Missouri allows parole for most offenses.
  • Missouri imposes mandatory LWOP and JLWOP. § 565.020 R.S.Mo. (2012).
  • Juveniles can be transferred to adult court at age 12.
State Constitution

Mo. Const. Art. I, § 21 (2012)

§ 21. Excessive bail and fines--cruel and unusual punishment -- That excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

NOTE:  Article I, Section 21 of the Missouri Constitution is interpreted as the equivalent of the Eighth Amendment.

Sentencing Statutes
  • Sentencing Guidelines System – Missouri Sentencing Advisory Commission User’s Guide

    While the Board of Probation and Parole is required to present the court with a Sentencing Assessment Report, the court is free to depart from the recommended sentence. The defendant may not appeal a judge’s departure. The User’s Guide is found here: http://www.mosac.mo.gov/file.jsp?id=45394.
  • Habitual Offender Statute – § 558.019 R.S.Mo. (2012)

    § 558.019. Prior felony convictions, minimum prison terms -- prison commitment defined -- dangerous felony, minimum term prison term, how calculated -- sentencing commission created, members, duties -- recommended sentences, distribution -- report -- expenses -- cooperation with commission -- restorative justice methods -- restitution fund 
     
  • Proportionality Review for Death Penalty – § 565.035 R.S.Mo. (2012)

    § 565.035. Supreme court to review all death sentences, procedure--powers of court--assistant to court authorized, duties 
Case Law

General  

Unless constitutional limitations are infringed upon, the courts may not encroach upon the legislative function of defining crime and punishment. State v. Motley, 546 S.W.2d 435, 438 (Mo. Ct. App. 1976) (citing State v. Stock, 463 S.W.2d 889, 895 [8] (Mo. 1971)).

State Constitution & Proportionality 

Article I, “Section 21 of the Missouri Constitution provides the same protection against cruel and unusual punishment” as the Eighth Amendment. Burnett v. State, 311 S.W.3d 810, 814 (Mo. Ct. App. 2009). The Missouri Supreme Court applies the “the same standard in determining whether a punishment violates the United States Constitution or Missouri Constitution. Id; State v. Dillard, 158 S.W.3d 291, 305 (Mo. Ct. App. 2005).

Missouri applies the “gross disproportionality” standard to determine if Article I, Section 21’s prohibition against cruel and unusual punishment has been violated. State v. Dillard, 158 S.W.3d 291, 305 (Mo. Ct. App. 2005) (citing State v. Lee, 841 S.W.2d 648, 654-55 (Mo. 1992)).

The Missouri Supreme Court follows Justice Kennedy’s concurrence in Harmelin, which states “that the effect of Harmelin was to ‘alter’ the three-part test in Solem by making it ‘clear that comparison to sentences given to other defendants for the same or a similar crime is irrelevant except when the court finds the sentence in question grossly disproportionate.’ State v. Williams, 936 S.W.2d 828, 832 (Mo. Ct. App. 1996) (citing State v. Lee, 841 S.W.2d 648, 654 (Mo. 1992)).

As explained in Solem, "a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for the commission of the same crime in other jurisdictions."State v. Dillard, 158 S.W.3d 291, 303 (Mo. Ct. App. 2005).

Missouri courts have stated that a “sentence within the statutory limits is not cruel and unusual unless it is so disproportionate to the offense committed that it shocks the moral sense of reasonable people.” State v. Lee, 1991 Mo. App. LEXIS 1740 (Mo. Ct. App. Nov. 26, 1991) (citing State v. Morris, 719 S.W.2d 761, 766 (Mo. 1986));State v. Deckard, 426 S.W.2d 88, 91 (Mo. 1968); Deaton v. State, 705 S.W.2d 70, 73 (Mo. Ct. App. 1985); State v. Freeman, 702 S.W.2d 869, 875 (Mo. Ct. App. 1985);State v. Whitehead, 675 S.W.2d 939, 943 (Mo. Ct. App. 1984); State v. Morris, 661 S.W.2d 84 (Mo. Ct. App. 1983).

Consecutive sentencing for multiple offenses is not per se unconstitutional.State v. Freeman, 702 S.W.2d 869, 875 (Mo. Ct. App. 1985) (citing State v. Repp, 603 S.W.2d 569, 571 (Mo. 1980)).

The fact that a defendant’s “accomplice receives a lesser sentence does not violate defendant's constitutional right against cruel and unusual punishment.” State v. Lee, 1991 Mo. App. LEXIS 1740 (Mo. Ct. App. Nov. 26, 1991) (citing Johnson v. State, 750 S.W.2d 648, 649 (Mo. App. 1988)).

The following cases discuss both Article I, Section 21 and the Eighth Amendment, but fail to provide any additional separate analysis of Section 21:

  • State v. Lee, 841 S.W.2d 648 (Mo. 1992) –
  • State v. Hill, 827 S.W.2d 196 (Mo. 1992) –
  • State v. Katura, 837 S.W.2d 547, 551 (Mo. Ct. App. 1992) –

Leading Court Discussions of Graham and Miller 

State v. Hart, 404 S.W. 3d 232 (July 30, 2013) (statute allow only death penalty and LWOP as punishment is mandatory for juvenile; Miller does not categorically bar LOWP but requires consideration of the factors mentioned in Miller; Miller has not address issues on (a) whether the state or the defendant should bear the risk of non-persuasion on the determination that Miller requires the sentencer to make, and (b) the burden of proof applicable to that determination; defendant’s waive of jury sentencing cannot be enforced on remand; court will not rewrite the statute under the doctrine of severance.) 

State v. Nathan, 404 S.W.3d 253 (Mo. July 30 2013) (for same reason as in Hart, the mandatory sentence on juvenile charged with first degree murder is remanded) 

Project Overview | State Comparison  

Montana

Updated: 5/14/2013 - Print the Montana entry.

  • Montana allows for parole
  • Montana has divided legal and equitable review of sentences into two separate appellate tracks
  • State law gives prosecutors discretion to charge minors as young as 12 as adults if they find probable cause to believe they have committed (1) sexual intercourse without consent, (2) deliberate homicide, (3) mitigated deliberate homicide, (4) assault on a peace or judicial officer, or (5) attempted deliberate or mitigated homicide. MCA 41-5-206. The state requires a hearing within 30 days of after leave to file an information in district court on whether it would be in the best interests of the juvenile and the community to transfer the matter back to juvenile court. MCA 41-5-206(3).
    • The bindover hearing satisfies due process. State v. McKee, 330 Mont. 249, 254 (2006).
State Constitution

Art. II, § 22. Excessive Sanctions: -- Excessive bail shall not be required, or excessive fines imposed, or cruel and unusual punishments inflicted.

Art. II, § 28. Criminal Justice Policy – Rights of the Convicted:

  1. Laws for the punishment of crime shall be founded on the principles of prevention, reformation, public safety, and restitution for victims.
  2. Full rights are restored by termination of state supervision for any offense against the state.
Sentencing Statutes

Montana has a sentencing scheme that generally gives trial courts discretion to sentence within what are generally wide guideline ranges, although the state mandates life without parole for certain offenders. The state has created a separate track for appealing sentences on equity grounds.

Mandatory life in prison without parole (“two-strikes” and “three-strikes” laws): 

The legislature has mandated life without parole sentences when an individual who has been previously convicted of (1) deliberate homicide, (2) aggravated kidnapping, (3) sexual intercourse without consent, (4) sexual abuse of a child, or (5) ritual abuse of a minor (except in cases of animal abuse or sacrifice in the presence of a minor) is subsequently convicted of any one of the aforementioned crimes and the death penalty is not imposed. MCA §46-18-219(1)(a).

The legislature mandates life without parole sentences when any offender who has been twice convicted of any of the following offenses (or any combination of the offenses on this list and the list of offenses in MCA §46-18-219(1)(a)) is again convicted of any one of them: (1) mitigated deliberate homicide, (2) aggravated assault, (3) kidnapping, (4) robbery, (5) aggravated promotion of prostitution. MCA §46-18-219(1)(b).

Exceptions to mandatory minimums: 

Mandatory minimums do not apply if (1) the offender was less than 18 years old at the time of the offense; (2) the offender’s mental capacity was “significantly impaired, although not so impaired as to constitute a defense to the prosecution” at the time the offense was committed; (3) the offender was acting under “unusual and substantial duress, although not such duress as would constitute a defense to the prosecution;” (4) the offender was an accomplice, the conduct constituting the offense was principally the conduct of another, and the offender’s participation was relatively minor; (5) in cases in which threat of bodily injury or actual infliction of bodily injury is an element of the crime, no serious bodily injury was inflicted on the victim unless a weapon was used in the commission of the offense; or (6) the judge finds, based on the findings in a valid sex offender evaluation report, that the offender stands a better chance at rehabilitation, and society will be better protected, if ordered to sex offender treatment program. MCA §46-18-222.

Sentence appeals:

The Montana Legislature has created a separate appellate track for challenging the fairness of a sentence. Defendants may have sentences reviewed for equity by the Sentence Review Division as long as they were sentenced to more than one year of incarceration. MCA §46-18-903.

Case Law

General  

The Montana Supreme Court reviews sentences for legality, while the Sentence Review Division reviews sentences for equity. Jordan v. State, 346 Mont. 193, 198 (2008). In order for an individual to appeal a sentence review decision, he must seek extraordinary review from the Supreme Court of Montana. Jordan, 346 Mont. at 199.

The standard of review on appeal to the Sentence Review Division is “clearly inadequate or excessive,” with the trial court’s sentence being presumptively correct. The state supreme court has rejected the notion that it has given the division de novo authority to review sentences. Driver v. Sentence Review Div., 355 Mont. 273, 279 (2010).

Neither the Sentence Review Division, nor the trial courts, have endeavored to create a database that would help officials evaluate whether the division is meeting its goal of ensuring equity in sentencing. Driver, 355 Mont. at 285-86 (Nelson, J., dissenting).

Proportionality 

The general rule is that a sentence that is within the statutory guidelines does not violate the prohibition against cruel and unusual punishment. State v. Shults, 332 Mont. 130, 138 (2006). The only recognized exception to the general rule is when a “sentence is so disproportionate to the crime that it shocks the conscience and outrages the moral sense of the community or of justice.” Shults, 332 Mont. at 138.

The nature of the crime is a “weighty factor” in the shocks the conscious analysis. State v. Bruns, 213 Mont. 372, 377 (1984)(upholding 10-month sentence for drunk driving against a proportionality challenge due to the fact that drunk drivers “have cut a wide swath of death and destruction nationwide” and the defendant had a lengthy record of DUI convictions).

The likelihood that a defendant will reoffend is also a factor to be used in the shocks the conscious analysis. State v. Webb, 325 Mont. 317, 327 (2005)(upholding, against a proportionality challenge, a sentence of life without parole for a man with a history of mental problems convicted of his second rape on the grounds that he was likely to reoffend if released).

In non-death penalty cases, the Supreme Court of Montana defers further proportionality analysis to the state Sentence Review Division. State v. Rickman, 343 Mont. 120, 123 (2008).

Severe Sentences 

A 23-year-old convicted of felony murder was sentenced to life in prison without the possibility of parole for 55 years. The defendant punched and tripped the victim during a robbery; his accomplice stabbed the man to death. Both men received identical sentences. The 23-year-old’s sentence was not cruel and unusual punishment as a matter of law. State v. Rickman, 343 Mont. 120 (2008).

Court upheld mandatory life without parole sentence for man convicted of his second rape; statutory exception to life sentence (defendant acting under unusual, substantial duress) did not apply because although the defendant had struggled with psychological problems for much of his life, he was not laboring under any specific diagnosis at the time of the second offense. State v. Webb, 325 Mont. 317, 320-22 (2005).

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Nebraska

Updated: 10/16/2014 - Print the Nebraska entry.

  • Nebraska mandates a two-tiered proportionality review of aggravated murder sentences; non-murder sentencing is left to a factors-based, subjective judicial process that is subject to review for abuse of discretion.
State Constitution

Art. I, § 9. Bail; fines; imprisonment; cruel and unusual punishment: -- All persons shall be bailable by sufficient sureties, except for treason, sexual offenses involving penetration by force or against the will, and murder, where the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

Art. I, § 15. Penalties; corruption of blood; transporting out of state prohibited: All penalties shall be proportioned to the nature of the offense, and no conviction shall work corruption of blood or forfeiture of estate; nor shall any person by transported out of the state for any offense committed within the state.

Sentencing Statutes

Proportionality review mandatory, upon appeal, for all murder convictions: 

The Supreme Court must review murder sentences for proportionality upon appeal. Neb.Rev.St. §29-2521.02. The court is vested with the power to reduce any homicide sentence which it finds “not to be consistent with” §§29-2521.01-29-2521.04, 29-2522, and 29-2524. Neb.Rev.St. §29-2521.03.

Parole at one-half the minimum term: 

The legislature has mandated parole eligibility at one-half of an offender’s minimum term. Neb.Rev.Stat. §83-1, 110(1). 

Board of Parole reviews minimum life terms for possible commutation: 

Minimum life sentences are reviewed during the first year of an offender’s sentence and every 10 years thereafter. If the life sentence is commuted, the board reviews the offender’s record annually when the offender is within five years of his earliest parole eligibility date. Neb.Rev.St. §83-192(1)(f)(v).

Case Law

General  

Sentences within the statutory limits are reviewed under an abuse of discretion standard. State v. Thurman, 273 Neb. 518, 530 (2007). An abuse of discretion occurs when the sentencing court’s reasoning is “clearly untenable and unfairly deprive a litigant of a substantial right and a just result.” State v. Segura, 265 Neb. 903, 909 (2003).

Sentencing judges should consider the following when imposing a sentence: the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime. State v. Marrs, 272 Neb. 573, 530 (2006). This is a subjective judgment, “and includes the sentencing judge’s observations of the defendant’s demeanor and attitude and all of the facts and circumstances surrounding the defendant’s life.” State v. Leonor, 263 Neb. 86, 99 (2002). The court is not “limited in its discretion to any mathematically applied set of factors.” Leonor, 263 Neb. at 99.

Proportionality 

The state Supreme Court is required by statute to conduct a proportionality review of death sentences on appeal. State v. Mata, 275 Neb. 1, 29-30 (2008). This review is conducted de novo. State v. Gales, 269 Neb. 443, 487 (2005).

The proportionality review requires the court to compare aggravating and mitigating circumstances in the instant case with those of other cases in which the death penalty was imposed – ensuring that sentences track those imposed in cases with “the same or similar circumstances.” State v. Sandoval, 280 Neb. 309, 380-81 (2010). The statute does not require sentencing bodies to compare cases to those in which the death sentence has not been imposed. State v. Galindo, 278 Neb. 599, 672 (2009).

Leading Court Discussions of Graham and Miller 

State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (April 22, 2011) (Graham does not apply to homicide cases. LWOP for juvenile convicted of first degree murder is not cruel and unusual punishment) 

State v. Mantich, 287 Neb. 320 (February 7, 2014) (Miller was new substantive rule that applied retroactively on collateral review. Had an overall review on the issue of retroactivity in other jurisdictions. ) 

State v. Castaneda, 287 Neb. 289, 842 N.W. 2d 740 (February 7, 2014) (Remand case in direct review to district court; although the statute does not contain the word “without parole”, and parole is possible if the sentence commuted to a terms of years, such remote possibility does not satisfy Miller.) 

State v. Ramirez, 287 Neb. 356, 842 N.W.2d 694 (February 7, 2014) (Miller is applicable to cases in direct review. Life sentence mandatorily imposed upon defendant is effectively LWOP.) 

State v. Taylor, 287 Neb. 386, 842 N.W.2d 771 (February 14, 2014) (follows Castaneda and Ramirez) 

State v. Smith, 288 Neb. 797 (August 8, 2014) (Nebraska Postconviction Act is the sole remedy for Eighth Amendment challenge to mandatory sentence of life without parole for non-homicide offense committed when prisoner was juvenile under Graham, and failure to challenge within time limit would forfeit the right.)

Severe Sentences 

Court upheld sentence of 20 months to 5 years in prison for man found guilty of driving while license suspended; man had a lengthy history of DUI convictions. State v. Haley, 2003 WL 1207972, *4 (Neb.App. 2003).

Sentence of consecutive 15-30 month prison terms for two counts of possession of cocaine and amphetamine was not an abuse of discretion in case in which 42-year-old defendant had been to prison on drug charges three times before. State v. Tucker, 262 Neb. 940, 950-51 (2001).

Court upheld 10-20 year sentence for theft conviction under the state’s habitual criminal statute. Sentencing court found that defendant was a habitual criminal due to unspecified record of prior felony convictions. State v. Martinez, 2002 WL 31414437, *2 (Neb.App. 2002).

Court upheld 61- to 170-year sentence for robbery, sexual assault, kidnapping, and use of a firearm in the commission of a felony. State v. McGuire, 218 Neb. 511, 518 (1984).

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Nevada

Updated: 10/16/2014 - Print the Nevada entry.

  • Nevada allows for parole; life sentences generally provide for parole eligibility after 10 years.
  • Nevada’s habitual criminal statute mandates minimum sentences of five years for those with two prior felony convictions and 25 years for those with three prior felonies.
State Constitution

Art. I, § 6. Excessive bail and fines; cruel and unusual punishments; detention of witnesses: Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel or unusual punishments be inflicted, nor shall witnesses be unreasonably detained.

Sentencing Statutes

Habitual criminal statute: 

A person convicted of a felony, who has two prior felony convictions in Nevada (or two out-of-state convictions for crimes that would be felonies in Nevada), faces a minimum sentence of five years and a maximum sentence of 20 years. N.R.S. § 207.010(1)(a). A person who has three prior felony convictions shall be punished by (1) life in prison without the possibility of parole, (2) life with the possibility of parole, with eligibility at 10 years, (3) for a term of 25 years, with parole eligibility beginning at 10 years. N.R.S. § 207.010(1)(b).

The prosecutor has the discretion to charge a defendant as a habitual criminal. N.R.S. § 207.010(2).

Courts may assign military veterans to special treatment programs: 

Courts may assign defendants who served in the military to special treatment programs in lieu of prison time if the defendant suffers from mental illness, alcohol or drug abuse, or PTSD that appears to be related to military service. N.R.S. § 176A.285(2)(b).

Case Law

General  

The Supreme Court of Nevada affords lower courts wide discretion in sentencing. Chavez v. State, 125 Nev. 328, 348 (2009). The sentencing judge has the discretion to consider the defendant’s age and prior record in determining a sentence. Tanksley v. State, 113 Nev. 844, 848 (1997). A consideration of “the fullest information possible regarding the defendant’s life and characteristics is essential to the selection of an appropriate sentence.” Wilson v. State, 105 Nev. 110, 115 (1989).

The court will not interfere with a sentence unless the record shows “prejudice resulting from consideration of information or accusations founded on facts supported only by impalpable or highly suspect evidence.” Silks v. State, 92 Nev. 91, 94 (1976).

Proportionality 

A sentence that is within the statutory limits does not violate the Eighth Amendment unless (1) the statute fixing punishment is unconstitutional, or (2) the sentence is so “unreasonably disproportionate” to the offense that it shocks the conscience. Chavez v. State, 125 Nev. 328, 348 (2009) (citing Blume v. State, 112 Nev. 472, 475 (1996)).

Leading Court Discussions of Graham and Miller 

Rogers v. State, 127 Nev. Adv. Op. 88, 267 P.3d 802 (December 29, 2011) (Lists the unresolved issues in Graham) 

Cruz v. State, 59962, 2012 WL 4801631 (Nev. Oct. 8, 2012) (the Eighth Amendment does not prohibit a sentence of life with the possibility of parole for juveniles.) 

Womack v. State, 61127, 2013 WL 588326 (Nev. Feb. 13, 2013) (Graham holding does not limit consideration of a prior felony conviction, committed as a juvenile, for habitual criminal purposes.) 

Allen v. State, 61563, 2013 WL 3270892 (Nev. June 12, 2013) (Post-conviction petition denied because Graham does not apply to first degree murder cases and defendant waited too long after Graham was issued without good cause.) 

Randell v. State, 61232, 2013 WL 7158872 (Nev. Dec. 12, 2013) (Post-conviction petition denied because Graham does not apply to first degree murder cases and defendant waited too long after Graham was issued without good cause.) 

Rohweder v. State, 63596, 2014 WL 495465 (Nev. Jan. 15, 2014) (Post-conviction petition denied because Graham does not apply to first degree murder cases and defendant waited too long after Graham was issued without good cause; Miller does not apply either because the decision of whether to impose a sentence of LWOP is discretionary in Nevada and court record showed that the court did considered defendant’s age.) 

Harvey v. State, 64566, 2014 WL 1430380 (Nev. Apr. 10, 2014) (Miller does not apply because the jury had discretion to sentence appellant to death, life without the possibility of parole, and life with the possibility of parole after ten years.) 

Severe Sentences 

Court found that mandatory life sentence for woman found guilty of lewdness with a child under 14 did not shock the conscience; woman would be eligible for parole after 10 years under state statute. Taylor v. State, 2011 WL5146037, *2 (Nov. 27, 2011) (slip copy).

Court upheld life sentence under state’s habitual criminal statute for man who pleaded guilty to grand larceny. Defendant had prior convictions for receiving stolen property, possession of a controlled substance, attempted burglary, forgery, and grand larceny. Blackwell v. State, 2011 WL486620, *1 (Feb. 9, 2011) (unpublished disposition).

Federal court denied habeas review for prisoner challenging sentence of three consecutive life terms after being convicted of six felonies related to a string of alleged burglaries. Prisoner would be eligible for parole after 10-30 years, distinguishing petitioner’s claim from the sentence overturned in Solem v. Helm, 463 U.S. 277 (1983). Wright v. Crawford, 294 Fed.Appx. 274, 276 (9th Cir. 2008), cert. denied, 555 U.S. 1214.

Sentence of 10-25 years in prison for burglary upheld on the grounds that it fell within the statutory limits and did not shock the conscience. Risser v. State, 2011 WL2803103, *1 (July 15, 2011) (unpublished disposition).

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New Hampshire

Updated: 5/14/2013 - Print the New Hampshire entry.

  • New Hampshire provides defendants with two avenues of sentence appeal: (1) challenging the constitutionality of the sentence via the traditional appellate court system and (2) appealing the length of the sentence to a three-judge sentence review panel.
State Constitution

Art. 18. Penalties to be Proportioned to Offenses; True Design for Punishment: All penalties ought to be proportioned to the nature of the offense. No wise legislature will affix the same punishment to the crimes of theft, forgery, and the like, which they do to those of murder and treason. Where the same undistinguishing severity is exerted against all offenses, the people are led to forget the real distinction in the crimes themselves, and to commit the most flagrant with as little compunction as they do the lightest offenses. For the same reason a multitude of sanguinary laws is both impolitic and unjust. The true design of all punishments being to reform, not to exterminate mankind.

Sentencing Statutes

Sentences reviewed by three-judge panel: 

Anyone sentenced to more than one year in prison (except when the defendant is serving a mandatory sentence) may appeal his sentence to an impartial three-judge panel. N.H. Rev. Stat. §651:58. The panel has the power to overturn the sentence and substitute another in its place if the panel so decides. N.H. Rev. Stat. §651:59. The panel’s decisions are not appealable unless the defendant argues that the panel’s decision violated his constitutional rights. Bell v. Superior Court Sentence Review Division, 117 N.H. 474, 475 (1977). Likewise, the panel does not have the power to determine the constitutionality of a sentence. Petition of Turgeon, 140 N.H. 52, 54 (1995).

Case Law

General  

Sentences are reviewed under an “unsustainable exercise of discretion” (abuse of discretion) standard; however, when a defendant asserts that his constitutional rights have been violated by a sentencing decision, the standard of review is de novo. State v. Willey, 163 N.H. 532, 541 (2012). To show that a trial court’s decision was not “sustainable,” a defendant must show that the court’s ruling “was clearly untenable or unreasonable” and prejudiced his case. State v. Johnson, 145 N.H. 647, 648 (2000).

Sentencing courts must consider a number of objective factors before imposing a sentence, including “whether the sentence imposed will meet the traditional goals of sentencing–punishment, deterrence, and rehabilitation.” State v. Burgess, 156 N.H. 746, 751 (2008).

Sentencing judges have broad, but not unlimited, discretion in determining the types of objective evidence upon which to rely in imposing a sentence. Burgess, 156 N.H. at 751. Lack of remorse is one such factor, as it may shed light on whether an effort to rehabilitate would be successful. Id. at 754. A sentencing court, however, may not draw an adverse inference from a defendant’s decision to remain silent at sentencing. Id. at 735-36.

A sentence must be reconsidered if improper evidence is admitted at sentencing, unless it can be shown that the trial court gave the evidence no weight. Id. at 751-52.

Courts “should not rely upon allegations of other crimes by the defendant when such allegations are unsubstantiated, resolved by acquittals, or the product of speculation.” State v. Lambert, 147 N.H. 295, 295-96 (2001). Sentencing judges cannot hold trial counsel’s defense strategies—including a defense that accuses another, uncharged, individual of wrongdoing—against a defendant at sentencing. Willey, 163 N.H. at 543.

Three-judge sentence review panel has the authority to increase a sentence upon appeal. Bell v. State Superior Court Sentence Review Division, 117 N.H. 474, 476 (1977).

Proportionality 

The state constitution forbids only “gross disproportionality between offense and penalty.” State v. Elbert, 125 N.H. 1, 15 (1984) (finding no gross disproportionality between a 15-30 year sentence and offense of attempted second-degree murder).

A sentence for a lesser-included offense that is harsher than the maximum provided for the greater offense is grossly disproportionate. State v. Dayutis, 127 N.H. 101, 105 (1985).

Severe Sentences 

Court denied habeas relief for prisoner challenging sentence of 60-120 years (six consecutive sentences of 10-20 years apiece) for conviction on six counts of aggravated felonious sexual assault. Duquette v. Warden, New Hampshire State Prison, 154 N.H. 737, 739 (2007).

Court upheld fines totaling $160,000 for conviction of 80 counts of gambling; fine was not excessive in light of amount of money being waged at defendant’s gambling operation and therefore not grossly disproportionate to the offense. State v. Enderson, 148 N.H. 252, 259 (2002).

Court upheld three- to six-year sentence for man convicted of criminal threatening with a firearm pursuant to gun-enhancement statute. Man was arrested for waving a gun in the air and ordering a trespasser to “get the F off my property.” State v. Bird, 161 N.H. 31, 40 (2010).

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New Jersey

Updated: 5/14/2013 - Print the New Jersey entry.

  • New Jersey has a total of 26 statutory factors judges must consider at sentencing.
  • The state’s three-strikes law allows judges to impose life without parole for certain violent crimes when a defendant has two prior convictions of certain enumerated crimes.
State Constitution

Art. 1, ¶12. Excessive bail or fines; cruel and unusual punishments:Excessive bail shall not be required, excessive fines shall not be imposed, and cruel and unusual punishments shall not be inflicted. It shall not be cruel and unusual punishment to impose the death penalty on a person convicted of purposely or knowingly causing death or purposely or knowingly causing serious bodily injury resulting in death who committed the homicidal act by his own conduct or who as an accomplice procured the commission of the offense by payment or promise of payment of anything of pecuniary value.

Sentencing Statutes

Statutory factors for sentencing: 

Judges must consider the following factors when imposing a sentence:

  1. In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court shall consider the following aggravating circumstances:
    (a) The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner;
    (b) The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance;
    (c) The risk that the defendant will commit another offense;
    (d) A lesser sentence will depreciate the seriousness of the defendant's offense because it involved a breach of the public trust under chapters 27 and 30, or the defendant took advantage of a position of trust or confidence to commit the offense;
    (e) There is a substantial likelihood that the defendant is involved in organized criminal activity;
    (f) The extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted;
    (g) The defendant committed the offense pursuant to an agreement that he either pay or be paid for the commission of the offense and the pecuniary incentive was beyond that inherent in the offense itself;
    (h) The defendant committed the offense against a police or other law enforcement officer, correctional employee or fireman, acting in the performance of his duties while in uniform or exhibiting evidence of his authority; the defendant committed the offense because of the status of the victim as a public servant; or the defendant committed the offense against a sports official, athletic coach or manager, acting in or immediately following the performance of his duties or because of the person's status as a sports official, coach or manager;
    (i) The need for deterring the defendant and others from violating the law;
    (j) The offense involved fraudulent or deceptive practices committed against any department or division of State government;
    (k) The imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices;
    (l) The defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled; and
    (m) The defendant, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a stolen motor vehicle.
  2. In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court may properly consider the following mitigating circumstances:
    (a) The defendant's conduct neither caused nor threatened serious harm;
    (b) The defendant did not contemplate that his conduct would cause or threaten serious harm;
    (c) The defendant acted under a strong provocation;
    (d) There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense;
    (e) The victim of the defendant's conduct induced or facilitated its commission;
    (f) The defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service;
    (g) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;
    (h) The defendant's conduct was the result of circumstances unlikely to recur;
    (i) The character and attitude of the defendant indicate that he is unlikely to commit another offense;
    (j) The defendant is particularly likely to respond affirmatively to probationary treatment;
    (k) The imprisonment of the defendant would entail excessive hardship to himself or his dependents;
    (l) The willingness of the defendant to cooperate with law enforcement authorities;
    (m) The conduct of a youthful defendant was substantially influenced by another person more mature than the defendant.

N.J.S.A. 2C:44-1.

No Early Release Act (NERA): 

New Jersey now requires offenders convicted of certain enumerated first or second-degree crimes to serve at least 85% of their sentences before being eligible for parole. N.J.S.A. 2C:43-7.2.

Three Strikes Law: 

The state allows for life without parole sentences for offenders convicted of certain violent crimes (murder, aggravated manslaughter, first-degree kidnapping, aggravated sexual assault occurring (1) during an attempted robbery, kidnapping, homicide, aggravated assault, burglary, arson, or criminal escape, (2) while the actor is armed with a weapon or an item that would reasonably lead a victim to believe it was a weapon, (3) with the help of one or more others and with physical force, or (4) that causes severe personal injury; or carjacking) who have twice been convicted of any of the designated crimes. N.J.S.A. 2C:43-7.1(a).

Case Law

General  

Judges must sentence defendants within the statutory range after identifying and weighing the applicable mitigating and aggravating factors. State v. Natale, 184 N.J. 458 (2005). A sentencing court must compile an explicit and exhaustive statement of aggravating and mitigating factors and how they are weighed and balanced. Natale, 184 N.J. at 488.

While the state now employs statutory factors at sentencing, the “whole person” concept has survived in limited form “through the application of some aggravating and mitigating factors that, although relating to the crime, still invite consideration by the sentencing court of the individual defendant’s unique character and qualities.” State v. Randolph, 210 N.J. 330, 349 (2012).

Appellate courts will modify sentences when (1) a review of the sentence shows that legislative policies (such as sentencing guidelines) were violated; (2) a review of aggravating and mitigating circumstances found at sentencing shows that they were not based upon competent credible evidence in the record; and (3) circumstances in which the court followed sentencing guidelines, but the application of the guidelines to the facts of the case resulted in a sentence that is “clearly unreasonable so as to shock the judicial conscience.” State v. Roth, 95 N.J. 334, 365 (1984).

When reconsideration or resentencing is ordered after an appeal, a trial court must consider post-sentencing rehabilitation in its consideration of mitigating factors unless the remand order explicitly specifies a more limited resentencing proceeding. Randolph, 210 N.J. at 354.

Proportionality 

New Jersey courts employ a three-part test to determine whether a sentence constitutes cruel and unusual punishment: (1) whether the punishment conforms with contemporary standards of decency; (2) whether the punishment is grossly disproportionate to the offense; (3) whether the punishment goes beyond what is necessary to accomplish any legitimate penological objective. State v. Johnson, 166 N.J. 523, 548 (2001).

Severe Sentences 

Court upheld life without parole sentence for defendant convicted of robbery and assault; offender had previously been convicted of violent crimes and was sentenced under the state’s three-strikes law. State v. Oliver, 162 N.J. 580, 587 (2000) (holding, inter alia, that counting, as a “strike,” a robbery conviction that occurred before the passage of the three-strikes law did not violate the ex post facto clause).

Court upheld life without parole sentence for conspiracy to commit robbery, robbery, aggravated assault, and illegal possession of a weapon convictions under state’s three strikes law. State v. Van Valen, 316 N.J. Super 20, 21 (N.J.App. 1998).

Court upheld sentence, under three-strikes law, of life in prison without parole for armed robbery, multiple counts of unlawful possession of a weapon, and terroristic threats. State v. Padro, 2007WL1174442, *5 (N.J.App. 2007).

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New Mexico

Updated: 10/16/2014 - Print the New Mexico entry.

  • New Mexico has a three-strikes law that mandates life (with parole) sentences upon a third conviction for a violent felony.
  • New Mexico divides juvenile defendants into three categories; the classifications determine both the procedural protections the juveniles receive at trial and whether they may face an adult sentence.
State Constitution

Art. 2, §13. Bail; excessive fines; cruel and unusual punishment: All persons shall, before conviction be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great and in situations in which bail is specifically prohibited by this section. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

Bail may be denied by the district court for a period of sixty days after the incarceration of the defendant by an order entered within seven days after the incarceration, in the following instances:

  1. the defendant is accused of a felony and has previously been convicted of two or more felonies, within the state, which felonies did not arise from the same transaction or a common transaction with the case at bar;
  2. the defendant is accused of a felony involving the use of a deadly weapon and has a prior felony conviction, within the state. The period for incarceration without bail may be extended by any period of time by which trial is delayed by a motion for a continuance made by or on behalf of the defendant. An appeal from an order denying bail shall be given preference over all other matters.
Sentencing Statutes

Basic Sentences; Criminal Sentencing Act: 

The state follows a statutory system of “Basic Sentences:”

  1. If a person is convicted of a noncapital felony, the basic sentence of imprisonment is as follows:
    (a) for a first degree felony resulting in the death of a child, life imprisonment;
    (b) for a first degree felony for aggravated criminal sexual penetration, life imprisonment;
    (c) for a first degree felony, eighteen years imprisonment;
    (d) for a second degree felony resulting in the death of a human being, fifteen years imprisonment;
    (e) for a second degree felony for a sexual offense against a child, fifteen years imprisonment;
    (f) for a second degree felony, nine years imprisonment;
    (g) for a third degree felony resulting in the death of a human being, six years imprisonment;
    (h) for a third degree felony for a sexual offense against a child, six years imprisonment;
    (i) for a third degree felony, three years imprisonment; or
    (j) for a fourth degree felony, eighteen months imprisonment.

N.M.S.A. § 31-18-15(A).

Sentencing courts, however, may alter a basic sentence pursuant to the state’s Criminal Sentencing Act. N.M.S.A. § 31-18-15(B).

This adjustment may be based upon a finding by the sentencing judge of mitigating circumstances. SeeState v. Juan, 148 N.M. 747, 760 (2010) (addressing the statute’s application in the wake of the Supreme Court of the United States’ holding in Cunningham v. California). Such a reduction is limited to one-third of the basic sentence. N.M.S.A. § 31-18-15.1(G).

An upward adjustment must be based upon a finding by a jury or judge (if the defendant waived a jury trial) beyond a reasonable doubt of an aggravating circumstance related to the offense or the offender. N.M.S.A. §§ 31-18-15.1(A)(2); 31-18-15.1(B).

Three strikes law: 

When a defendant is convicted of three violent felonies, and each is part of a separate transaction or occurrence, the defendant must be sentenced to life in prison (with parole). N.M.S.A. 31-18-23(A). A violent felony conviction received before the defendant turns 18 does not count as a strike. N.M.S.A. 31-18-23(C). “Violent felonies” are limited to: first and second degree murder; shooting at or from a motor vehicle, resulting in great bodily harm; kidnapping resulting in great bodily harm inflicted upon the victim by the captor; criminal sexual penetration; robbery while armed with a deadly weapon resulting in great bodily harm. N.M.S.A. 31-18-23(E).

Serious youthful offender/youthful offender law:

New Mexico divides juvenile defendants into three categories, which determine both the procedural protections they receive at trial and whether they may face an adult sentence: (1) serious youthful offenders, who are juveniles between 15-18 charged with first-degree murder and subject to adult penalties; (2) youthful offenders, who are between the ages of 14-18 and, upon conviction for certain enumerated violent crimes, are subject to a special sentencing hearing at which the court determines not only the length of the sentence, but whether the offender will be punished as a juvenile or adult; (3) and delinquent offenders, who may only be sentenced as juveniles. N.M.S.A. §31-18-15.2; see State v. Jones, 148 N.M. 1, 4 (2010).

A juvenile sentenced as a serious youthful offender or as a youthful offender may be sentenced to less than the minimum term of imprisonment mandated for adults by statute. N.M.S.A. §31-18-13(B).

Case Law

General 

Appellate courts review sentencing determinations under an abuse of discretion standard, but review application of the law to facts de novo. State v. Consaul, 2012WL868811, *11 (N.M.App. 2012) (unpublished opinion) (quoting State v. Martinez, 145 N.M. 220 (2008)). This means that where an otherwise discretionary decision is premised upon misunderstanding of the law, the court reviews de novo. State v. Browning, 2011WL2042048, *6 (N.M.App. 2011).

The sentencing court may alter the basic sentence for noncapital felonies if the court finds “any mitigating circumstances surrounding the offense or concerning the offender.” State v. Juan, 148 N.M. 747, 760 (2010).

Proportionality 

In order to be found cruel and unusual punishment, a punishment must be, in light of contemporary standards of elemental decency, so disproportionate to the crime that it shocks the “general conscience” or violates “principles of fundamental fairness.” In the Matter of Ernesto M., Jr., 121 N.M. 562, 568 (N.M.App. 1996).

The court reviews proportionality challenges de novo, but views the facts in the light most favorable to the district court’s decision and grants deference to the court’s decisions on matters of weight and credibility. State v. Ira, 132 N.M. 8, 14 (N.M.App. 2002). The court will find a sentence cruel and unusual only in “exceptional circumstances.” State v. Rueda, 126 N.M. 738 (N.M.App. 1998).

Leading Court Discussions of Graham and Miller 

State v. Gutierrez, 2013 WL 6230078 (December 2, 2013) (Defendant’s conviction of “life plus eighteen years” does not violate Miller because it’s life with possibility of parole; even though the sentence is not mandatory, it’s proper and reasonable for court not to deviate from the sentence after hearing the testimony and taking the circumstances of Child and the crime into account.) 

Severe Sentences 

Court upheld 27-year sentence for conviction of three counts of drug trafficking and three counts of conspiracy to commit trafficking. State v. Reyna, 2010 WL4162110, *2 (N.M.App. 2010) (unpublished opinion) (rejecting, inter alia, defendant’s claim of sentencing entrapment, which served as the crux of his proportionality challenge).

Sentence of 91½ years for juvenile convicted of repeatedly sexually abusing his younger stepsister during a two-year period was not cruel and unusual; court noted testimony at sentencing hearing about juvenile’s violent behavior, instances of animal abuse, and expert opinion that he was a poor candidate for rehabilitation. Ira, 132 N.M. at 17.

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New York

Updated: 5/14/2013 - Print the New York entry.

  • New York has a three-strikes law that mandates indeterminate life sentences upon conviction for a third violent felony.
State Constitution

Art. 1, §5. Bail; fines; punishments; detention of witnesses: Excessive bail shall not be required nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted, nor shall witnesses by unreasonably detained.

Sentencing Statutes

Persistent Violent Felony Offender statute: 

New York has a statute that mandates minimum indeterminate life sentences for those convicted of their third violent felonies. The minimum time that must be served depends on the severity of the third felony, and ranges from 12-25 years. N.Y. Penal Law §70.08(3). Effective September 1, 2013, the minimum range will shift to 6-25 years. N.Y. Penal Law §70.08 (McKinney).

Statutory sentence appeals: 

State law permits appellate courts to set aside sentences that are invalid as a matter of law (when the terms of the sentence are not authorized, when the sentence is based upon an erroneous determination that a defendant had a previous conviction, or when probation has been improperly revoked) or “harsh or excessive.” N.Y. Criminal Procedure Law §450.30(1).

Youthful offender statute: 

Courts are allowed to grant offenders between the ages of 16 and 19 “youthful offender” status, which allows offenders to avoid a criminal conviction on their records and sets lower maximum sentences for certain crimes. Eligible youth must receive youthful offender classification if they were convicted in a local criminal court and have no prior record of criminal or youthful offender convictions. N.Y. Criminal Procedure Law §720.20.

Case Law

General  

To be sentenced as a persistent violent felony offender, the two prior felonies must not have been part of the same event or transaction. People v. Morse, 62 N.Y.2d 205, 223-24 (1984).

Sentences are evaluated under an abuse of discretion standard. People v. Hochberg, 62 A.D.2d 239, 251 (3 Dept. 1978). When evaluating whether a sentence is harsh or excessive, a sentence should not be disturbed without a showing of “extraordinary circumstances.” People v. Mabry, 101 A.D.2d 961, 962 (3 Dept. 1984).

The state’s persistent violent felony offender statute contains no requirement that qualifying convictions result in imprisonment; thus, a defendant may be sentenced as a persistent violent offender even if he received probation for a prior offense. People v. Harrison, 248 A.D.2d 174, 175 (1 Dept. 1998).

The determination of whether a sentence is to be served “at hard labor” or under standard prison employment conditions is a decision for the Department of Corrections, not the trial court. People v. Johnson, 216 A.D.2d 583, 584 (1995).

Proportionality 

The state constitution prohibits punishments that are “grossly disproportionate” to the crime. People v. Broadie, 37 N.Y.2d 100, 111-12 (1975).

The gravity of the offense and gravity of the danger the offender poses to society are key factors in the gross proportionality analysis. Broadie, 37 N.Y.2d at 112. When considering the gravity of the criminal offense, the main concern is the harm the offense causes to society. Id. The reviewing court also considers (1) the crime’s comparative seriousness in light of the punishments for other state crimes and for the same offense in other jurisdictions; as well as (2) the punishment in comparison to the punishment received by any other charged participant. People v. Thompson, 83. N.Y.2d 477, 485 (1994).

A sentence within a valid statutory range is not ordinarily cruel and unusual, regardless of the sentence’s severity. People v. Jones, 39 N.Y.2d 694 (1976) (upholding a sentence of 15 years to life for drug possession when other defendants who were involved in the same drug packaging operation received much lighter sentences; defendant had turned down an offer of a lighter sentence in exchange for a guilty plea to a lesser charge).

Severe Sentences 

Court upheld sentence of 15 years to life for 17-year-old convicted of cocaine distribution. Thompson, 83 N.Y.2d at 482.

Court upheld sentence of 9 years to life for man convicted of criminal possession of a dangerous weapon under the state’s persistent violent felony offender statute. People v. Ortiz, 254 A.D.2d 27 (1 Dept. 1998).

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North Carolina

Updated: 5/29/2013 - Print the North Carolina entry.

  • The state’s habitual felon act allows sentencing courts to lengthen the sentence of offenders convicted of three prior felonies, no matter how outdated.
  • Non-habitual offender sentencing follows a set of presumptive guidelines that may be aggravated or mitigated based on a number of designated statutory factors.
State Constitution

Art. 1, §27. Bail, fines, and punishments: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments be inflicted.

Sentencing Statutes

Habitual Felon statute: North Carolina allows for sentence enhancements for offenders convicted of multiple felonies. N.C.G.S.A. §14-7.6. Any person convicted of three felonies in any state or federal court may be sentenced under the state’s habitual felon statute. N.C.G.S.A. §14-7.1. Multiple felonies committed before an offender turns 18 will count as a single felony for calculation of habitual offender status. Id. Felonies committed in the same transaction count as a single felony for calculation of habitual offender status. Id. 

Life in prison without parole for second conviction if it involves felony conduct against a minor: State statute mandates life without parole sentences if an offender has committed more than one Class B1 or above felony, and the latest felony conviction is for conduct that involved a victim aged 13 or younger at the time of the offense. N.C.G.S.A. §15A-1340.16B.

Structured Sentencing Act: The state allows sentencing courts to depart from presumptive sentencing ranges if the jury finds the presence of aggravating or mitigating factors. N.C.G.S.A. §15A-1340.16(b). The presence of aggravating factors allows courts to sentence those convicted of B1 felonies to life without parole. N.C.G.S.A. §15A-1340.17.

Case Law

General  

Under the state’s habitual felon act, an offender may be subject to sentence enhancements no matter the level of severity of the prior felonies. State v. Clifton, 158 N.C.App. 88, 95-96 (2003). 

The state’s habitual felon act is not applied in a manner that violates the equal protection clause when a District Attorney in one county exercises his discretion to prosecute all eligible defendants as habitual offenders, while District Attorneys in other counties do not seek habitual offender status for all those eligible. State v. Parks, 146 N.C.App. 568, 571 (2001).

A sentencing court may impose a sentence more lenient than the minimum prescribed by the mitigated guideline range for drug trafficking sentences if it finds an offender has rendered substantial assistance. State v. Saunders, 131 N.C.App. 551, 552 (1998).

Sentencing courts are not required to find aggravating factors when sentencing an offender to a term at the top of the presumptive range, when that term also falls at the bottom of the aggravated sentencing range. State v. Twitty, 710 S.E.2d 421, 430  (Ct.App. 2011).

Appealing the validity of prior convictions used to establish habitual felon status is an impermissible collateral attack; “being a habitual felon is a status, that once attained, is never lost.” State v. Creason, 123 N.C.App. 495, 500-501 (1996).

Prosecutors are not barred from using older felony convictions to establish habitual felon status, as the act does not place any temporal restrictions on qualifying convictions. State v. Hensley, 156 N.C.App. 634, 638 (2003) (upholding sentence enhanced by a felony committed 19 years prior).

Proportionality 

Sentences will be overturned for gross disproportionality in non-capital cases only “in exceedingly unusual” circumstances. State v. Clifton, 158 N.C.App. 88, 94 (2003). A reviewing court may consider an offender’s “history of felony recidivism” when evaluating whether a sentence is grossly disproportionate. Clifton, 158 N.C.App. at 96.

A sentence within the statutory guideline range does not constitute cruel and unusual punishment. State v. Bruce, 268 N.C. 174, 184-85 (1966) State v. Robinson, 271 N.C. 448, 449 (1967).

When considering whether a sentence is so grossly disproportionate that it constitutes cruel and unusual punishment, the court places “great weight” on the seriousness of the offense. See State v. Ysaguine, 309 N.C. 780, 787 (1983).

Severe Sentences 

Court upheld sentence of 32-40 years in prison for 16-year-old defendant convicted of molesting his younger half-brother. State v. Pettigrew, 204 N.C.App. 248, 259 (2010), appeal dismissed, 364 N.C. 439 (2010). 

Court upheld mandatory life sentence for 13-year-old convicted of sexual assault, attempted rape, and burglary. State v. Green, 348 N.C. 588, 612 (1998).

Court upheld sentence of 84-110 months for defendant convicted of cocaine possession and found to be a habitual felon. State v. Flemming, 171 N.C.App. 413, 416 (2005).

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North Dakota

Updated: 5/14/2013 - Print the North Dakota entry.

  • North Dakota has a three-strikes law that allows courts to impose life sentences when an offender with two prior felony convictions is subsequently convicted of a Class A felony.
  • The state allows courts to enhance sentences for dangerous, “mentally abnormal” offenders.
State Constitution

Art. 1, §11. Section 11: All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel or unusual punishments be inflicted. Witnesses shall not be unreasonably detained, nor be confined in any room where criminals are actually imprisoned.

Sentencing Statutes

Habitual Offender statute: North Dakota allows for the enhancement of an offender’s sentence if he is found to have been previously convicted as an adult of two felonies punishable by a maximum term of five years or more. NDCC §12.1-32-09(1)(c). If the offense for which the defendant is convicted is a Class A felony, the court may impose a sentence of life imprisonment. NDCC §12.1-32-09(2).

Dangerous Special Offenders: A court may enhance a sentence if it finds that an offender “is a dangerous, mentally abnormal person whose conduct has been characterized by persistent aggressive behavior and the behavior makes the offender a serious danger” to others or the convicted offender is a “professional criminal who has substantial income or resources derived from criminal activity.” NDCC §§12.1-32-09(1)(a)-12.1-32-09(1)(b). A finding that an offender was convicted of an offense that seriously endangered the life or another, when that offender has previously been convicted of another offense that put a life in danger, is grounds for enhancement. NDCC §12.1-32-09(1)(d). So is the use of a firearm, dangerous weapon, or destructive device during the course of the offense. NDCC §12.1-32-09(1)(e). 

The statute defines “professional criminal” as one with “control of income or property not explained as derived from a source other than criminal activity;” a “substantial source of income” is defined as a “source of income which for any period of one year or more exceeds the minimum wage, determined on the basis of a forty-hour week and a fifty-week year, without reference to exceptions, under section 6(a)(1) of the Fair Labor Standards Act of 1938, as amended, for an employee engaged in commerce or in the production of goods for commerce, and which for the same period exceeds fifty percent of the offender's declared adjusted gross income under chapter 57-38.” NDCC §12.1-32-09(1)(e).

Case Law

General 

State courts have wide discretion in sentencing, and the appellate courts will not vacate a lower court’s sentence unless (1) acted outside the limits prescribed by statute or (2) “substantially relied” upon an impermissible factor in determining the sentence. State v. Haynes, 763 N.W.2d 502, 504 (N.D. 2009).

Prosecutors must provide reasonable notice before trial if they intend to seek sentencing enhancement under the state’s habitual offender statute; failure to do so is prejudicial error and grounds for reversal of the imposed sentence. State v. Carpenter, 793 N.W.2d 765, 772-73 (N.D. 2011) (reversing and remanding for resentencing when prosecutor notified the defendant and trial court that he intended to seek an enhancement the day before trial).

The term “mentally abnormal” in the dangerous special offenders statute must be considered in conjunction with the term “dangerous,” and those terms are defined as “a defendant whose conduct has been characterized by persistent aggressive behavior” that poses a danger to others. State v. Wells, 276 N.W.2d 679, 693 (N.D. 1979) (holding, inter alia, that the statute was not constitutionally vague). A court cannot find that a defendant is a “dangerous, mentally abnormal” person unless a presentence report and psychiatric examination finds the same. State v. Wells, 265 N.W.2d 239, 244 (N.D. 1978).

Once the state shows a defendant had counsel for previous convictions, it becomes the defendant’s burden to show that prior convictions were deficient for the purposes of avoiding sentence enhancements. State v. Berger, 590 N.W.2d 884, 887 (N.D. 1999).

Proportionality 

To evaluate whether a punishment is grossly disproportionate, the court compares the gravity of the offense to the harshness of the penalty; if the court finds gross disproportionality, then it should compare the defendant’s sentence with sentences received by other offenders in the same jurisdiction and those convicted of the same crime in other jurisdiction. State v. Gomez, 793 N.W.2d 451, 459 (N.D. 2011). To evaluate the gravity of the offense, courts should consider the actual or threatened harm to the victim and society, as well as the defendant’s culpability and degree of involvement. Gomez, 793 N.W.2d at 459, citing U.S. v. Barraza, 576 F.3d 798, 808 (8th Cir. 2009).

Severe Sentences 

Court upheld life without parole sentence for 16-year-old convicted of murder; the defense presented no mitigating evidence during its sentencing hearing. State v. Garcia, 561 N.W.2d 599, 611 (N.D. 1997).

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Ohio

Updated: 10/16/2014 - Print the Ohio entry.

  • The Ohio Constitution provides additional protection from cruel and unusual punishment.
State Constitution

Art. 1, §9. Bail; cruel and unusual punishments:

All persons shall be bailable by sufficient sureties, except for a person who is charged with a capital offense where the proof is evident or the presumption great, and except for a person who is charged with a felony where the proof is evident or the presumption great and where the person poses a substantial risk of serious physical harm to any person or to the community. Where a person is charged with any offense for which the person may be incarcerated, the court may determine at any time the type, amount, and conditions of bail. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.

The general assembly shall fix by law standards to determine whether a person who is charged with a felony where the proof is evident or the presumption great poses a substantial risk of serious physical harm to any person or to the community. Procedures for establishing the amount and conditions of bail shall be established pursuant to Article IV, Section 5(B) of the Constitution of the state of Ohio.

Sentencing Statutes

Felony sentencing factors: 

In arriving at a sentence, a court must consider a number of potential aggravating factors, including:

  1. The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim.
  1. The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense.
  1. The offender held a public office or position of trust in the community, and the offense related to that office or position.
  1. The offender's occupation, elected office, or profession obliged the offender to prevent the offense or bring others committing it to justice.
  1. The offender's professional reputation or occupation, elected office, or profession was used to facilitate the offense or is likely to influence the future conduct of others.
  1. The offender's relationship with the victim facilitated the offense.
  1. The offender committed the offense for hire or as a part of an organized criminal activity.
  1. In committing the offense, the offender was motivated by prejudice based on race, ethnic background, gender, sexual orientation, or religion.
  1. If the offense is a violation of section 2919.25 or a violation of section 2903.11, 2903.12, or 2903.13 of the Revised Code involving a person who was a family or household member at the time of the violation, the offender committed the offense in the vicinity of one or more children who are not victims of the offense, and the offender or the victim of the offense is a parent, guardian, custodian, or person in loco parentis of one or more of those children.

Ohio Rev. Code § 2929.12.

A court must consider a number of potential mitigating factors, including:

  1. The victim induced or facilitated the offense.
  1. In committing the offense, the offender acted under strong provocation.
  1. In committing the offense, the offender did not cause or expect to cause physical harm to any person or property.
  1. There are substantial grounds to mitigate the offender's conduct, although the grounds are not enough to constitute a defense

Ohio Rev. Code § 2929.12.

A court must consider factors that would make it more likely that the offender would commit future crimes:

  1. At the time of committing the offense, the offender was under release from confinement before trial or sentencing, under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or under post-release control pursuant to section 2967.28 or any other provision of the Revised Code for an earlier offense or had been unfavorably terminated from post-release control for a prior offense pursuant to division (B) of section 2967.16 or section 2929.141 of the Revised Code.
  1. The offender previously was adjudicated a delinquent child pursuant to Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter 2152. of the Revised Code, or the offender has a history of criminal convictions.
  1. The offender has not been rehabilitated to a satisfactory degree after previously being adjudicated a delinquent child pursuant to Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter 2152. of the Revised Code, or the offender has not responded favorably to sanctions previously imposed for criminal convictions.
  1. The offender has demonstrated a pattern of drug or alcohol abuse that is related to the offense, and the offender refuses to acknowledge that the offender has demonstrated that pattern, or the offender refuses treatment for the drug or alcohol abuse.
  1. The offender shows no genuine remorse for the offense

Ohio Rev. Code § 2929.12.

The court must consider factors that would make it less likely that an offender would commit future crimes:

  1. Prior to committing the offense, the offender had not been adjudicated a delinquent child.
  1. Prior to committing the offense, the offender had not been convicted of or pleaded guilty to a criminal offense.
  1. Prior to committing the offense, the offender had led a law-abiding life for a significant number of years.
  1. The offense was committed under circumstances not likely to recur.
  1. The offender shows genuine remorse for the offense

Ohio Rev. Code § 2929.12.

Case Law

General 

A trial court may use an individual’s juvenile record in determining that an offender is likely to reoffend, thereby imposing a maximum sentence. State v. King, 3d Dist., No. 4-04-33, 2005 -Ohio- 3760, at ¶24.

Blakely protections are not implicated under the state’s sentencing scheme. State v. Pearce, 6h Dist. No. OT-04-048, 2005 -Ohio- 3361, at ¶41; State v. Curlis, 6h Dist. No. WD-04-032, 2005 -Ohio- 1217.

Proportionality 

A punishment violates the state constitution when it is “so greatly disproportionate to the offense as to shock the sense of justice in the community.” State v. Chaffin, 30 Ohio St.2d 13 (1972).

A sentence will be found cruel and unusual under the state constitution in the rare circumstances when it “would be considered shocking to any reasonable person.” In re C.P., 131 Ohio St.3d 513, 529 (2012). The Ohio constitution provides citizens with protections that are independent of the Eighth Amendment. In re C.P.. 131 Ohio St.3d at 529.

Charging a motorist with involuntary manslaughter after she committed a series of minor traffic infractions that resulted in the death of two other motorists does not shock the sense of justice in the community. State v. Weitbrecht, 86 Ohio St.3d 368, 370 (1999).

Leading Court Discussions of Graham and Miller 

State v. Long, 138 Ohio St.3d 478 (March 12, 2014) (When imposing LWOP, the court must separately consider the youth of a juvenile as mitigating factor and group sentencing of three that included one juvenile defendant violates that requirement. Court record must show the mitigating factor, in sentencing memorandum and/or sentencing hearing; Wyoming factors, which list the factors court may consider when imposing LWOP is not required by Ohio court and judges retain broad discretion to determine how much weight to give each factor.) 

In re C.P., 2012-Ohio-1446, 131 Ohio St. 3d 513, 967 N.E.2d 729 (April 3, 2012) (Mandatory, lifetime sex-offender registration and notification requirements, including notification on the Internet violate Eighth Amendment to the extent it imposes such requirement on juvenile offenders.) 

Severe Sentences 

Court upheld mandatory two-year sentence for escape; man was arrested after he failed to report to his parole officer on four occasions over a two-week period. State v. Myers, 2007 WL 1536827, *3  (Ohio App.2nd 2007).

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Oklahoma

Updated: 5/14/2013 - Print the Oklahoma entry.

  • Oklahoma has a habitual offender statute that gives prosecutors leeway to determine against which defendants they will seek enhanced sentences.
State Constitution

Art. 2, §9: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Sentencing Statutes

Habitual Offender statute: Oklahoma allows for the enhancement of an offender’s sentence if he is found to have been previously convicted as an adult of a felony within 10 years of the instant offense. Prosecutors are allowed to exercise their discretion in determining who they will seek to punish as habitual offenders. 21 Okl.St.Ann. §51.1.  

Delayed Sentencing Program for Young Adults: The state allows courts to defer sentences for “young adults” (this term is left undefined) until up to a year after a plea of guilty or conviction. During that time the court may place the offender on probation or commit the offender to the Department of Corrections, which is charged with completing a specialized plan for the youth (ranging from education to counseling) and the circumstances under which the plan could best be completed—including “boot camp, substance abuse treatment, and vocational or educational placement.” Okla. Stat. tit. 22, §996.3. After completion of the program, the court has the authority to dismiss the charges against the offender, defer judgment, suspend the sentence, or sentence the offender to a regular term.

Case Law

General 

The habitual offender statute has sustained a number of constitutional challenges. Butler v. State, 645 P.2d 1030 (Okla.Crim.App. 1982)(vagueness); Jump v. Page, 437 P.2d 283 (1968)(due process; double jeopardy); Taylor v. State, 423 P.2d 473 (Okla.Crim.App. 1967)(equal protection).

Courts give great deference to the legislature in setting penalties for criminal offenses. King v. State,  130 P.2d 105,108 (Okla.Crim.App. 1942) .

Sentence of six months in jail for direct contempt was excessive in light of the facts and circumstances presented in case in which defendant told judge she would “get him” and walked out of courtroom during proceedings. Ingram v. State, 650 P.2d 888, 892 (Okla. Crim. App. 1982).

Proportionality 

To evaluate whether a punishment is grossly disproportionate, the court compares the gravity of the offense to the harshness of the penalty; the fact that the state may be the only in the country that imposes a life without parole sentence for certain offenses does not automatically render the punishment grossly disproportionate. Dodd v. State, 879 P.2d 822, 827 (Okla. Crim. App. 1994)(upholding life sentence without parole for defendant convicted of conspiracy to traffic 50 pounds of marijuana; defendant had four prior felony drug convictions).

When a sentence is within statutory limits, it will not be modified unless it is so excessive in light of the facts and circumstances that it shocks the conscience. Maxwell v. State, 775 P.2d 818, 820 (Okla. Crim. App. 1989)(upholding life sentence for attempted kidnapping conviction when defendant had previously been convicted of two felonies).

Severe Sentences 

Court upheld a cumulative sentence of more than 195 years in prison for convictions on multiple counts of methamphetamine distribution and sale; sentence was enhanced due to the defendant’s status as having been on probation as part of a conditional discharge on a prior felony. The trial judge ordered the sentences be served consecutively. Watts v. State, 197 P.3d 1094 (Okla. Crim. App. 2008).

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Oregon

Updated: 5/14/2013 - Print the Oregon entry.

  • Oregon mandates minimum sentences for certain violent felonies, and mandates determinate sentences for certain two-time felons.
State Constitution

Art. I, § 16: Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense. -- In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases.

Sentencing Statutes

Mandatory minimums statute: Oregon imposes a series of mandatory minimum punishments for violent felonies, including 25-year minimums for murder, first-degree rape, first-degree unlawful sexual penetration, and first-degree sodomy. O.R.S. § 137.700.  

Determinate sentences for certain second-time felons: The state mandates determinate sentences, revoking all parole and probation eligibility, upon second conviction for offenders who have twice committed enumerated felonies. O.R.S. § 137.635.  

Sentencing guidelines: The state utilizes a series of sentencing guidelines developed by state commission. O.R.S. § 137.669.  

Case Law

General 

Once a valid sentence is executed, a trial court cannot modify it; however, if the sentence lacks valid legislative authority, the trial court has the power to modify the sentence. State v. Horsley, 168 Or.App. 559 (1999).

The statute setting mandatory minimums for certain felonies is not limited by pre-existing statute setting limits on prison terms. State v. Langdon, 330 Or. 72 (2000).

Upward departures from the sentencing guidelines based on a defendant’s probation/supervision status requires “further inferences about the malevolent quality of the offender and the failure of his (supervisory) status to serve as an effective deterrent.” State v. Jackson, 227 Or.App. 33, 36 (2009).

Upward departures based on persistent involvement in similar offenses present factual issues that a defendant has the right to demand be proved beyond a reasonable doubt. State v. Bray, 342 Or. 711, 724 (2007).

Proportionality 

The court gives great deference to the legislature in setting criminal penalties—even enhancements—and will overturn a sentence only when it is so disproportioned to the offense that it shocks the moral sense of all reasonable men as to what is right and proper. State v. Wheeler, 343 Or. 652 (2007).

To determine whether a penalty is proportioned to the offense, the court will consider whether the penalties imposed for other, related crimes are less severe than the crime at issue. State v. Rodriguez/Buck, 347 Or. 46 (2009). 

A defendant’s criminal history is important in deciding a proportionality challenge. State v. Smith, 128 Or. 515, 525-26 (1929).

Sentences for lesser-included offenses, especially attempt, that by statute are greater than those of the top charge are generally disproportionate. State v. Shumway, 291 Or. 153, 164 (1981).

Severe Sentences 

Court overturned trial court’s ruling that mandatory minimum 75-month sentence for child sexual abuse was unconstitutionally cruel and unusual. State v. Silverman, 159 Or.App. 524 (1999).  

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Pennsylvania

Updated: 10/16/2014 - Print the Pennsylvania entry.

  • Pennsylvania has two- and three-strikes laws that mandate minimum terms of 10 and 25 years, respectively, for certain second- and third-time offenders. 
State Constitution

Art. 1, § 13. Bail, fines and punishments: Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted.

Sentencing Statutes

Sentencing guidelines: The state mandates that judges consider advisory sentencing guidelines in imposing punishment.  

42 Pa.C.S.A. § 2154.

Mandatory minimums for offenses committed with firearms: The state mandates a minimum sentence of five years for any crime of violence committed with a firearm or replica firearm. 42 Pa.C.S.A. § 9712. 

Mandatory life in prison: The state mandates life in prison for anyone convicted of murder who has previously been convicted of murder or voluntary manslaughter in Pennsylvania, or an equivalent crime outside of the state.  

42 Pa.C.S.A. § 9715.

Two-strikes law: The state mandates a sentence of at least 10 years when an offender is convicted of a crime of violence when he has a prior conviction for a crime of violence on his record. 

42 Pa.C.S.A. §9714.

Three-strikes law: The state mandates a sentence of at least 25 years when an offender has previously been convicted of two or more crimes of violence arising from separate transactions. 

42 Pa.C.S.A. §9714.

Case Law

General 

In order to secure appellate review of a sentencing decision, an appellant must show that there is a “substantial question whether the sentence imposed is appropriate under the Sentencing Code.” Commonwealth v. Rodda, 723 A.2d 212 (Pa.Super. 1999). A substantial question is one “where an appellant advances a colorable argument that the trial court’s actions are inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms which underlie the sentencing process;” this includes when a court fails to state sufficiently its reasons for imposing sentences outside the guidelines. Rodda at 214.

The standard for appeal of a sentence is manifest abuse of discretion. Commonwealth v. Johnson, 446 Pa.Super. 192, 197 (1995). 

A judge must put his or her reasoning on the record when handing down sentence outside of the guideline ranges. Commonwealth v. Dutter, 420 Pa.Super. 565 (1992). The reasons given must be “adequate”—the court must consider the guidelines before sentencing and state reasons for why a deviation is necessary. Commonwealth v. Chesson, 353 Pa.Super. 255, 258 (1986).

Proportionality 

The state constitution does not provide broader protection than the Eighth and Fourteenth amendments to the United States constitution. Commonwealth v. Zettlemoyer, 500 Pa. 16, 73 (1982). The state constitution is coextensive with the federal constitution in regards to proportionality analysis. Commonwealth v. Cottam, 420 Pa.Super. 311, 341 (1992).

Successful challenges to a criminal penalty are extremely rare when the penalty is something other than capital punishment. Commonwealth v. Yasipour, 957 A.2d 734, 743 (Pa.Super. 2008).

Courts grant the legislature substantial deference in setting the types and limits of punishments. Commonwealth v. Strunk, 400 Pa.Super. 25 (1990). A sentence will not be found cruel and unusual unless it offends “evolving standards of decency or a balanced sense of justice. Strunk, 400 Pa.Super. at 37.

Determinations regarding the appropriateness of individualized sentencing (in non-capital cases) are left to the province of the legislature. Commonwealth v. Waters, 334 Pa.Super. 513 (1984)(upholding mandatory life without parole sentence for first degree murder).

Leading Court Discussions of Graham and Miller 

Com. v. Batts, 620 Pa. 115, 66 A.3d 286 (March 26, 2013) (Pennsylvania’s new sentencing statute under Miller applies only to minors convicted of murder on and after the date Miller was issued; court must consider other individualize factors under the statute; juvenile defendants pending in direct review are subject to a mandatory maximum sentence of life imprisonment as required by statute, accompanied by a minimum sentence determined by the common pleas court upon resentencing) 

Com. v. Cunningham, 81 A.3d 1 (Pa. October 10, 2013) (Miller's prohibition against mandatory life-without-parole sentencing for juvenile offenders did not apply retroactively.) 

Severe Sentences 

Court upheld sentence of life in prison for attempted rape of a child; defendant was sentenced as a third-strike offender. Commonwealth v. Helsel, 53 A.3d 906 (Pa.Super. 2012).

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Puerto Rico

Updated: 5/14/2013 - Print the Puerto Rico entry.

Research underway.

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Rhode Island

Updated: 5/14/2013 - Print the Rhode Island entry.

  • The state allows certain first-time offenders to continue working or attending school while serving their sentence at a minimum-security facility. 
State Constitution

Art. 1, § 8. Bail, fines and punishments: Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted; and all punishments ought to be proportioned to the offense.

Sentencing Statutes

First-time offenders: Judges may sentence certain first-time offenders to terms in minimum-security, overnight facilities and allow them to continue reporting to work or school during business hours. R.I. Gen. Laws § 12-19-2(b). Corrections officials may charge these first-time prisoners for their stays. R.I. Gen. Laws § 12-19-2(e). 

Habitual offenders: The state mandates sentencing enhancements of up to 25 additional years in prison for offenders upon their third felony conviction. R.I. Gen. Laws § 12-19-21. 

Sentencing guidelines: Each year the justices of the superior court (with approval of the justices of the state’s supreme court) adopt a schedule of presumptive sentences for each type of felony that constituted more than 5% of the criminal caseload in the superior court during the preceding year. R.I. Gen. Laws § 12-19.3-2. Trial judges may stray from the presumptive range when they find “substantial and compelling circumstances” which justify an alternative sentence. R.I. Gen. Laws § 12-19.3-3. The aggrieved party has 20 days to appeal a sentence that departs upwardly (the defendant) or downwardly (the state) from the presumptive range. R.I. Gen. Laws § 12-19.3-4. 

Case Law

General 

The state supreme court will uphold a postconviction relief decision absent clear error or a determination that the hearing justice misconceived or overlooked material evidence. Rodrigues v. State, 985 A.2d 311 (R.I. 2009).

The penalty enhancements under the state’s habitual offender statute are mandatory, and a trial judge commits reversible error if he or she refuses to impose an additional sentence on a defendant found to be a habitual offender. State v. Chielli, 762 A.2d 450 (R.I. 2000).

Proportionality 

The proportionality principles embodied in the state constitution are “identical” to those of the federal constitution. State v. Monteiro, 924 A.2d 784, 795 (R.I. 2007). The court will overturn a sentence when it is unduly harsh when compared to the crime. McKinney v. State, 843 A.2d 463, 470 (R.I. 2004). The court will conduct a comparative analysis of sentences for similar convictions only if it first finds that the sentence is unduly harsh when compared to the crime. McKinney, 843 A.2d at 470.

Severe Sentences 

Court upheld a five-year assault sentence, with a 25-year enhancement pursuant to R.I. Gen. Laws § 12-19-21, against a prisoner who threw urine and feces at a correctional officer. The offender was sentenced to a total of seven years worth of additional time, with 23 years of probation. State v. Lyons, 924 A.2d 756 (R.I. 2007).

Court upheld 20-year sentence for second-degree child molestation and simple assault; sentence was “far in excess” of those generally imposed for second-degree child molestation convictions, according to a statistical analysis provided during the postconviction relief hearing. Alessio v. State, 924 A.2d 751, 755 (R.I. 2007).

Court reinstated plea-bargained sentence of 60 years (defendant to serve 40) stemming from an armed robbery during which the defendant fired shots at a security guard and police officer. McKinney, 843 A.2d at 465.

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South Carolina

Updated: 5/14/2013 - Print the South Carolina entry.

  • South Carolina allows for the imposition of life without parole for offenders upon their second conviction of certain enumerated felonies. 
State Constitution

Art. I, § 15; Right of bail, excessive bail; cruel or unusual corporal punishment; detention of witnesses:  All persons shall be, before conviction, bailable by sufficient sureties, but bail may be denied to persons charged with capital offenses or offenses punishable by life imprisonment, or with violent offenses defined by the General Assembly, giving due weight to the evidence and to the nature and circumstances of the event. Excessive bail shall not be required, nor shall excessive fines be imposed, nor shall cruel, nor corporal, nor unusual punishment be inflicted, nor shall witnesses be unreasonably detained.

Sentencing Statutes

Two-strikes law: Sentencing courts may impose life without parole sentences for offenders convicted of a “most serious offense” when they have at least one prior conviction for a “most serious offense” or an out-of-state offense that would be classified as such in South Carolina. S.C. Code § 17-25-45(A)(1). Courts may impose a life without parole sentence against those with two prior convictions for “serious” offenses. S.C. Code § 17-25-45(A)(2).  

Case Law

General 

The state supreme court has rejected the contention that South Carolina’s two-strikes law constituted cruel and unusual punishment as applied to an offender sentenced to life without parole for burglary at a motel; the defendant had two prior convictions for armed robbery. State v. White, 349 S.C. 33 (2002).

Proportionality 

The court reviews three factors when assessing proportionality: (1) the gravity of the offense compared to the harshness of the penalty; (2) sentences imposed on other criminals in the same jurisdiction; and (3) sentences for the same crime in other jurisdictions. State v. Kiser, 288 S.C. 441 (1986).

Although 12-year-old’s culpability level may have been diminished somewhat due to his age at the time he shot and killed his grandparents, his diminished culpability was “more than counterbalanced by the harm (he) caused to his victims.” State v. Pittman, 373 S.C. 527, 564 (2007)(upholding concurrent sentences of 30 years in prison for two murder convictions).

Severe Sentences 

Court upheld sentence of 20 years in prison for pregnant woman who gave birth to stillborn child due to cocaine use during pregnancy. State v. McKnight, 352 S.C. 635 (2003).

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South Dakota

Updated: 5/14/2013 - Print the South Dakota entry.

  • The state has a sentencing enhancement statute that allows prosecutors to seek bump-up enhancements for prior felons charged with new felonies. 
State Constitution

Art. VI, § 23: Excessive bail shall not be required, excessive fines imposed, nor cruel punishments inflicted.

Sentencing Statutes

Sentence enhancements: South Dakota mandates that courts enhance the sentences of offenders with one or two prior felony convictions by elevating the class of the instant felony offense to the next more serious class. S.D. Codified Laws § 22-7-7. If the defendant has been convicted of three or more felony convictions that include at least one crime of violence, the instant felony must be enhanced to the sentence for a Class C felony. S.D. Codified Laws § 22-7-8. If the three prior felonies do not include a crime of violence, the enhancement cannot exceed the sentence for a Class C felony. S.D. Codified Laws § 22-7-9. 

Case Law

General 

Courts cannot use crime-specific enhancements in tandem with habitual offender statutes to double-enhance a sentence. Carroll v. Solem, 424 N.W.2d 155 (S.D. 1988). However, under the state’s habitual offender statute, courts may use prior felonies that are unrelated in class to the instant crime to bump a sentence out of a discretionary range and into a mandatory range—even if the mandatory range was intended by the legislature to punish offenders who twice commit the same act. State v. Guthmiller, 667 N.W.2d 295 (S.D. 2003).

Proportionality 

When conducting a proportionality review, the first step for the court is to determine whether the sentence appears grossly disproportionate by considering the conduct involved and any relevant past conduct. State v. Buchhold, 727 N.W.2d 816 (S.D. 2007). In the case of consecutive sentences, the proportionality analysis applies to the sentence for each individual conviction—not for the aggregate. Buchhold, 727 N.W.2d at 825.

If the court finds that the sentence appears grossly disproportionate, it must then conduct the three-part analysis set forth by the Supreme Court in Solem v. Helm [(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction, that is, whether more serious crimes are subject to the same penalty or to less serious penalties; and (iii) the sentences imposed for commission of the same crime in other jurisdictions] as well as other relevant factors, such as the effect upon society of the type of offense committed. State v. Bonner, 577 N.W.2d 575, 580 (S.D. 1998).

Severe Sentences 

Court upheld mandatory life without parole sentence for man convicted as a first-time pedophile; offender had prior drug convictions and was subject to sentencing enhancement statute that bumped him from a discretionary range into a mandatory sentence. Guthmiller, 667 N.W.2d 295.

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Tennessee

Updated: 5/14/2013 - Print the Tennessee entry.

  • The state uses a guideline sentencing system with three separate tiers based on an offender’s criminal history. 
State Constitution

Art. I, § 16: That excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Sentencing Statutes

Career offenders: Any offender who has been previously convicted of six or more Class A, B, or C felonies and whose instant conviction is for a Class A, B, or C felony must receive the maximum Range III sentence. T.C.A. §40-35-108(1). Any offender with at least three Class A, or any combination of four Class A or B felony convictions must receive the maximum Range III sentence if the instant conviction is for a Class A or B felony. T.C.A. §40-35-108(2). Any offender with six prior felony convictions of any class must receive the maximum Range III sentence if the instant offense is a Class D or E felony. T.C.A. §40-35-108(3). 

Parole eligibility for career offenders is set at 60 percent. T.C.A. §40-35-501(f).

Sentencing ranges: Tennessee uses a guideline system with three-tiered sentencing ranges. T.C.A. §40-35-112. Range III sentences for Class A felonies range from 40 to 60 years; from 20-30 years for Class B felonies; from 10-15 years for Class C felonies; from 8-12 years for Class D felonies; from four to six years for Class E felonies. T.C.A. §40-35-112. 

Especially mitigated offenders: Trial judges may depart from the minimum guideline sentence upon the finding that an offender has no prior felony convictions and the court finds mitigating, but no enhancement factors.  T.C.A. §40-35-109.

Case Law

General 

Whether an offender qualifies as a mitigated offender is a question that rests within the sound discretion of the trial court; offenders will not generally qualify for sentencing as an especially mitigated offender absent extreme mitigating facts arising from the commission of the offense. State v. Buttrey, 756 S.W.2d 718 (Tenn.Crim.App. 1988).

On appeal, sentencing classification was overturned and defendant was re-classified as an especially mitigated offender where sentencing court overlooked a two-decade history of hospitalizations for mental illness when sentencing woman to 20 years in prison for murder. State v. Max, 714 S.W.2d 289 (Tenn.Crim.App. 1986).

Proportionality 

State constitution calls for same proportionality analysis as the Eighth Amendment to the federal constitution. Van Tran v. State, 66 S.W.3d 790 (Tenn. 2001). However, fact that state and federal constitutions are textually similar does not foreclose the possibility of a more expansive interpretation of Art. I, §16. State v. Black, 815 S.W.2d 166 (Tenn. 1991). 

Severe Sentences 

Court upheld 25-year-sentence for child rape rejecting challenge to the voluntariness of plea entered by 70-year-old man who believed he would receive a lesser sentence due to his age and prior good works. Lucas v. State, 2012 WL 1656999 (Tenn.Crim.App. 2012)(slip copy).

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Texas

Updated: 5/14/2013 - Print the Texas entry.

  • The state provides for enhanced punishments for offenders with prior misdemeanor and felony convictions. 
State Constitution

Art. I, § 13: Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

Sentencing Statutes

Repeat and Habitual Felony Offenders: Texas allows for sentence enhancements, including the possibility of life imprisonment, for offenders previously convicted of felonies and who are subsequently convicted of felonies. V.T.C.A. § 12.42.

Repeat and Habitual Misdemeanor Offenders: The state provides for sentencing enhancement when it is shown that an offender has a prior misdemeanor of the same class level or higher, or a previous felony, on his or her record. V.T.C.A. § 12.43. 

Case Law

General 

The state’s habitual criminal statute has repeatedly been upheld against claims it imposes cruel and unusual punishment. Harris v. State, 656 S.W.2d 481 (Tex.Crim.App. 1983).

A prior conviction cannot enhance punishment for an offense under the state’s habitual criminal act if it was an essential element of the instant crime. Gearing v. State, 685 S.W.2d 339, 341 (Tex.Ct.App. 1983)(sustaining challenge in case where prior felony conviction was used to prove both an element of the crime of possession of a firearm by a felon and as grounds for enhancement of penalty).

Proportionality 

Article I, §13 of the Texas constitution is coextensive with the Eighth Amendment to the federal constitution whereas proportionality is concerned. Alberto v. State, 100 S.W.3d 528, 530 (Tex.Ct.App. 2003). 

The state constitution is not violated when the punishment assessed is within the limits prescribed by statute. Atchinson v. State, 124 S.W.3d 755, 759 (Tex.Ct.App. 2003).

Severe Sentences 

Court upheld mandatory life sentence for sexual assault of a child; court rejected argument that mandatory nature of sentence precluded introduction of mitigating evidence and was therefore cruel and unusual. Duran v. State, 363 S.W.3d 719, 721 (Tex.Ct.App. 2011).

Project Overview | State Comparison  

Utah

Updated: 10/16/2014 - Print the Utah entry.

  • Utah has a significant sentencing enhancements for “Habitual Violent Offenders” and “Repeat and Habitual Sex Offenders”  
  • State law also provides for enhanced sentences based on gang involvement and use of a dangerous weapon 
State Constitution

Utah Constitution, Article 1, Section 9: Excessive bail shall not be required; excessive fines shall not be imposed; nor shall cruel and unusual punishments be inflicted. Persons arrested or imprisoned shall not be treated with unnecessary rigor.

Key Sentencing Enhancement Statutes

Offenses Committed in Concert with [Others] (Utah Code Ann. § 76-3-203.1): Penalty range is increased by one degree if the trier of fact finds beyond a reasonable doubt that the person acted in concert with two or more persons. (Gang Enhancement)

Use of Weapon in Offenses Around School (Utah Code Ann. § 76-3-203.2): Penalty range is increased by one degree: First degree felony cannot be suspended. 

Penalty for Hate Crimes — Civil Rights Violation (Utah Code Ann.  § 76-3-203.3): Penalty range is increased by one degree for a person who commits any primary offense with the intent to intimidate or terrorize. 

Habitual Violent Offender (Utah Code Ann.  § 76-3-203.5): Penalty range is increased by one degree. 

Use of a Dangerous Weapon (Utah Code Ann.  § 76-3-203.8): Additional year added to the minimum sentence and up to 5 years added to the maximum sentence.

Previous Conviction for Dangerous Weapon Crime(Utah Code Ann.  § 76-3-203.8): Additional 5 to 10 year sentence to run consecutively. 

Repeat and Habitual Sex Offenders (Utah Code Ann.  § 76-3-407): The maximum penalty for a sexual offense is increased by 5 years for each conviction of the defendant for a prior sexual offense. 

Case Law

General 

The sentencing decision of a trial court is reviewed for abuse of discretion.  This includes the decision to grant or deny probation, and the decision to impose consecutive sentences.   See Utah v. Helms, 40 P.3d 626 (Utah 2002).

“An abuse of discretion results when the judge fails to consider all legally relevant factors or if the sentence imposed is clearly excessive. ”  Utah v. McCovey, 803 P.2d 1234, 1235 (Utah 1990) (citations omitted); see also Utah v. Valdovinos, 82 P.3d 1167 (Utah App. Ct. 2003).  But an appeals court “may only find abuse if it can be said that no reasonable [person] would take the view adopted by the trial court.”  Valdovinos, supra. 

“A defendant is not entitled to probation,” and “[t]he granting or withholding of probation involves considering intangibles of character, personality and attitude, of which the cold record gives little inkling.” Id.  Only when the actions of the trial judge are “so inherently unfair as to constitute an abuse of discretion” will an appellate court overturn the trial court's sentence.  Id. 

It is the defendant’s burden to demonstrate that the district court did not properly consider the relevant factors, and appellate courts “will not assume that the trial court's silence, by itself, presupposes that the court did not consider the proper factors as required by law.”  Helms, supra.

Proportionality 

“[T]he test for cruel and unusual punishment in specific applications [is] whether the sentence imposed in proportion to the offense committed is such as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.” Utah v. Russell, 791 P.2d 188, 190 (Utah 1990)

Leading Court Discussions of Graham and Miller 

State v. Martinez, 2013 UT 23, 304 P.3d 54 (May 03, 2013) (Graham only applies to juveniles; Graham does not hold that LWOP is identical to death in its constitutional implications and does not discuss victim impact testimony.) 

State v. Perea, 2013 UT 68, 322 P.3d 624 (November 15, 2013) (Graham inapplicable to 19-year-old and homicide cases) 

Severe Sentences 

Utah v. Gibbons, 2009 WL 2973230, 2009 UT App 261 (Utah App. 2009) (upholding 15-year-to-life sentence for aggravating kidnapping).

Utah v. Candedo, 232 P.3d 1008 (Utah 2010) (rejecting challenge to nine-year probation term for serious fraud offense, though noting “potential for a trial judge to arbitrarily impose an absurdly long probation period compared to the severity of the crime committed” and suggesting possibility of “a case where a defendant could successfully challenge a probation sentence that is truly arbitrary or discriminatory under the due process clause or prove that the probation statute is cruel and unusual.”).

Utah v. Real Property at 633 East 640 North, Orem, Utah, 994 P.2d 1254 (Utah 2000) (holding that forfeiture of residence was grossly disproportionate penalty, given small size of drug operation and relatively light sentence imposed).

Discussion of State Constitutional Provision 

“Except for punctuation and insignificant stylistic changes, the Utah provision tracks the federal provision exactly, except for the last sentence of section 9 [of Article 1 of the Utah Constitution].  Of course, we are free in appropriate circumstances to give the Utah provision a broader interpretation.  That is even suggested by the last sentence of section 9, which states: ‘Persons arrested or imprisoned shall not be treated with unnecessary rigor.’  That state constitutional guarantee has no counterpart in the Eighth Amendment.   We need not in this case fully explicate the content and limitations of section 9; that is a task better done on a case-by-case basis. Nevertheless, we note that the last sentence of the Utah cruel and unusual punishment provision contained in section 9 is broader than the comparable federal provision.”  Utah v. Bishop, 717 P.2d 261 (Utah 1986).

“The unnecessary rigor clause of the Utah Constitution protects persons arrested or imprisoned from the imposition of circumstances on them during their confinement that demand more of the prisoner than society is entitled to require.  The restriction on unnecessary rigor is focused on the circumstances and nature of the process and conditions of confinement.  By contrast, the cruel and unusual punishment clause in the state constitution is directed to the sentence imposed.  While there is some overlap on a factual level, the purposes are different.  Torture may be cruel and unusual but strict silence during given hours may not.  Strict silence, however, may impose unnecessary rigor or unduly harsh restrictions on the service of one's otherwise proper sentence.” Dexter v. Bosko, 184 P.3d 592 (Utah 2008)

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Vermont

Updated: 5/14/2013 - Print the Vermont entry.

  • Vermont allows for discretionary parole. Vermont does not have the death penalty. 
  • Vermont has discretionary LWOP and JLWOP. See 13 V.S.A. § 2303 (2012). 
  • Juveniles may be transferred to criminal court at age 10. 
State Constitution

Vermont’s constitution does not expressly prohibit cruel, unusual, or excessive punishment. Nevertheless, some courts have looked to the following clauses as Vermont’s counterpart to the Eighth Amendment: 

Chapter 2, § 39. [Forms Of Prosecutions And Indictments; Fines]: All prosecutions shall commence, By the authority of the State of Vermont . All Indictments shall conclude with these words, against the peace and dignity of the State. And all fines shall be proportioned to the offences.

Chapter 1, Article 18. [Regard to fundamental principles and virtues necessary to preserve liberty]: That frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the blessings of liberty, and keep government free; the people ought, therefore to pay particular attention to these points, in the choice of officers and representatives, and have a right, in a legal way, to exact a due and constant regard to them, from their legislators and magistrates, in making and executing such laws as are necessary for the good government of the State.

Note: The Vermont Supreme Court has suggested that the term “fines” in Section 39 should be interpreted to mean all punishments. Even if this were not true, the Court has suggested that the concept of proportionality is either inherent in the fundamental principles of justice discussed in Chapter 1, Article 18, or part of Vermont’s common law. The Courts that have acknowledged the existence of an Eighth Amendment counterpart in the Vermont Constitution generally recognize that the state constitution may be interpreted more broadly than the federal constitution. Nevertheless, these courts still rely predominantly on Eighth Amendment jurisprudence. 

Sentencing Statutes
  • Sentencing Guidelines System – Vermont does not have sentencing guidelines
  • Habitual Offender Statutes –  
    • 13 V.S.A. § 11 (2010). Habitual criminals. A person who, after having been three times convicted within this state of felonies or attempts to commit felonies, or under the law of any other state, government or country, of crimes which, if committed within this state, would be felonious, commits a felony other than murder within this state, may be sentenced upon conviction of such fourth or subsequent offense to imprisonment up to and including life.
    • 13 V.S.A. § 11A (2010). Violent career criminals.
Case Law

General  

An objection to a sentence cannot be raised for the first time on appeal. The matter must be raised in the trial court. State v. Kinney, 171 Vt. 239, 255 (Vt. 2000).

A trial court is afforded wide discretion in sentencing. See State v. Valentine, 2004 Vt. Unpub. LEXIS 5, 9-10 (Vt. 2004).

Vermont courts will decline to hear state constitutional issues unless they presented with substantive analysis. State v. Jewett, 500 A.2d 233, 222 (Vt. 1985). Substantive analysis should include arguments based on history, legislation, textual interpretation, comparisons between state constitutions, economics and sociology, and other helpful information. State v. Jewett, 500 A.2d 233, 226-28 (Vt. 1985).

Furthermore, “[n]o attorney briefing or arguing a state constitutional question before the Vermont Supreme Court should undertake his or her task without first reviewing Michigan v. Long, 463 U.S. 1032 (1983). In that case the United States Supreme Court said: [W]hen . . . a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.” State v. Jewett, 500 A.2d 233, 228 (Vt. 1985) (emphasis in the original).

State Constitution & Proportionality 

Chapter 2, Section 39 of the Vermont Constitution requires that fines be proportionate to the offense. Some courts have interpreted this clause to require proportionality for all punishments in Vermont. State v. Burlington Drug Co., 84 Vt. 243, 249-250 (Vt. 1911); State v. Bacon, 167 Vt. 88, 96-98 (Vt. 1997). Even if this were not the case, Chapter 1, Article 18 of the Vermont Constitution prohibits cruel and unusual punishment. State v. Burlington Drug Co., 84 Vt. 243, 249-250 (Vt. 1911) (the Vermont Constitution “asserts the right of the people to protection against excessive fines and cruel and unusual punishments as emphatically as it could have done by less comprehensive words”).

Compare this with State v. O'Brien, 106 Vt. 97 (Vt. 1934):

The Vermont Constitution does not contain an express prohibition against cruel and unusual punishment. Some have suggested that a prohibition against cruel and unusual punishment exists in Vermont as a principle of common law. State v. O'Brien, 106 Vt. 97, 107-108 (Vt. 1934)   107-108. As part of an act of Parliament in 1688, “ ‘An Act Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown,’ it was provided that ‘excessive bail ought not to be required, nor excessive fines imposed nor cruel and unusual punishments inflicted.’” State v. O'Brien, 106 Vt. 97, 107-108 (Vt. 1934) (citing Ex parte Kemmler, 136 U.S. 436 (1890)).

The Supreme Court of Vermont has found “no relevant difference” between Chapter 2, Section 39 and the Eighth Amendment standards, and has therefore relied on federal jurisprudence in its interpretation of the state constitution. State v. Venman, 151 Vt. 561, 572 (Vt. 1989); see also State v. Bacon, 167 Vt. 88, 96-98 (Vt. 1997).

To violate Vermont’s proportionality clause, the punishment must be “clearly out of all just proportion to the offense.” State v. Bacon, 167 Vt. 88, 96-97 (Vt. 1997) (quoting State v. Venman, 151 Vt. 561, 572 (Vt. 1989)).

To analyze proportionality claims under the Vermont Constitution, the Vermont Supreme Court has adopted the Solem proportionality test, which examines:"'(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other [similarly situated] criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.'" State v. Venman, 151 Vt. 561, 571-574 (Vt. 1989), (quoting Solem v. Helm, 463 U.S. 277 at 292 (1983)); State v. Bacon, 167 Vt. 88, 96-98 (Vt. 1997). The Vermont Supreme Court has “not reconsidered that holding in light of Harmelin, so our decision in Venman continues to control any claim by defendant under the Vermont Constitution. State v. Bacon, 167 Vt. 88, 96-98 (Vt. 1997).

The second Solem criteria (comparison to sentences within jurisdiction) refers to the sentences statutorily authorized for crimes, not the sentences actually imposed on defendants. State v. Bacon, 167 Vt. 88, 96-98 (Vt. 1997). Nevertheless, the Vermont Supreme Court may still find that such a comparison of sentences is proper under the Vermont Constitution, as the full reach of Chapter 2, Section 39 has not yet been decided. State v. Bacon, 167 Vt. 88, 96-98 (Vt. 1997)

The harshness of cumulative punishments is not important for a proportionality analysis. However, “[if]f the penalty were unreasonably severe for a single offense, the constitutional question might be urged.” State v. Venman, 151 Vt. 561, 571-574 (Vt. 1989)

Citations To Graham 

  • No Vermont cases cite to Graham 

Project Overview | State Comparison  

Virgin Islands

Updated: 10/16/2014 - Print the Virgin Islands entry.

 Leading Court Discussions of Graham and Miller

Beaupierre v. Virgin Islands, 2011 WL 3585507 (V.I. August 11, 2011) (mandatory minimum sentence does not violate Eighth Amendment) 

Condrington v. People, 2012 WL 2949139 (V.I. July 20, 2012) (Graham does not apply to 19-year-old who committed homicide.) 

People in Interest of K.J.F., 2013 WL 3377638 (V.I. July 5, 2013) (Defendant cannot appeal under Miller before he is imposed LWOP.)  

Williams v. Virgin Island, 2013 WL 5913305 (V.I., November 5, 2013) (juvenile sentence of LWOP remand case in light of Miller.) 

 

Project Overview | State Comparison  

Virginia

Updated: 10/16/2014 - Print the Virginia entry.

  • Virginia abolished parole in 1995.
  • Virginia has mandatory LWOP and JLWOP. See Va. Code Ann. § 18.2-10 (2012).
  • Juveniles may be transferred to criminal court at age 14.
State Constitution

Va. Const. Art. I, § 9 (2012): 

§ 9.  Prohibition of excessive bail and fines, cruel and unusual punishment, suspension of habeas corpus, bills of attainder, and ex post facto laws 

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of invasion or rebellion, the public safety may require; and that the General Assembly shall not pass any bill of attainder, or any ex post facto law.

Note: Article I, Section 9 is interpreted as the equivalent of the Eighth Amendment.

Sentencing Statutes
  • Sentencing Guidelines System –
    • Virginia’s Sentencing Guidelines are advisory in nature. Nevertheless, a sentencing worksheet must be completed and deviations from the recommended guidelines sentences should be explained in writing. Departure is not grounds for appeal.  See www.vcsc.virginia.gov/.
  • Proportionality Review for Death Sentences – Va. Code Ann. § 17.1-313(C)(2)
    • Virginia courts are statutorily required to review capital cases for proportionality. See Va. Code Ann. § 17.1-313(C)(2). The goal of this review is not to ensure “complete symmetry,” but rather to identify an “aberrant death sentence.” Gray v. Commonwealth, 274 Va. 290, 303 (Va. 2007) (quoting Muhammad v. Commonwealth, 269 Va. at 451, 532 (2005).
  • Habitual Offender Statutes –  Va. Code Ann. § 19.2-297.1 (2012)
    • § 19.2-297.1. Sentence of person twice previously convicted of certain violent felonies
Case Law

General  

An issue may not be heard for the first time on appeal. Singson v. Commonwealth, 46 Va. App. 724, 748-749 (Va. Ct. App. 2005). In order to preserve an issue for appeal, a contemporaneous objection must be made in the trial court. The objection must be both timely and specific so that the trial judge may address the objection. Singson v. Commonwealth, 46 Va. App. 724, 748-749 (Va. Ct. App. 2005) (citing Thomas v. Commonwealth, 44 Va. App. 741, 750 (2005)). See also West v. Commonwealth, 43 Va. App. 327, 337 (2004).

State Constitution & Proportionality 

Traditionally, Virginia courts have deferred to the legislature regarding the length of a prison sentence. Dunaway v. Commonwealth, 52 Va. App. 281, 311 (Va. Ct. App. 2008) (citing citing Hart v. Commonwealth, 131 Va. 726, 741-42, 109 S.E. 582, 586-87 (Va. 1921)).

The Eighth Amendment to the United States Constitution is modeled on and congruent to Article I, Section 9 of the Constitution of Virginia. Department of Prof'l & Occupational Regulation v. Abateco Servs., 33 Va. App. 473, 481 (Va. Ct. App. 2000); See also Dunaway v. Commonwealth, 52 Va. App. 281, 310-313 (Va. Ct. App. 2008).

Article I, Section 9 of the Constitution of Virginia, as well as its federal equivalent, stands for the principle that “the punishment should not be disproportionate to the crime. Department of Prof'l & Occupational Regulation v. Abateco Servs., 33 Va. App. 473, 481-482 (Va. Ct. App. 2000).

“No punishment authorized by statute, even though severe, is cruel and unusual unless it is one ‘prescribing a punishment in quantum so severe for a comparatively trivial offense that it would be so out of proportion to the crime as to shock the conscience . . . .’” DePriest v. Commonwealth, 33 Va. App. 754, 764 (Va. Ct. App. 2000) (quoting Hart v. Commonwealth, 131 Va. 726, 745 (Va. 1921)).

To determine the proportionality of a punishment under Article I, Section 9 of the Constitution of Virginia, Virginia courts have adopted an analysis similar to the Supreme Court’s “gross disproportionality” standard. Department of Prof'l & Occupational Regulation v. Abateco Servs., 33 Va. App. 473, 482-483 (Va. Ct. App. 2000); Dunaway v. Commonwealth, 52 Va. App. 281, 311-12 (Va. Ct. App. 2008).

Mandatory sentences are not per se cruel and unusual punishment under the Constitution of Virginia. See Dunaway v. Commonwealth, 52 Va. App. 281, 311-313 (Va. Ct. App. 2008).

Execution by electrocution does not violate Article I, Section 9 of the Constitution of Virginia. Orbe v. Johnson, 267 Va. 560, 562 (Va. 2004).

Leading Court Discussions of Graham and Miller

Angel v. Com., 281 Va. 248, 704 S.E.2d 386 (January 13, 2011) (statute that provides conditional release of prisoners who have reached a certain age and served a certain length of imprisonment affords “meaningful opportunity” and does not violates Graham) 

Project Overview | State Comparison  

Washington

Updated: 10/16/2014 - Print the Washington entry.

  • Washington abolished parole in 1984. 
  • Washington has mandatory LWOP and discretionary JLWOP. See Rev. Code Wash. (ARCW) § 10.95.030 (2012). 
  • Washington does not have a minimum age at which juveniles may be transferred to criminal court. 
State Constitution

Wash. Const. Art. I, § 14 (2012) 

§ 14. Excessive bail, fines and punishments

Excessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.

NOTE: Article I, Section 14 is broader than the Eighth Amendment.

Sentencing Statutes
  • Sentencing Guidelines System –
    • Under Washington’s Sentencing Guidelines system, departures are permitted only for “substantial and compelling” reasons and departures must be explained in writing. A departure is appealable. www.cfc.wa.gov/PublicationSentencing/SentencingManual/Adult_Sentencing_Manual_2011.pdf, page 31.
  • Proportionality Review for Death Sentences – Rev. Code Wash. § 10.95.100 (2012)
    • § 10.95.100. Mandatory review of death sentence by supreme court -- Notice -- Transmittal -- Contents of notice -- Jurisdiction 
    • Whenever a defendant is sentenced to death, upon entry of the judgment and sentence in the trial court the sentence shall be reviewed on the record by the supreme court of Washington.
    • Within ten days of the entry of a judgment and sentence imposing the death penalty, the clerk of the trial court shall transmit notice thereof to the clerk of the supreme court of Washington and to the parties. The notice shall include the caption of the case, its cause number, the defendant's name, the crime or crimes of which the defendant was convicted, the sentence imposed, the date of entry of judgment and sentence, and the names and addresses of the attorneys for the parties. The notice shall vest with the supreme court of Washington the jurisdiction to review the sentence of death as provided by this chapter. The failure of the clerk of the trial court to transmit the notice as required shall not prevent the supreme court of Washington from conducting the sentence review as provided by chapter 138, Laws of 1981.
  • Habitual Offender Statutes – Rev. Code Wash. (ARCW) § 9.92.090 (2012)
    • § 9.92.090. Habitual criminals 
      • Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who shall previously have been convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony, or who shall previously have been twice convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, shall be adjudged to be an habitual criminal and shall be punished by imprisonment in a state correctional facility for not less than ten years.
      • Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who shall previously have been twice convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony, or who shall previously have been four times convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, shall be punished by imprisonment in a state correctional facility for life.
Case Law

General 

While a matter may not generally be brought for the first time on appeal, “a party may raise a ‘manifest error affecting a constitutional right’ for the first time on appeal” under RAP 2.5(a). “To be manifest, an error must result in actual prejudice, that is, the asserted error must have had practical and identifiable consequences in the trial of the case.” State v. Davis, 175 Wn.2d 287, 343 (Wash. 2012) (quoting State v. O'Hara, 167 Wn.2d 91, 99 (Wash. 2009).

“‘[T]o determine whether an error is practical and identifiable, the appellate court must place itself in the shoes of the trial court to ascertain whether, given what the trial court knew at that time, the court could have corrected the error.’” State v. Davis, 175 Wn.2d 287, 343 (Wash. 2012) (quoting State v. O'Hara, 167 Wn.2d at 100). “If the trial court could not have foreseen the potential error or the record on appeal does not contain sufficient facts to review the claim, the alleged error is not manifest.” Id.

A trial court is not required to explain why it imposed a particular length of sentence. However, it must explain any exceptional sentence. State v. Mendoza-Espinoza, 1998 Wash. App. LEXIS 1240 (Wash. Ct. App. 1998) (citing State v. Ritchie, 126 Wash. 2d 388, 391 (Wash. 1995)).

In Washington, rehabilitation is secondary to retribution. Wahleithner v. Thompson, 134 Wn. App. 931, 940-942 (Wash. Ct. App. 2006).

State Constitution & Proportionality 

Article I, Section 14 of the Washington Constitution is broader than the Eighth Amendment. State v. Manussier, 129 Wn.2d 652 (1996); State v. Davis, 175 Wn.2d 287, 318 (Wash. 2012).

“Especially where the language of our constitution is different from the analogous federal provision, we are not bound to assume the framers intended an identical interpretation. The historical evidence reveals that the framers of Const. art. 1, § 14 were of the view that the word "cruel" sufficiently expressed their intent, and refused to adopt an amendment inserting the word "unusual".” State v. Fain, 94 Wn.2d 387, 392-393 (Wash. 1980).

A punishment violates Article I, Section 14 of the Washington Constitution when it is “grossly disproportionate to the crime for which it is imposed.” State v. Witherspoon, 2012 Wash. App. LEXIS 2449, 35-36 (Wash. Ct. App. Oct. 16, 2012)(citing State v. Flores, 114 Wn. App. 218, 223 (Wash. Ct. App. 2002)

"A punishment is grossly disproportionate only if. . . the punishment is clearly arbitrary and shocking to the sense of justice." State v. Whitfield, 132 Wn. App. 878, 901 (Wash. Ct. App. 2006) (quoting State v. Smith, 93 Wn.2d 329, 344-45 (Wash. 1980)).

A sentence is not disproportionate simply because one judge gave a harsher penalty than another judge might have given: “the question is not the relative leniency in sentencing patterns of individual judges,” but rather the whether the sentence authorized by the legislature is comparable to sentences for similar offenses. Wahleithner v. Thompson, 134 Wn. App. 931, 940-942 (Wash. Ct. App. 2006).

To determine if a punishment is disproportionate under the Washington Constitution, courts look to the four Fain factors: “(1) the nature of the offense; (2) the legislative purpose behind the habitual criminal statute; (3) the punishment defendant would have received in other jurisdictions for the same offense; and (4) the punishment meted out for other offenses in the same jurisdiction.” State v. Fain, 94 Wn.2d 387, 393 (Wash. 1980) (citing Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973)); State v. Magers, 164 Wn.2d 174, 193-194 (Wash. 2008); State v. Rivers, 129 Wn.2d 697, 712-713 (Wash. 1996); see also State v. Manussier, 129 Wn.2d 652, 676-677 (Wash. 1996).

No one Fain factor is dispositive. State v. Witherspoon, 2012 Wash. App. LEXIS 2449, 35-36 (Wash. Ct. App. Oct. 16, 2012) (citing State v. Gimarelli, 105 Wn. App. 370, 380-81, (Wash. Ct. App. 2001).

The fact that an offense is an attempt crime does not diminish its seriousness for purposes of a proportionality analysis. State v. Griffin, 1998 Wash. App. LEXIS 1461 (Wash. Ct. App. 1998).

The legislature may enhance penalties for repeat offenders without violating the Washington Constitution. The state may punish an offender for each separate offense that leads to his designation as a habitual criminal. State v. Fain, 94 Wn.2d 387, 390-391 (Wash. 1980).

The Washington Constitution prohibits the death penalty where the offender is convicted of a single-victim murder. State v. Davis, 175 Wn.2d 287, 318 (Wash. 2012).

When conducting the required proportionality review in death penalty cases, the court’s goal is to ensure that the imposition of the death penalty is not freakish, wanton, random, or based on suspect classifications. The court must consider at least: “(1) the nature of the crime; (2) the aggravating circumstances; (3) the defendant's criminal history; and (4) the defendant's personal history, as well as any additional substantive challenges to the proportionality of the sentence.” State v. Davis, 175 Wn.2d 287, 347 (Wash. 2012) (quoting State v. Cross, 156 Wn.2d 580, 630-31 (2006)).

The following cases mention both Article I, Section 14 and the Eighth Amendment, but do not provide any unique, significant analysis:

  • State v. Thorne, 2010 Wash. App. LEXIS 1647 (Wash. Ct. App. 2010) –
  • State v. Bremer, 2009 Wash. App. LEXIS 1082 (Wash. Ct. App. 2009) –
  • State v. Grenning, 142 Wn. App. 518 (Wash. Ct. App. 2008) –
  • State v. Borunda, 2006 Wash. App. LEXIS 1304 (Wash. Ct. App. 2006) –
  • State v. Peters, 2004 Wash. App. LEXIS 331 (Wash. Ct. App. 2004) –  
  • State v. Hammond, 2001 Wash. App. LEXIS 560 (Wash. Ct. App. 2001) –
  • State v. Gimarelli, 105 Wn. App. 370 (Wash. Ct. App. 2001) –
  • State v. Morin, 100 Wn. App. 25, 28 (Wash. Ct. App. 2000) –
  • State v. Hoggatt, 1999 Wash. App. LEXIS 288 (Wash. Ct. App. 1999) –
Leading Court Discussions of Graham and Miller

State v. Witherspoon, 329 P.3d 888 (Wash. July 17, 2014) (Graham and Miller are based on the difference between adults and juveniles so they are not applicable to adults.) 

In re Thomas, 330 P.3d 158 (Wash. July 17, 2014) (LWOP is not categorically barred by Miller) 

Project Overview | State Comparison  

West Virginia

Updated: 10/16/2014 - Print the West Virginia entry.

  • West Virginia allows for parole. West Virginia does not have the death penalty. 
  • West Virginia has mandatory LWOP and discretionary JLWOP. See W. Va. Code § 61-2-2  (2012). 
  • West Virginia does not have a minimum age at which juveniles may be transferred to criminal court. 
State Constitution

W. Va. Const. Art. III, § 5 (2012)

§ 5. Excessive Bail Not Required

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. Penalties shall be proportioned to the character and degree of the offence. No person shall be transported out of, or forced to leave the State for any offence committed within the same; nor shall any person, in any criminal case, be compelled to be a witness against himself, or be twice put in jeopardy of life or liberty for the same offence.

NOTE: Article III, Section 5 has an express proportionality priniciple, and is interpreted as the equivalent to the Eighth Amendment.

Sentencing Statutes
  • Sentencing Guidelines System – West Virginia does not have sentencing guidelines
  • Habitual Offender Statutes – W. Va. Code § 61-11-18 (2012)
    • W. Va. Code § 61-11-18.  Punishment for second or third offense of felony.
     
      • Except as provided by subsection (b) of this section, when any person is convicted of an offense and is subject to confinement in the state correctional facility therefor, and it is determined, as provided in section nineteen of this article, that such person had been before convicted in the United States of a crime punishable by confinement in a penitentiary, the court shall, if the sentence to be imposed is for a definite term of years, add five years to the time for which the person is or would be otherwise sentenced. Whenever in such case the court imposes an indeterminate sentence, the minimum term shall be twice the term of years otherwise provided for under such sentence.
      • Notwithstanding the provisions of subsection (a) or (c) of this section or any other provision of this code to the contrary, when any person is convicted of first degree murder or second degree murder or a violation of section three, article eight-b of this chapter and it is determined, as provided in section nineteen of this article, that such person had been before convicted in this state of first degree murder, second degree murder or a violation of section three, article eight-b of said chapter or has been so convicted under any law of the United States or any other state for an offense which has the same elements as any offense described in this subsection, such person shall be punished by confinement in the state correctional facility for life and is not eligible for parole.
      • When it is determined, as provided in section nineteen of this article, that such person shall have been twice before convicted in the United States of a crime punishable by confinement in a penitentiary, the person shall be sentenced to be confined in the state correctional facility for life.
    Case Law

    General  

    Generally, sentences “imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review." State v. Sulick, 2012 W. Va. LEXIS 78, 25-26 (W. Va. 2012) (quoting State v. Goodnight, 169 W. Va. 366 (W. Va. 1982)); State v. Allen, 208 W. Va. 144, 152-155 (W. Va. 1999).

    State Constitution & Proportionality 

    Article III, Section 5 of the West Virginia Constitution contains an express proportionality principle, and is the counterpart to the Eighth Amendment. State v. Sulick, 2012 W. Va. LEXIS 78, 25-26 (W. Va. 2012) (citing State v. Vance, 164 W. Va. 216, 262 S.E.2d 423 (W. Va. 1980)); State v. Murrell, 201 W. Va. 648, 652 (W. Va. 1997).

    Until the Supreme Court recognized the proportionality principle in Rummel v. Estelle, 445 U.S. 263 (1980), West Virginia’s Constitution provided broader protections than the Eighth Amendment. Wanstreet v. Bordenkircher, 166 W. Va. 523, 530-531 (W. Va. 1981).

    A cruel and unusual punishment is one that “amounts to torture, or that is grossly excessive in proportion to the offense for which it is imposed, or that is inherently unfair, or that is unnecessarily degrading, or that is shocking or disgusting to people of reasonable sensitivity.” State ex rel. Pingley v. Coiner, 155 W. Va. 591, 609 (W. Va. 1972).

    The concept of “evolving standards of decency” is essential to the proportionality principle. Wanstreet v. Bordenkircher, 166 W. Va. 523, 536 (W. Va. 1981). The concept of cruel and unusual punishment broadens over time as society becomes more humane. State v. Vance, 164 W. Va. 216, 231-232 (W. Va. 1980).

    The West Virginia Constitution’s proportionality principle does not apply to every sentence imposed by the courts. State v. Farr, 193 W. Va. 355, 357 (W. Va. 1995). "While our constitutional proportionality standards theoretically can apply to any criminal sentence, they are basically applicable to those sentences where there is either no fixed maximum set by statute or where there is a life recidivist sentence." Wanstreet v. Bordenkircher, 166 W. Va. 523 (W. Va. 1981); State v. Sulick, 2012 W. Va. LEXIS 78, 25-26 (W. Va. 2012); State v. Allen, 208 W. Va. 144, 156 (W. Va. 1999); State v. Murrell, 201 W. Va. 648, 652 (W. Va. 1997).

    To determine whether a sentence violates the West Virginia Constitution, subjective and objective tests are used. The subjective test asks whether the sentence “shocks the conscience and offends fundamental notions of human dignity." State v. James, 227 W. Va. 407, 415 (W. Va. 2011) (quoting State v. Cooper, 172 W.Va. 266 (W. Va. 1983)). If the sentence is so shocking that it violates society’s sense of justice, the inquiry ends and the sentence is disproportionate. State v. Allen, 208 W. Va. 144, 156 (W. Va. 1999).

    However, should the sentence pass the subjective test, the court must proceed to the objective test. State v. Allen, 208 W. Va. 144, 156 (W. Va. 1999). The objective test considers “the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a comparison with other offenses within the same jurisdiction. State v. James, 227 W. Va. 407, 415 (W. Va. 2011) (quoting Wanstreet v. Bordenkircher, 166 W.Va. 523 (W. Va. 1981)).

    To analyze a life recidivist sentence under Article III, Section 5, the court must view the punishment “from two distinct vantage points: first, the nature of the third offense and, second, the nature of the other convictions that support the recidivist sentence." Wanstreet v. Bordenkircher, 166 W. Va. 523, 533 (W. Va. 1981). Additionally, "for purposes of proportionality, the third felony is entitled to more scrutiny than the preceding felony convictions since it provides that ultimate nexus to the sentence." Id. at 534; State v. Housden, 184 W. Va. 171, 173-174 (W. Va. 1990).

    The appropriateness of a life recidivist sentence under III, Section 5, will be analyzed as follows: “We give initial emphasis to the nature of the final offense which triggers the recidivist life sentence, although consideration is also given to the other underlying convictions. The primary analysis of these offenses is to determine if they involve actual or threatened violence to the person since crimes of this nature have traditionally carried the more serious penalties and therefore justify application of the recidivist statute.” State v. Housden, 184 W. Va. 171, 173-174 (W. Va. 1990) (citing State v. Beck, 167 W.Va. 830 (W. Va. 1981)); Wanstreet v. Bordenkircher, 166 W. Va. 523, 537 (W. Va. 1981).

    The proportionality principle in Article III, Section 5 prevents the state from incarcerating juvenile status offenders in the same prison-like facilities as children convicted of crimes. Wanstreet v. Bordenkircher, 166 W. Va. 523, 530-531 (W. Va. 1981) (citing State ex rel.Harris v. Calendine, 160 W. Va. 172 (W. Va. 1977)). 

     Leading Court Discussions of Graham and Miller 

     In re M.J., 13-0104, 2013 WL 3184638 (W. Va. June 24, 2013) (Graham and Miller do not apply to non-LWOP cases.) 

    State v. Redman, 13-0225, 2014 WL 1272553 (W. Va. Mar. 28, 2014) (Sentence of LWOP in West Virginia is discretionary and thus does not violate Miller.) 

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    Wisconsin

    Updated: 10/16/2014 - Print the Wisconsin entry.

    • Wisconsin abolished parole in 2000. Wisconsin does not have the death penalty.
    • Wisconsin allows for discretionary LWOP and JLWOP. Wis. Stat. § 973.014 (2012).
    • Juveniles may be transferred to criminal court at age 10.
    State Constitution

    Wis. Const. Art. I,§ 6 (2012)

    Section 6. Excessive bail; cruel punishments.

    Excessive bail shall not be required, nor shall excessive fines be imposed, nor cruel and unusual punishments inflicted.

    NOTE: Article I, Section 6, is interpreted as the equivalent of the Eighth Amendment.

    Sentencing Statutes
    • Sentencing Guidelines System –
      • Wisconsin has sentencing guidelines for select crimes. While these guidelines must be considered when applicable, they are advisory in nature and a departure from the guidelines does not constitute grounds for an appeal. See http://www.wicourts.gov/services/judge/truth.htm
    • Habitual Offender Statutes –
      • Wis. Stat. § 973.12 (2012)
        • 973.12. Sentence of a repeater or persistent repeater.
    Case Law

    General  

    A trial judge has discretion to sentence within the statutory range and any “review of a sentence of a lower court is guided by a strong policy against interference with the lower court's discretion.” Hanson v. State, 48 Wis. 2d 203, 207 (Wis. 1970); State v. Mariani, 165 Wis. 2d 513 (Wis. Ct. App. 1991.

    State Constitution & Proportionality 

    The language of Article I, Section 6 of the Wisconsin Constitution is nearly identical to the language of the Eighth Amendment. In general, the Wisconsin Supreme Court interprets “provisions of the Wisconsin Constitution consistent with the Supreme Court's interpretation of parallel provisions of the federal constitution.” State v. Ninham, 2011 WI 33, NaN-P45 (Wis. 2011) (citing State v. Jennings, 2002 WI 44, ¶39 (Wis. 2002)). The parallel provisions should consistent particularly when “the text of the provision in our state constitution is virtually identical to its federal counterpart, and no intended difference can be discerned.” State v. Ninham, 2011 WI 33, NaN-P45 (Wis. 2011). An analysis of Article I, Section 6, should be guided by the Supreme Court’s Eighth Amendment jurisprudence. State v. Ninham, 2011 WI 33, NaN-P45 (Wis. 2011).

    The primary purpose of the cruel and unusual punishment clauses are “to be directed at the method or kind of punishment imposed for the violation of criminal statutes; the nature of the conduct made criminal is ordinarily relevant only to the fitness of the punishment imposed.” Steeno v. State, 85 Wis. 2d 663, 669-670 (Wis. 1978).

    The concept of cruel and unusual punishment, the dignity of man, is continually evolving. While the standard remains the same, the applicability of the cruel and unusual punishment clause “must change as the basic mores of society change.'" State v. Ninham, 2011 WI 33, NaN-P49 (Wis. 2011) (citing Kennedy v. Louisiana, 554 U.S. 407, 419 (2008), which quotes Furman v. Georgia, 408 U.S. 238, 382 (1972) (Burger, C.J., dissenting)).

    When reviewing old sentences, the court should not apply current standards of what constitutes cruel and unusual punishment. State ex rel. Warren v. County Court, 54 Wis. 2d 613 (Wis. 1972).

    "The test for whether a sentence violates the Eighth Amendment and whether a sentence was excessive are virtually identical." State v. Davis, 2005 WI App 98, P21 (Wis. Ct. App. 2005); State v. Moua, 2009 WI App 41 (Wis. Ct. App. 2009).

    A sentence violates the Wisconsin Constitution if it is “. . . so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances."Steeno v. State, 85 Wis. 2d 663, 669 (Wis. 1978) (quoting State v. Pratt, 36 Wis.2d 312, 322 (Wis. 1967));State v. Ninham, 797 N.W.2d 451, 474-475 (Wis. 2011); Ocanas v. State, 70 Wis. 2d 179, 185 (Wis. 1975); Whitmore v. State, 56 Wis. 2d 706, 715-716 (Wis. 1973); State v. Morales, 51 Wis. 2d 650, 657 Wis. 1971); Mallon v. State, 49 Wis. 2d 185, 192 (Wis. 1970); State v. Mariani, 165 Wis. 2d 513 (Wis. Ct. App. 1991); State v. Bansley, 149 Wis. 2d 398 (Wis. Ct. App. 1989).

    A sentence that falls within the statutory range may constitute cruel and unusual punishment if it is clearly disproportionate. State v. Pratt, 36 Wis. 2d 312, 321-23 (Wis. 1967); State v. Draskovich, 173 Wis. 2d 306 (Wis. Ct. App. 1992). Generally, however, “[a] sentence well within the limits of the maximum sentence is not so disproportionate to the offense committed as to shock the public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances." State v. Moua, 2009 WI App 41 (Wis. Ct. App. 2009) (quoting State v. Daniels, 117 Wis. 2d 9, 22 (Wis. Ct. App. 1983)).

    In cases which implicate the Eighth Amendment’s categorical rules, courts should engage in a two-step analysis. First, the court should consider "objective indicia of society's standards, as expressed in legislative enactments and state practice' to determine whether there is a national consensus against the sentencing practice at issue." State v. Ninham, 2011 WI 33, NaN-P50 (Wis. 2011) (quoting Graham, 130 S. Ct. at 2022)).  Next, “notwithstanding the objective evidence of society's standards, the Supreme Court ‘determine[s] in the exercise of its own independent judgment whether the punishment in question violates the Constitution.’” State v. Ninham, 2011 WI 33, NaN-P50 (Wis. 2011) (quoting Graham, 130 S. Ct. at 2022)). 

    The Wisconsin Supreme Court has recognized that “punishment imposed under statutes providing for increased penalties for habitual criminals or subsequent offenders does not in itself constitute cruel and unusual punishment.” State v. Lindsey, 203 Wis. 2d 423, 437-438 (Wis. Ct. App. 1996) (citing Hanson v. State, 48 Wis. 2d 203, 206 (Wis. 1970)); State v. Griffin, 176 Wis. 2d 513 (Wis. Ct. App. 1993). 

    A sentence is not per se excessive because it is substantially harsher than the sentence received by a codefendant. State v. Studler, 61 Wis. 2d 537 (Wis. 1973).

     Leading Court Discussions of Graham and Miller 

     State v. Ninham, 2011 WI 33, 333 Wis. 2d 335, 797 N.W.2d 451 (May 20, 2011) (sentencing a 14–year–old to life imprisonment without the possibility of parole for committing intentional homicide is not categorically unconstitutional; juveniles 14 years old and younger are not a distinct group of juveniles such that a different constitutional analysis applies; Graham does not apply to homicide cases.) (Dissent: juvenile under 14 years old cannot be sentenced to LWOP for homicide.) 

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    Wyoming

    Updated: 10/16/2014 - Print the Wyoming entry.

    • Wyoming allows for discretionary parole.
    • Wyoming has discretionary LWOP and JLWOP. Wyo. Stat. § 6-2-101 (2012)
    • Juveniles may be transferred to criminal court at age 13.
    State Constitution

    Wyo. Const. Art. 1, § 14 (2012)

    § 14. Bail; cruel and unusual punishment.

    All persons shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel or unusual punishment be inflicted.

    NOTE: Article 1, Section 14 use of “cruel or unusual punishment” rather than “cruel and unusual punishment” indicates that it is potentially broader than the Eighth Amendment.

    Wyo. Const. art. 1, § 15. 

    • § 15. Penal code to be humane.
    • The penal code shall be framed on the humane principles of reformation and prevention. 
      • Note: This provision speaks to the penal code and not to sentencing, and it is not intended to limit the sentencing discretion of judges. Oakley v. State, 715 P.2d 1374, 1379 (Wyo. 1986).
    Sentencing Statutes
    • Sentencing Guidelines System – Wyoming does not have sentencing guidelines
    • Habitual Offender Statutes –  Wyo. Stat. § 6-10-201 (2012)
      • § 6-10-201.  "Habitual criminal" defined; penalties.
        • A person is an habitual criminal if:
          • He is convicted of a violent felony; and
          • He has been convicted of a felony on two (2) or more previous charges separately brought and tried which arose out of separate occurrences in this state or elsewhere.
        • An habitual criminal shall be punished by imprisonment for:
          • Not less than ten (10) years nor more than fifty (50) years, if he has two (2) previous convictions;
          • Life, if he has three (3) or more previous convictions.
    Case Law

    General  

    An appellate court will not consider questions not presented or raised below. Apodaca v. State, 571 P.2d 603, 605 (Wyo. 1977).

    “Wyoming statutes permit post-conviction relief only for deprivation of constitutional rights in the proceeding which resulted in conviction.” Harlow v. State, 2005 WY 12, P6 (Wyo. 2005) (quoting Whitney v. State, 745 P.2d 902, 903-04 (Wyo. 1987). Constitutional rights are limited to determination of whether defendant was denied the right to counsel, to have witnesses, and to prepare and present his defense. Harlow v. State, 2005 WY 12, P6 (Wyo. 2005) (quoting Whitney v. State, 745 P.2d 902, 903-04 (Wyo. 1987). While it may be true that a sentence which is cruel and unusual violates constitutional rights, this violation did not occur in the proceeding, but occurred after the proceeding was concluded. Id.

    State Constitution & Proportionality 

    Article 1, Section 14 prohibits “cruel or unusual punishment,” compared to the Eighth Amendment’s “cruel and unusual punishment.” The Wyoming Supreme Court has “at least tacitly recognized that under our state constitution we will look at the two words individually.” Bear Cloud v. State, 2012 WY 16, P47 (Wyo. 2012) (overturned on other grounds) (citing Sampsell v. State, 2001 WY 12, ¶¶ 10-11, 17 P.3d 724 PP10-11 (Wyo. 2001); Johnson v. State, 2003 WY 9, ¶ 35 (Wyo. 2003)). Therefore, the Wyoming Constitution potentially provides greater protections from cruel and unusual punishments. Bear Cloud v. State, 2012 WY 16, P47 (Wyo. 2012); But Cf. Hopkinson v. State, 632 P.2d 79, 152 (Wyo. 1981), citing Kennedy v. State, 559 P.2d 1014 (Wyo. 1977):  “This court did not hold that Article I, § 14 of the Wyoming Constitution was any more exacting than the Eighth Amendment to the U.S. Constitution.”).

    Wyoming courts rely on the Solem proportionality test for challenges under the Eighth Amendment. The court looks to the following objective criteria: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Suval v. State, 6 P.3d 1272, 1274 (Wyo. 2000). However, the court will not engage in this lengthy analysis under each of the three criteria except in those instances “where the mode of punishment is unusual or where the relative length of sentence to imprisonment is extreme when compared to the gravity of the offense.” Suval v. State, 6 P.3d 1272, 1274 (Wyo. 2000) (quoting Dodge v. State, 951 P.2d 383, 385 (Wyo. 1997)); Oakley v. State, 715 P.2d 1374, 1379 (Wyo. 1986)); See Tilley v. State, 912 P.2d 1140-43 (Wyo. 1996).

    In Wyoming, a sentence may be subject to appellate review even though it falls within the statutory range. Suval v. State, 6 P.3d 1272, 1274 (Wyo. 2000) (citing Dodge v. State, 951 P.2d 383, 385 (Wyo. 1997)); Oakley v. State, 715 P.2d 1374 (Wyo. 1986) (citing Wright v. State, Wyo., 670 P.2d 1090, 1091 (1983)). Instead, if the sentence falls within the statutory range, the sentence should be reviewed for abuse of discretion. The defendant must show “an abuse of discretion, procedural conduct prejudicial to him, and circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.” Wright v. State, Wyo., 670 P.2d 1090, 1092 (1983) (quoting Scheikofsky v. State, 636 P.2d 1107, 1112-13 (Wyo. 1981)).

    If the length of the sentence is not extreme when compared to the gravity of the offense, the court will instead look to the reasonableness of the sentence by examining the nature of the crime, its circumstances, and the character of the defendant. Tucker v. State, 2010 WY 162, NaN-P50 (Wyo. 2010) (citing Frederick v. State, 2007 WY 27, ¶ 32 (Wyo. 2007).  

    A registration requirement is not punishment for purposes of proportionality analysis under Article 1, Section 14. Snyder v. State, 912 P.2d 1127, 1131 (Wyo. 1996). 

    In Wyoming, “there is no constitutional right to be paroled prior to expiration of a valid sentence.” Whitney v. State, 745 P.2d 902, 904 (Wyo. 1987) (citing Dorman v. State, Wyo., 665 P.2d 511 (1983)).

    A statute which provides for the loss of driver’s license when and offender less that 19 years old is convicted of possession or consumption of alcohol constitutes cruel and unusual punishment in violation of Article 1, Section 14. Johnson v. State Hearing Exmrs. Office, 838 P.2d 158 (Wyo. 1992).

    The following cases mention Article 1, Section 14 in addition to the Eighth Amendment, but do not provide any significant separate analysis of Section 14:

    • Martin v. State, 720 P.2d 894 (Wyo. 1986)
    • Price v. State, 716 P.2d 324 (Wyo. 1986)

     Leading Court Discussions of Graham and Miller  

    Bear Cloud v. State, 2013 WY 18, 294 P.3d 36 (Wyo. February 8, 2013) (Wyoming’s current statute sentencing and parole scheme for persons convicted of first-degree murder violates the Eighth Amendment because it has the practical effect of mandating life in prison without the possibility of parole; the possibility of executive clemency is not equivalent to the possibility of parole;  Wyoming's district courts must consider the factors of youth and the nature of the homicide at an individualized sentencing hearing when determining whether to sentence the juvenile offender to LWOP or to life according to law, the sentencing court shall hold an individualized sentencing hearing that conforms to the dictates of , and must also pronounce a specific period of time which must pass before the juvenile becomes parole eligible. ) 

    Sen v. State, 2013 WY 47, 301 P.3d 106 (Wyo. April 24, 2013) (vacate and remand the LWOP sentence to a 15-year-old under Miller.) 

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