State v. Pasek

SABERS, Justice

(concurring in part, dissenting in part).

[¶ 43.] I dissent on the punishment approved in Issue 4 because:

A LIFE SENTENCE WITHOUT THE POSSIBILITY OF PAROLE ELIMINATES FOREVER ANY OPPORTUNITY FOR HOPE, SELF-IMPROVEMENT, AND REHABILITATION.

[¶ 44.] A life sentence should only be imposed when a trial court “can determine from the facts of the principal offense and the previous convictions that rehabilitation is so unlikely as to be removed from consideration in sentencing; that the interests of society demand that the convict be kept off the streets for the rest of his life ... and that the life sentence not constitute *314excessive retribution.” State v. Pulfrey, 1996 SD 54, ¶ 18, 548 N.W.2d 34, 38 (internal citations omitted). Here, the principal offense and the previous convictions do not show “that rehabilitation is so unlikely as to be removed from consideration in sentencing.” Id.

[¶ 45.] Life imprisonment for Pasek’s crimes is the maximum and most severe sentence that could be imposed. SDCL 22-30-7; SDCL 22-6-1; SDCL 22-7-8. These crimes and prior convictions are not of such magnitude to justify a lifetime of incarceration without the possibility of parole. These crimes were committed in a nonviolent manner. There was no physical injury or overt threat to injure anyone. Pasek neither damaged nor destroyed any property in the commission of his crimes. Although the bank teller who gave him the marked bills was in fear, he did not otherwise harm her. While Pasek’s crimes and prior convictions are very serious, they do not rise to the level that “the interests of society demand that the convict be kept off the streets for the rest of his life.” Pulfrey, 1996 SD 54, ¶ 18, 548 N.W.2d at 38 (emphasis added).

[¶ 46’.] Even though Pasek’s principal offense and previous convictions permit a life sentence, we should heed the argument of his attorney:

Certainly, rehabilitation is possible with this young man [ ]. He is an immature 25 years of age. Nevertheless, he has the intellectual capacity to overcome a history of largely untreated attention deficit disorder, to mature past his penchant for adrenalin, and become a safe and productive member of society after a significant period of incarceration. The nightmare of the sentence to this young man is that he will have no incentive to improve himself or modify his behavior.

Appellant’s Brief, p. 24.

[¶ 47.] As Justice Amundson stated in 2000:

[t]he only medicine to help in changing or rehabilitating any individual seems to be the ‘hope’ that he or she can again obtain their freedom by amending their attitude and ways. There should generally be a light at the end of the tunnel for any human no matter how bad he appears or how bad his past conduct reflects he is •.... It seems as though the result of this sentence is to cast, this individual into the human waste dump and let him languish there until he finally totally decomposes and has gasped his last breath.

Ganrude v. Weber, 2000 SD 96, ¶ 29, 614 N.W.2d 807, 813 (Amundson, J. dissenting).

[¶ 48.] “The sentencing court should also consider rehabilitation prospects.” State v. Bonner, 1998 SD 30, ¶ 19, 577 N.W.2d 575, 580. Although neither Pasek nor his attorney provided any real evidence of any redeeming social value, we should assume that this young man has some potential to develop some redeeming social value given the opportunity. The rehabilitation programs available to the defendant while incarcerated, along with the natural maturation process, should provide him the opportunity to learn and become a better person.

[¶ 49.] We should reverse and remand this life sentence without the possibility of parole to the trial court for a meaningful less than life sentence. Yes, the word “meaningful ” modifies the word “less.” A meaningful less than life sentence should be comparable to one’s life expectancy. For example, this man is 25 years old with a life expectancy in the mid 80’s. Therefore, anything exceeding 50-60 years denies him a real reason to work towards learning, self-improvement, and rehabilitation. Where required, we must insure that sentencing allows for some hope.

*315[¶ 50.] While Pasek should be punished for the serious crimes he has committed, it is beneath our society to just close the book on him under these circumstances. Therefore, I would reverse and remand on Issue 4 to direct the trial court to impose a meaningful less than life sentence in accordance with this dissent.

[¶ 51.] MEIERHENRY, Justice, joins this special writing.