Thursday, November 1, 2018
Page 9
IN MY OPINION (Column)
View From 20 Years Ago…
Sentence Exceeding the Defendant’s Life Serves No Rational Purpose
By STANLEY MOSK
(1912-2001)
The Office of Los Angeles County District Attorney said in a press release Tuesday:
“A 27-year-old Whittier woman will spend the remainder of her life in state prison for a 2017 shooting spree that left one man dead and three others injured, the Los Angeles County District Attorney’s Office announced today.
“Los Angeles County Superior Court Judge Roger Ito sentenced Reyna Gomez to the maximum term of 83 years and four months, plus 270 years to life, in state prison.”
That comes to 353 years and four months-to-life.
Below is commentary on sentences exceeding a human’s life by California Supreme Court Justice Stanley Mosk (now deceased). It was his concurring opinion in the 1998 case of People v. Deloza, 18 Cal. 4th 585.
Mosk’s opinion was cited by the appellant in the Fifth District Court of Appeal case of People v. Casontos, decided July 16 in an unpublished “By the Court” opinion. The court observed:
“[A] concurring opinion is not binding…, nor has Justice Mosk’s viewpoint been subsequently adopted. Defendant cites to no controlling authority supporting his position that the federal and state Constitutions are offended by the imposition of a sentence an adult offender convicted of child rape will almost certainly be unable to serve in his natural lifetime.”
Other appellants have also pointed to the opinion, to no avail—though Court of Appeal Presiding Justice Arthur Gilbert of this district’s Div. Six acknowledged in an unpublished opinion filed April 9 that “Justice Mosk makes a cogent point.”
The Third District Court of Appeal, in its 2001 decision in People v. Byrd, rejected Mosk’s view, remarking:
“[W]e respectfully disagree with Justice Mosk’s analysis. In our view, it is immaterial that defendant cannot serve his sentence during his lifetime. In practical effect, he is in no different position than a defendant who has received a sentence of life without possibility of parole: he will be in prison all his life.”
With sentences exceeding a century or more proliferating, Mosk’s opinion is presented for such renewed discussion as it might generate.
The superior court ordered 4 sentences of 25 years to life in prison, to run consecutively, plus 11 years, for a total of 111 years.
A question arises, which our remand for resentencing does not require us to answer: Is a sentence of 111 years in prison constitutional?
Choosing to address this question myself, I believe that the obvious answer is no: A sentence of 111 years in prison is impossible for a human being to serve, and therefore violates both the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution and the cruel or unusual punishment clause of article I, section 17 of the California Constitution.
Regrettably, multicentury sentences are becoming commonplace and generally remain unchallenged. Certainly there is understandable revulsion directed toward a defendant who has committed numerous counts of illegal conduct. Not infrequently the charges are sexual in nature; that conduct appears to draw the monstrous sentences.
A prime example occurred in Oklahoma in Robinson v. State (Okla.Crim.App. Apr. 1, 1996). In 1994, a trial judge sentenced the defendant to 30,000 years in prison. In 1996, in an unpublished opinion, a bare majority of the appellate court upheld the conviction, without discussing the length of the sentence. However, the dissenting justices declared: “A sentence of this magnitude is shocking and absurd.” (Id. (dis. opn. of Lane, J.).) They added: “We should work to regain the public’s confidence in our penal system by implementing an honest system of imprisonment. If we don’t, sentence ‘inflation’ will make a mockery of us all.” (Ibid.)
What is the legal difference between prison sentences of 30,000 years and 111 years? The answer is: none. Both are impossible for a human being to serve.
If a trial court were to impose as a condition of probation that a defendant report to his probation officer once a week for 111 years, an appellate court would not hesitate to strike it down as impossible to meet. How then could it sustain a prison sentence of that length? The United States Supreme Court has declared that the “basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards.” (Trop v. Dulles (1958) 356 U.S. 86, 100, 78 S.Ct. 590, 2 L.Ed.2d 630 (plur. opn. of Warren, C. J.).) This provision is aimed at something more than merely curbing punishment designed to inflict great physical pain. As Justice Marshall stated, “one of the primary functions of the cruel and unusual punishments clause is to prevent excessive or unnecessary penalties.” (Furman v. Georgia (1972) 408 U.S. 238, 331, 92 S.Ct. 2726, 33 L.Ed.2d 346 (conc. opn. of Marshall, J.).) He further recognized that “a penalty may be cruel and unusual because it is excessive and serves no valid legislative purpose.” (Ibid.) The same is true under article I, section 17 of the California Constitution.
A grossly excessive sentence can serve no rational legislative purpose, under either a retributive or a utilitarian theory of punishment. It is gratuitously extreme and demeans the government inflicting it as well as the individual on whom it is inflicted. Such a sentence makes no measurable contribution to acceptable goals of punishment.
What, then, is the answer if a defendant is convicted of numerous counts? The maximum sentence that should be imposed is one a defendant is able to serve: life imprisonment. In a particularly egregious case involving exceptionally numerous victims, the maximum could conceivably be life imprisonment without possibility of parole.
Once we declare century-plus sentences invalid, I am confident that the Legislature will act to provide appropriate life sentences. Such sentences would serve the purposes of punishment, would be constitutional, and would avoid making the judicial process appear oblivious to life expectancy tables. (Mosk, State’s Rights—and Wrongs (1997) 72 N.Y.U. L.Rev. 552, 556–559 [Brennan Lecture].)
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