Challenging the Constitutionality of Sentences Through Proportionality Hearings
| Publication year | 1994 |
| Pages | 43 |
1994, January, Pg. 43. Challenging the Constitutionality Of Sentences Through Proportionality Hearings
The Eighth Amendment of the U.S. Constitution and Article II, § 20 of the Colorado Constitution read in identical language:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The U.S. Supreme Court has interpreted the cruel and unusual punishment language of the Eighth Amendment to contain an implicit guarantee that any sentence received by a defendant be proportionate to the crime of conviction.(fn1) However, not every sentence is entitled to in-depth proportionality review, and courts are quick to emphasize that "[o]ut-side the context of capital punishment, successful challenges to the proportionality of a particular sentence [will be] exceedingly rare."(fn2) This is because the Eighth Amendment forbids only extreme sentences that are "grossly disproportionate" to the crime.(fn3)
Within the last few months, the Colorado Supreme Court has issued a number of opinions on a criminal defendant's right to a proportionality review. This article examines case law concerning a criminal defendant's right to a proportionality review under a cruel and unusual punishment argument.(fn4) It also attempts to give some practical advice on asserting a right to and properly conducting a proportionality review hearing.
The right to a sentence proportionate to the crime of conviction is constitutional in its inception and has evolved over the years from a series of U.S. and Colorado Supreme Court opinions. As with most legal principles that are based on case law, cruel and unusual punishment law is often confusing and rarely uniform. To achieve a clear understanding of a defendant's right to a constitutionally proportionate sentence and to address the arguments that will be raised in opposition, it is necessary to be familiar with the relevant case law.
The law regarding constitutionally proportionate sentences began in 1980 with the U.S. Supreme Court's decision in Rummel v. Estelle.(fn5) In that case, the Court upheld the imposition, under the Texas recidivist statute, of a life sentence for obtaining $120.75 by false pretenses. Rummel's prior convictions were for fraudulent use of a credit card (obtaining $80 worth of goods) and passing a forged check for less than $30. The Court determined that the sentence was not unconstitutional because a recidivist should be punished severely for failing to conform to societal norms. The Court noted that Rummel would be eligible for parole in as little as twelve years.
Shortly thereafter, in Solem v. Helm,(fn6) the U.S. Supreme Court reversed the imposition of a life sentence without the possibility of parole, also under a recidivist statute, for uttering a no account check for $100. Helm had six prior felony convictions, including one for burglary. The Court determined that a life sentence under these circumstances violated the cruel and unusual punishment clause. The Court held that no sentence is per se constitutional and that for a sentence to be constitutional, it must be proportionate to the crime. It concluded that a sentence of life without parole for nonviolent, minor crimes was not constitutionally proportionate. The Court rested the distinction between Rummel and Solem on the fact that Rummel was eligible for parole after twelve years, while Helm would never receive parole.
The major import of Solem lies in its development of an objective test for analyzing the constitutionality of a sentence. This analysis is comprised of a consideration of three criteria:
1) the gravity of the offense and the harshness of the sentence;
2) the sentences imposed on other criminals in the same jurisdiction; and
3) the sentences imposed for commission of the same crime in other jurisdictions.
The apparent conflicts in the two cases and the difficulty in realistically applying the Solem three-part criteria led to years of chaos in this area of the law. In 1991, the U.S. Supreme Court issued
The defendant in Harmelin was convicted of possession of more than 650 grams of cocaine and was sentenced, pursuant to Michigan law, to a mandatory sentence of life without parole. He appealed, arguing that both the mandatory nature of the sentence and its severity violated the Eighth...
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