Resentencing on Eighth Amendment Grounds

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Some inmates are serving long sentences for older crimes that would receive a much shorter sentence under today’s law. It is clear at this point that they cannot have today’s law applied to them retroactively, as Jessie discussed in this prior post. That’s true for inmates who received longer sentences under Fair Sentencing, State v. Whitehead, 365 N.C. 444 (2012), or earlier versions of Structured Sentencing, State v. Lee__ N.C. App. __, 745 S.E.2d 73 (2013). And it is so because the legislature has always made changes to the sentencing law apply prospectively.

That’s all well and good as a matter of legislative intent, but do those inmates have a constitutional argument that their sentences violate the Eighth Amendment’s prohibition on cruel and unusual punishment? After all, the amendment is informed by the “evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97 (1976). Does a downward change in the way the legislature punishes an offense demonstrate an evolved standard? Two recent cases conclude it does not.

In State v. Stubbs, __ N.C. App. __, 754 S.E.2d 174 (2014), the defendant received a life sentence for a second-degree burglary committed in 1973. He filed an MAR arguing that after almost forty years in prison, he had already served “nearly ten times the length of time that any defendant could be ordered to serve today.” (The maximum possible sentence today for second-degree burglary, a Class G felony, is 47 months.) The trial judge agreed, granted the motion, and resentenced the defendant to 30 years, which made him due for immediate release. The State filed a petition for a writ of certiorari with the court of appeals.

A divided court of appeals reversed, concluding that the trial judge applied the wrong test to determine whether the sentence violated the Eighth Amendment. A prison sentence does not become cruel and unusual by virtue of ordinary disproportionality. Rather, it must be grossly disproportionate. Harmelin v. Michigan, 501 U.S. 957 (1991) (Kennedy, J., concurring). After a quick review of the leading cases—Hamerlin, 501 U.S. at 961 (upholding a life sentence for possession of 650 grams of cocaine; Ewing v. California (upholding a sentence of 25 years to life for felony grand theft under California’s three strikes law)—the court concluded that Stubbs’ sentence did not meet that high standard.

The court also rejected the Mr. Stubbs’ argument that the Supreme Court’s more recent guidance in Graham v. Florida, 560 U.S. 48 (2010) (discussed here), dictated a different result. In Graham the Court barred sentences of life without parole for non-homicide offenses committed by defendants under 18 at the time of their offense. Mr. Stubbs was 17 years old at the time of his burglary, but he was not sentenced to life without parole. Rather, as a life-sentenced inmate from 1973 he was eligible for parole after 10 years. In fact, he was paroled in 2008. But his parole was revoked and he was returned to prison after a DWI conviction in 2010. With that in mind, the court of appeals determined that Stubbs did have a “meaningful opportunity to obtain release,” and that his sentence was therefore not unconstitutional under Graham.

The second case is State v. Wilkerson, __ N.C. App. __, 753 S.E.2d 829 (2014). In Wilkerson the defendant was originally sentenced in 1991 to a total of 50 years on 10 felonies (one second-degree burglary and several larceny, breaking or entering, and stolen property crimes). He was 16 at the time of the crimes and had no criminal record. Mr. Wilkerson filed an MAR in 2012 arguing that his 50-year sentence was grossly disproportionate to the sentence a first-time offender could receive for the same crimes today. (By my estimation the maximum possible consecutive sentence for the same crimes today would be around 17 years.) The trial court granted the motion and resentenced Mr. Wilkerson to 21 years, which was the time he had already served. As in Stubbs the state petitioned the court of appeals for a writ of certiorari.

And as in Stubbs the court of appeals reversed. The appellate court held that the trial court erred by first comparing the sentence the defendant received with the sentence a person would receive for the same crimes committed today. The proper first step in the analysis, the court said, is to weigh the gravity of the offense and the severity of the sentence—and that step must be completed “without taking subsequent sentencing amendments into account.” Only when that threshold test gives rise to an inference of gross disproportionality should you continue to the step of comparing the defendant’s sentence with the sentences of other offenders. Harmelin, 501 U.S. at 1005. The court concluded that under the proper analytical framework the trial court never would have made it past step one in Wilkerson’s case. Yes, the defendant was young and his crimes were nonviolent. But there were still 10 felony convictions, one of which (the burglary) was “particularly serious.” With that in mind the court of appeals found “no basis for concluding that this is one of the ‘exceedingly rare noncapital cases’ in which the sentence imposed is ‘grossly disproportionate’ to the crimes.”

Stubbs and Wilkerson reaffirm something we already knew: it’s hard to succeed on an Eighth Amendment claim.  Recent Supreme Court cases like Graham and Miller v. Alabama (discussed here) may have broadened our understanding of “cruel and unusual,” but they don’t appear to have started a full-blown Eighth Amendment revolution. Occasionally our appellate courts have said things like “as long as the judge sentences within the limits established by the legislature, the Eighth Amendment is not offended.” State v. Streeter, 146 N.C. App. 594 (2001). That probably goes a little too far (at some extreme, the Constitutional obviously trumps the General Statutes), but it’s still true to say that a sentence will be found to violate the Eighth Amendment “only in exceedingly unusual non-capital cases.” State v. Ysaguire, 309 N.C. 780 (1983).

Finally, these cases also raised—and perhaps resolved—an important procedural question about the court of appeals’ jurisdiction to issue a writ of certiorari related to a trial court order granting a motion for appropriate relief. Rule 21 of the Rules of Appellate Procedure mentions only orders denying MARs, and a prior case, State v. Starkey, 177 N.C. App. 264 (2006) (discussed here by Jeff) appeared to limit the state’s ability to obtain review. Obviously both the Wilkerson and Stubbs courts saw things differently, as they issued the writ and reversed the new sentences. Wilkerson expressly distinguished Starkey. 753 S.E.2d at 833 (“As a result, however, of the fact that Starkey conflicts with several decisions of the Supreme Court that authorize review of trial court decisions granting motions for appropriate relief filed by a defendant, our decision in Starkey does not stand as an obstacle to the allowance of the State’s certiorari petition.”). This post is far too long so I’ll leave it at that for now, but it’s a topic worth revisiting soon.

 

7 comments on “Resentencing on Eighth Amendment Grounds

  1. I see that Wilkerson was a unanimous decision while Stubbs was a split decision. Do you expect the Supreme Court to address Stubbs?

    • Walter: Stubbs is on appeal to the supreme court on the issue raised in Judge Stephens’ court of appeals dissent–in short, the Starkey issue. The supreme court denied the defendant’s petition for discretionary review of additional issues (the Eighth Amendment constitutional analysis). 758 S.E.2d 867 (June 11, 2014).

  2. And then there are those inmates serving long sentences for crimes committed neither by them or by anyone else — that is, the defendants in the “satanic ritual abuse” day care cases of the 1980s and early ’90s….Andrew Junior Chandler, a day care bus driver in Madison County, has served 27 years on such fantasized, therapist-generated charges. His appeals have been rejected at every turn…
    Dr Allen Frances, professor emeritus of psychiatry at Duke and chair of the DSM IV Task Force, has personally apologized for his role in allowing “ritual abuse” practitioners to run amok and has called for the state to reexamine Chandler’s case.
    Is there no path that would allow Junior Chandler to benefit from “the evolving standards of decency that mark the progress of a maturing society”?

  3. Does this pertain to inmates that received long sentence for assault 15 years
    in 2008

  4. Is there any NC law or US Constitutional amendment that would allow an inmate sentenced to life in prison in April, 1973 to be paroled on first degree murder (principal)? The inmate has 27 infractions from 1974-2009, including 10 for fighting, assault, weapon possession, and assault with a weapon. He insists there is a 1973 law stating that a life sentence does not mean one’s natural life. Please advise.

  5. […] that the trial court had erred and reinstated the original judgment, as Jamie discussed in this post. The defendant appealed to the state supreme […]

  6. I am in dire need of help with this very subject. Can anyone please point me in some direction. The system has failed on so many levels.

    DA charges defendant with 17 counts of obtaining property by false pretense for approx. $247k

    Failure 1: The amount can be disputed all day because the law opens the door for the victim to exaggerate monetary figures.

    Prior to 10/13/14:

    Failure 2: The victim files a civil suit against the defendants mother claiming a coverup or involvement. The victim receives a settlement of $350k which is $100k more than the alleged theft yet the charges remain in place.

    October 13th, 2014:

    Failure 3: The Public Defender illy advises defendant to plead guilty to 9 of the 17 counts, knowing full well he is totally unprepared for a sentencing hearing. There is a lot of detail here, but through another attorney we were able to obtain an affidavit from the Public Defender acknowledging his absolute failure in representing the defendant. The victim was permitted to present a totally biased opinion of the defendants character because the Public Defender never discussed character witnesses with the defendant etc etc etc.

    Failure 4: The Judge hands down the absolute harshest sentence he possibly could to a first time offender with very poor representation. This is a first time offender with no prior criminal history. The judge ordered 9 consecutive 6 month sentences equally 54months (4.5 yrs) minimally…. 8th amendment??

    Failure 5: A comparative case: In the same county, and same district court, another defendant with adequate representation pleads guilty to 161 of the same charge, obtaining property by false pretense and receives 2 consecutive 60 day sentences equalling 4 months total incarceration time. 8th amendment?? A major difference in this case is the fact that this particular defendant (161 charges) is married to another judge in the same district court.

    Failure 6: In recognizing the absolute absurdity of the situation, we were able to obtain free representation through North Carolina Prisoner Legal Services. Our attorney filed an MAR with the court. Instead of the original sentencing judge ruling on the MAR, it went to another judge totally unfamiliar with the case who denied the MAR giving 2 reasons. 1) Remembering the affidavit I mentioned above, he stated that, “we failed to prove lack of adequate counsel and, 2) that the defendant was not sentenced beyond the scope of the law. The judge that denied the MAR is the same judge who handed down the 2 consecutive 60 day sentences. It should be noted that both of the judges are the 2 highest judges in that district.

    Failure 7: Again with free legal counsel via NCPLS, a Writ of Certiori is filed with the state appealing the denial of the MAR stating bluntly, that the judge erred in his decision. The state denied the appeal and I guess they are above stating any reason for the denial.

    CAN SOMEONE PLEASE HELP OR POINT ME IN THE RIGHT DIRECTION!!?

    Chad Everts

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