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Darrick T. Adaway v. State of Florida


WE WILL CALL THE NEXT CASE OF AD AWAY VERSUS STATE OFFLORIDA. GOOD MORNING FORM ARE THE PAR TIES READ Y? GOOD MOR NING. ARE THE PARTIES READY? MR . HEIM LICH.

IN 1995 , THE LEGISLATURE CHANGED THE MAND ATORY PENALTY FOR CAPITAL SEXUAL BATTERY, FROM LIFE WITHOUT PAROLE FOR 25 YEARS , TO LIFE WITHOUT PAROLE, PERIOD .

AND IN B A NKS VE RSUS STATE , WE UPHE LD AGAINST THE CONSTITUTIONAL CHALLENGE , LIFE WITHOUT PAROLE FOR 25 Y EARS , FOR BASI CALLY THE S AME OFFENSE HERE , RIGHT?

THAT'S RIGHT.

SO THE ISSUE WE HAVE TO DECIDE IS WHETHER THE FACT THAT IT IS NOW LIFE WITHOUT PAROLE, TAKES IT FROM BEING CONSTITUTIONAL TO BEING UNCONSTITUTIONAL.

YES.

AND HAVE WE EVER HE LD, IN ANY OTHER KIND OF CASE THAT , ANY SENTENCE FOR A TERM OF YEARS , WHET HER IT IS LIFE OR ANYTHING ELSE, VIOLATED THE EIGHTH AMEN DMENT?

I AM NOT AWARE OF ANY SUCH DEC ISION FROM THIS COURT.

SO THI S WOULD BE THE FIRST TIME.

YES.

AND LAST YEAR, IN IN EWING VERSUS CALIFORNIA , THE U.S. SUPREME COURT SAID IT WAS CONSTITUTIONAL , TO IMPOSE A SENTENCE OF LIFE IMPRISONMENT , FOR A THIRD TIME OFFE NSE O F ROBBERY , R IGHT , OF ST EAL ING, AND IN THAT CASE , THE THIRD OFFENSE WAS STEALING GOLF CLUBS .

BUT LET ME SAY , RIGH T AT THE OUTSET THAT , I DISTINGUISHED THIS CASE FROM ALL THE CASES INVOLVING RECIDIVISM AND SAYING THAT RESID VIFT CIRCUMSTANCES CANRESULT IN A VERY SEVERE PENALTY. THIS CASE

I AGRE E ON THAT POINT. THIS QUESTION IS E WING V ERSUS CALIFO RNIA DID CONCERN RECIDIVISM. HOWEVER , THE RECIDIVISM WAS IN STEA LING SOME $100, A FE W HUNDRED DOLLARS' WORTH OF PROPERTY THREE TI MES. MY QUESTION IS, ISN'T THE OFFENSE HERE , AT LE AS T A S EGREGIOUS , IF NOT, AND I WOULD SAY SEVERAL TIMES MORE EGREGIOUS, THAN STEALING SEVERAL H UNDRED DOLLARS' OF PROPERTY THREE TIMES.

IF YOU ARE AS KING ME THREE TIMES , I DON'T KNOW THREE TIMES . I AM NOT ADDRESSING THREE TIMES . IT IS MY PO SITION ON THIS APPEAL, THAT THE STATE CAN DO WHAT EVER IT WANTS AND WHATEVER THE CASES AUTHORIZEIT TO DO, WITH RES PECT TO RECIDIVIST THES , BUT THIS STATUTE IMPO SES A MANDATORY LIFE WITHOUT PAROLE ON SOMEBODY WHO COMMITS THIS OFFENSE AND HAS NEVER COMMITTED AN OTHER OFFENSE AT ALL. THAT HA PPENS NOT T O BE MY CLIENT, BECAUSE MY CLIENT HAS PR IOR CONVICTIONS, BUT THE FACT OF THE MATTER ISTHAT THE SENTENCE IN THIS CASE WAS NOT IMPOSED BECAUSEHE HAD PRIOR CONVICTIONS. IT WAS IMPOSED BECAUSE THE LEGISLATURE MADE THE SENTENCE MAND ATORY FOR THIS OFFENSE , WITHOUT REGARD TO ANY PRIOR CONVI CTIONS.

BUT ISN'T THERE , ALSO , A COMMON THE ME HERE , IN THAT , IN THE U.S. SUPREME COURT SAID, WELL, WE ARE A STATE LEEINGT WELL , WH ERE A STATE LEGISLATURE DETERMINES THAT SOME ONE WHO COMMITS A CRIME OR FELO NY THREE TIMES, SIMPLY IS IN CAPABLE OF B EING REHABILITATED , AND IS A DANGER TO THE COMMUNITY , AND THEREFORE WE ARE GOINGTO USE THREE TIMES AS THE STANDARD TO I AM PRISON SOMEONE, EVEN IF IT I S A NONVIOLENT OFFENSE WHERE HE COMMITS IT THREE TIMES, DON'T THE SAME PRINCIPLES APPLY, WHERE A STATE LEGISLATURE SAYS WE THINK THAT SOME OFFENSES ARE SO SERIOUS AND SUCH A DANGER TO THE COMMUNITY , THAT WE AREGOING TO IMPOSE LIFE IMPRISONMENT ON THE F IRST OFFENSE. IN OTHER WORD S THREE OF THE NONVIOLENT EQUALS ONE OF THIS VERY SE RIOUS SEXUAL OFFENSE AGAINST A CH ILD ?

I DON'T AGREE THAT THEREIS A COMMON THREAD. I THINK THAT THE DECI SIONS UPHOLDING R E ZIT RECI DIVIST SENTENCE RECIDIVIST THE SENTENCES ARE BASED O N THE CONCEPT THAT THERE IS NO DISPROPORTION TO THE PARTICULAR OFFENSE , STEALING GOLF CL UBS, WHEN THE SENTENCE IS IMPOSED NOT WITH RESPECT TO STEALING GOLF CLUBS BUT WITH RESPECT TO ALL OF THE OFFENSES THAT AN INDIVIDUAL HAS COMMITTEDDURING THE COURSE OF HIS LIFE. THAT IS THE PROPORTIONAL ITY ANALYSIS. THE PROPORTIONAL ITY ANALYSIS IN THIS CASE IS VERY, VERY DIFFERENT.THE QUESTION IS WHETHER ALIFE SENT ENCE WITHOUT PAROLE FOR A CAPITAL SEXUAL BA TTERY COMMITTED BY ORAL GENITAL CONTACT , NOT BY PENETRATION , NOT BY UNION , IS DISPROPORTIONATE, AND MY ARGUMENT THAT IT IS DISPROPORTIONATE, HASNOTHING TO DO WITH THE CASES THAT INVOLVE RECIDI VISM. I WOULD NOT AGREE THAT THEREIS A COMMON THRE AD.

WE HAVE THERE ARE SAID THAT THE SENTENCE OF WE HAVE ALREADY SAID THAT THESENTENCE OF LIFE FOR SUCH AN OFFENSE WITH THE POSSIBILITY OF PAROLE AFTER 25 YEARS IS CONSTITUTIONAL, AND THERE IS NO RIGHT T O PAROLE AFTER 25 YEARS.THE RE IS NO GUARANTEE OF PAROLE AT ANY PO INT AFTER 25 YEARS, SO WH Y WOULD THAT ONE DIFFERENCE WITH THEPOSSIBILITY AND WITHOUT THE POSSIBILITY, RE NDER IT UNCONSTITUTIONAL?

WELL , LET ME ANSWER THAT QUESTION IN THREE PARTS. FIRST OF ALL, THE CASES IN THE UNITED STATES SUPREME COURT , SO LOM AND HARLEM , SAYTHAT IT I S IRRELEVANT WHETHER THERE IS A PAROLE SYSTEM OR NOT A PAROLE SYSTEM AND, WHETHER AS A PRACK58 MATTER, THE DEFENDANT A PRACTICAL M ATTER , DEFENDANT CAN GET GET PAROLE OR HE CANNOT GET PAROLE. THE QUESTION IS WHETHE R OR NOT THE SENTENCE OF LIFE WITHOUT PAROLE IS IMPOSED , THAT HAS NOTHING T O D O WITH WHE THER OR NOT HE CAN ACT UALLY GET PAROLE.

BA NKS HAS ALR EADY SAID WHERE IT IS LIFE WITHOUT THEPOSSIBILITY OF PAROLE , THE REIS NO EIGHTH AMENDMENTVIOLATION , SO WE NEED TO COMPARE THIS SITUATION WITH BANKS.

THAT IS WHAT I AM T RYING TO DO. I AM TRYING TO ARGUE , WITHOUT CONTESTING BAN KS , THAT THE SENTENCE IN THIS CASE IS WOR SE THAN THESENTENCE IN BANKS , MUCH WORSE THAN THE SENTENCE IN BANKS.

HOW IS THAT , IF YOU HAVE JUST SAID THAT IT DOESN'T MATTER QLORNT YOU HAVE ELIGIBILITY FOR PAR - - MATTER WHETHER OR NOT YOUHAVE ELIGIBILITY FOR PAROLE OR DON'T HAVE ELIGIBILITY FOR PAROLE, IF THE ACTION IN BANKS WAS A LIFE SENTEN CE?

WELL , I DON'T WANT TO REPEAT WHAT I HAVE ALREADY SAID THAT , THE CASES SAY IT IS IRREL EVANT.

WELL , IF IT I S IRRELEVANT , AND WE APPROVED A LIFE SENTENCE IN BANKS, THEN , WHY ISN'T THAT JUST CONTROLLING HERE ?

BECAUSE

YOU SAID THE OPPORTUNITY FOR PAROLE IS IRRELEVANT. IT IS JUST WHETHER OR NOT ALIFE SENTENCE HAS BEEN IMPOSED.

NO , YOUR HONOR. YOU MISUNDERSTOOD WHAT I SAID.

TELL ME WHAT YOU SAID.

I SAID THAT THE Q UESTION IS WHETHER THE SENTENCE OF LIFE WITHOUT PAROLE IS DISPROPORTIONATE TO THE OFFENSE, AND THE QU ESTION O F WHETHER THE SENTENCE AS WRITTEN , A S RENDERED , IS DISPROPORTIONATE WITH THE OFFENSE , DOESN'T HAVE ANYTHING TO DO WITH WHETHER THERE IS A PAROLE SYSTEM OR WHETHER THE DEFENDANT CAN ACTUALLY GET PAROLE. THE QUESTION IS WHETHER THE SENTENCE IN THIS CASE, WHICH IS LIFE WITHOUT PAROLE , IS ENOUGH WORSE THAN THE SENTENCE IN BANKS , TO MAKE THIS SENTENCE

BUT THE ELIGIB ILITY FOR PAROLE , AND MAYBE YOU DON'T AGREE , IS OR IS NOT A RELEVANT CONSIDERATION IN YOUR APPEAL TO THIS COURT .

IT IS A RE LEVANT CONSIDERATION, IN THE SENSE THAT, IN MY V I EW , THERE MAY BE PAROLE AT SOME TIME IN THE FUTURE , FA N THERE IS PAROLE IN THE FUTURE, I THINK MY C L IENT WILL PROBABLY BE INELIGIBLE FOR IT, BECAUSE HIS SENTENCE WAS CRAFTED TO BE WITHOUT PAROLE. AND I THINK THAT IS A VERY RELEVANT CONSIDERATION. I THINK IT IS, AL SO, A RELEVANT CONSIDER ATION , THAT A SENTENCE OF LIFE WITHOUT PAROLE , IS , DEPRIVES THE DEFENDANT OF ANY H OP E .

ALL RIGHT . YOUR ARGUMENT SEEM S TO BE FOCUSING, REALLY, ON THE SEVERITY OF THE SENTENCE , VERSUS THE AC TUAL OFFENSE THAT IS COMMITTED , CORRECT?

YES.

OKAY. SO IN THIS CASE WE HAVE AN OFFENSE WHERE THERE WAS , WHAT , ORAL GENITAL CONT ACT.

YES .

CORRECT?

O KA Y . YES.

SO IN BANKS WE HAD ORAL GENITAL CONTACT.

YES.

IS YOUR ARGUMENT, BASICALLY, THAT , UNLE SSTHERE IS FULL PENETRATION , THAT THERE , THEN THIS SENTENCE WOULD BE PROPORTIONAL , NOT PROPORTIONAL?

IT IS PART OF MY ARGUMENT THAT THE OFFENSE THAT IS COMMITTED BY PENE TRATION IS MUCH MORE SE RIOUS THAN THE OFFENSE IN THIS CASE, AND YET THE LEGISLATURE HAS IMPOSED THE SAME SENTENCE ON B OTH, AND MADE THAT SENTENCE MANDATORY. THE TRIAL JU DGE CAN'T VARY IT.

SO WHERE WOULD WE DRAW THE LINE HERE? ASSUMING WE HAVE PARTIAL PENETRATION, YOU KNOW , I AM TRYING TO F IGURE OUT WHAT MAKES THIS ONE

I GUESS THE POINT THAT DISTINGUISHES IS THE CASES LIKE GIBSON , THAT INVOLVEUNION , AND IT DEPENDS ON HOW YOU LOOK AT UN ION. THE WAY - -

GO ON. H OW DO YOU LOOK AT UNION?

I LOOK AT U NION , AS BEING THE SAME THING ASPEN TRATION , WITHOUT PROOF OF PENETRATION.I THINK UNION WAS SET U P, SO THAT IN A CASE WHERE A CH ILD IS ASSAULTED IN T HAT WAY ANDTHERE IS NO EV IDENCE OF PEN ETRATION, YOU CANPROSECUTE THE DEFENDANT AS IF THERE WAS PENETRATION , WITHOUT ACTUALLY PROVING PENETRATION. OBVIOUSLY

SO IN A SI TUATION WHEREYOU WOULD HAVE ORAL CONTACT THAT I S UNION , THIS SENTENCE WOULD BE OK AY?

I AM SO RRY . THE UNION THAT I A M TALKINGABOUT IS GEN ITAL /GENITAL UNION NOT ORAL/GENITAL UNION, AND WHAT I AM SAYING IS THAT UNION IS LIKE PENETR ATION. UNION IS RAPE WITHOUTEVIDENCE OF PENETRATION, BUT ORAL GENITAL CONTACT IS NOTTARNTION IS VERY, VERY DIFFERENT.

SO ORAL, THE FACT THAT IT WAS ORAL , YOU CANNOT GO BEYOND CONTACT TO THE UNION, IF IT IS ORAL.

WHAT T YPE OF CRUEL AND UNUSUAL PUNI SHMENT AN ALYSIS ARE WE SUPPOSED TO FO LLOW ? ARE WE SUP POSED TO FOLLOW THE UNITED STATES SUPREME COURT PRECEDENT , OR D O WE JUST GO BACK TO WHAT WE DID , HAVE DONE BEFORE THE CONSTITUTION CHANGED? IS THIS WHERE IT IS CRUEL OR UNUSUAL? WHAT POSTURE IS THIS CASE IN , FIRST OF AL L. ARE WE INTERPRETING THE CONSTITUTIONAL PROV ISION AS AMENDED , TO BE EXACTLY LIKE THE UNITED STATES CONSTITUTION, OR ARE WE LOOKING AT ONE THAT G I VES, BEFORE THE CHANGE THAT, G AVE G REATER PROTE CTION TO INDIVIDUALS?

THIS IS , UNDER THE OLDPROVISION , CRUEL OR UNUSUAL, OF THE STATE CONSTITUTION.

SO WHAT WOULD YOU SAY , WHAT ARE, THEN , THE GUIDING CONSIDERATIONS? WE HAVE BEEN F O CUSING ON DISPROPORTIONAL ITY BETWEEN THE OFFENSE AND THE PENALTY'S HARSHNESS. I THINK YOU DON'T , I THINKYOU HAVE A HARD TIME ON THAT ONE.THE QUESTI ON I HAVE IS, THEN , D OES THE PROPORTIONAL ITY ARGUMENT, AS TO OTHER OFFENSES COME INTO P L AY , I N TERMS OF HOW AGGRAVATED MANSLAUGHTER IS PUNISHED BY 30 YEARS. A DEFENDANT WHO WILLFULLY TORTUROUS , MALICIOUSLY PUNISH ES OR DOES AGGRAVATED C HILD AB USE IS NOT PUNISHED BY LIFE IMPRISONMENT . DO WE LO OK AT OTHER TYPES OF OFFENSES , AS WELL AS HOW IT IS PUNI SHED IN OTHER JURISDICTIONS? WHERE DOES THAT COME INTO P LAY , BECAUSE YOU HAVE ONLY BEEN FOCUSING ON THE FIRST ONE.

THE CASES SAY , AND I MEAN BOTH THE UNITED STATES SUPREME COURT CASES AND THE FLORIDA CASES , THAT THE CRUEL AND UNUSUAL PUNISHMENT CLAUSE REQUIRES AN ANA LYSIS OF PROPORTIONAL ITY OR DISPROPORTIONALITY, ANDTHERE ARE THREE WAYS TO LOOK AT DISPROPORTIONALITY.ONE IS TO ASSESS THE PEN ALTY IN RELATION TO THE CR IME .

THAT IS WHAT WE HAVE BEEN T ALKING AB OU T .

YOU C AN'T IMPOSE A LIFE SENTENCE FOR OVER TIME PARKING.THIS IS NOT LIKE THAT , BUTTHE PRINCIPLE IS THE SAME. THE OTHER THING THAT YOU CAN LOOK AT

IN THAT SIT UATION, YOUWOULDN'T, IF YOU HAD LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE FOR VAGRANCY, YOU KNOW , ONE ACT OF VAGRANCY , WHATEVER THESTATUTE IS NOW THAT I S CONSTITUTIONAL, YOU COULD MAKE A DECI SION , JUST BASED ON LOOKING AT THAT CRIME AND THAT PUNISHMENT , THAT I T WAS CRUEL AND UNUS UAL. YOU WOULDN'T HAVE TO GO ANY FURTHER. ALL RIGHT. H ERE, THOU GH, IT IS ON ITS FACE, AS INDI CATED BY WHETHER THIS RECIDIVIST THESTATUTE OR NOT , THAT Y OUHAVE GOT A VERY SIGNIFICANTCRIME, WHETHER IT IS CONTACTOR NOT , THE RE IS NO GET TING AROUND IT .

I DON'T DISAGREE.

SO, THEN , DO WE MOVE ON TO THE TWO OTHER PRO NGS, TO EXAMINE WHETHER IT IS PROPORTIONATE TO OTHER TYP ESOF SENTENCES, AND WITHIN OTHER JURISDICTIONS, IS THAT PART OF THE ANAL YSIS?

OUR ARGUMENT IS THAT THE PENALTY FOR THIS CRIME IN FLORIDA, IS DISPROPORTIONA TETO THE OTHER PENALTIES THAT ARE IMPOSED IN FLOR IDA. WE DO NOT COM PARE THIS STATUTE WITH STAT UTES IN OTHER STATES. THE STATUTES IN OTHER STATES ARE AS BA D AS OURS . AND WE JUST DON'T MAKE THAT ARGUMENT. IN SO LOM , WHERE THESE T ESTS WERE FORMULATED

DON'T YOU HAVE TO CONSIDER THAT?ONCE YOU SAY WE ARE GOING TO CONSIDER OTHER STATUTES IN FLORIDA , Y OU HAVE TO, AL SO, GO TO THE THIRD PRONG. IT IS NOT EITHER/OR. YOU EITHER STOP AT THE FIRSTOR YOU GO TO THE NEXT T WO. YOU DON'T GO AD SERIATUM , AND YOU HAVE T O CONSIDER WHAT OTHER STATES DO IN DETERMINING WHETHER THIS VIOLATES THE EI GHTH AMENDMENT.

I DON'T AGREE . AND I DON'T AGREE FOR ANUMBER OF REASONS , THE FIRST REASON IS THAT IN SOLOM, WHERE THESE TESTS WERE FORMULATED, JUST ICE POWELL SAYS THE COURT SHOULD , A LSO , CONSIDER NUMBER THREE , THE COMPARISON BETWEE N THIS STATE AND THE OTHER STATE. I THINK A COMPARISON OF THIS STATE AND THE OTHER STATE IN THIS CASE , IS USELESS , BECAUSE I THINK THE STATUTES OF OTHER STATES ARE ALSO INVALID.

HAVEN'T WE AD OPTED JUSTICE KENNEDY'S FORMULATION IN HARMELIN , WHICH DOES HAVE THE THREE O R FOUR-PART ANALYSIS ? S INCE HARM ELIN , HAVEN'T WE ADOPTED THAT?

I DON'T THINK THAT THE THREE-PART ANALYSIS WHICH ORIGINATED IN SOLOM , REQUIRES THE ANALYSIS OF ALL THREE PRON GS, AND IN ANY EVENT , MY ANALYSIS , MY ARGUMENT IS THAT THE SE COND PRONG IS SO STRONG , THAT THE DISPOSITION , THE DISPROPORTION BETWEEN WHAT FLORIDA DOES IN THIS CASE AND WHAT FLORIDA DOES IN OTHER CASES, IS SO STRONG, THAT EVEN IF OTHER STATES DO THE SAME THING , THE FLORIDA STATUTE IS IN VALID , ANDMAYBE SOME LAWYER WILL CHALLENGE THAT.

THAT IS THE HEART OF YOUR ARGUMENT HERE.

THAT IS THE HEART , ABSOLUTELY.

GIVE US YOUR BE ST. YOU HAD SOME EXAMPLES QUOTED FROM THE BENCH ALREADY. GIVE US YOUR BEST EXAMPLE.

THE FIRST EXAMPLE THAT I ARGUE IS AN EXAMPLE FROM WITHIN THE STATUTE, THAT THE STATUTE IMPOSES THE SAME PENALTY FOR ORAL/GENITAL CON TACT AS IT IMPOSES FOR CHILD RAPE, FOR RA PE OF ACHILD , AND I T HINK THAT IS A DISPROPORTION, IN AND O F ITSELF. THE SECOND POINT THAT I WOULD MAKE IS THAT , PRIOR TO THE ADO PTION OF THE 1 974 SEXUAL BATT ERY STATUTE , THE OFFENSE IN THIS CASE WAS NOT R APE, AND IT WAS A LEWD AND LASCIVIOUS OFFENSE. IT WAS A LE VEL 7 OFFENSEUNDER THE GUIDE LINES.IT WAS A SECOND-DEGREE FELONY , PUNISHABLE BY NO M ORE THAN 15 YEA RS.

ARE THERE ANY OTHER CRIMES IN THE STATE OF FLORIDA THAT YOU CAN GET LIFE IMPRISONMENT , WITHOUTPOSSIBILITY OF PAROLE?

YES. MURDER.

ANYTHING EL SE?

AND THE SUPREME COURT SAID IN CO KER , THAT YOU C AN'T PUNISH RAPE THE SAME WAY THAT YOU PUNISH HURD , AND THE - - PUNISH MURDER , AND THE STATE OF FL ORIDA PUNISHES CHILD RAPE THE SAME WAY AS I T PUNISH ES M URDER , BECAUSE THE PENALTY FOR THAT IS LIFE WITHOUT PAROLE , AND THAT CHANGE WAS MADE IN THE MURDER STATUTE AT THE SAMETIME THAT THE CHANGE WAS MADE FOR SE XUAL BAT TERY AND LIFTED BOTH PENALTIES TO LIFE WITHOUT PAROLE.

WAS THERE ANY OTHER CHANGE TO SECOND-DEGREE FELONY PUNISHABLE , THAT IT WENT FROM BE ING A SECOND-DEGREE FELONY TO A CAPITAL FELONY?

WHEN THE 1 974 SEXUAL B ATTERY STATUTE WAS ENACTED , THE STATUTE SCOOPED UP OFFENSES THAT HAD NOT BEEN RAPE BE FORE AND PUT THEM IN THE SAME CATEGORY AS RAPE , AND IMPOSED A LIFE SENTENCE WITHOUT PAROLE FOR 25 YEAR S. NOW INCREASED TO LIFE , ANDSAID THAT THESE OFFENSES ARE A LL THE SAME. I SUB MIT THAT THEY ARE NOT ALL THE SAME , AND THAT

YOU DON'T THINK WE WOULD HAVE TO REC EDE FROM OUR CASE , THE HALE CASE OR HALL , WHATEVER, IN DOING THIS?

NO. I DON'T THINK SO AT ALL. AND THE ARGUMENT THAT I AM MAKING WOULD NOT RE QUIRE THE COURT TO RECEDE FROM BANKS. ALTHOUGH I DON'T AGREE WITH BANKS , AND IF YOUR HO NOR WOULD DEC LARE THE STATUTE UNCONSTITUTIONAL , THAT WOULD BE ANOTHER D AY . B UT THE COURT DOES NOT HAVE TO RECEDE FROM BANKS AT THIS P OINT. MY POINT IS SIMPLY THAT THE SENTENCE OF LIFE WITHOUT PAROLE, SO DEPRIVES THE DEFENDANT OF ANY HOPE , THAT IT IS CRUEL AND UNUSUAL AND IMPROPER FOR THIS OFFENSE. THERE WAS A CASE IN THIS STATE , VERY RECE NTLY , BLACKWELDER , WHICH I C ITED AS SUPPLEMENTAL AUTHORITY, WHERE THE DEFENDANT WAS SENTENCED TO LIFE WITHOUT PAROLE FOR CAPITAL SEXUAL BATTERY , AND THEN COMMITTED A MURDER IN PRISON, SO THATHE COULD BE EXECUTED.

ISN'T THAT A LEGISLATIVE DETERMINATION , THOUGH, WHETHER IT IS ADVISABLE OR NOT , WHETHER IT IS GO ING TO HAVE CERTAIN REPERCUSSIONSOR NOT? THAT IS NOT A CONSTITUTIONAL ISSUE , IS IT?

I DON'T THINK SO.IT IS THE DECISION FOR THE LEGISLATURE IN THE FIRST INSTANCE, BUT THE CONSTITUTION, THE POWER OF JUDICIAL REVI EW , REQUIRES THE COURT TO LAY THE STATUTE AGAINST THE CONSTITUTION, AND THE WAY YOU LAY THAT STATUTE AGAINST THE CONSTITUTION IN THIS CASE , IS BY AS KING WHETHER THE PENALTY IS DISPROPORTIONATE.

BUT IT DOESN'T ASK US TO SAY WHETHER THIS IS GOING TO CREATE AN INCENTIVE TO COMMIT MORE CRIMES DISINCENTIVE TO COMMIT THIS CRIME. THOSE AREN'T THE QUESTIONS WE ASK.

WELL , I AM NOT SURE THAT'S RIGH T. WHAT I MEAN SAYING IS THAT THE CAPITAL, THE PENALTY FOR CAPITAL SEXUAL BATTERY OF LIFE WITHOUT PAROLE, IS SO CLOSE TO THE DEATH PENALTY , AND SO DEPR IVES THEDEFENDANT OF HOPE , THAT IT HAS CONSEQUENCES IN TERMS OF WHAT THE PE RSON SO SENTENCED WILL DO.

CHIEF JUSTICE: I WANT TO REMIND YOU , YOU ARE IN YOUR REBUTTAL.

I AM SORRY. IT ALSO HAS CONSEQUENCES IN TERMS OF THE DETERRENT EFFECT OF THE MURDER STATUTE, BECAUSE THE PENALTY IN THIS STATUTE IS SO CLOSE TO THE PENALTY IN THE MURD ERSTATUTE , THAT IF THE DEFENDANT COMMITS THIS OFFENSE , HE HAS AN INCE NTIVE TO KILL THE VICTIM , IN ORDER TO SI LENCE THE WITNESS , AND THAT JUST SHO WS THAT THE SENTENCE IS DISPROPORTIONATE.

CHIEF JUSTICE: THANK YOU VERY MUCH. MS. TAYLOR.

THANK YOU. GOOD MORNING. MAY IT PLEASE THE COURT. PAULETTE TAYLOR ON BEHALF OF THE STATE. THIS ARGUMENT THAT THE SENTENCE IS DISPROPORTIONATE BECAUSE IT WILL GIVE THE DEFENDANTS INCENTIVE TO KILL THE VI CTIMS , IS WITH ALL DUERESPECT TO COUNSEL , IS ABSOLUTELY LUDICROUS. THIS STATUTE PROTECTS CHILDREN AGAINST PREDATORS . IT IS A IMED AT CHILDREN WHO ARE LESS , TWELVE YEARS OR UNDER, AND A D ULTS WHO ARE 1 8 AND OVER. IT SPECIFICALLY IS LI MITED TO THOSE CLASSES OF DEFENDANTS AND VICTIMS . THE REASON WHY IT IS THE VICTIMS OF TWELVE YEARS AND UNDER, IS BECAUSE THESE CHILDREN ARE IN CAP ABLE O F PROTECTING THEMSELVES . THE Y DO NOT

LET ME ASK YOU THIS QUESTION, THOU GH, AND, AGAIN, WHEN YOU ARE LOOKING AT PROPORTIONALITY, THE SAME E XACT SENTENCE IS GI VEN , IF A PERSON OV ER OF THE AGE OF 18 B R UTAL LY RAPES A CHILD , SAME EXACT SENTENCE .

CORRECT.

AND THAT DOESN'T RA ISE , JUST WITHIN THAT , ANY CONCERNS OF PROPORTIONAL ITY? I MEAN , NORMALLY , A GAIN , YOU HAVE GRAD ATIONS OF MURDER , AND I HAVE GOT AND YOU HAVE GOT SECOND-DEGREEMURDER AS LESS THAN FIRST-DEGREE AND MANSLAUGHTER. THE VERY FACT THAT THERE IS NO, THAT THE Y ARE ALL TREATED EXACTLY THE SAME FOR VERY , VERY, YOU KNOW , AGAIN , NOT QUESTIONING THE SERIOUSNESS OF THIS OFFENSE , BUT IN COMPARISON TO SOME OF THE, YOU KNOW, A BR UTAL CHILD RAPE, IT JUST, WHAT IS YOUR ANSWER TO THAT, JUST WITHIN THE FACT THAT THEY ARE ALL LU MPED TOGETHER AND G IVEN LIFE WITHOUT PAROLE, WHICH THE JURY IS NOT TOLD ABOUT, YOU KNOW , IN THE COURSE OF THE TRIAL. THEY HAVE NO IDEA WHAT THE SENTENCE IS G OING TO BE.

COR RECT . THE FACT THAT THERE ARE V ARIOUS WAYS OF COMMIT TING THE CRIME, IS NOT THE IS SUE. THE ISSUE IS WHETHER OR NOT THIS PARTIC ULAR CRIME ANDTHE CRIME THAT IS HERE , IT IS NOT JUST AS THE DEFENDANTSEEMS TO SAY , ORAL/GENITAL CONTACT.IT IS A INVA SION INTO THE CHILD'S GENITALIA. IT I S INTENDED TO PROHIBIT ADULTS FROM G AINING SEXUAL GRATIFICATION FROM CHILD REN.

WHAT ABOUT THE A S PECT OF , REALLY, SINCE THE LAW MAKES NO DISTINCTION HERE , THAT ITWOULD AP PEAR TO AC TUALLY T ELL THE OFFENDER , THE SEXUAL OFFENDER , THAT YOU CAN DO ANYTHING TO A CHILD , AND THERE IS NO INCENTIVE FOR YOU TO ST OP SHORT OF , IN YOUR ABUSE , BECAUSE THE SAME , O NCE YOU HAVE ANY SEXUAL CONTACT , THAT THE SAME PUNISHMENT IS GOING TO BE IMPOSED , SO THERE IS NO INCENTIVE HERE, FOR SEXUAL OFFENDER S T O STOP SHORT .

THAT IS SAYING DON'T EVEN THINK ABOUT IT . IT IS SAYING , A S AN ADULT , D ON'T EVEN , DON'T EVEN THINK ABOUT GE TTING ANY KIND OF SEXUAL GRATIFICATION FROM A CHILD.

THE OTHER ASPECT OF THIS , IS THAT , W HAT ABO UT THE INSTANCE WHEN A CHILD I S NOT SEXUALLY BUT TERRIBLY PHYSICALLY A B USED , MAIMED AND DISABLED FOR LIFE , WHAT IS THE PUNISHMENT FOR THAT , THAT IS A BATTERY THAT L EAVES A CHILD MAIMED AND DISABLED FOR LIFE? IT IS LESS THAN , IS IT NOT , LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE.

IT IS NOT LESS THAN. IT IS STILL POSSIBLE THAT THAT DEFENDANT WILL RECEIVEA LIFE SENTENCE WITHOUT THE POSSIBILITY OF PAROLE.

TELL ME ABOUT THAT . WHAT, THE BATTERY STATUTE THAT CO VERS THAT.

IT IS NOT MANDATORY, AS IT IS IN THIS CASE , BUT IT IS POS SIBLE FOR A DEFENDANT WHO COMMITS AGGRAVATED BATTERY , TO BE SENTENCED TO UP TO LIFE IN PRISON. IN THAT CASE , THEY CAN GET LIFE IN PRI SON, AND I T IS THE POSS IBILITY OF LIFE WITHOUT PAR PAROLE PAROLE, THAT REND ERS

IT IS NOT A MAXIMUM OF 20 TO 30 YEARS IN PRISON , FOR , UNDER A VIOLATION OF A DEFENDANT WHO WILLFULLY TORTUROUS , MALICIOUSLY PUNISH ES , WILLFULLY CA GES , PERMANENT LY DISFIGURE YOURS A CHILD , IS PUNISHED FORCHILD ABUSE?

I THINK THEY CAN GET U P TO LIFE IN PRISON, BUT THE FOCUS HERE IS NOT BETWEEN OTHER TYPES OF CRIMES.

THAT IS ALL RELEVANT.

THAT IS NOT IN THE ANALYSIS AT ALL. YOU DON'T LOOK TO SEE, WELL , WHAT OTHER CRIMES CAN GET PUNISHMENT MORE SE VERE THAN THIST? QUESTION HERE IS , WHETHER OR NOT THERE IS ANY REASONABLE , THERE IS A REASONABLE BASISFOR THIS PUNISHMENT.

SO ANY CHILD ABUSE COULD BE PUNISHED WITH THIS PUNISHMENT , THAT IS THAT IF A PARENT LOSES I T AND STRIKES THEIR CHILD VIOLENTLY , THAT THE SAME, I T IS BECAUSE IT IS A CHILD , SO ANY ABUSE OF A CHILD COULD BE PUNISHED WITH THE SAME PUNISHMENT?

NO. NO.

WHAT ABUSE OF A CHILD WOULD BE ELIMINATED?

WE HAVE TO , W E HAVE TO LOOK AT WHAT THE LEGISLATURE IS , WHAT THE FOCUS OF THIS STATUTE IS . THE FOC US

I AM ASK ING WHAT , YOU SAID THAT, NO , THAT SOME ABUSE OF A CHILD COU LD NOT BE PUNISHED THIS SEVERELY, SO I AM ASKING YOU WHE RE YOU WOULD D RAW THE LINE , WHAT ABUSE OF A CHILD , PH YSICAL ABUSE OF A CHILD, THEN , COULD NOT BE PUNISHED BY LIFE IMPR ISONMENT WITHOUT THE POSSIBILITY OF PAROLE?

THERE ARE VARIOUS OTHER STATUTES THAT PROTECTS CHILDREN AGAI NST THE VARIOUSTYPES OF ABUSES THAT CAN BE COMMITTED AGAINST THEM.

I AM TALKING ABOUT THE CONSTITUTIONAL STANDARD THAT YOUR OPP ONENT IS , HAS RAISED THE ISSUE OF HERE. WHAT OTHER CHILD ABUSE OFFENSES , PHY SICAL ABUSE OF A CHILD , WOULD CROSS THE CONSTITUTIONAL LINE, IN TERMS OF IMPOSE ING THIS PUNISHMENT?

IN THE PROPORTIONAL IT Y ANALYSIS , THIS COURT NEED NOT LOOK TO SEE WHAT OTHER ABUSE WOULD WARRANT THIS KIND OF PUNISHMENT. THE ONLY THING THAT IS NECESSARY IN THIS ANALYSIS , IS TO DETERMINE WHETHER OR NOT THAT THERE IS ANY REASONABLE BASIS FOR THE LEGISLATURE TO

I THOUGHT THE CASE LAWTOLD US THAT THAT IS EXACTLY WHAT WE SHOULD DO, THAT IS THAT WE SHOULD LOOK AT HOW WE PUNISH OTHER OFFENSES , AND THEREFORE MAKE SOME JUDGMENT HERE , ABOUT WHETHEROR NOT THIS CROSSES THE LINE.

NO. THE

YOU ARE SAYING THAT YOUR OPPONENT'S ARGUMENT HERE, IS OFF BASE TO BE GIN WITH.

IT IS.

THAT IS NOT PART OF THE ANALYSIS.

IT IS NOT PART OF THE ANALYSIS. THE FIRST THING THAT THE COURT MUST DO , IS TO DETERMINE WHETHER OR NOT T HE SEVERITY O F THE PUNISHMENT , F ITS THE CRIME. WHETHER IT I S GR OSSLY DISPROPORTIONATE TO THE CRIME, SO THE FIRST THING THAT WE HAVE TO DO IS FI GURE OUT THE SEVERITY , THIS CRIME, FIGURE O UT WHAT THIS CRIMEIS , HOW OWEDIOUS IS THIS CRIME TO SOCIETY. IS THIS A CRIME THAT OUR SOCIETY WILL TOLERATE THIS KIND OF PUNISHMENT FOR. IN HARM EVENT LIN IN HARMELIN, THIS WAS A FIRST-TIME OFFENDER . THE DEFENDANT THERE WAS CONVICTED OF 160 GRAMS OF COCAINE, A FIRST TIME OFFENDER, AND THE COURT THERE SAID THE GRAVITY OF THAT OFFENSE WAS SO GREATTHAT, HIS PUNISHMENT OF LIFE IN PRISON WITHOUT THE POSSIBILITY OF PAROLE, WAS NOT GRO SSLY DISPROPORTIONATE. THE COURT DIDN'T LOOK TO SEE WHAT OUR FORMS OF POSSESSION OF CO CAINE WOULD WARRANT THAT SEVERE SENTENCE. IT SAID WE ARE LOOKING JUST AT THE GRAVITY OF THIS OFFENSE , AND THIS OFFENSE IS SO GRAVE , THAT I T WARNS THIS LIFE IN PRISON WITHOUT THE POSSIBILITY OF PAROLE.

THAT IS THE SOLE ANALYSIS.

THAT IS THE SOLE ANALYSIS.

BUT IF YOU DON'T, BUT IF YOU SAY , IF YOU GET TO THAT POINT AND YOU SAY , WELL , THIS MAY NOT BE , DO YOU MOVES ON, THEN, TO OTHER , TO THE OTHER PRONGS O F COMPARING IT TO OTHER CRIMES , COMPARING IT TO CRIMES THAT ARE COMMITTED IN OTHER STATES? WHAT KIND OF PUNISHMENT YOU G ET FOR THAT CRIME? OTHER STATES?

THE ANALYSIS IS , ONCE YOU MAKE A DETER MINATION THAT THIS OFFENSE IS SO GRAVE THAT IT WARR ANTS THIS PENALTY , THE ANALYSIS IS O VER. YOU DON'T GO ANYWHERE ELSE. IF YOU MAKE THE ASSESSMENT THAT THIS PUNISHMENT IS ON E OF THE RARE CASES THE COURT POINTS OUT ALL THE TI ME, IT HAS TO BE THE RARE CASE THAT THIS PUNISHMENT IS GROS SLY DISPROPORTIONATE TO THE CRIME , THEN YOU VALIDATE IT OR INVA LIDATE IT BY LOOKING TO SEE THAT SECOND ST EP , LOOKING TO SEE W HAT KIND OF PUNISHMENT IS PROVIDED FOR OTHER CRIMES IN THIS JURISDICTION AND WHAT KIND OF PUNISHMENT IS PROVIDED FOR THE SAME CRIME IN OTHER JURISDICTIONS.

AND SPEAKING TO THE FIRST STEP, DID WE HOLD IN HALL VERSUS STATE , A COUPLE OF YEARS AGO , THAT THE EIGHTH AMENDMENT AND ARTICLE I 1 7 OF OUR CONSTITUTION , HAVE HISTORICALLY PROV IDED PROTECTION ONLY AS TO THE MODE OF THE PUNISHMENT ANDNOT AS TO THE LENGTH OF THE SENTENCE?

THAT'S CORRECT , YOURHONOR , AND THE COURTS HAVE , THERE ARE SEVERAL JUST ICES ON THE UNITED STATES SUPREME COURT AT THE MO MENT THAT BELIEVE THAT, THAT THERE IS NO , AS TO THE LE NGTH OF THE SENTENCE, BUT IN C O TTON, IN GIBSON , THE SECOND DISTRICT COURT APPLIED THE SOL OM ANALYSIS AND FO UND THAT IT WAS NOT GROSSLY DISPROPORTIONATE, THE SAME SENTENCE FOR THE SAME CONDUCT , WHICH I S ORAL , THAT WAS GENI TAL /GENITAL CON TACT. AND IN THIS CASE

EXCUSE ME. JUDGE AL TERNATE ENBURNED SAID JU DG E ALTENBERND SAID SPECIFICALLY THAT HE WOULD EX PRESS SOME CONCERN IF IT WAS ORAL/GENITAL. THAT CASE WAS GENITAL /G ENITAL CONTACT.

IT WAS JUST SAYING IT WAS LIMITED TO THIS GENITAL /G E NITAL CONTACT, BUT OUR POSITION IS THAT THERE IS NO DIFFERENCE BETWEEN, AS FAR AS THE INVASION INTO THE CHILD'S GENITALIA, THERE IS NO DIFFERENCE BETW EEN GENITAL CONTACT AND ORAL /GENITAL CONTACT ,. IT IS THE SA ME, AN AD ULT OBTAINING SEXUAL GRATIFICATION FROM A CHILD .

DO WE K NOW HOW WOULD THE DEFENDANT WAS IN BAN KS ?

BANKS , I BE LIEVES , WAS 23 YEARS OLD . NO. I AM SORRY. I DON'T. I THINK G IBSON , THE DEFENDANT IN GI BSON WAS 2 3 YEARS OL D. I AM NOT SURE IN BANKS.

WE DON'T KN OW HOW OLD THE DEFENDANT WAS IN BAN KS.

NO. I DON'T KNOW. BUT THE VI CTIM IN GIBSON , THE , OUT OF THE SECOND WAS EIGHT YEARS OLD AND THIS VICTIM IN THIS CASE WASELEVEN.

DO WE KNOW WHETHER THE ARGUMENT WAS LAID IN BANKS, THAT THE WAS MADE IN BANKS, THAT THE MINIMUM SENTENCE WITHOUT P AROLE , OF 25 YEARS , WOULD DE F ACTO EXCEED HIS LIFE EXPECTANCY?

NO. BUT I DON'T THINK THE DEFENDANT'S LIFE EXPECTANCY IS ANY KIND OF A FA CTOR INTO WHETHER OR NOT THE SENTENCE IS PROPORTIONATE . A DEFENDANT CAN COMMIT A CRIME IN THIS CASE , 1 8 , 19 YEARS OLD, OVER 18 , 19 YEARS OLD. IT MAKES NO DIFFERENCE WHETHER HE IS 19 O R HE IS 99.

IT MAY MAKE A DIFFERENCE, THOUGH, IN ANOTHER SITUATION, WHERE THE DEFENDANT IS ARGUING THAT THE MINI MUM 25-YEAR SENTENCE , IS TANTAMOUNT TO A LIFE SENTENCE WITHOUT THE POSSIBILITY OF PAROLE , IF IT IS SOME OTHER CRIME , FOR INSTANCE, THAT HE IS ARGUING ABOUT.

I DON'T THINK THE AGE OF THE DEFENDANT IS EVER A F ACTOR INTO WHETHER OR NOT A CRIME IS DISPROPORTIONATE TOTHE PUNISHMENT. THE LEGISLAT URE FI XE S A PUNISH MENT. IT IS NOT BAS ED ON THE AGE OF THE DEFENDANTS .

WELL , IT MAY IN SOME SITUATIONS. THIS STATUTE ACTUALLY STARTS WITH A DEFENDANT HAS TO B E 18 YEARS OF AGE OR OLD ER. CORRECT?

CORREC T.

SO IF A DEFENDANT WAS 1 6 YEARS OLD AND WE HAD THE SAME STATUTE, REQUIRING THESAME PUNISHMENT , YOU DON'T THINK THAT WE COULD CONSIDER THE FACT THAT THIS WAS A M INOR, WHO A C TUALLY COMMITTED THE CRIME ON ANOTHER MINOR?

I THINK THE LEGISLATURE, IN SETT ING THE MIN IMUM AGEOF THE DEFENDANT , HAS FACTORED INTO THE PUNISHMENT . THAT IS, IN THIS CASE , I T MAKES IT , THE DEFENDANT HAS TO BE 18 OR O V ER, SO THIS COURT DOES NOT NEED TO CONSIDER WHETHER THIS WAS A DEFENDANT WHO WAS 16 , BECAUSE IT ONLY APPL IES TO THE DEFENDANTS WHO ARE 18 , SO THE STATUTE MAKES NO REFERENCE.IT IS 18 OR OVER , SO WHETHER THE DEFENDANT IS 18 IN S IX MONTHS O R 99 YEARS , IT IS OFNO RELEVA NCE.I THINK THAT THE COURT HAS, THE UNITED STATES SUPREME COURT HAS CONSISTENTLY HELD THAT LEGISLATURE S ARE ENTRUSTED WITH DETERMINING THE GO ALS O F SENTENCES . ONCE THERE IS A R A TIONAL BASIS OR REASONABLE BASIS TO BELIEVE THAT THAT PARTICULAR SENTENCE ADVANCES A PARTICULAR GOAL OF THE CRIMINAL JUSTICE SYSTEM, THEN BASI CALLY THE ANALYSIS IS OVER WITH . HERE , WE HAVE OUR LEGISLATURE THAT HAS SA ID, IN N O UNCERTAIN TERMS, THAT IT IS A GRAVE , AN EXTREMELY GRAVE OFFENSE. WE KNOW THAT BY THE PUNISHMENT THAT IT HAS PROVIDED, FOR AN ADULT TO GAIN ANY KIND OF SEXUAL GRATIFICATION FROM A CHILD , AND FOR THAT IT HAS SET THE PENALTY OF LIFE IN PRISON WITHOUT THE POSS IBILITY OF PAROLE. THAT PENALTY ADV ANCES THE CRIMINAL JUSTICE SY STEM , BY, NUMBER ONE, IT IS A DETERRENT , NUMBER TWO , IT PROTECTS THESE VULNERABLE VICTIMS WHO ARE NOT ABLE TO SOME EXTENT , N EITHER IS SOCIETY ABLE TO PROTECT THESE CHILDREN FROM THESE PREDATORS.

CAN YOU TELL ME , IN THE L AST 25 YEARS , WHETHER THERE ARE ANY CASES , AT THE U.S. SUPREME COURT LEVEL ORANYWHERE IN THE COUNTRY,THAT HAS FOUND A PUNISH MENT FOR A CRIME TO BE CR UEL AND UNUSUAL?

WELL , SOLOM, THE COURT DID FI ND THAT IT WAS, NOT CRUEL AND UN USUAL , BUT I GUESS IT WAS DISPROPORTIONATE.

WHAT WAS THE CRIME THERE?

THAT, THE CRIME WAS , AND THAT WAS , AGAIN , U N DER RECIDIVIST STATUTE. THE DEFENDANT THERE, THE TRIGGER ING OFFENSE WAS, I THINK HE WAS ISSUING A NO-ACCOUNT CH ECK FOR $100, AND FOR THAT HE GOT THE PENALTY OF LIFE IN PRISON WITHOUT THE POSSIBILITY OF PAROLE. THE COURT THERE , AND , AGAIN , THIS WAS A DIVIDED COURT , AND THE COURT HAS , SINCE THEN, IT IS IN QUESTION WHETHER OR NOT THAT 'TI L IT IS VALID THAT ST ILL IS VALID, BUT WE STILL APPLYTHE TEST FROM SOLO M.

THAT WAS A VICTIMLESS CRIME.

THERE IS AN ISSUE ABOUT WHETHER OR NOT IT WAS AVICTIMLESS CRIME .

THEY SAID IT WAS A NONVIOLENT .

R IGHT , AND THAT WAS

THE SEVENTH NONVIOLENT OFFENSE.

RIGHT. AND THAT WAS BASED UNDER THE RECIDIVIST STATUTE. BUT HERE .

IN E WING , IT SEEMED ALMOST T O BE NOT IDENTICALFACTS , BECAUSE THE AM OUNT OF MONEY AT ISSUE WAS GREATER, BUT IT WAS ONLY TH E THIRDTIME. IT WAS, ALSO , A NONVIOLENT OFFENSE.

CO RRECT.

AND THE COURT SAID THAT DID NOT VILE DID NOT VIOLATE THE CONSTITUTION.

IN E W ING FOR THAT OFFENSE , WHICH , AS THE DISSENT IN EWING POINTED OUT , THE TRIGGERING OFFENSE WAS IN FACT THE THEFT OF TH REE GOLF CLUBS. IT , ACCORDING TO THESENTENCE, IT DOES N'T MA TTER HOW THE MAJORITY W A NTS TO FRAME IT , THE FA CT IS THE TRIGGERING OFFENSE WAS THEFT OF THREE GOLF CLUBS, AND FOR THAT HE GOT 25 YEARS IN PRISON U P TO LIFE , AND THE DISSENT POINTED OUT THAT THAT SENTENCE IS FOR A FIRST OFFENSE, RESER VED FOR THE MOST SERI OUS OF OFFENSES. THAT I S WHAT FIRST-DEGREE M URDER CONVICTION WOULD GET IN CALIFORNIA FOR THAT OFFENSE , FOR THE FIRST TIME OFFENSE.SO I F WE ARE LOOKING AT COMPARATIVE LY, IN THAT JURISDICTION , FOR THE THEFTOF A GOLF CLUB , HE GOT THE SAME SENTENCE AS A MUR DERER WOULD HAVE GOT TEN , AND THECOURT THERE SAID THERE WAS NOT, THAT SENTENCE WAS NOT DISPROPORTION AN AT .

- - WAS NOT DISPROPORTIONATE.

SO WE HAVE TO CONSIDER IT NOT IN TERMS OF THE GOLF C LUBS. WE HAVE TO CONSIDER IT IN TERMS OF THE T WO PRIOR OFFENSES, AS WELL , AND THE COURT CONSIDERED IT MO RE AS A RECIDIVIST STATUTE , AND THE STATUTE PROHIBITING THETHEFT OF THREE GOLF CLUBS.

CORRECT. BUT THE THICK OF IT , TH OUGH BUT THE THING OF IT , THOUGH, IS WHE N WE ARELOOKING AT IT , THERE ARE STILL REL ATIVELY MINOR CRIMES, AND THE GOAL OF THAT IS TO INCAPACITATE THESE DEFENDANTS, TO TAKE THEM OUT OF SOCIETY. IN THIS CASE , WE HAVE A V ERY HEINOUS CRIME. AND THE PUNISHMENT FOR THAT AND THE ONLY WAY THAT WE CAN PROTECT THESE CHILDREN, IS TO TAKE , WHEN WE IDENTIFY WHO THESE PREDATORS ARE, IS TO TAKE THEM OUT OF SOCIETY.

COULD YOU , COULD THE LEGISLATURE IMPOSE LIFE WITHOUT THE POSSIBILITY OF PAROLE FOR LEWD AND LASCIVIOUS CONDUCT?

I THINK IT COULD , IF I T SO CH OSE .

AND FOR CHILD ABUS E?

FOR CHILD ABUSE. IF THE DEFENDANT, IF THE LEGISLATURE , IN ITS WISDOM,THOUGHT THAT THIS WAS NECESSARY TO PROTECT THESE CHILDREN, BUT IN THESE KINDS OF SEXUAL CASES , AND THEFACTS OF THIS CASE BE AR IT O UT, WE HAVE THIS CHILD WHO WAS ASLE EP IN HER BED. HER MOTHER WAS IN THE NEXT R OOM. SHE HAD HER SIBLINGS IN THE ROOM WITH HER . HER AUNT WAS IN THE , OUT IN THE LI VING R OOM. AND THIS DEFENDANT FOUND THE OPPORTUNITY , IN THE DE AD OF NIGHT, TO GO IN AND COMMIT THIS SEXUAL ACT UP ON HER. WE , AS A SOCI ETY, CANNOT PROTECT CHILDREN AGAINST THESE KI NDS OF PREDATORS, SO ONCE WE IDENTIFY THEM , THEREIS, IT IS A RA TIONAL , IT IS A REASONABLE BASIS TO SAY , W ELL , THE ONLY WAY THAT WE CAN PROTECT THEM IS , ONCE WE IDENTIFY THEM, IS TO LOCK THEM A WAY FOREVER.

CAN YOU , JUST AS A PRACTICAL MATTER BECA USE WE SEE THESE JIMMY R YCE CASES, HOW, THEN , DO ALL THESE OTHER DEFENDANTS THAT SEEMTO HAVE HAD , DONE SIMILAR CRIMES, E ND UP WITH SENTENCES WHICH ARE LESS THAN LIFE WITHOUT THE POSSIBILITY OF PAROLE? ARE THEY P LEA BARGAINS? IS THAT WHAT HAPPENS?

I THINK A LO T OF THEM WERE SENTENCED BE FORE , BEF ORE THIS , THE LIFE MEANT L IFE, BUT WHAT IS HAPPENINGWITH THEM NO W, IS , UNDER THE SEXUAL PREDATOR ACT , THEY ARE BASICA LLY, THE ON ES THAT ARE GETTING OUT OF PRISON ARE BASICALLY GOING BA CK IN , UNDER THE C IVIL COMMITMENT A CT, SO THEY ARE NOT BEING LET LOOSE IN SOCIETY.

NO , THEY ARE NOT, THEY ARE GETTING THE PUNISHMENT A FTER THE FACT , UNLESS YOU L OOK AT CI VIL COMMITMENT AS NOT PUNISHMENT.

CORRECT. CORRECT. SO IN A NUTSHELL , THE STATE'S POSITION ON THIS IS THAT THIS I S A VERY SERIOUS CRIME. THE LEGISLATURE HAS SET THEPENALTY. THE PENALTY IS NOT GROS SLY DISPRO PO URS DISPROPORTIONATE TO THECRIME AND THEREFORE IT IS NOT UNCONSTITUTIONAL , AND WE WOULD AS K THE COURT TO AFFIRM THE DECISION BELOW. THANK YOU .

CHIEF JUSTIC E: REBUTTAL.

I HAVE ONE MIN UTE . I DON'T KNOW HOW TO USE IT.

LET ME JUST SAY THAT THESTATE IS MISTAKEN IN ITS SUGGESTION OF THAT A SENTENCE LONGER THAN 30 YEARS CAN BE IMPOSED FOR AGGRAVATED BATTERY ON A CHILD OR AGGRAVATED CHILD ABUSE. 30 YEAR S IS THE MAXIMUM , UNLESS THERE IS THE BASISFOR A HABITUAL OFFENDER SENTENCE, WHICH THEN CAN BE MORE , BUT THAT IS THE SENTENCE FOR THE OFFENSE, SO SOME SOMEBO DY C UT OFF THIS CHILD'S HAS NOT FOR STEALING CHILD'S HAND FOR STEAL , THEY WOULD GET 3 0 YEARS , AND IN ORAL CONTACT IN THIS CASE, IT IS LIFE WITHOUT PAROLE.

ISN'T THAT JUST A GOOD ARGUMENT TO C HANGE THE STATUTE TO HAVE LIFE WITHOUT PAROLE FOR CU TTING OFF THE CHILD'S HAND ? THAT DOESN'T HELP US VERY M UCH, DOES IT , WITH REFERENCE TO THIS ISSUE?

THE QUES TION IN THIS CASE IS WHETHER THE SENTENCE THAT HAS BEEN IMPOSED IN THIS CASE, IS DISPROPORT IONAL TOTHE OTHER SENTENCES THAT THE LEGISLATURE HAS AUTHORIZED . AND YOUR ARGUMENT R UNS I T I N REVERSE, BUT I DON'T THINK YOUR ARGUMENT DEALS WITH THE QUESTION OF WHETHER THIS SENTENCE IS DISPROPORTIONAL.

BUT ISN 'T THE TRUTH O F THE MAKE MA VR MATT ER IS THAT OUR ISN'T THE TRUTH OF THE MATTER IS THAT OUR SOCIETY HAS AL WAYS REGARDED THE SEXUAL OFFEND ERS OR SEXUAL OFFENSES NEXT IN STATUS, PERHAPS, TO FIRST-DEGREE MURDER , ANDWITH THE EXCEPTION OF THE U.S. SUPREME COURT INVALIDATING THE DEATHPENALTY WITH REFERENCE TO THE SEXUAL ASSAULT OF AN ADULT WOMAN, IT MORE OR LESS HAS LEFT THE STATES FR EE TO SELECT THE PUNISHMENTS FOR THESE SEXUAL OFFENSES , ESPECIALLY INVOLVING CHILDREN.

WELL, I CERTAINLY DON'T DISAGREE THAT THESE ARE SERIOUS OFFENSES , BUT I THINK THAT THEY CAN BE PREVENTED AND DETERRED WHILE , A LSO , DISTINGUISHING ONE FROM THE OTHER AND IMPOSING SENTENCES THAT ARE PROPORTIONAL. COKER IS, IN MY OPINION , THEBEST CASE ON PROPORTIONALITY. COKER SAYS THAT YOU CAN'T IMPOSE THE DEATH PE NALTY FOR RAPE, BECAUSE IT IS DISPROPORTIONAL , AND THE CIRCUMSTANCE HERE IS THAT THE SENTENCE THAT IS IMPOSED HERE, IS NOT THE N EXT THING TO MURDER.

THAT IS THE RA PE

IT IS THE SAME THING.

THAT IS THE RAPE OF AN ADULT WOM AN. IS THAT CO RRECT?

THAT'S CORRECT. BUT BEAUFORD HE LD, THIS COURT HELD THAT THE SAME RULE APPLIES TO THE RAPE AFTER CHILD.

CHIEF JUSTICE: YOUR ONE M INUTE HAS EXPIRED . THANK YOU BOTH, FOR YOUR PARTICIPATION IN THIS ORAL ARGUMENT. THE COURT WILL TAKE ITS MOR NING RE CESS OF 15 MINU TES.

MARSHAL: PLEASE RISE.