Moore v. United States

SCHWELB, Associate Judge,

concurring:

I do not find Moore’s constitutional contentions to be implausible. If this case involved only his conduct vis-a-vis the principal complainant, Karen, and if it were before us on direct appeal, I would have grave reservations about the constitutionality of the punishment imposed. For eight episodes of consensual and non-violent sexual intercourse with a girl who was fifteen- and-a-half years old at the beginning of the relationship, who was sexually active with other young men, and who continued to have sex with him after she turned sixteen,1 Moore received consecutive minimum sentences totalling more than 48 years. Thus, even aside from his crimes against younger children, Moore was ordered incarcerated until after his 99th birthday — in other words, for the rest of his life.

In contrast, if Moore had murdered Karen with premeditation, he could have been eligible for parole after only twenty years. D.C.Code § 22-2404 (1989). If he had maimed Karen eight times instead of having consensual sexual intercourse with her on eight occasions — if, for example, he had blinded her and bitten off both of her ears, and committed five other similar acts — the maximum sentence he could have received would have been 26 years 8 months to 80 years in prison, as opposed to the 48 years 8 months to 146 years that he actually received. See D.C.Code § 22-506 (1989) (punishment for mayhem is 3-73 to 10 years in prison).

The geographic location of Moore’s offenses also made a great deal of difference. If he and Karen had engaged in consensual sex on the other side of the Fourteenth Street Bridge, Moore’s conduct would not have been unlawful at all. See Va.Code Ann. § 18.2-67.1 (Michie 1987) (age of consent is 13 years).2 In some jurisdictions in *147which such conduct is prohibited, the punishment is far less severe. See, e.g., N.M.Stat.Ann. §§ 30-9-ll(D), 31-18-15 (Michie 1985) (maximum punishment for single episode of statutory rape is eighteen months in prison); N.D.Cent.Code §§ 12.1-20-05(1), 12.1-32-01 (1988) (maximum punishment is one year). The age of consent varies from jurisdiction to jurisdiction, and has arbitrarily been fixed at ages from ten to eighteen years. See 65 Am.Jur.2d § 17, at 770 (1972 & Supp.1992). Different punishments are imposed in different states. Nevertheless, a minimum of seven years, to be served consecutively for each individual sexual encounter with a somewhat worldly fifteen-and-a-half year old,3 is quite severe in comparison with the punishments meted out for other crimes, or for the same crime in other places.

Under these circumstances, Moore’s punishment for his conduct vis-a-vis Karen, if viewed in isolation, would not readily comport with the principles of proportionality set forth in Solem v. Helm, 463 U.S. 277, 284, 288-292, 103 S.Ct. 3001, 3008-3011, 77 L.Ed.2d 637 (1983). In Solem, Justice Powell, writing for the Court, set forth the “objective criteria” by which judges should be guided in determining whether a sentence was impermissibly disproportionate to the crime under the Cruel and Unusual Punishment Clause of the Eighth Amendment. Those criteria include “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Id. at 292, 103 S.Ct. at 3010.4 See also State v. Bartlett, 164 Ariz. 229, 233-34, 792 P.2d 692, 696-97 (1990) (striking down as cruel and unusual a sentence totalling forty years in prison for the statutory rape of two girls, both 14V2 years of age).

In this case, however, Moore also engaged in indefensible conduct with several other girls, two of whom were only nine-years old.5 The judge had the authority to consider Moore’s crimes relating to the other children in imposing sentence for Moore’s offenses involving Karen. See Williams v. New York, 337 U.S. 241, 246-50, 69 S.Ct. 1079, 1082-84, 93 L.Ed. 1337 (1949); Johnson v. United States, 508 A.2d 910, 911 (1985). Under these circumstances, I do not think that Moore has met his heavy burden of demonstrating that his sentence within statutory limits, which is ordinarily reviewable on appeal only for error of law, prosecutorial impropriety, reliance by the judge on incorrect information, or some other fundamental defect, see In re L.J., 546 A.2d 429, 434 (D.C.1988), was sufficiently disproportionate to warrant our setting it aside as unconstitutional. In addition, as the majority points out, Moore’s procedural posture for challenging *148his sentence at this point is, at best, precarious. Accordingly, I concur in the judgment.6

. It also appears that Moore contracted gonorrhea from Karen, that she used PCP, and that she frequented "go-go clubs.” Moore evidently counselled Karen not to use drugs.

. Incredibly, at common law, it was no crime to have carnal knowledge of a female regardless of her age. During the reign of Queen Elizabeth I, the age of consent was fixed by statute at ten *147years. See Wilson v. Com, 290 Ky. 223, 223, 160 S.W.2d 649, 651 (1942).

. Consecutive sentences for two separate acts of statutory rape have been held to be constitutionally permissible. State v. Phipps, 318 N.W.2d 128, 132 (S.D.1982). In Com. v. Robinson, 316 Pa.Super. 152, 462 A.2d 840, 843 (1983), on the other hand, the court admitted proof of prior uncharged acts of statutory rape because it was not "other crimes” evidence, but rather “evidence of part of one of and the same transaction, a natural development of the facts surrounding the offenses for which appellant was being tried.”

. In Harmelin v. Michigan, — U.S. -, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), two justices expressed the view that Solem should be overruled. Id. Ill S.Ct. at 2686 (opinion of Scalia J., joined by Rehnquist, C. J.). Three more justices thought Solem reconcilable with earlier decisions of the Court, but viewed its reach as limited to “grossly disproportionate” sentences. Id. at 2680 (opinion of Kennedy, J., joined by O’Connor, J. and Souter, J.). None of the remaining four members of the Court indicated any dissatisfaction with Solem. Id. at 2709 (opinion of White, J., joined by Blackmun, J. and Stevens, J.); id. at 2719 (opinion of Marshall, J.); id. (opinion of Stevens, J.). I conclude that Solem has been wounded, but not yet mortally.

. I am also somewhat concerned by Moore’s allegation that his sentence was predicated on inaccurate information both about the capacity of pedophiles to be rehabilitated and about the psychological effect of Moore’s crimes on his victims. See Caldwell v. United States, 595 A.2d 961, 967 (D.C.1991). A fair reading of Karen’s testimony as a whole, at least so far as it emerges from the expressionless pages of an appellate record, makes it difficult to conclude that Moore destroyed her life. I conclude, however, that Moore has not established that the allegedly erroneous character of the information on which the sentencing judge is said to have relied was of "constitutional magnitude,” as required by United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591-92, 30 L.Ed.2d 592 (1972).

. The severity of the crimes varied from victim to victim, but at least one — touching a nine-year-old girl’s vagina — was especially offensive.