State v. Buchhold: the South Dakota Supreme Court fails to recognize a de facto life sentence as the functional equivalent of a life sentence when determining gross disproportionality.

• Author: Kippley, Joseph A.

1. INTRODUCTION

   In State v. Buchhold, (1) the South Dakota Supreme Court missed an opportunity to reinforce the importance of critical pre-sentencing considerations. The court had created a line of cases explaining the need to analyze certain factors before sentencing a defendant to life in prison because of the inherent significance of a life sentence. (2) However, in Buchhold, the court failed to recognize that a de facto (3) life sentence should require the same analysis by a sentencing court as a de jure (4) life sentence. (5)

   The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishments. (6) The United States Supreme Court has grappled with various issues arising out of criminal defendants' challenges to sentences on Eighth Amendment grounds. (7) At times, the Court's jurisprudence on these issues has appeared muddled and has resulted in fractured decisions with the Justices struggling to provide clarity to lower courts. (8) In the end, the lower courts settled with Justice Anthony Kennedy's middle ground position as outlined in Harmelin v. Michigan. (9) Harmelin established a narrow proportionality principle which required courts to compare the gravity of the crime with the sentence given and determine if the sentence is "grossly disproportionate" to the crime. (10)

   The South Dakota Supreme Court first confronted cruel and unusual punishment issues soon after gaining statehood. (11) From this point, South Dakota's highest court followed the lead of the United States Supreme Court's jurisprudence on the Eighth Amendment and eventually stated that the South Dakota Constitution followed the same proportionality principle seen in Justice Kennedy's opinion in Hannelin. (12) The South Dakota Supreme Court also faced questions relating to the constitutionality of life sentences and consecutive sentences in the context of the Eighth Amendment. (13) The court's answers to these questions laid the groundwork for Ralph Buchhold's argument that basic principles regarding life sentences should also apply to his de facto life sentence. (14)

   In Buchhold, the defendant was sentenced to 175 years in prison based on eleven separate convictions, the sentences for which were to be served consecutively. (15) Buchhold challenged the constitutionality of his sentence, arguing that it was a grossly disproportionate punishment for the crimes committed. (16) The key issues that split the court by a 4-1 margin were whether the eleven sentences to be served consecutively amounted to a de facto life sentence, and whether the nature of such a sentence should affect the proportionality analysis. (17)

   This note will begin with the facts and procedure of Buchhold. (l8) Next, it will examine the legal background and history of the jurisprudence of the Eighth Amendment's prohibition of cruel and unusual punishments. (19) This note will explore the line of cases handed down by the United States Supreme Court as it struggled to develop a coherent test for what constitutes "cruel and unusual." (20) Then this note will turn to the efforts of the South Dakota Supreme Court to apply proportionality tests to various situations, including life sentences and consecutive sentences. (21) Finally, this note will analyze how these precedents apply to the facts of Buchhold by arguing that a de facto life sentence should be treated as though it were an actual life sentence for the purpose of determining the proportionality of such a sentence. (22) This note will conclude that the court should have remanded Buchhold's case for further findings as to his de facto life sentence. (23)

   11. FACTS AND PROCEDURE

   On December 13, 2003, Rapid City police went to the home of Ralph Buchhold in response to a reported rape. (24) An officer spoke with A.B., Buchhold's daughter, about her allegations against her father. (25) A.B., then fifteen years old, explained that her father had been raping her for approximately four years. (26)

   In fact, A.B. had enjoyed a fairly normal childhood until she turned eleven years old. (27) She was born to her father, Ralph, and mother, Kathleen, on August 22, 1988. (28) However, Buchhold's sexual advances began soon after A.B.'s eleventh birthday. (29) The first incident began when Buchhold entered A.B.'s room and touched her breast area over her clothes until she yelled at him and shoved him away. (30) Buchhold escalated his advances over time to include the rape of his daughter. (31)

   A.B. stated that her father raped her anywhere from one to four times per week in the following years. (32) A.B. was only eleven years old when Buchhold raped her for the first time. (33) Buchhold took A.B. into his room and forced her to have vaginal sex with him. (34) A.B. cried and kicked, but Buchhold was able to restrain her by choking her neck with his hand. (35)

   On February 12, 2004, a Pennington County Grand Jury considered one count of second degree rape, six counts of third degree rape (36) and four counts of sexual contact with a minor (37) and ultimately indicted Buchhold on all eleven counts. (38) On the same day, a warrant was issued for Buchhold's arrest. (39) Buchhold had left South Dakota and had plans to purchase a home in Canada. (40) Before he could reach Canada, however, Buchhold was apprehended in New Jersey and taken into custody. (41)

   Buchhold made an initial appearance on June 24, 2004, and his trial commenced on July 13, 2005, with the Honorable Jeff W. Davis presiding. (42) At trial, A.B. testified to at least ten separate instances of rape or sexual conduct and the overall frequency of similar events occurring from 1999 through 2003. (43) Buchhold's counsel asserted that A.B.'s testimony was not specific as to when and how the alleged rapes occurred. (44) Buchhold's counsel also attacked A.B.'s testimony by pointing out her history of lying. (45) While on the witness stand, A.B. acknowledged that she has a difficult time telling the truth and has received counseling at a treatment center to help her with this problem. (46) A.B. testified, however, to specific details that fulfilled the statutory elements of the criminal charges, and this proved to be credible to the jury, which convicted Buchhold. (47)

   Dr. Lori Strong, a pediatrician specializing in the treatment of children who suffer sexual and other physical abuse, testified that she discovered a hymenal irregularity during her vaginal examination of A.B. (48) Dr. Strong stated that she believed the irregularity was due to a penetration injury and was consistent with the sexual abuse claimed by A.B. (49) Buchhold's defense argued that the finding was non-specific and that Dr. Strong could not be sure what caused it. (50)

   Buchhold's trial concluded on July 14, 2005, and the jury found him guilty of all eleven charges against him. (51) At the subsequent sentencing hearing, the trial court considered the pre-sentence investigation and a psychosexual evaluation. (52) The court then noted the defendant's failure to take responsibility for his actions and the corresponding limited prospects of rehabilitation. (53) On September 6, 2005, the court sentenced Buchhold to the maximum number of years allowed on each charge, to be served consecutively (54) as allowed by South Dakota statute. (55) The sentence imposed by the trial court amounted to 175 years. (56)

   At the time of his sentencing, Buchhold was fifty years old. (57) Buchhold argued that his sentence amounted to a de facto life sentence because he would not be eligible for parole until he had served half the sentence, which put him well beyond his life expectancy. (58) Buchhold filed his Notice of Appeal on October 5, 2005. (59)

   On appeal to the South Dakota Supreme Court, Buchhold raised six issues. (60) In regard to five of these arguments, Buchhold's conviction was affirmed without dissent. (61) Buchhold's remaining argument that his sentence constituted cruel and unusual punishment was affirmed by a vote of 4-1, with Justice Richard Sabers dissenting. (62)

3. BACKGROUND

   1. UNITED STATES SUPREME COURT PRECEDENT

      The United States Supreme Court first mentioned the concept of proportionality in the context of the Eighth Amendment within the dissenting opinion of Justice Stephen J. Field in O'Neil v. Vermont. (63) The majority in O'Neil dismissed the appeal of a criminal defendant on the grounds that the case presented no federal question, and thus, the Court lacked jurisdiction. (64) The Eighth Amendment would not be applied to the states until 1962. (65) While Justice Field made an argument for incorporation of the prohibition of cruel and unusual punishment in his 1892 dissent in order to satisfy jurisdictional requirements, (66) he went on to write the following interpretation of the Eighth Amendment that has become a basis for current United States Supreme Court jurisprudence:

      The inhibition is directed, not only against punishments of the character mentioned, but against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged. The whole inhibition is against that which is excessive either in the bail required, or fine imposed, or punishment inflicted. (67) Another view of the current jurisprudence is displayed in the mixed messages of Weems v. United States. (68) In Weems, the Court condemned the mode of punishment known as cadena temporal. (69) This mode of punishment involves a combination of constantly-chained ankles and wrists, hard and painful labor in service of the state, and sentence to this condition of no fewer than twelve years. (70) The Court noted that this punishment was both "cruel" in its nature and "unusual" in that it originated with the Philippine government rather than within any American tradition. (71)

      In addition, the Weems Court explained its amazement with the punishment of cadena temporal within the context of a belief that "it is a precept of justice that punishment for [a] crime should be...