State v. Wood

BISTLINE, Justice,

dissenting.

I agree with the majority that King v. State, 93 Idaho 87, 456 P.2d 254 (1969), in ’ and of itself does not mandate that Wood be remanded for resentencing.2 Nonetheless, other grounds not specifically articulated by Wood compel me to dissent because various aspects of sentencing a defendant to “half’ of a life sentence by consulting actuarial tables are very troubling. Although Wood did not argue on the grounds set out below either at sentencing (where he was represented by counsel) or on appeal (where he proceeded pro se), those grounds are jurisdictional, as explained below, and thus may not be waived. See State v. Mowrey, 91 Idaho 693, 429 P.2d 425 (1967); Crane Creek Country Club v. City of Boise, 121 Idaho 485, 826 P.2d 446 (1992) (Bakes, C.J., specially concurring) (an issue not raised in the trial court or on appeal may be addressed when plain or fundamental error exists); Nycum v. Triangle Dairy Co., 109 Idaho 858, 862, 712 P.2d 559, 562 (1985) (this Court will address jurisdictional issues even though not preserved for appeal by objection in the lower court); cf. I.R.C.P. 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action” (emphasis added).).

It should first be noted that in 1902, the California Supreme Court wrestled with the validity of a similar statutory scheme in People v. Burns, 138 Cal. 159, 69 P. 16 (1902). The trial court in Bums had “consulted certain mortality tables used by life insurance companies in the conduct of their business, and, taking into consideration defendant’s present age, ... concluded that the remainder of his natural life would amount to thirty-eight years, and thereupon sentenced him to [nineteen] years in the state prison” for attempted robbery.3 69 P. at 17. The Bums court specifically rejected such a method. In holding that the punishment of “half’ of a life sentence is too vague and indefinite and voiding the statute, the court rejected the actuarial table method of determining a half life sentence:

This court is well satisfied that the practice here followed cannot be sanctioned. The trial court fixed the penalty upon the basis of an average life, and sentenced him to imprisonment for one-half of the period of an average life; yet the law declares the imprisonment should be for a period of one-half of the defendant’s life. These mortality tables indicate averages, and that fact alone proves that a variable proportion of the men coming within any particular class die before the age fixed as the average, and the remainder die after the age so fixed. As to the particular period of time covering the balance of defendant’s life, the court knew nothing, and in the nature of things, could know nothing. Hence the period of 19 years fixed as a penalty is based upon mere conjecture, and the judgment following it cannot be upheld.

*915Burns, 69 P. at 17. Many other difficulties adhere in trying to make the uncertain certain. For instance, are non-smokers, who generally live longer than smokers, subject to longer terms?

Even if the inherent uncertainties in using actuarial tables were acceptable, profound problems with such a sentencing scheme would still abound. First, such a method, applied as in the instant case, violates the equal protection clauses of the federal and Idaho constitutions. See U.S. Const, amend. XIV; Idaho Const, art. 1, §§ 2, 18. The district court noted that it had derived the twenty-two and one-half year sentence from tables showing the life expectancy for a white male. It would seem, then, that life expectancies differ according to race and gender. Thus, under the current actuarial system of determining a half life sentence, defendants’ sentences vary depending upon an individual’s race and gender (besides, of course, age). Kacial and gender classifications are subject to heightened scrutiny: classifications based on race require a compelling interest narrowly drawn, State v. Missamore, 119 Idaho 27, 33, 803 P.2d 528, 534 (1990); Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), and classifications based on gender require an important interest substantially related to the challenged action.4 Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). It is readily apparent that any interest the State could articulate, relative to discriminating in sentencing based on race or gender, would not withstand heightened scrutiny.

Indeed, one doubts whether such an interest can withstand the rational basis test, which is used to review state action involving classifications other than those that blatantly discriminate or those based upon suspect categories or fundamental rights. See, e.g., Idaho Schools for Equal Educ. v. Evans, 123 Idaho 573, 850 P.2d 724 (1993). Under the rational basis test, a state action violates the equal protection clause, if no grounds can be advanced to justify the state’s goals or if the classification is based solely on reasons unrelated to the pursuit of those goals. Id., 123 Idaho at 580, 850 P.2d at 731.

This justice, for one, is unable to divine what the state’s interest might be in providing a maximum range of sentencing that is determined solely by the defendant’s age. It is one thing to find a defendant’s age to constitute a mitigating (or perhaps even aggravating) factor in determining where, within a defined range, the sentence should fall; it is quite another to allow a defendant’s age automatically to determine what that range may be. Nor can such an unfair and arbitrary means of determining a sentencing range be justified by analogy to the imposition of life sentences. It is true that when a judge imposes a sentence of life, a younger defendant will likely serve more time than an older defendant. But life sentences have an important interest justifying their imposition — the purpose of incapacitation. When a defendant commits a crime which the legislature has deemed sufficiently heinous to permit a life sentence (particularly, a fixed life sentence), it is important to ensure that these people remain out of society for society’s protection. With “half life” sentences, however, such a rationale does not exist because, by definition, the legislature intends that the person upon whom a half life sentence is imposed go free some time in the future. Therefore, there is no reason why someone younger should receive a far greater sentence.

The absurdity of the current actuarial system may be illustrated by the following hypothetical. Imagine a situation where a twenty-one year old female and fifty-two year old male together undertake to rob a bank. They agree beforehand to kill any guard or police officer they see in order to avoid apprehension. Each sees a bank guard and each shoots at him, the two bullets wounding, but not killing, him which is clearly attempted felony murder, for which, as in the instant *916case, the maximum penalty for the purposes of determining a sentence for attempt is life. Assuming that the actuarial tables provide that the average female lives for seventy-five years and the average male, seventy. The maximum exposure for the man is nine years, for the woman, twenty seven years. If the sentencing judge decided to impose the maximum sentence upon each, the woman’s sentence would be three times longer than the man’s for the exact same act undertaken with the exact same intent as the man. As is illustrated by this example, the actuarial table method of determining half life sentences violates the key principle of equal protections clause: that all persons in like circumstances should receive the same benefits and burdens of the law. See Bon Appetit Gourmet Foods, Inc. v. State, Dept. of Employment, 117 Idaho 1002, 793 P.2d 675 (1989).

It is clear from the above discussion that, both for unconstitutionality and vagueness, as currently applied the statutory scheme of assessing sentence máximums of “half’ of life, in particular, I.C. § 18-306, the attempt penalty statute, is void. But, as this Court noted in Murphey v. Murphey, 103 Idaho 720, 653 P.2d 441 (1982),

Having arrived at the relatively easy conclusion that a statute which allows awards of alimony only to women is not constitutional, we turn to the more difficult task of deciding whether that decision should be applied retroactively, i.e., to declare the statute to have been at all times void and of no effect, or to extend its construction so as to make the statute constitutional. As we noted in Harrigfeld v. District Court, 95 Idaho 540, 545, 511 P.2d 822, 827 (1973), ‘[a] holding that a statutory classification scheme constitutes a denial of equal protection because it unconstitutionally grants a benefit to one class while denying it to another, does not necessarily mandate a denial of the benefit to both classes.’ In deciding whether to construe the statute as neutrally extending the benefits of alimony, we should interpolate that which we believe that the legislature would have intended had it realized that the ... statute as drafted might somehow transgress constitutional boundaries.

103 Idaho at 723, 653 P.2d at 444. Or, in the words of Justice Harlan:

If an important congressional policy is to be perpetuated by recasting unconstitutional legislation, the analytically sound approach is to accept responsibility for [the] decision. Its justification cannot be by resort to legislative intent, as that term is usually employed, but by a different kind of legislative intent, namely the presumed grant of power to the courts to decide whether it more nearly accords with Congress’ wishes to eliminate its policy altogether or extend it in order to render what Congress plainly did intend, constitutional.

Welsh v. United States, 398 U.S. 333, 355-56, 90 S.Ct. 1792, 1804, 26 L.Ed.2d 308 (1970) (Harlan, J., concurring), quoted in Murphey, 103 Idaho at 723, 653 P.2d at 444.

It is obviously preferable to uphold the statute by bringing it within constitutional boundaries. Otherwise, voiding the attempt statute when it applies to situations where a judge is forced to determine what constitutes half a life would leave the sentencing courts with no guidance at all in those situations. Thus, although as explained by the majority opinion King clearly is not binding precedent upon the instant situation, we should use King’s articulation of a thirty-year sentence as equivalent to life in order to save I.C. § 18-306.

True, thirty years (or fifteen years, for a “half life” sentence), is somewhat arbitrary. Yet it is less arbitrary than any other number and certainly more fair than the current actuarial system. In King (which was decided after State v. Hall, 88 Idaho 117, 397 P.2d 261 (1964), the case cited by the majority), this Court held that the legislature must have intended that a sentence .of thirty years or more be equivalent to a life sentence in the context of parole eligibility. It is therefore not unreasonable to say that the converse is true in a different context. Better to have a somewhat arbitrary number applied equally than a carefully calculated number applied unequally without basis.

*917In order to save the statute, a uniform limit must be fixed for the maximum sentencing. Since, in this justice’s view, fifteen is as good as any and furthermore finds some small support in our case law, any sentence above fifteen years exceeds the sentencing court’s discretion and may not be imposed. Wood’s sentence should therefore be set aside and his cause be remanded for resentencing.

. The majority opinion only holds that King does not function as precedent, not that the attempt statute is not void for the reasons articulated below.

. If Burns had been convicted of robbery, the court would have had to have sentenced him for life because of prior convictions.

. It appears that the standard of review for gender-based classifications is the same for both the Idaho and federal constitutions. See Murphey v. Murphey, 103 Idaho 720, 723, 653 P.2d 441, 444 (1982).