IN THE SUPREME COURT OF IOWA
No. 07–0352
Filed October 2, 2009
STATE OF IOWA,
Appellee,
vs.
JORDAN KEVIN LAMAR BRUEGGER,
Appellant.
Appeal from the Iowa District Court for Sioux County, James D.
Scott, Judge.
Defendant appeals sentence for statutory rape as violating federal
and state prohibitions against cruel and unusual punishment.
SENTENCE VACATED AND CASE REMANDED WITH DIRECTIONS.
Matthew R. Metzgar and R. Scott Rhinehart of Rhinehart Law,
P.C., Sioux City, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant
Attorney General, and Coleman McAllister, County Attorney, for appellee.
2
APPEL, Justice.
In this case, we are confronted with a claim by a defendant
convicted of statutory rape that a twenty-five-year prison sentence
amounts to cruel and unusual punishment. His term of incarceration
was substantially lengthened based upon a prior incident of sexual
misconduct committed by the defendant as a juvenile. For the reasons
expressed below, we vacate the sentencing order of the district court and
remand for further proceedings.
I. Background Facts and Prior Proceedings.
According to the victim, K.B., she engaged in a sexual relationship
with the then twenty-one-year-old defendant, Jordan Bruegger, shortly
after her fifteenth birthday. K.B. considered Bruegger to be her boyfriend
and believed she was in love with him.
On January 29, 2006, K.B. and a friend were driving around
Hudson, South Dakota. Bruegger joined them in the auto cruising, but
eventually left the minors to go to a local bar. K.B. returned home
without Bruegger.
At two or three o’clock the next morning, an intoxicated Bruegger
drove his truck to K.B.’s home, appeared at K.B.’s window, and woke her.
K.B. agreed to leave with Bruegger. Eventually, K.B. and Bruegger drove
into Iowa and arrived at a gravel pit in Sioux County owned by
Bruegger’s family. Bruegger drove the truck off-road, resulting in the
vehicle becoming stuck in the mud. K.B. and Bruegger exited the mired
vehicle and attempted to walk toward a trailer at the entrance to the
gravel pit, but it was too dark and the pair returned to the truck.
After talking for a while, the two had sexual intercourse in the
vehicle. They then fell asleep in the truck. After being awoken by the
defendant’s father later that morning, K.B. and Bruegger walked to the
3
trailer, which was unlocked and unoccupied. Once in the trailer, K.B.
and Bruegger engaged in sexual intercourse on a couch and again fell
asleep.
On February 14, Bruegger was arrested by Iowa authorities. He
was charged with sexual abuse in the third degree upon Jane Doe, being
fifteen years of age, and Bruegger, being five or more years older under
Iowa Code section 709.4(2)(c)(4) (2005). The crime involved—consensual
sexual intercourse with an underage teenager—is commonly referred to
as statutory rape.
On November 22, the State moved to amend its trial information to
include a second count of statutory rape stemming from the second act
of intercourse occurring in the trailer.
One week later, the State filed a request for a preliminary ruling,
stating that it intended to use Bruegger’s Faribault County, Minnesota
“conviction” for the crime of sexual conduct in the first-degree to enhance
Bruegger’s sentence under Iowa Code section 901A.2(3). Iowa’s sentence
enhancement statute relating to sexual offenders provides that “a person
convicted of a sexually predatory offense which is a felony,” including
statutory rape, will receive an enhanced, mandatory sentence of twenty-
five years, with the person’s sentence reduced by a maximum of fifteen
percent, if the offender has a prior conviction of a sexually predatory
offense. Iowa Code §§ 901A.1, .2(3).
A person who commits the crime of statutory rape as a first
offender is subject to a prison sentence of up to ten years, with a
reduction for various good time and earned credits. Id. §§ 709.4(2)(c)(4),
902.9(4). The district court also retains discretion to sentence the
offender to less than ten years incarceration, and the offender would
likely be eligible for parole well in advance of the expiration of any
4
sentence imposed. A person convicted of a sexually predatory offense
who is subject to sentence enhancement because of a prior sexually
predatory offense, however, is subject to a much harsher mandatory
prison term of twenty-five years, without the possibility of parole for
approximately 21.25 years.
The conviction which the State intended to use to enhance
Bruegger’s sentence occurred when Bruegger was twelve years old.
Under Iowa Code section 901A.1(2), the term “prior conviction” includes
an “adjudication of delinquency.” The term “sexually predatory offense”
further includes sexual offenses which, if committed in another
jurisdiction, would constitute an equivalent offense to those covered
under Iowa law. Id. § 901A.1(f). Bruegger does not contest that the
Minnesota adjudication qualified as a prior sexually predatory offense for
purposes of Iowa’s sexual predator sentencing statute.
On January 10, 2007, the State filed a motion to amend the trial
information to add the sentencing enhancement based upon Bruegger’s
juvenile adjudication in Minnesota. On the morning of trial, the State
filed another motion to amend that was nearly identical. Bruegger did
not resist the enhancement amendment, which the court orally allowed
prior to trial.
On January 12, the jury found Bruegger guilty of sexual abuse in
the third degree as to count one (the incident in the truck), but not guilty
as to count two (the incident in the trailer). After the verdict was
rendered, Bruegger admitted to the Minnesota juvenile adjudication. As
a result of the admission, a bifurcated trial on the enhancement was not
necessary, and the jury was excused. Later that afternoon, the State
filed a supplemental trial information. This trial information made no
reference to Bruegger’s juvenile adjudication.
5
On February 12, the parties filed documents with the district court
prior to sentencing. The State filed a Minnesota court order authorizing
the release of Bruegger’s juvenile records with appropriate redactions,
the original petition filed in Minnesota on March 13, 1997, alleging that
Bruegger was delinquent under Minnesota law, a disposition order dated
September 26, 1997, adjudicating Bruegger as a delinquent, and copies
of Minnesota law relating to sexual misconduct.
In the petition filed with the Minnesota juvenile court, Minnesota
authorities alleged that Bruegger committed two counts of criminal
sexual conduct in the first-degree between October and November 1996.
The first count alleged that Bruegger engaged in sexual penetration of
another who was under the age of thirteen when Bruegger was more
than thirty-six months older than the other person. The second count
alleged that Bruegger engaged in sexual penetration of another with a
person under the age of thirteen when Bruegger had a significant
relationship with that person. The petition further alleged that Bruegger
admitted incidents of sexual touching and oral sex with the other person.
The other person allegedly stated that Bruegger laid on top of her and
rubbed his penis against her private area over her panties. The
misconduct occurred while Bruegger was babysitting a younger child.
The dispositional order revealed that Bruegger was adjudicated a
delinquent, placed in the custody of the Faribault County Human
Services, placed in a therapeutic foster home with a social service
agency, and placed on indefinite probation on the condition that he
successfully complete a social awareness program and any aftercare
recommendations.
Bruegger filed three documents with the court. These documents
included a statement from his daughter’s mother that he is a loving
6
father, did not drink, and was a good role model, a statement from his
stepfather that he was a hard worker and good father, and a letter from
his mother offering her perspective on the prior juvenile adjudication and
describing the suffering her family endured after Bruegger’s arrest.
None of these filings mattered under Iowa law. The district court
sentenced Bruegger, as required by statute, to twenty-five years
incarceration, with a mandatory minimum of eighty-five percent, a
suspended fine of $1000, a civil penalty of $200, a special sentence
committing him to the custody of the Director of the Iowa Department of
Corrections for the remainder of his life, an additional term of parole or
work release not to exceed two years, supervised electronic tracking, and
submission of a DNA sample.
After imposing sentence, the court noted:
In reaching this sentencing decision, the court is following
the mandates of the Iowa legislature. Our legislature has
chosen to focus on sexual offenses and, I believe, in this case
has produced a very harsh result. I have taken an oath to
uphold the Constitution of the United States and the State of
Iowa. And unless I find the statute is unconstitutional, it’s
my duty to enforce that statute, and that’s what I’m required
to do in this case. In my opinion this statute is not
unconstitutional. However, I think it produces an
unintended result of an unfairly harsh punishment for this
crime of consensual sexual contact between the defendant
and the victim.
Bruegger filed a timely notice of appeal. On appeal, he claims that use of
his prior juvenile adjudication to enhance his sentence for statutory rape
was in error as: (1) the court lacked jurisdiction to consider the
enhancement, (2) the sentence enhancement constituted cruel and
unusual punishment, and (3) the court failed to adequately inform him of
the consequences of admitting to the prior adjudication.
7
II. Standard of Review.
A challenge to the trial court’s jurisdiction is reviewed for
correction of errors at law. State v. Oetken, 613 N.W.2d 679, 686 (Iowa
2000). A defendant may challenge an illegal sentence at any time. State
v. Parker, 747 N.W.2d 196, 212 (Iowa 2008). This court reviews
constitutional questions de novo. State v. Brooks, 760 N.W.2d 197, 204
(Iowa 2009).
III. Challenge to Subject Matter Jurisdiction.
Bruegger asserts that the district court lacked subject matter
jurisdiction to enhance his sentence. Bruegger admits that the State, in
documents filed on January 10 and 11, sought to amend the information
to allege that his offense of sexual abuse in the third degree was a second
offense for purposes of Iowa Code chapter 901A. Bruegger asserts,
however, the controlling document in this case is an additional
supplemental information filed by the State on January 12. This final
document contained no mention of the enhancement or Iowa Code
chapter 901A.
According to Bruegger, the supplemental filing controls in this
case, and because it lacks reference to the enhancement, the district
court was without authority to impose the enhancement. Bruegger relies
upon State v. Thacker, No. 05AP-834, 2006 WL 1826079 (Ohio Ct. App.
June 30, 2006), in support of his argument. In Thacker, an appellate
court held that the trial court erred by finding the defendant a violent
sexual offender at sentencing when no such specification appeared in the
indictment. Thacker, No. 05AP-834, 2006 WL 1826079, at *2.
The State counters that this case is controlled by Oetken. In
Oetken, the defendant claimed that the State filed a substituted and
supplemental trial information that did not mention his purported status
8
as an habitual offender, thereby depriving the court of jurisdiction to
sentence him as a habitual offender. Oetken, 613 N.W.2d at 686. This
court held that the substituted and supplemental trial information was
filed to comply with Iowa Rule of Criminal Procedure 6(5), which provides
that a “ ‘supplemental indictment shall be prepared for the purpose of
trial of the facts of the current offense only’ ” in cases where a prior
conviction will be used for enhancement purposes. Id. at 687 (quoting
Iowa R. Crim. P. 6(5) (now rule 2.6(5))). Failure of the supplemental
information to note the enhancement thus did not deprive the court of
jurisdiction over the enhancement. Id.
Bruegger responds that under Oetken, the State must first file a
trial information alleging the previous crime that is the basis for
enhancement and only then may file a supplemental trial information.
Bruegger argues that because the file does not contain a file-stamped
copy of an amended trial information, the holding in Oetken does not
apply.
We disagree. The record shows that on November 28 the State
requested a preliminary ruling on the issue of the sentencing
enhancement and outlined the facts related to the Minnesota juvenile
offense. Bruegger thus had sufficient notice of the State’s intent to add
the sentencing enhancement.
While it is true that the record contains no file-stamped copy of
any version of the second-amended-and-substituted trial information,
the district court at a hearing on January 12 stated that the State’s
second motion to amend the trial information, together with its proposed
supplemental information, was before the court. When asked if he
wished to be heard on the matter, Bruegger’s counsel stated, “No, Your
Honor. I think that this complies with the law. . . . I don’t have any
9
objection to it.” The court then stated that the second amended trial
information simply alleged a prior conviction and a sentencing
enhancement, that the State gave the defendant notice of its intention in
November, and that there is no unfair surprise or prejudice by the
motion. As a result, the district court sustained the motion to amend
orally.
In light of these facts, Bruegger’s claim, stripped to its essentials,
is that the failure of the State to file copies of the second-amended-and-
substituted trial information after the hearing prevents this court from
relying upon them in any way. We reject this assertion. In a number of
contexts, we have held that technical irregularities in the development of
the record do not require reversal if the record clearly shows what
transpired at trial and there was no prejudice to the defendant. See
State v. Sheffey, 234 N.W.2d 92, 95 (Iowa 1975) (holding information
may be amended by order of court before or during trial to correct errors
of form or substance); State v. Harding, 204 Iowa 1135, 1143–44, 216
N.W. 642, 646 (1927) (holding that information filed shortly before its
approval by district judge has same effect as if it had been approved and
then filed); State v. Japone, 202 Iowa 450, 455, 209 N.W. 468, 471 (1926)
(holding that failure to make amendment after leave was not prejudicial
error, where trial was conducted as if amendment had been made).
Under the circumstances presented here, we conclude that the
technical failure of the State to file an approved second-amended-and-
substituted trial information, where the motion to amend was not
resisted by the defendant and which was sustained by the district court,
does not defeat subject matter jurisdiction in this case. We further hold,
as in Oetken, that the supplemental information was simply designed to
10
comply with Iowa Rule of Criminal Procedure 2.6(5) and does not provide
Bruegger with grounds for relief.
IV. Threshold Question of Issue Preservation.
Bruegger did not claim that his sentence violated the prohibition
against cruel and unusual punishment in the proceedings below. On
appeal, he argues that he may raise the issue for the first time for two
reasons. First, he asserts that his sentence is unconstitutional, as it
inflicts cruel and unusual punishment, and thus amounts to an illegal
sentence that can be challenged at any time. Second, he asserts that the
failure of his trial counsel to raise the constitutional issue amounts to
ineffective assistance of counsel. Neither of these claims is subject to
traditional preservation of error or waiver constraints.
We first address the issue of whether Bruegger’s challenge to his
sentence as cruel and unusual punishment amounts to an attack on an
illegal sentence.1 There is substantial authority in other jurisdictions for
1Bruegger did not claim either below or on appeal that the use of his juvenile
adjudication to enhance his sentence constitutes an illegal sentence because it violates
due process. There is a split in the courts regarding whether juvenile adjudications
may be utilized as sentence enhancements in criminal cases in light of the United
States Supreme Court’s ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000), and its progeny. Compare United States v. Tighe, 266
F.3d 1187, 1194 (9th Cir. 2001) (holding the use of juvenile adjudications without right
to jury trial violates due process of law under Apprendi), and State v. Brown, 879 So. 2d
1276, 1290 (La. 2004) (same), with United States v. Burge, 407 F.3d 1183, 1191 (11th
Cir. 2005), United States v. Jones, 332 F.3d 688, 696 (3d Cir. 2003), and United States
v. Smalley, 294 F.3d 1030, 1033 (8th Cir. 2002). There is also a substantial body of
literature which questions, on due process grounds, whether juvenile court
adjudications may be considered the same as criminal convictions for purposes of
sentence enhancement statutes. Generally, the critics note: (1) the different purposes
of a juvenile adjudication and the juvenile justice system as a whole, (2) the prevalence
of pleas in the juvenile system, (3) the lack of a jury trial in most juvenile proceedings,
(4) the difficulty of juveniles to meaningfully participate in a process they do not fully
understand and do not control, and (5) the lack of incentives to thoroughly litigate in
juvenile proceedings. See, e.g., Courtney P. Fain, Note, What’s in a Name? The
Worrisome Interchange of Juvenile “Adjudications” with Criminal “Convictions,” 49 B.C.
L. Rev. 495 (2008); Alissa Malzmann, Note, Juvenile Strikes: Unconstitutional Under
Apprendi and Blakely and Incompatible with the Rehabilitative Ideal, 15 S. Cal. Rev. L. &
Women’s Stud. 171 (2005); Brian P. Thill, Comment, Prior “Convictions” Under
11
such a proposition. See Defoe v. State, 750 A.2d 1200, 1201 (Del. Super.
Ct. 2000) (finding a sentence that violates the Double Jeopardy Clause
illegal); State v. Kido, 654 P.2d 1351, 1356 (Haw. Ct. App. 1982)
(considering a cruel and unusual sentence to be illegal); Randall Book
Corp. v. State, 558 A.2d 715, 719 (Md. 1989) (same); Brown v. State, 99
P.3d 489, 491 (Wyo. 2004) (finding challenge to illegal sentence to
include challenges that the sentence is unconstitutional). But see State
v. Spriggs, 754 So. 2d 84, 84 (Fla. Dist. Ct. App. 2000) (finding motion to
correct an illegal sentence not proper vehicle for bringing a cruel-and-
unusual-punishment claim); Trevino v. State, 174 S.W.3d 925, 927–28
(Tex. Ct. App. 2005) (same).
We, however, have not taken this approach. In State v. Ramirez,
597 N.W.2d 795, 797 (Iowa 1999), the defendant claimed that he was not
required to preserve error on a claim that his sentence constituted cruel
and unusual punishment. We rejected the argument, holding that the
proper avenue for considering the alleged error was through an
ineffective-assistance-of-counsel claim. Id. Similarly, in State v. Ceaser,
585 N.W.2d 192, 195 (Iowa 1998), we held a claim that a sentence was
illegal because it violated equal protection did not amount to an illegal
sentence and was governed by our normal error preservation rules.
We conclude the better view is that a challenge to an illegal
sentence includes claims that the court lacked the power to impose the
sentence or that the sentence itself is somehow inherently legally flawed,
including claims that the sentence is outside the statutory bounds or
Apprendi: Why Juvenile Adjudications May Not be Used to Increase an Offender’s
Sentence Exposure if They Have Not First Been Proven to a Jury Beyond a Reasonable
Doubt, 87 Marq. L. Rev. 573 (2004); Barry C. Feld, The Constitutional Tension Between
Apprendi and McKeiver: Sentence Enhancements Based on Delinquency Convictions and
the Quality of Justice in Juvenile Courts, 38 Wake Forest L. Rev. 1111 (2003).
12
that the sentence itself is unconstitutional. This conclusion does not
mean that any constitutional claim converts a sentence to an illegal
sentence. For example, claims under the Fourth, Fifth and Sixth
Amendments ordinarily do not involve the inherent power of the court to
impose a particular sentence. Nor does this rule allow litigants to
reassert or raise for the first time constitutional challenges to their
underlying conviction.
We further find that this course is consistent with interpretations
of the comparable federal rule. Our Rule of Criminal Procedure
2.24(5)(a), formerly rule 23(5)(a), which allows a defendant to challenge
an illegal sentence at any time is based on the pre-1966 federal rule.
Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001). As the United States
Supreme Court made clear, under the federal rule the purpose of
allowing review of an illegal sentence is “to permit correction at any time
of an illegal sentence, not to re-examine errors occurring at the trial or
other proceedings prior to the imposition of the sentence.” Hill v. United
States, 368 U.S. 424, 430, 82 S. Ct. 468, 472, 7 L. Ed. 2d 417, 422
(1962). The Supreme Court went on to note that challenges to an illegal
sentence include whether
[t]he punishment meted out was . . . in excess of that
prescribed by the relevant statutes, multiple terms were . . .
imposed for the same offense, . . . [or] the terms of the
sentence itself [were] legally or constitutionally invalid in any
other respect.
Id. (emphasis added).
Where, as here, the claim is that the sentence itself is inherently
illegal, whether based on constitution or statute, we believe the claim
may be brought at any time. To the extent our cases stand for a contrary
proposition, they are overruled. Because we find Bruegger’s claim a
13
challenge to an illegal sentence we will address it directly and not under
the guise of an ineffective-assistance-of-counsel claim.2
V. Cruel and Unusual Punishment Under the United States
Constitution.
A. United States Supreme Court Framework.
1. General approach. The United States Constitution prohibits the
imposition of “cruel and unusual” punishment. U.S. Const. amend. VIII.
The clause embraces a bedrock rule of law that punishment should fit
the crime. This basic concept stands for the proposition that even guilty
people are entitled to protection from overreaching punishment meted
out by the state. The United States Supreme Court has struggled with
the proper approach to “cruel and unusual” punishment. In recent
years, the cases of the Supreme Court have produced a multitude of
majority, plurality, and dissenting opinions.
Nonetheless, there are some principles that can be distilled from
these opinions. Although some have argued that the Cruel and Unusual
Punishment Clause is designed to address only methods of punishment,
the Supreme Court has firmly held that the Cruel and Unusual
Punishment Clause applies to a sentence for a term of years. Lockyer v.
2
We note that Bruegger raises an additional claim of ineffective assistance of
counsel, namely that trial counsel was ineffective for not requiring the court to conduct
a colloquy ensuring that Bruegger knowingly and voluntarily stipulated to his prior
adjudication. The significance of stipulating to a prior felony conviction for recidivist
sentencing purposes applies equally to stipulations of juvenile adjudications used for
enhanced sentencing. In Oetken, we acknowledged that “ ‘defendant’s admission of
prior felony convictions which provide the predicate for sentencing as an habitual
offender is so closely analogous to a guilty plea that it is appropriate to refer to our
rules governing guilty pleas . . . .’ ” Oetken, 613 N.W.2d at 687 (quoting State v. Brady,
442 N.W.2d 57, 58 (Iowa 1989)). Under the current record, however, we are unable to
dispose of this ineffective-assistance-of-counsel claim. There is nothing in this record
to indicate whether or not Bruegger’s counsel adequately informed him of the
consequences of his stipulation. “Such evidence could be a significant part of our
prejudice analysis.” State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006). This claim is
thus reserved for postconviction relief.
14
Andrade, 538 U.S. 63, 73, 123 S. Ct. 1166, 1173, 155 L. Ed. 2d 144, 156
(2003); Ewing v. California, 538 U.S. 11, 20, 123 S. Ct. 1179, 1185, 155
L. Ed. 2d 108, 117 (2003). Thus, a reviewing court has the authority to
consider whether imprisonment for a term of years for a particular crime
or crimes is so excessive as to violate the Cruel and Unusual Punishment
Clause.
The Supreme Court has also emphasized that legislative
determinations of punishment are entitled to great deference. In order to
establish a claim for cruel and unusual punishment, a sentence must be
“grossly disproportionate” to the underlying crime. Rummel v. Estelle,
445 U.S. 263, 271, 100 S. Ct. 1133, 1138, 63 L. Ed. 2d 382, 389 (1980).
As Justice Rehnquist suggested, a life sentence for a parking ticket could
run afoul of cruel and unusual punishment as being grossly
disproportionate to the crime. Id. at 274 n.11, 100 S. Ct. at 1139 n.11,
63 L. Ed. 2d at 391 n.11. Strict proportionality in sentencing, however,
is not required, and a reviewing court is not authorized to generally blue
pencil criminal sentences to advance judicial perceptions of fairness.
“Severe, mandatory penalties may be cruel, but they are not unusual in
the constitutional sense, having been employed in various forms
throughout our Nation’s history.” Harmelin v. Michigan, 501 U.S. 957,
994–95, 111 S. Ct. 2680, 2701, 115 L. Ed. 2d 836, 864 (1991). While a
sentence to a term of years might be so lengthy as to violate the Cruel
and Unusual Punishment Clause, such an occurrence outside the
context of capital punishment has been “exceedingly rare.” Rummel, 445
U.S. at 272, 100 S. Ct. at 1138, 63 L. Ed. 2d at 390.
In evaluating whether a lengthy sentence is “grossly
disproportionate” under the Cruel and Unusual Punishment Clause, the
Supreme Court has developed a three-part test. Solem v. Helm, 463 U.S.
15
277, 292, 103 S. Ct. 3001, 3011, 77 L. Ed. 2d 637, 650 (1983), as
modified in Ewing, 538 U.S. at 23–24, 123 S. Ct. at 1186–87, 155
L. Ed. 2d at 118–19. The first part of the test, sometimes referred to as
the threshold test, involves a preliminary judicial evaluation of whether
the sentence being reviewed is “grossly disproportionate” to the
underlying crime. Solem, 463 U.S. at 290–91 & n.17, 103 S. Ct. at 3010
& n.17, 77 L. Ed. 2d at 649 & n.17. This preliminary test involves a
balancing of the gravity of the crime against the severity of the sentence.
Id. at 291, 103 S. Ct. at 3010, 77 L. Ed. 2d at 650. The Supreme Court
has not articulated what factors go into this initial determination, but
has stated that it is a “ ‘rare case in which a threshold comparison of the
crime committed and the sentence imposed leads to an inference of gross
disproportionality.’ ” Ewing, 538 U.S. at 30, 123 S. Ct. at 1190, 155
L. Ed. 2d at 123 (quoting Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707,
115 L. Ed. 2d at 871 (Kennedy, J., concurring in part and concurring in
judgment)).
If the threshold test has been crossed, the Supreme Court
proceeds to steps two and three. Harmelin, 501 U.S. at 1005, 111 S. Ct.
at 2707, 115 L. Ed. 2d at 871 (Kennedy, J., concurring in part and
concurring in judgment). In step two, the Supreme Court engages in
intrajurisdictional analysis, comparing the challenged sentence to
sentences for other crimes within the jurisdiction. Solem, 463 U.S. at
292, 103 S. Ct. at 3011, 77 L. Ed. 2d at 650. In step three, the Supreme
Court engages in interjurisdictional review, comparing sentences in other
jurisdictions for the same or similar crimes. Id. These last two steps
introduce objectivity into the determination of “gross disproportionality.”
The general theory under Solem, Harmelin, and Ewing seems to be
that a sentence for a term of years within the bounds authorized by
16
statute is not likely to be “grossly disproportionate” under the Cruel and
Unusual Punishment Clause. Legislative judgments are generally
regarded as the most reliable objective indicators of community
standards for purposes of determining whether a punishment is cruel
and unusual. See McCleskey v. Kemp, 481 U.S. 279, 301–02, 107 S. Ct.
1756, 1772, 95 L. Ed. 2d 262, 284–85 (1987).
While the Supreme Court, particularly in recent years, has
emphasized objective factors in analyzing cruel and unusual punishment
cases, the Court has also noted that “objective evidence, though of great
importance, [does] not ‘wholly determine’ the controversy, ‘for the
Constitution contemplates that in the end our own judgment will be
brought to bear on the question . . . . ’ ” Atkins v. Virginia, 536 U.S. 304,
312, 122 S. Ct. 2242, 2247, 153 L. Ed. 2d 335, 345 (2002) (quoting
Coker v. Georgia, 433 U.S. 584, 597, 97 S. Ct. 2861, 2868, 53 L. Ed. 2d
982, 992 (1977)).
2. Validity of enhanced sentences for recidivists. The Supreme
Court has had three occasions to directly consider the validity of lengthy
sentences under criminal statutes that impose enhanced sentences on
recidivists. In Rummel, the Court upheld a lifetime sentence—with the
possibility of parole in ten or twelve years—under a Texas three strikes
statute where the defendant’s offenses all involved nonviolent property
crimes and the monetary value of all three crimes totaled less than
$250.00. Rummel, 445 U.S. at 265–66, 284, 100 S. Ct. at 1134–35,
1144–45, 63 L. Ed. 2d at 385–86, 397. In Solem, the Court vacated a
sentence where the defendant, convicted of uttering a “no account” check
for $100, was sentenced to life in prison without possibility of parole
because of six prior felony convictions. Solem, 463 U.S. at 279–81, 303,
103 S. Ct. at 3004–05, 3016, 77 L. Ed. 2d at 642–43, 657–58. Finally, in
17
Ewing, the Court held that the theft of three golf clubs valued at $1200,
when coupled with prior nonviolent property crimes, was sufficient to
support a sentence of twenty-five years to life. Ewing, 538 U.S. at 18–20,
29–30, 123 S. Ct. at 1183–85, 1189–90, 155 L. Ed. 2d at 115–16, 123.
In a fourth case, Lockyer, the defendant was sentenced as a
recidivist to two consecutive terms of twenty-five years to life where the
final conviction consisted of stealing nine videotapes on two separate
occasions. Lockyer, 538 U.S. at 66–68, 123 S. Ct. at 1169–71, 155
L. Ed. 2d at 152–53. The defendant’s cruel-and-unusual-punishment
claim, however, was raised in the context of a federal habeas corpus
proceeding with a restricted standard of review. Id. at 69, 123 S. Ct. at
1171, 155 L. Ed. 2d at 154. The court in Lockyer declined to intervene,
noting that the sentence did not violate “clearly established law.” Id. at
77, 123 S. Ct. at 1175, 155 L. Ed. 2d at 159.
As is apparent from these cases, the Supreme Court has generally
supported harsh and severe sentences for repeat offenders even when the
later offense was nonviolent. Further, the Supreme Court has found that
incapacitation is among the legitimate penological objectives that a state
may further through long prison sentences. Ewing, 538 U.S. at 25, 123
S. Ct. at 1187, 155 L. Ed. 2d at 120; Harmelin, 501 U.S. at 999, 111
S. Ct. at 2704, 115 L. Ed. 2d at 867–68 (Kennedy, J., concurring in part
and concurring in judgment).3
3. Role of individualized determination. In Woodson v. North
Carolina, 428 U.S. 280, 303–04, 96 S. Ct. 2978, 2990–91, 49 L. Ed. 2d
944, 960–61 (1976), the Supreme Court held that in death penalty cases,
courts must engage in consideration of the character and record of the
3Incapacitation as a goal of criminal sentencing has been criticized in academia.
See generally Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive
Detention as Criminal Justice, 114 Harv. L. Rev. 1429 (2001).
18
individual offender and the circumstances of the particular offense before
the death penalty may be imposed. See also Enmund v. Florida, 458 U.S.
782, 798, 102 S. Ct. 3368, 3377, 73 L. Ed. 2d 1140, 1152 (1982).
Woodson established a prerequisite legal requirement in all death penalty
cases.
The question arises whether a criminal defendant in a noncapital
case may attempt to attack a sentence as applied as constituting cruel
and unusual punishment. The question of whether a defendant may
attack a statute as applied as cruel and unusual is a different question
than that considered in Woodson, where the statute was facially invalid.
A noncapital criminal statute that does not require an individualized
determination regarding the appropriate sentence may be valid in many,
but not all applications.
In Rummel, the Supreme Court seemed to utilize an individualized
approach where a defendant challenged his lengthy noncapital sentence
under recidivist statutes. The Court noted that the defendant did not
challenge the constitutionality of the applicable recidivist statute as a
general proposition. Rummel, 445 at 270–71, 100 S. Ct. at 1137, 63
L. Ed. 2d at 388–89. Instead, Rummel challenged only the result of
applying a concededly valid statute to the facts of his case. Id. The court
then proceeded to consider, among other factors, the length of a prison
term in real time (time that is likely to be served), the defendant’s
triggering criminal conduct (the offender’s actual behavior or other
offense-related circumstances), and the offender’s criminal history. Id. at
265–81, 100 S. Ct. at 1134–43, 63 L. Ed. 2d at 385–95.
The Court seemed to take a similar approach in Solem. There, the
court noted, among other things, that the culpability of the offender,
including his intent or motive in committing a crime, may be considered
19
in determining the proportionality of the penalty to the offense. Solem,
463 U.S. at 293, 103 S. Ct. at 3011, 77 L. Ed. 2d at 651.
After Rummel and Solem, the court decided Harmelin. Among
other arguments, Harmelin claimed that it was “cruel and unusual” to
impose a mandatory sentence of life in prison for drug possession.
Harmelin, 501 U.S. at 994, 111 S. Ct. at 2701, 115 L. Ed. 2d at 864. In
part IV of his plurality opinion, Justice Scalia expressly refused to
consider expanding the “individualized capital sentencing doctrine”
outside the capital punishment context. Id. at 995, 111 S. Ct. at 2701–
02, 115 L. Ed. 2d at 865. Justice Scalia noted, “We have drawn the line
of required individualized sentencing at capital cases, and see no basis
for extending it further.” Id. at 996, 111 S. Ct. at 2702, 115 L. Ed. 2d at
865.
Justice Scalia’s opinion could be broadly interpreted to mean that
when considering cruel and unusual punishment challenges to a
sentence, individualized analysis of the seriousness of the crime and the
culpability of the offender is never appropriate outside the capital
context. But there is also a narrower interpretation. In part IV, Justice
Scalia was responding to the position that a statute imposing a
mandatory sentence of life in prison, on its face, is unconstitutional and
could not be applied against anyone. Justice Scalia rejected this facial
argument. But a rejection of a facial challenge to a mandatory
sentencing statute on the ground that individualized sentencing is not
statutorily required does not mean that individualized analysis is never
appropriate in a noncapital cruel and unusual punishment case.
Narrowly read, the only proposition in part IV of Justice Scalia’s
opinion in Harmelin is that a mandatory sentencing statute cannot be
stricken from the statute books and applied to no one, even the most
20
deserving defendant, because of a lack of individualized sentencing. Part
IV of the Scalia opinion simply does not address the question of whether
a defendant may concede the facial validity of a mandatory sentencing
statute, but then attack the constitutionality of its application in a
particular case in light of all the facts and circumstances involved.
A narrow reading of part IV of Justice Scalia’s Harmelin opinion is
supported by the Court’s subsequent opinion in Ewing. In Ewing, the
Court considered the constitutionality of a recidivist statute imposing a
twenty-five-years-to-life sentence for property crimes. Ewing, 538 U.S. at
19–20, 123 S. Ct. at 1184–85, 155 L. Ed. 2d at 116. In Ewing, the Court
was highly fractured and no opinion commanded a majority. In her
opinion joined by two other members of the court, Justice O’Connor
examined the details of Ewing’s criminal record, which included
numerous separate terms of incarceration, commission of crimes while
on parole, and serious felonies including robbery and three residential
burglaries. Id. at 18–19, 123 S. Ct. at 1183–84, 155 L. Ed. 2d at 115–16.
Under these facts and circumstances, Justice O’Conner declared that
“Ewing’s is not ‘the rare case in which a threshold comparison of the
crime committed and the sentence imposed leads to an inference of gross
disproportionality.’ ” Id. at 30, 123 S. Ct. at 1190, 155 L. Ed. 2d at 123
(quoting Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707, 115 L. Ed. 2d at
871 (Kennedy, J., concurring in part and concurring in judgment)).
In reaching her decision, Justice O’Conner does not seem to be
conducting a facial examination of the statute, where the underlying
facts and circumstances would be entirely irrelevant. Instead, Justice
O’Connor appears to be undertaking an analysis of the constitutionality
of the statute as applied to Ewing. According to Justice O’Connor, it is
Ewing’s case that does not meet the gross disproportionality threshold of
21
Solem, not the statute itself. Justice Breyer’s dissenting opinion in
Ewing, joined by three other members of the court, explicitly embraces
the fact-specific approaches in Rummel and Solem. Id. at 36–39, 123
S. Ct. at 1193–95, 155 L. Ed. 2d at 127–29 (Breyer, J., dissenting). As a
result, a majority of the Supreme Court in Ewing seems to approve of an
as-applied challenge to an otherwise valid statute under the Cruel and
Unusual Punishment Clause of the Eighth Amendment.
4. Relevance of juvenile status in cruel and unusual punishment
analysis. The Supreme Court has also struggled with the proper
application of the Cruel and Unusual Punishment Clause to juvenile
defendants facing the death penalty. The cases have meandered.
Compare Thompson v. Oklahoma, 487 U.S. 815, 838, 108 S. Ct. 2687,
2700, 101 L. Ed. 2d 702, 720–21 (1988) (vacating death sentence in case
involving juvenile), and Eddings v. Oklahoma, 455 U.S. 104, 116–17, 102
S. Ct. 869, 877–78, 71 L. Ed. 2d 1, 12 (1982) (same), with Stanford v.
Kentucky, 492 U.S. 361, 379–80, 109 S. Ct. 2969, 2980, 106 L. Ed. 2d
306, 324–25 (1989) (finding death penalty could be applied to sixteen- or
seventeen-year-olds).
Most recently, however, the Supreme Court in Roper v. Simmons,
543 U.S. 551, 556, 125 S. Ct. 1183, 1187, 161 L. Ed. 2d 1, 13 (2005),
considered a death sentence imposed on a seventeen-year-old convicted
of murder. Justice Kennedy begins his analysis with a review of other
jurisdictions. Roper, 543 U.S. at 564, 125 S. Ct. at 1192, 161 L. Ed. 2d
at 18. Although twenty states did not formally prohibit the death penalty
for juveniles, Justice Kennedy stressed that, in practice, juvenile
execution was infrequent. Id. at 564, 125 S. Ct. at 1192, 161 L. Ed. 2d
at 18–19. Based on the infrequency of its use even when it remained on
the books and the growing trend toward abolition of the practice, Justice
22
Kennedy concluded that juveniles were “ ‘categorically less culpable than
the average criminal.’ ” Id. at 567, 125 S. Ct. at 1194, 161 L. Ed. 2d at
20–21 (quoting Atkins v. Virginia, 536 U.S. 304, 316, 122 S. Ct. 2242,
2249, 153 L. Ed. 2d 335, 347 (2002)).
After noting that the Eighth Amendment applied to the death
penalty with “special force,” Justice Kennedy next turned to
consideration of the mental abilities of juveniles. Id. at 568, 125 S. Ct. at
1194, 161 L. Ed. 2d at 21. Citing the common experience of parents,
confirmed by scientific and sociological studies, Justice Kennedy noted
that juveniles tend to have immature judgment and act impulsively and
without a full appreciation of the consequences of their actions, were
more susceptible to negative peer influences than adults, were dependent
on parents and others, and had personalities that were less well
developed and more transitory than adults. Id. at 569–72, 125 S. Ct. at
1195–96, 161 L. Ed. 2d at 21–23. Justice Kennedy noted that as a result
of their immature judgment, impulsivity, dependence on others, and lack
of responsibility, nearly all states prohibit persons under eighteen years
of age from voting, serving on juries, or marrying without parental
consent. Id. at 569, 125 S. Ct. at 1195, 161 L. Ed. 2d at 22. Finally,
Justice Kennedy surveyed international law, noting that various sources
of international law condemn the death penalty for juveniles and that
only a few countries continue the practice. Id. at 576–77, 125 S. Ct. at
1198–99, 161 L. Ed. 2d at 26–27.
Because of the psychosocial and neurological differences between
juveniles and adults, Justice Kennedy wrote that the penological
justifications for the death penalty—retribution and general deterrence—
apply to juveniles “with lesser force than to adults.” Id. at 571, 125
S. Ct. at 1196, 161 L. Ed. 2d at 23. Justice Kennedy noted that
23
“punishment of life imprisonment without the possibility of parole is
itself a severe sanction, in particular for a young person.” Id. at 572, 125
S. Ct. at 1196, 161 L. Ed. 2d at 23. As a result, the death penalty
categorically could not be applied to juveniles.
Roper involved the constitutionality of the death penalty applied to
juveniles, but its analysis has potentially broader impact
notwithstanding the language of limitation in the opinion. In particular,
academics began to assert that the analysis in Roper could be applied to
challenge sentences of juveniles to life without possibility of parole.4 The
Supreme Court has recently agreed to hear two cases involving juveniles
sentenced to imprisonment for life without possibility of parole for
noncapital crimes. See Sullivan v. State, 987 So. 2d 83 (Fla. Dist. Ct.
App. 2008) (thirteen-year-old convicted of sexual battery in connection
with burglary sentenced to life without possibility of parole), cert.
granted, 78 U.S.L.W. 3015 (U.S. May 4, 2009) (No. 08-7621); Graham v.
State, 982 So. 2d 43 (Fla. Dist. Ct. App. 2008) (sixteen-year-old
sentenced to life in prison without possibility of parole based on armed
burglaries, attempted robberies, and parole violation), cert. granted, 78
U.S.L.W. 3015 (U.S. May 4, 2009) (No. 08–7412). These cases could shed
some light on the viability of a Roper-type reasoning outside the death
4
See generally Barry C. Feld, A Slower Form of Death: Implications of Roper v.
Simmons for Juveniles Sentenced to Life Without Parole, 22 Notre Dame J.L. Ethics &
Pub. Pol’y 9 (2008). Melanie Deutsch, Minor League Offenders Strike Out in the Major
League: California’s Improper Use of Juvenile Adjudications as Strikes, 37 Sw. U. L. Rev.
375 (2008); Elisa Poncz, Rethinking Child Advocacy After Roper v. Simmons: “Kids Are
Just Different” and “Kids Are Like Adults” Advocacy Strategies, 6 Cardozo Pub. L. Pol’y &
Ethics J. 273 (2008); Enrico Pagnanelli, Children as Adults: The Transfer of Juveniles to
Adult Courts and the Potential Impact of Roper v. Simmons, 44 Am. Crim. L. Rev. 175
(2007); Suzanne Meiners-Levy, Challenging the Prosecution of Young “Sex Offenders”:
How Developmental Psychology and the Lessons of Roper Should Inform Daily Practice,
79 Temp. L. Rev. 499 (2006).
24
penalty context under the Cruel and Unusual Punishment Clause of the
United States Constitution.
B. Federal Cruel and Unusual Punishment Cases.
1. Introduction. The lower federal courts have, of course, followed
the cruel and unusual punishment framework developed by the United
States Supreme Court. In light of the fact that the Supreme Court has
found only two noncapital sentences invalid under the Cruel and
Unusual Punishment Clause in the past one hundred years, Weems v.
United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed 793 (1910), and
Solem, the vast majority of federal appellate cases apply the stringent
standards developed by the Supreme Court and deny relief to defendants
in a conclusory fashion. In the words of one federal appellate court,
finding a sentence grossly disproportionate under the Eighth Amendment
will be “hen’s-teeth rare.” United States v. Polk, 546 F.3d 74, 76 (lst Cir.
2008).
2. Validity of as-applied challenge. Some federal appellate courts
have been willing to engage in an examination of the specific facts and
circumstances involved in a crime when a defendant challenges a
sentence as cruel and unusual as applied. For instance, in Henderson v.
Norris, 258 F.3d 706, 707 (8th Cir. 2001), the Eighth Circuit Court of
Appeals invalidated a life sentence for first-offense delivery of .238 grams
of cocaine base. The court emphasized the small amount of drug
involved, the fact that the defendant did not initiate contact with an
informant who bought the drug, and that there was no indication that
the defendant engaged in violence, had any weapons, or indicated any
other “trappings” of the drug trade. Henderson, 258 F.3d at 710; see
also United States v. Nagel, 559 F.3d 756, 763 (7th Cir. 2009) (analyzing
both a facial and an as-applied cruel-and-unusual-punishment
25
challenge); Hawkins v. Hargett, 200 F.3d 1279, 1283 (10th Cir. 1999)
(noting the defendant’s age as a factor in his cruel-and-unusual-
punishment claim).
Many federal courts engage in what one commentator has referred
to as “color matching” by comparing the facts of a given case with those
of Rummel, Solem, Harmelin, or Ewing to determine whether the facts of
the case at hand, at a very high level of abstraction, are on par with
those in the Supreme Court precedents. Donna H. Lee, Resuscitating
Proportionality in Noncapital Criminal Sentencing, 40 Ariz. St. L.J. 527,
579–82 (2008). “Color matching is legal analysis by analogy as opposed
to a deeper, rule-based analysis that legitimately applies principles of
stare decisis.” Id. at 579.
3. Federal appellate cases considering Roper outside the capital
context. A number of federal appellate courts have also had occasion to
consider whether the reasoning in Roper—namely, that juveniles are
categorically not as criminally culpable as adults—extends outside the
death penalty context. Federal courts in the Fifth, Seventh, and
Eleventh Circuits have declined to extend Roper outside the death
penalty in a variety of situations. See, e.g., United States v. Salahuddin,
509 F.3d 858, 863–64 (7th Cir. 2007) (upholding sentence enhancement
based on armed robbery conviction committed as a juvenile); United
States v. Mays, 466 F.3d 335, 340 (5th Cir. 2006) (upholding life
sentence for possession with intent to distribute crack cocaine under
recidivist statute where prior adult conviction occurred at age seventeen);
United States v. Wilks, 464 F.3d 1240, 1243 (11th Cir. 2006) (upholding
enhanced sentence where prior youthful offender convictions included
aggravated assault, grand theft, burglary with assault, and strong-arm
robbery).
26
In limiting Roper’s application outside the capital context, lower
federal courts generally stress that “death is different”—the Eighth
Amendment applies with “special force” in death penalty cases.
Salahuddin, 509 F.3d at 863–64; Mays, 466 F.3d at 340; Wilks, 464 F.3d
at 1243. These courts also distinguish Roper, where the defendant’s
punishment for a crime committed as a juvenile was at issue, from cases
where a defendant’s sentence for a crime committed as an adult is
enhanced by a prior conviction committed when the defendant was
under eighteen. Salahuddin, 509 F.3d at 863–64; Mays, 466 F.3d at
340; Wilks, 464 F.3d at 1243.5
5
Yet, there is at least a filament in recent case law recognizing age as a relevant
consideration in sentencing. For instance, in United States v. Gall, 374 F. Supp. 2d
758, 763 (S.D. Iowa 2005), the district court sentenced a defendant who pled guilty to
one count of conspiracy to distribute “ecstasy” to thirty-six months probation. The
district court noted that all of the defendant’s criminal conduct, including the offense
for which he was being sentenced, occurred when Gall was twenty-one years old or
younger. Gall, 374 F. Supp. 2d at 762. In considering the appropriate sentence, the
district court reasoned, “Immaturity at the time of the offense conduct is not an
inconsequential consideration.” Id. at 762 n.2. The court went on to note that it was
“of critical importance in the area of criminal law” that brain development may not be
complete until age twenty-five. Id. Citing Roper, the district court concluded that while
age did not excuse the behavior, it should be taken into account when inquiring into
the conduct of the defendant. Id.
On appeal, the Court of Appeals for the Eighth Circuit reversed, concluding,
among other things, that the district court improperly relied upon general studies that
showed persons under the age of eighteen generally lack maturity and are less culpable
than adults. United States v. Gall, 446 F.3d 884, 890 (8th Cir. 2006). According to the
Eighth Circuit, the general studies did not explain the defendant’s behavior in the
instant case. Id. Further, the appellate court pointed out that the defendant sold
ecstasy as a twenty-one-year-old adult, not as an adolescent. Id.
The United States Supreme Court reversed the Eighth Circuit. Gall v. United
States, 552 U.S. 38, 59, 128 S. Ct. 586, 602, 169 L. Ed. 2d 445, 463 (2007). In an
opinion by Justice Stevens, the Supreme Court noted that under applicable federal law,
the district court was to “consider ‘the nature and circumstances of the offense and the
history and characteristics of the defendant.’ ” Gall, 552 U.S. at 50 n.6, 128 S. Ct. at
596–97 n.6, 169 L. Ed. 2d at 457 n.6 (quoting 18 U.S.C. § 3553(a)(1) (2000 ed., Supp.
V.)). Reviewing the district court’s treatment of the age issue, the Supreme Court
concluded that “it was not unreasonable for the District Judge to view Gall’s immaturity
at the time of the offense as a mitigating factor . . . .” Id. at 58, 128 S. Ct. at 601, 169
L. Ed. 2d at 462.
27
C. Cruel and Unusual Punishment Under State Constitutions.
1. Introduction. Most state constitutions contain cruel and
unusual punishment provisions that are similar, if not identical, to the
Cruel and Unusual Punishment Clause of the Eighth Amendment.6 In
construing the meaning of these state constitutional provisions, state
courts are free to develop their own independent approaches to state
constitutional doctrine. Some state supreme courts have followed the
lead of the United States Supreme Court and adopted approaches to
state constitutional provisions that mirror the developing federal law and
have achieved similar results. See Adaway v. State, 902 So. 2d 746,
747–52 (Fla. 2005) (upholding life sentence for thirty-six-year-old
engaging in oral sex with eleven-year-old under state and federal
constitutions by comparing seriousness of crime with offenses in
Harmelin and Ewing). Some have gone even further and held that a
sentence that falls within the legislatively-established range of sentences
cannot be declared cruel and unusual. See Price v. State, 898 So. 2d
641, 655 (Miss. 2005). Other state courts, however, have adopted a more
searching approach to cruel and unusual punishment.7
2. Acceptance of federal framework with independent application.
One line of state supreme court cases departs from United States
6A majority of the state constitutions prohibit “cruel and unusual” punishment.
See, e.g., Ariz. Const. art. II, § 15; Colo. Const. art. II, § 20; Mo. Const. art. I, § 21.
Some state constitutions, however, prohibit “cruel or unusual” punishment. See, e.g.,
Mich. Const. art. I, § 16; Okla. Const. art. II, § 9.
7See In re Lynch, 503 P.2d 921, 927–30 (Cal. 1972) (employing a shocks the
conscience and offends human dignity test); People v. Sharpe, 839 N.E.2d 492, 498 (Ill.
2005) (disjunctive test involving wholly disproportionate penalties or penalties more
harsh than for less serious or identical offenses); State v. Ortega-Cadelan, 194 P.3d
1195, 1198 (Kan. 2008) (applying disjunctive three-pronged test including individual
analysis of the nature of offense and character of offender).
28
Supreme Court precedent by generally adopting the Supreme Court’s8
analytical framework for cruel-and-unusual-punishment claims but
applying it in a more stringent fashion. For instance, in People v.
Bullock, 485 N.W.2d 866, 870–71 (Mich. 1992), the Michigan Supreme
Court reviewed the same drug-sentencing statute upheld by the United
States Supreme Court in Harmelin under its state constitution. The
Michigan Supreme Court generally accepted the principles developed by
the Supreme Court, but emphasized that it was free to follow what the
court considered the better-reasoned dissenting opinions. Bullock, 485
N.W.2d at 870–74. The court then proceeded to rely heavily on Justice
White’s dissenting opinion in Harmelin, emphasizing that “ ‘punishment
must be tailored to a defendant’s personal responsibility and moral
guilt.’ ” Id. at 876 (quoting Harmelin, 501 U.S. at 1023, 111 S. Ct. at
2716, 115 L. Ed. 2d at 883) (White, J., dissenting)); see also State v.
Fain, 617 P.2d 720, 723, 725–28 (Wash. 1980) (generally applying the
framework developed by the United States Supreme Court but relying in
part on dissent in Rummel to reach a different result); Wanstreet v.
Bordenkircher, 276 S.E.2d 205, 212–14 (W. Va. 1981) (invalidating life
sentence under recidivist statute using Solem-type review).
3. Validity of as-applied challenge. Many state courts have also
considered whether a criminal defendant may attack a sentence as cruel
8The approach of the United States Supreme Court to the Cruel and Unusual
Punishment Clause has its critics. Some emphasize the inconsistency in the Court’s
relatively aggressive approach to punitive damages and its highly deferential approach
to criminal sanctions. See, e.g., Erwin Chemerinsky, The Constitution and Punishment,
56 Stan. L. Rev. 1049 (2004); Adam M. Gershowitz, Note, The Supreme Court’s
Backwards Proportionality Jurisprudence: Comparing Judicial Review of Excessive
Criminal Punishments and Excessive Punitive Damages Awards, 86 Va. L. Rev. 1249
(2000). Some embrace parts, but not all, of the Supreme Court’s framework. See
generally Donna H. Lee, Resuscitating Proportionality in Noncapital Criminal Sentencing,
40 Ariz. St. L.J. 527 (2008).
29
and unusual punishment as applied. Under an as-applied attack, a
criminal statute imposing a certain sentence is not facially invalid in all
circumstances, but only as applied under the facts and circumstances in
a particular case.
Many state courts, particularly post-Ewing, have allowed as-
applied attacks based on individualized facts and circumstances. See
Graham, 982 So. 2d at 48 (discussing difference in cruel and unusual
punishment context between facial attack and attack as applied);
Humphrey v. Wilson, 652 S.E.2d 501, 510 (Ga. 2007) (citing narrow age
difference and fact that fifteen-year-old girl initiated oral sex as factors in
invalidating sentence as cruel and unusual); People v. Miller, 781 N.E.2d
300, 306–09 (Ill. 2002) (finding application of statutes that treat fifteen-
year-old who stood as a lookout during the shooting and had only a
moment to consider his participation, but never handled a gun, the same
as the shooter in imposing life in prison without possibility of parole
unconstitutional under state constitution); Kills on Top v. State, 928 P.2d
182, 206–07 (Mont. 1996) (finding individualized determination beyond
reckless indifference required to determine validity of death penalty in
felony murder context); Naovarath v. State, 779 P.2d 944, 948–49 (Nev.
1989) (invalidating as cruel and unusual punishment a life sentence
without possibility of parole on thirteen-year-old in light of specific facts).
4. State cases considering Roper outside capital context. A number
of state cases have considered the application of Roper outside the
context of capital punishment. The case that is closest to the present
controversy is State v. Rideout, 933 A.2d 706 (Vt. 2007). In Rideout, the
defendant was convicted of two counts of lewd and lascivious conduct
with a child and one count of furnishing drugs to a child. Rideout, 933
A.2d at 708. He was subsequently sentenced under a Vermont habitual
30
offender statute to two concurrent sentences of twenty to fifty years. Id.
at 710. The defendant asserted that the sentence as applied to him
constituted cruel and unusual punishment because four of his six
predicate felonies occurred when he was sixteen years of age. Id. at 713.
The Rideout court rejected the claim. Id. at 716. The court cited
extensive federal and state case law prior to Roper generally standing for
the proposition that convictions of minors in adult court may be used to
enhance sentences of adults convicted of crimes. Id. at 715. The Rideout
court distinguished cases refusing to allow juvenile adjudications to
count toward habitual offender status on the ground that they were
based upon the lack of procedural protections in juvenile court,
specifically, the right to a jury trial. Id. at 715–16.
The Rideout court distinguished Roper, noting the imposition of the
death penalty and not imprisonment was “a distinction critical to Roper’s
reasoning.” Id. at 718. Further, citing Witte v. United States, 515 U.S.
389, 400, 115 S. Ct. 2199, 2206, 132 L. Ed. 2d 351, 364 (1995), the
Rideout court noted that the defendant in Roper was sentenced to death
solely for an offense committed while he was a minor, whereas in
Rideout, the defendant was receiving a sentence for an adult crime even
though the adult sentence was enhanced by crimes committed as a
minor. Id. at 719. According to the Rideout court, Roper was premised,
in part, on the opportunity for minor offenders to mend their ways. Id.
The Rideout court noted that when dealing with recidivist adult
offenders, with juvenile records, that possibility has largely gone by. Id.
A few other state court cases have considered whether a Roper-
type analysis applies outside the death penalty for juvenile conduct.
These cases have generally declined to extend Roper to other contexts.
See State v. Allen, 958 A.2d 1214, 1233–36 (Conn. 2008) (declining to
31
extend Roper to eighteen-year-old sentenced to life without possibility of
parole); Wallace v. State, 956 A.2d 630, 641 (Del. 2008) (declining to
extend Roper to fifteen-year-old defendant sentenced to life in prison);
England v. State, 940 So. 2d 389, 406–07 (Fla. 2006) (finding use of
juvenile convictions as aggravating factors supporting death penalty not
contrary to Roper).
5. Case law involving challenges to nonviolent sex crimes generally.
State courts have invalidated lengthy sentences for nonviolent sex
crimes. In State v. Davis, 79 P.3d 64, 66–67 (Ariz. 2003), a twenty-year-
old defendant was sentenced to a mandatory minimum of fifty-two years
without the possibility of parole as a result of his conviction on four
counts of statutory rape for engaging in consensual sex with two post-
pubescent teenage girls. After reviewing recent Supreme Court cases,
the Davis court overruled its prior precedent and held that the court
could undertake an individualized analysis of the penalty under the facts
of the case. Davis, 79 P.3d at 71. The Davis court found under the facts
of the case that the threshold test of gross disproportionality had been
met, noting that Davis was “caught in the very broad sweep” of a statute
which
makes any sexual conduct with a person younger than
fifteen years old by a person older than eighteen years old a
“dangerous crime against children,” whether the offense is a
rape-incest by a step-parent who forces sex on a trusting
ward or a pedophile who uncontrollably preys upon young
children . . . or the more benign boyfriend-girlfriend situation
in which one party is older than eighteen and the other
younger than fifteen.
Id. at 72 (quoting State v. Taylor, 773 P.2d 974, 976 (Ariz. 1989)). The
court noted that the fact that other courts impose lengthy sentences for
sex crimes “demonstrate[s] why, when considering the proportionality of
a sentence imposed, this court must look beyond the nomenclature of
32
the crime charged and consider the facts of each particular case.” Id. at
74.
D. Approach to Cruel and Unusual Punishment Under the Iowa
Constitution. Article I, section 17 of the Iowa Constitution prohibits
cruel and unusual punishment in language materially identical to its
federal counterpart. Our past cases have generally assumed that the
standards for assessing whether a sentence amounts to cruel and
unusual punishment under the Iowa Constitution are identical to the
Federal Constitution. State v. Musser, 721 N.W.2d 734, 749 (Iowa 2006).
In a number of cases, we have addressed whether the court may
consider individual facts and circumstances in evaluating a challenge to
a sentence as cruel and unusual. Our recent cases, relying in part on
Harmelin, have indicated that an individualized challenge to the
application of a statutorily-authorized sentence may not lie in the context
of convictions for indecent exposure, criminal transmission of HIV, first-
degree burglary, and commission of multiple forceable felonies. State v.
Wade, 757 N.W.2d 618, 624 (Iowa 2008); Musser, 721 N.W.2d at 749;
State v. Rubino, 602 N.W.2d 558, 564 (Iowa 1999); State v. August, 589
N.W.2d 740, 743 (Iowa 1999).
We have also considered attacks on mandatory sentences. In State
v. Fuhrmann, 261 N.W.2d 475 (Iowa 1978), we considered an attack on
Iowa Code section 690.2, which mandated a life sentence for first-degree
murder. We rejected the challenge, noting that life imprisonment for
first-degree murder does not shock the conscience or sense of justice.
Fuhrmann, 261 N.W.2d at 479–80. We considered the holding in
Fuhrmann as dispositive in State v. Horn, 282 N.W.2d 717, 732 (Iowa
1979), where a defendant challenged a life sentence without the
possibility of parole as cruel and unusual based on the fact that he was
33
twenty years old at the time of the offense. We have also upheld
mandatory prison terms in the face of cruel and unusual punishment
challenges in a variety of other contexts. See 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).
E. Application of Principles to Bruegger’s Claim Under the
Iowa Constitution.
1. Standard to be applied under state constitution. Because
Bruegger has not advanced a standard for interpreting the cruel and
unusual punishment provision under the Iowa Constitution differently
from its federal constitutional counterpart, we will apply the general
principles as outlined by the United States Supreme Court for addressing
a cruel-and-unusual-punishment challenge under the Iowa Constitution.
See In re Detention of Garren, 620 N.W.2d 275, 280 n.1 (Iowa 2000).
Even so, we do not necessarily apply the federal standards in the
same way as the United States Supreme Court. For instance, in Racing
Association of Central Iowa v. Fitzgerald, 648 N.W.2d 555, 562 (Iowa
2002), this court ruled that a statutory scheme taxing slot machines at
racetracks at a higher rate than similar machines on riverboats violated
equal protection. The United States Supreme Court reversed, holding
that the Federal Equal Protection Clause, as properly applied, did not
invalidate the classification. Fitzgerald v. Racing Ass’n of Cent. Iowa, 539
U.S. 103, 110, 123 S. Ct. 2156, 2161, 156 L. Ed. 2d 97, 105 (2003). On
34
remand, we applied established federal equal protection principles in a
different and more stringent fashion under our state constitution.
Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 6–7 (Iowa 2004)
[hereinafter RACI]. We declared that a rational-basis review of legislation
was not a “toothless” exercise in Iowa, and we came to a different result
than that reached by a unanimous Supreme Court in the same case. Id.
at 9.
The principles of RACI apply in the cruel and unusual punishment
context as well. As in RACI, we conclude that review of criminal
sentences for “gross disproportionality” under the Iowa Constitution
should not be a “toothless” review and adopt a more stringent review
than would be available under the Federal Constitution. See, e.g., Fain,
617 P.2d at 725–28; Wanstreet, 276 S.E.2d at 212–14.
We also consider the applicability of Roper under the Iowa
Constitution. As noted previously, the Supreme Court in Roper
emphasized that its categorical ruling that the death penalty could not be
applied to any person under the age of eighteen for any crime was limited
to death penalty cases. Nonetheless, the reasoning in Roper, namely,
that psychosocial and neurological studies show that juvenile brains are
less developed and that, as a result, they are less culpable than adult
offenders, has applicability outside the death penalty context. While it
may be, as Roper suggests, that the only penalty that is categorically off
the table for persons under eighteen is death, this does not mean that
the age of an offender can never be a factor for cruel and unusual
punishment analysis.
2. Attack on sentence as applied. Bruegger does not clearly
distinguish between a facial attack or an attack as applied in his appeal.
The language in Bruegger’s brief, however, emphasizing the specific facts
35
of the case, including a claim that K.S. was in love with him and
consented to sexual intercourse, and that, as a result, the degree of his
criminal culpability based upon his current crime and prior juvenile
adjudication did not justify the lengthy mandatory sentence, evidences
an as-applied challenge. Although not properly labeled, Bruegger’s brief
is essentially an attack on his sentence as cruel and unusual as applied
to him, under all the facts and circumstances.
We recognize that many of our cases reject individualized
determinations in connection with cruel-and-unusual-punishment
challenges in a number of contexts. See, e.g., Wade, 757 N.W.2d at 624;
Musser, 721 N.W.2d at 749; Rubino, 602 N.W.2d at 564; August, 589
N.W.2d at 743. It is not always clear in these cases whether the court
was rejecting a mandatory requirement of an individualized showing, as
was required in Woodson, or the possibility of an as-applied challenge.
In any event, we do not believe that a defendant can never
challenge a sentence as cruel and unusual as applied. If individualized
consideration of the facts and circumstances were never allowed,
legislatures could eviscerate judicial review of the proportionality of
punishment by broadly defining crimes and imposing mandatory stiff
penalties in all cases. Such broadly-framed statutes would survive facial
attack if the accompanying penalties were appropriate to some but not
all crimes within the statute’s broad ambit.
As a result, we conclude that, at least in some instances,
defendants who commit acts of lesser culpability within the scope of
broad criminal statutes carrying stiff penalties should be able to launch
an as-applied cruel and unusual punishment challenge. See Davis, 79
P.3d at 72–73 (holding where broad sweep of statute makes no
distinction between perpetrators of incest, serial pedophiles, and
36
statutory rape, an as-applied challenge was permissible); State v.
Berniard, 860 So. 2d 66, 75 (La. Ct. App. 2003) (holding defendant may
attack mandatory sentence by showing he is exceptional, that legislature
has failed to assign sentences that are meaningfully tailored to the
gravity of the offense, the culpability of the offender, and the
circumstances of the case).
The question is, then, whether this is a relatively rare case where
an individualized assessment of the punishment imposed should be
permitted. We conclude that it is. This case involves an unusual
combination of features that converge to generate a high risk of potential
gross disproportionality—namely, a broadly framed crime, the
permissible use of preteen juvenile adjudications as prior convictions to
enhance the crime, and a dramatic sentence enhancement for repeat
offenders. Each of these factors, standing alone, has the potential of
introducing a degree of disproportionality into a sentence, but the
convergence of these three factors presents a substantial risk that the
sentence could be grossly disproportionate as applied. We thus conclude
that Bruegger should be allowed to make an individualized showing that
the sentence is cruel and unusual as applied to him.
The first factor, breadth of crime, is an important one. The crime
of statutory rape covers a wide variety of circumstances, from Romeo and
Juliet relationships to much more objectionable situations involving the
luring of youngsters by older individuals using manipulative techniques,
positions of authority, threats of violence, and other aggravating factors.
The legislature has, in part, recognized the variety of contexts in which
the crime is committed by providing a broad range of penalties for the
unenhanced crime of statutory rape.
37
The second factor—namely, Bruegger’s age as a preteen when the
predicate offense was committed—is also material. If the prior crime
occurred while the defendant was an adult, that might yield a different
result. Here, however, the prior crime occurred when Bruegger was
twelve. The underlying rationale in Roper is that a past act as a juvenile
is not comparable to an adult act, and yet that is exactly what the
statute does here, making no distinction between prior juvenile
adjudications and prior adult convictions.
It is true that under Ewing, the focus is said to be on the current
crime, and Bruegger did commit his current crime as an adult. But the
prior criminal history is what makes the current crime more aggravated,
and if the prior criminal offense was committed by a preteen, it seems to
follow that Bruegger is entitled to an opportunity to show that the
consequences of his adolescent act become grossly disproportional to his
sentence for the adult crime.
We also note that the legislative policy regarding juvenile offenders
is not entirely clear or consistent. In Iowa, a person who is under
fourteen years of age cannot be tried as an adult in criminal court. Iowa
Code § 232.45(6)(a). This limitation appears to be a recognition that
persons under fourteen should not be criminally culpable for their acts.
If this is true, it seems inconsistent to suggest that the act of a twelve-
year-old is a sufficient basis to dramatically enhance an adult sentence
for the crime of statutory rape.
We finally note that the increase in sentence under Iowa Code
section 901A.2(3) is geometric. The maximum sentence for Bruegger’s
crime, without enhancement, was ten years, subject to various good time
credits. His likely prison term, even if he received the maximum
sentence, would have been about four years. Under the enhanced
38
sentencing scheme, Bruegger must serve at least 21.25 years in prison, a
five hundred percent increase in sentence. This geometric increase in
sentence is another factor that contributes to our conclusion that, in this
case, Bruegger is entitled to attempt to show that the enhanced
sentence, as applied to him, amounts to cruel and unusual punishment.
Our narrow conclusion that Bruegger, in light of the unusual
convergence of a broadly-defined criminal statute, the use of a juvenile
adjudication when he was twelve to enhance his sentence, and the
dramatic increase in his punishment as a result the enhancement, may
bring a cruel and unusual punishment challenge to Iowa Code section
901A.2(3) as applied to him, does not resolve the case. Before the trial
court, Bruegger did not raise the issue of cruel and unusual punishment.
As a result, there was no evidentiary hearing where the parties presented
evidence for the purpose of addressing a claim that, under the facts and
circumstances, the enhanced sentence of section 901A.2(3) could not
constitutionally be applied to Bruegger.
In light of this procedural posture, it is not surprising that the
record is factually deficient in a number of respects. Notably, although
some documents relating to Bruegger’s prior Minnesota juvenile
adjudication were introduced at sentencing, the record is limited
regarding the underlying facts and circumstances of this offense.
Further, the State has not had an opportunity to show in an evidentiary
hearing that under all the facts and circumstances, a sentence under
section 901A.2(3) is not cruel and unusual as applied to Bruegger. For
instance, the State may wish to develop evidence regarding the impact of
Bruegger’s conduct on K.S. and her family, his lack of remorse, the
nature of services provided in Minnesota and his inability to respond to
such services, the need to incapacitate him through long-term
39
incarceration, and any other potential factors that tend to aggravate the
gravity of the offense and magnify the consequences on K.S. We
conclude, therefore, that the current record is simply inadequate to
resolve the issue. The Solem-type approach for evaluating Bruegger’s
cruel-and-unusual-punishment claim cannot be applied without a
proper record.
In closing, we note that Bruegger has committed a serious crime
for which the legislature may impose a serious penalty. We do not view
statutory rape as a victimless crime in light of the risk of disease,
pregnancy, and serious psychological harm that can result from even
apparently consensual sexual activity involving adults and adolescents.
Nor do we believe that Bruegger’s conduct as a juvenile is irrelevant to
sentencing. Our sole concern here is whether, under the facts and
circumstances, a mandatory sentence of 21.25 years is “off the charts.”
We, therefore, vacate the sentencing order of the district court and
remand the case for a new sentencing hearing to allow Bruegger and the
State to present evidence as to the constitutionality of section 901A.2(3)
as applied to the defendant.9 We do not retain jurisdiction.
VI. Conclusion.
For the above reasons, the district court’s sentencing order10 is
vacated and the case remanded for further proceedings.
SENTENCE VACATED AND CASE REMANDED WITH
DIRECTIONS.
All justices concur except Cady and Wiggins, JJ., who dissent and
Baker, J., who takes no part.
9Our holding is based on Article I, section 17 of the Iowa Constitution. Because
his cruel-and-unusual-punishment claim under the United States Constitution does
not give him any protection beyond that afforded by the Iowa Constitution, we do not
give Bruegger’s federal claim further consideration.
10Bruegger does not challenge his conviction, but only his sentence, on appeal.
40
#59/07–0352, State v. Bruegger
CADY, Justice (dissenting).
I respectfully dissent. While the majority opinion is thoughtful and
compelling, I refrain from joining in it because sentencing parameters is
an area of the law for which courts are required to give great deference to
the policies of the legislature as written into sentencing statutes. The
individual-assessment approach introduced by the majority in this case
will only permit the courts to substitute their judgment for that of the
legislature in cases to follow. This approach is contrary to the principles
of judicial restraint and separation of powers.
Our legislature has substantially reworked the criminal-sentencing
statutes over the last couple of decades in a purported effort to get tough
on crime. These amendments have, in many instances, resulted in the
imposition of harsh mandatory sentences for criminal offenders as
compared to the sentencing scheme of yesteryear. This legislative shift
has often frustrated sentencing judges, who previously possessed
discretion in many instances to impose a sentence that not only fit the
particular criminal act, but the particular offender. Yet, what was
formerly considered a strength in the judicial branch of government
turned into criticism that fueled change in the legislative branch of
government. Today, sentencing in criminal cases has increasingly been
transformed into the imposition of a predetermined punishment that
paints all offenders of a particular crime with a single broad stroke of the
brush. The new landscape, while well-intentioned, has come at a huge
cost. Ultimately, it visits as much harm on society as it does to the
individual offender.
Notwithstanding, the sentencing policies of today are our policies.
They are a product of our legislature, as representatives of the people.
41
Courts do not intervene to alter these policies except when the resulting
legislative scheme runs contrary to constitutional mandates. In this
case, the constitutional principle at stake is the Cruel and Unusual
Punishment Clause. This Clause represents one of the basic
constitutional values that collectively defines us as a people, which
cannot be altered by the legislature through the enactment of a statute.
It embodies who we are as a people.
While I agree with the majority that there may be cases in Iowa in
which courts may need to apply the Cruel and Unusual Punishment
Clause in an individual manner to properly test its application to a
particular sentence imposed on a particular offender, this case is not
one. Instead, I would place the bar higher. The factors relied upon by
the majority in this case do not warrant an as-applied challenge.
First, the nature of the crime does not warrant an as-applied
challenge. Rape is a serious crime and is not diminished in any way
because the offender committed the crime by playing upon the youthful
vulnerabilities of the victim instead of physically overpowering the victim.
Second, the defendant was not sentenced for the conduct he
engaged in as a child. Instead, he was sentenced only for his conduct as
a twenty-one-year-old adult. It is abundantly clear that recidivism
statutes do not punish for past conduct, but punish the conduct
represented by the present offense. See Witte v. United States, 515 U.S.
389, 400, 115 S. Ct. 2199, 132 L. Ed. 2d 351, 364 (1995) (“In repeatedly
upholding such recidivism statutes, we have rejected double jeopardy
challenges because the enhanced punishment imposed for the later
offense ‘is not to be viewed as either a new jeopardy or additional penalty
for the earlier crimes,’ but instead as ‘a stiffened penalty for the latest
crime, which is considered to be an aggravated offense because a
42
repetitive one.’ ” (quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct.
1256, 1258, 92 L. Ed. 1683, 1687 (1948)); accord Ewing v. California,
538 U.S. 11, 25, 123 S. Ct. 1179, 1188, 155 L. Ed. 2d 108, 120 (2003)).
Thus, the most compelling factor to support a claim for cruel and
unusual punishment is actually a red herring. For sure, the defendant
was subjected to an enhanced sentence as a consequence of a prior
juvenile act, but he was nevertheless only punished for his act as an
adult. Our constitution does not contain a cruel and unusual
consequence clause. The question in this case is only whether the
punishment the defendant received for committing the adult crime of
statutory rape was cruel and unusual.
Finally, I agree the consequences visited on the defendant for his
juvenile act as a twelve-year-old child are substantial. His sentence is
two and a half times longer than it would have otherwise been, and the
actual time he will be incarcerated is five to six times longer. Yet, even if
the enhancement of the statute was for jaywalking as a juvenile, the
question is still whether the sentence of twenty-two years for statutory
rape by an adult is cruel and unusual punishment. Under our strict
test, it is not. A sentence of twenty-two years for rape is not “grossly
disproportionate” to the crime, given the great deference that the
legislature is entitled to receive. Rummel v. Estelle, 445 U.S. 263, 274,
100 S. Ct. 1133, 1139, 63 L. Ed. 2d 382, 391 (1980); see Price v. State,
898 So. 2d 641, 655 (Miss. 2005) (upholding a forty-year sentence for
three counts of statutory rape).
While some constitutional principles might be receptive to
defendant’s plight, the Cruel and Unusual Punishment Clause is not
among them. Courts must adhere to the constitutional framework, even
when the result is difficult to swallow. Furthermore, we must not forget
43
that we are not the only guardians of justice in our government. For
example, prosecutors must use sound judgment in charging and
prosecuting defendants who may be swept up by broad legislative
policies that were not likely intended to capture them. The governor, too,
is empowered to commute a sentence viewed to be unjust. Finally,
consistent with the one true strength of our democracy, the legislature
can repair mistakes.
I would affirm the judgment and sentence of the district court and
rely upon the other components of government to mete out justice in this
case.
Wiggins, J., joins this dissent.