Justice NEHRING, opinion of the Court:
¶ 1 Robert Cameron Houston was seventeen and a half years old when he murdered R.E., a staff member of the residential treatment center for youth where Mr. Houston was temporarily residing. The State charged Mr. Houston with aggravated murder, aggravated sexual assault, and rape. Mr. Houston pleaded guilty to aggravated murder, and the State agreed to drop the other charges.
¶ 2 The parties agreed to a sentencing hearing where a jury would determine whether Mr. Houston would be sentenced to life in prison without the possibility of parole or an indeterminate term of twenty years to life. Following the sentencing hearing, eleven of the twelve jurors voted to sentence Mr. Houston to life imprisonment without the possibility of parole.
¶ 3 On appeal Mr. Houston brings numerous constitutional challenges to his sentence. He also contends that his counsel rendered ineffective assistance of counsel during the sentencing proceeding in violation of the Sixth Amendment to the United States Constitution. After a careful review of the record, we conclude that Mr. Houston's sentence is constitutional, and his counsel was not ineffective. We therefore affirm the jury's sentence.
¶ 4 Mr. Houston had a very difficult childhood, and he became an early juvenile offender and a troubled young adult.
¶ 5 Mr. Houston was born with a deformed ear, which left him almost completely deaf on one side and made it difficult for him to learn to talk. As a child, he struggled with this physical deformity and was also ridiculed by his peers for being overweight. Mr. Houston's parents fought often and eventually divorced, and his father was physically and verbally abusive. When his father left the home, Mr. Houston struggled emotionally over the separation. At age eight, Mr. Houston attempted suicide and was diagnosed with major depressive disorder. When he was twelve, he was sexually abused by his brother's friend for several months.
¶ 6 Mr. Houston committed several violent sexual offenses as a young teenager, which led to his placement in a residential treatment program for juvenile sex offenders. In 2003, at age fourteen, Mr. Houston attempted to rape his teenage stepsister at knifepoint. He was charged with aggravated sexual assault. Mr. Houston entered a guilty plea, though the record does not specify to what charge he pleaded. In February 2004, at age fifteen, Mr. Houston attempted to rape his aunt, also at knifepoint. Mr. Houston was charged with aggravated sexual assault and pleaded guilty, although the record again does not specify to what charge Mr. Houston pleaded. As a result of these violent sexual assaults, Mr. Houston was placed with Youth Health Associates (YHA), a residential treatment facility for juvenile sex offenders located in Clearfield, Utah.
¶ 7 The State also presented evidence that two months after Mr. Houston's arrival at YHA he allegedly attempted to sexually assault a female staff member. The staff worker fought back and was able to gain control. After the incident, Mr. Houston allegedly explained to other staff workers that he wanted to hurt and sexually assault her. Mr. Houston did not have a weapon during that incident.
¶ 8 On February 15, 2006, when Mr. Houston was seventeen years old, he committed the murder that led to this appeal. At that time, Mr. Houston resided at an independent living home associated with YHA. It was snowing that night, and Mr. Houston did not want to walk the four blocks home from YHA to the independent living home. He asked R.E., a female staff worker, for a ride. Although it was against YHA's policy to give a ride in a personal vehicle to a resident, R.E. was sympathetic and did not want Mr. Houston to have to walk home in the bad weather.
¶ 9 When they arrived at the independent living home, R.E. followed Mr. Houston inside to sign the log book. As she turned to
¶ 10 Mr. Houston climbed into R.E.'s car and sped off. He drove into a house, which he later explained was an attempt to kill himself. Mr. Houston was arrested and taken to the hospital. He was interviewed by Detective Mike Valencia shortly after arrival. Mr. Houston confessed to attempting to kill R.E. and described in detail to the detective how he had tried to rip out R.E.'s trachea to stop her from screaming. The detective noted that Mr. Houston was unemotional as he described the details of the crime.
¶ 11 Mr. Houston was charged with aggravated murder, aggravated sexual assault, and rape. In exchange for the State's promise to drop the other charges, Mr. Houston pleaded guilty to aggravated murder. The parties agreed that the sentencing hearing would be held before a jury. Following a five-day hearing, eleven of the twelve jurors voted to sentence Mr. Houston to life imprisonment without the possibility of parole (LWOP). After he was sentenced, Mr. Houston obtained new appointed counsel and subsequently filed a timely appeal to challenge his sentence. We stayed the case in anticipation of the ruling in a United States Supreme Court case, Miller v. Alabama,
¶ 12 We have jurisdiction under Utah Code section 78A-3-102(3)(i).
¶ 13 We begin our discussion of the standard of review by noting that Mr. Houston did not preserve any of the issues presented on appeal. "As a general rule, claims not raised before the trial court may not be raised on appeal"
¶ 14 The parties disagree about the standard of review that should apply to Mr. Houston's claims. Mr. Houston admits that none of his claims are preserved, and thus argues under both plain error and ineffective assistance of counsel doctrines. However, Mr. Houston also argues for two alternative, heightened standards of review. First, Mr. Houston contends that he was charged with a "capital" offense, and therefore this court should apply a "manifest prejudice" standard of review to each of his claims. Second, Mr. Houston argues that his sentence is unconstitutional and therefore he can challenge it on appeal as an "illegal" sentence under Utah Rule of Criminal Procedure 22(e), and is thereby excused from the obligation to preserve issues for appeal. In support of his rule 22(e) argument, Mr. Houston cites State v. Candedo, in which this court interpreted rule 22(e) to permit review of certain unpreserved constitutional challenges.
¶ 16 As we describe in greater detail below, we hold that each of Mr. Houston's constitutional challenges falls within the narrow scope of rule 22(e)'s exception to the preservation of claims. We therefore decline the State's request to overrule our precedent in State v. Candedo. Under rule 22(e), we treat Mr. Houston's claims as if they had been preserved, reviewing conclusions of law for correctness and granting no deference to the district court.
¶ 17 A claim of ineffective assistance of counsel is also an exception to our preservation doctrine.
¶ 18 Utah Rule of Criminal Procedure 22(e) provides that "[t]he court may correct an illegal sentence, or a sentence imposed in an illegal manner, at any time." We hold that the rule encompasses facial constitutional challenges to the sentence that do not implicate a fact-intensive analysis. We also conclude that each of Mr. Houston's constitutional challenges to his sentence meets these criteria, and therefore his claims are properly brought under rule 22(e).
¶ 19 Under our traditional preservation doctrine, "generally an appellant must properly preserve an issue in the district court before it will be reviewed on appeal."
¶ 20 Rule 22(e) operates as another limited exception to the preservation doctrine.
¶ 21 While it is clear that the preservation rule does not apply to a defendant's challenge to an illegal sentence, we have had few occasions to discuss what constitutes an "illegal sentence." In State v. Yazzie, we adopted a definition of "illegal sentence" from the United States Court of Appeals for the Tenth Circuit:
¶ 22 In Candedo, we elaborated on this definition. We concluded that "if an offender's sentence is unconstitutional, the sentence is not authorized by the `judgment of conviction,' and is therefore illegal."
¶ 23 We again considered the scope of rule 22(e) in State v. Prion, a case in which the defendant raised statutory and double jeopardy challenges to his sentence.
¶ 24 In Prion, we held that the defendant's statutory and double jeopardy challenges properly fell within the ambit of rule 22(e).
¶ 25 Mr. Houston now brings a host of constitutional claims that we have not previously addressed under rule 22(e). Today, we draw on our previous decisions to articulate the standard for a criminal defendant who brings an unpreserved claim under rule 22(e) that his or her sentence is illegal, and we reiterate the concern expressed in earlier cases that "rule 22(e) claims must be narrowly circumscribed to prevent abuse."
¶ 26 We therefore hold that under rule 22(e), a defendant may bring constitutional
¶ 27 Limiting constitutional challenges to facial attacks serves judicial economy. As we recognized in Brooks, "[w]hen the pertinent facts are undisputed and a purely legal question with respect to which the trial court has no discretion remains to be decided, nothing is to be gained by remanding the case to the trial court."
¶ 28 In the end, finality of judgment and preservation of claims are important, but so too is a criminal defendant's right to endure only those sentences that can be constitutionally imposed. Because Mr. Houston facially attacks the constitutionality of the statute that authorized his sentence, we hold that he has properly challenged it as an "illegal sentence" under Utah Rule of Criminal Procedure 22(e).
¶ 29 We begin by addressing Mr. Houston's six constitutional challenges to his sentence. Mr. Houston argues that his sentence: (A) is unconstitutional under the United States Supreme Court case Apprendi v. New Jersey,
¶ 30 Mr. Houston first argues that Apprendi v. New Jersey
¶ 31 In Apprendi, the New Jersey statutory scheme permitted a judge to impose a sentence beyond the statutory maximum if the judge determined, by a preponderance of the evidence, that the defendant committed a hate crime.
¶ 32 Unlike in Apprendi, however, the sentencing statute under which Mr. Houston was sentenced does not require the judge to make factual findings that increase an offender's sentence. By pleading guilty to aggravated murder, Mr. Houston admitted all the facts relevant to the offense and became subject to any sentence authorized under Utah law. Under Utah's sentencing statute, a juvenile defendant guilty of aggravated murder can be sentenced to either life with the possibility of parole or LWOP.
¶ 33 Mr. Houston next argues that the sentencing statute is invalid and unconstitutional
¶ 34 We begin by examining the language of the sentencing statute at issue. Utah Code section 76-3-207 provides that "the jury shall ... determine whether the penalty of life in prison without parole shall be imposed.... The penalty of life in prison without parole shall only be imposed if the jury determines that the sentence of life in prison without parole is appropriate."
¶ 35 In Wood, we interpreted an earlier version of this statute and held that, in order to impose a death sentence under this section, the sentencing authority must find that (1) the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt and (2) the sentence is justified and appropriate in the circumstances beyond a reasonable doubt.
¶ 36 We begin by noting that, unlike Mr. Houston's case, Wood was a death penalty case, and our holding in Wood was premised on the unique nature of a proceeding in which the defendant's life is at stake. We explained:
Throughout the Wood opinion, we emphasized the "irrevocable" nature of a death sentence, and the corresponding degree of conviction that a judge or jury must have to impose it.
¶ 37 In State v. Bell, we returned to our holding in Wood in the context of a different sentencing statute.
¶ 38 Because a death sentence is uniquely irrevocable and the most severe of all sentences, we have an interest in ensuring that no reasonable doubt remains before we authorize the taking of a human life. But, as we stated in Bell, outside this context, there are no "clear considerations of fairness that militate in favor of a particular standard, except to the extent that one may quarrel with the wisdom of the statute — which is beyond our prerogative."
¶ 39 Here, our legislature has determined that a jury may sentence a defendant to life without parole if it determines that the State has satisfied its burden to demonstrate that
¶ 40 Mr. Houston next argues that the sentencing statute violates the uniform operation of laws clause of the Utah Constitution and the Equal Protection Clause of the United States Constitution because the statute "provides no guidance to jurors in determining which sentence to impose." This, he contends, creates a substantial probability of arbitrary sentencing and disproportionate penalties.
¶ 41 Because we have held that Utah's uniform operation of laws clause "is at least as rigorous as the federal guarantee,"
¶ 42 Mr. Houston contends that two juvenile defendants could commit aggravated murder, and, due to the lack of guidance in the statute, a jury could arbitrarily sentence one of the juvenile offenders to life with parole and sentence the other to life without parole. Mr. Houston argues that by failing to narrow in a principled way those who may receive life without parole, the statute disparately treats similarly situated offenders without a rational basis for the disparate treatment. We disagree.
¶ 43 The uniform operation of laws provision of our Constitution requires us to address three questions: (1) "what, if any, classification is created under the statute," (2) "whether the classification imposes on similarly situated persons disparate treatment," and (3) whether "the legislature had any reasonable objective that warrants the disparity."
¶ 44 Examining Utah's statute in light of these criteria, we conclude that it does not violate the uniform operation of laws clause because it creates no impermissible classifications and it treats all similarly situated defendants the same.
¶ 45 We begin by examining the plain language of the challenged sentencing statute "to determine what classification[, if any,] is created by [the] legislative enactment."
This statute classifies defendants into two categories — those eligible for a death sentence and those ineligible for a death sentence. And under the language of this statute, all defendants who are ineligible for a sentence of death are similarly situated and are treated equally — they are subject to a jury's determination that either a sentence of life with parole or a sentence of life without the possibility of parole is the more appropriate sentence based on the jury's evaluation of a particular case. Although it is true that two defendants who commit aggravated murder may receive different sentences from a jury, this is either because the defendants were not similarly situated (for example, one
¶ 46 We conclude that the sentencing statute treats all similarly situated defendants the same and it does not contain any impermissible classifications. It subjects all defendants guilty of aggravated murder to a jury's determination of what sentence is most "appropriate" given the particular circumstances of each case. Mr. Houston's argument accordingly fails.
¶ 47 Mr. Houston also argues that the sentencing statute is unconstitutionally vague in violation of due process under the federal and state constitutions because it lacks clear standards to guide the jury in sentencing a defendant. Specifically, Mr. Houston claims that the sentencing statute only advises the jury to impose an LWOP sentence if "appropriate," but it does not provide a standard of proof for aggravating factors, nor does it contain a standard for determining when LWOP is an "appropriate" sentence. He alleges that these deficiencies provided him with no notice as to whether pleading guilty would result in a life sentence with or without parole. Thus, he contends, the lack of standards created a "roll of the dice" as to which sentence he would receive.
¶ 48 We agree that, standing alone, the statutory directive that an LWOP sentence may be imposed if "appropriate" is troubling. The term "appropriate" contributes little or nothing to the solemn task in which it plays a central role. "Appropriate" is defined as "specially suitable" or "belonging peculiarly."
¶ 49 Mr. Houston also contends that his sentence violates Utah's unnecessary rigor clause because "it constitutes unnecessary rigor to sentence a juvenile to die in prison with no hope of parole." According to Mr.
¶ 50 Article I, section 9 of the Utah Constitution provides that "[p]ersons arrested or imprisoned shall not be treated with unnecessary rigor." This clause protects arrested or imprisoned individuals from the infliction of treatment during their confinement that is incompatible with the values of a civilized society.
¶ 51 We hold that the unnecessary rigor clause does not apply to Mr. Houston's challenge. Mr. Houston does not object to the conditions of his confinement, but rather the length of the sentence imposed by statute. Although a defendant may challenge the length of his or her sentence as unconstitutional, this claim is more properly characterized as a cruel and unusual punishments claim and may not be brought under the unnecessary rigor clause.
¶ 52 Finally, Mr. Houston claims that sentencing a juvenile to LWOP violates the cruel and unusual punishments clauses of the Utah and United States Constitutions. In support of his federal argument, Mr. Houston cites three recent United States Supreme Court cases: Graham v. Florida, holding that it is unconstitutional to sentence a juvenile to LWOP for a nonhomicide crime;
¶ 53 We recognize that there are unique characteristics of juveniles that distinguish them from adult offenders, and we conclude that Utah's sentencing statute treats juveniles in a manner that accounts for these unique characteristics. For example, a juvenile cannot be sentenced to death, regardless of the offense committed. LWOP is neither a mandatory sentence nor the presumptive sentence under Utah's sentencing statute. And the statute directs the sentencing authority to consider any relevant mitigating circumstances. We therefore hold that Utah Code section 76-3-207 is facially constitutional. We begin by addressing Mr. Houston's claim under the United States Constitution
¶ 54 The Eighth Amendment to the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
¶ 55 The United States Supreme Court has not ruled on whether the Eighth Amendment prohibits the imposition of LWOP for a juvenile convicted of homicide.
¶ 56 We deferred our consideration of Mr. Houston's appeal while Miller v. Alabama was pending before the United States Supreme Court.
¶ 57 In Miller, the Supreme Court grounded its decision in an analysis of proportionality. The Court reiterated "the basic precept of justice that punishment for crime should be graduated and proportioned to both the
¶ 58 Drawing from evidence in Graham and Roper, the Court explained that juveniles "are constitutionally different from adults for purposes of sentencing."
These conclusions were informed by science and social science research, including longitudinal studies and brain mapping.
¶ 59 But despite this evidence about the characteristics of youth, the Supreme Court has nonetheless narrowly limited its decisions. In Graham, the Court applied its ban on LWOP for juveniles only where the underlying offense was a nonhomicide crime.
¶ 60 We therefore agree with the Supreme Court and with the dissent
¶ 61 Importantly, our statutory scheme enables the kind of individualized sentencing determination that the Supreme Court has deemed necessary for serious offenses. Utah Code section 76-3-207 permits the sentencer to consider any and all relevant factors which would affect the sentencing determination. The statute directs the sentencing authority to consider aggravating circumstances and mitigating factors, and it specifically provides a nonexhaustive list of each to aid the sentencer.
¶ 62 We are not alone in this conclusion. The Supreme Court has explained that "[i]n considering categorical bars to ... life without parole, we ask as part of the analysis whether objective indicia of society's standards, as expressed in legislative enactments and state practice, show a national consensus against a sentence for a particular class of offenders."
¶ 63 In sum, we conclude that imposing LWOP on a juvenile convicted of homicide does not violate the Eighth Amendment's prohibition on cruel and unusual punishments. We therefore deny Mr. Houston's challenge under the United States Constitution.
¶ 64 We next turn to article I, section 9 of the Utah Constitution, which provides that "cruel and unusual punishments [shall not] be inflicted." In State v. Lafferty, we held that "[a] criminal punishment is cruel and unusual under article I, section 9 if it is so disproportionate to the offense committed that it shock[s] the moral sense of all reasonable men as to what is right and proper under the circumstances."
¶ 65 Moreover, it would be inappropriate for us to deviate from our prior jurisprudence in the present case. Both the State and Mr. Houston have relied on the standard announced in Lafferty, and they have grounded their arguments in discussions of proportional punishment. The parties have not asked this court to consider the interpretation Justice Lee now advocates, and therefore the court does not have the benefit of adversarial briefing on the issue. As a general rule, we decline to rule or opine on issues that are not briefed by the parties.
¶ 66 Because we conclude that a punishment must be proportionate to the offense, we look to federal decisions as a guide in determining whether "a particular punishment is cruelly inhumane or disproportionate."
¶ 67 We reiterate the hope expressed by the Supreme Court that LWOP sentences for juveniles will be rare.
¶ 68 Because we reject each of Mr. Houston's constitutional challenges to his sentence of life without parole, we conclude that Mr. Houston has failed to demonstrate that his sentence was unconstitutional and therefore illegal under Utah Rule of Criminal Procedure 22(e).
¶ 69 On appeal, Mr. Houston presents seven claims of ineffective assistance of counsel during his sentencing proceeding. First, Mr. Houston argues that his counsel was ineffective for not objecting to certain statements made by the prosecutor in closing argument, and alternatively that the trial court plainly erred in failing to intervene. Second, he contends that his counsel was ineffective in failing to find and call certain mitigation expert witnesses. Third, Mr. Houston claims that his counsel was deficient in conducting voir dire. Fourth, Mr. Houston argues that his counsel was ineffective for failing to seek a change of venue. Fifth, he claims his counsel was deficient for not objecting to certain testimony at the proceeding. Sixth, Mr. Houston contends that his counsel was deficient for not objecting to certain jury instructions. Finally, Mr. Houston argues that even if none of these errors alone is enough to constitute ineffective assistance of counsel, the cumulative effect of the errors should nonetheless undermine our confidence in the result of his sentencing proceeding. We determine that Mr. Houston has not
¶ 70 The right to counsel under the Sixth Amendment to the United States Constitution includes "the right to the effective assistance of counsel."
¶ 71 With this framework in mind, we now address each of Mr. Houston's ineffective assistance of counsel claims.
¶ 72 Mr. Houston argues that his counsel rendered ineffective assistance when counsel failed to object to statements made in the closing argument. Alternatively, Mr. Houston contends that the trial court committed plain error for allowing the statements during closing argument.
¶ 73 During the sentencing proceeding, Mr. Houston's expert neuropsychologist testified that another doctor had diagnosed Mr. Houston with a "conduct disorder" when he was an adolescent. On cross-examination, the prosecution asked the neuropsychologist if she, too, had concluded that Mr. Houston had a conduct disorder. The neuropsychologist explained that she did not conclude that Mr. Houston suffered from a conduct disorder because Mr. Houston was an adult when she evaluated him and "conduct disorder" is not an available diagnosis for an adult. The prosecutor then asked the neuropsychologist if she believed that Mr. Houston was "antisocial." The neuropsychologist testified that Mr. Houston may show signs of being antisocial, but ultimately she did not conclude that he met the test for an antisocial diagnosis. The neuropsychologist also testified that she did not believe Mr. Houston suffered from psychopathy. In supporting her opinion, the neuropsychologist contrasted Mr. Houston with the well-known serial killer and psychopath Ted Bundy.
¶ 74 In closing argument, the prosecution emphasized the conduct disorder that Mr. Houston was diagnosed with as a child. Mr. Houston argues the State erroneously claimed that Mr. Houston still has the conduct disorder:
¶ 75 Mr. Houston argues that his counsel was ineffective in failing to object to these statements. According to Mr. Houston, the State's closing argument was "incorrect and inflammatory" because the State "effectively argued — with no basis in the record whatsoever — that [Mr.] Houston is antisocial pathologic, incurably violent." By not objecting, moving to strike, or in any way addressing these statements, Mr. Houston contends that counsel left the jury "free to equate [Mr.] Houston with Ted Bundy." We disagree with Mr. Houston's characterization and conclusions.
¶ 76 First, Mr. Houston's counsel did not render ineffective assistance when he did not object to the prosecutor's statements. We have recognized that "[c]ounsel for both sides have considerable latitude in their closing arguments. They have the right to fully discuss from their perspectives the evidence and all inferences and deductions it supports."
¶ 77 We also disagree that the court plainly erred when it did not address the prosecutor's statements. We do not impose a duty on the courts "to constantly survey or second-guess the nonobjecting party's best interests or trial strategy."
¶ 78 Because we determine that neither Mr. Houston's counsel nor the trial judge had an obligation to object to the State's closing argument, we conclude that Mr. Houston has failed to meet his burden to show that the prosecutor's statements necessitate reversal.
¶ 79 Mr. Houston's second claim of ineffective assistance of counsel concerns his attorney's selection and presentation of expert witnesses relevant to Mr. Houston's mitigation defense. Specifically, Mr. Houston claims that his counsel was ineffective in "failing to retain experts qualified to (1) tell
¶ 80 "[C]ounsel's decision to call or not to call an expert witness is a matter of trial strategy, which will not be questioned and viewed as ineffectiveness unless there is no reasonable basis for that decision."
¶ 81 At the sentencing proceeding, Mr. Houston's counsel called a forensic neuropsychologist to testify about Mr. Houston's mental and emotional development. She explained to the jury that there were available treatments to help Mr. Houston confront his mental and emotional issues and to stop his violent reactions to his life circumstances. Our review of the record demonstrates that Mr. Houston's counsel did not act unreasonably in calling this qualified expert witness or in declining to call any additional expert witnesses on the same issue.
¶ 82 Mr. Houston first argues that his counsel should have called a "human development" expert to testify about the effects of youth on the decision-making process. While such testimony may have been helpful to Mr. Houston's defense, we conclude that this testimony was not required, and it certainly was not ineffective for Mr. Houston's counsel not to retain an expert on this topic.
¶ 83 We have stated before that expert testimony is most helpful to explain topics that are "beyond the common knowledge of ordinary jurors."
¶ 84 Mr. Houston next argues that his counsel was ineffective in failing to call an expert to testify that YHA's failure to properly treat and supervise Mr. Houston was the proximate cause of R.E.'s murder. Mr. Houston argues that the result of his sentencing proceeding would have been different had his counsel called an expert to testify that had "YHA followed industry standards, or enforced its own policies, the crime would not have occurred." Our review of the record indicates that this claim fails for two reasons.
¶ 85 First, like Mr. Houston's prior claim, no expert was needed to present to the jury facts related to YHA's deficient treatment and supervision of Mr. Houston because such facts were not beyond the common knowledge of the jurors. During the proceeding, defense counsel successfully elicited this information through questioning of the YHA staff members as well as Mr. Houston's case worker.
¶ 86 Second, given that testimony concerning YHA's treatment and supervision was already introduced at the proceeding, it is difficult for us to see how Mr. Houston's counsel's decision not to present expert testimony on this issue was unreasonable. Our review of the record demonstrates that counsel's decision not to seek an expert on this issue was the result of a strategic move consistent with the defense's theory that Mr. Houston deserved mercy in sentencing for having pleaded guilty and accepting responsibility for his own actions. Presenting an expert to blame Mr. Houston's crime on the YHA staff would have contradicted this theory.
¶ 87 Mr. Houston also argues that his counsel should have called a different expert to address risk mitigation because the expert that Mr. Houston's counsel called was not sufficiently qualified to address these issues. Mr. Houston argues that had this testimony been presented to the jury, it would have made a difference in the outcome of his case because it would have rebutted the State's "powerful future dangerousness" argument. Again, we disagree.
¶ 88 Our review of the record indicates that the expert Mr. Houston's counsel called was a licensed neuropsychologist with extensive experience in evaluating criminal defendants. She has a bachelor's degree in psychology and biology, and master's and doctoral degrees and postdoctoral training in neurobiology. She has evaluated criminal defendants since 1987, and has treated individuals with obsessive disorders and sexual dysfunctions since 1979. This experience indicates that the neuropsychologist was fully qualified to testify as an expert in this case. Mr. Houston has failed to demonstrate that his counsel's decision to call and rely on her testimony was unreasonable.
¶ 89 Mr. Houston has also failed to demonstrate that the neuropsychologist's performance was anything but thorough and competent. The record indicates that the neuropsychologist testified extensively about Mr. Houston's troubled background and the impact it had on his mental health. Although she testified that Mr. Houston was troubled, she also testified that current medications could treat his disorders and could "really make a difference" in his mental and behavioral health. The neuropsychologist also described in detail how Mr. Houston could benefit from cognitive behavioral therapy and how this type of therapy could help him to develop skills to stop his violent thoughts and reactions. We thus conclude that the neuropsychologist adequately addressed the issue of risk mitigation and Mr. Houston's future dangerousness, and it was not unreasonable for Mr. Houston's counsel to rely on her testimony as sufficient.
¶ 90 At its core, we conclude that Mr. Houston's expert testimony claims are merely an assertion that appellate counsel would have called and retained different experts than those trial counsel decided to present to the jury. But we "will not review counsel's tactical decisions simply because another lawyer, e.g., appellate counsel, would have taken a different course."
¶ 91 Mr. Houston's next ineffective assistance of counsel claim centers on his counsel's questioning during the initial juror interviews. Mr. Houston contends that his "[c]ounsel displayed a remarkable ignorance of the law, and rendered extraordinarily ineffective assistance when, during initial juror interviews, [counsel] surrendered the presumption favoring [a sentence of] life with parole." Specifically, Mr. Houston argues that by asking the jurors if they could "equally" consider imposing a sentence of life with parole and life without parole, Mr. Houston's counsel abandoned the directive that a juror should sentence a defendant to life with parole unless the State demonstrates that a sentence of life in prison without parole is more appropriate given the defendant's particular case. According to Mr. Houston, by failing to emphasize the favorable sentencing presumption, "the jurors were free to vote for life without parole based upon any inclination, no matter how slight," and "this certainly undermines confidence in the result." We disagree.
¶ 92 We recognize the importance of voir dire questioning as "essential to choosing an impartial jury, and an impartial jury is as essential to a fair trial as is an impartial judge."
¶ 93 First, Mr. Houston has failed to show that there was anything unreasonable about his counsel's questioning of the jurors. During voir dire, Mr. Houston's counsel actively participated and asked the jurors a series of questions to probe their ability to serve as impartial jurors. These questions included whether the individuals could consider the life with parole and life without parole sentences equally, and whether they thought one sentence was too severe or one was too lenient. Our review of the record demonstrates that all of the jurors selected expressed openness to imposing either sentence presented to them and that they were committed to hearing all the evidence before
¶ 94 Second, we conclude that any confusion that may have resulted from Mr. Houston's counsel's questions to the jurors was cured by the trial court's jury instruction to apply a presumption of life with parole, and by counsel's closing argument, which also emphasized this directive. Immediately before conducting individual jury voir dire, the trial court advised the prospective jurors that the law favored a sentence of life with parole over life without parole:
¶ 95 During closing argument, Mr. Houston's counsel reminded the jury that the presumptive sentence was life with parole and that the State bore the burden of persuading the jury that life without parole was the appropriate sentence. Finally, at the conclusion of the sentencing proceeding, the court instructed the jury that "[t]he penalty of life without parole should only be imposed if the jury determines that such a sentence is appropriate" and that the "burden rests upon the State to persuade [the jury] that a sentence of life in prison without parole is the appropriate sentence in this case." We are convinced that these instructions and reminders from counsel and the court were sufficient to cure any misperceptions that may have been created during Mr. Houston's counsel's voir dire questioning.
¶ 96 Mr. Houston claims that his attorney rendered ineffective assistance of counsel by failing to seek a change of venue, or to "even conduct a venue analysis" in Mr. Houston's case. Specifically, Mr. Houston contends that the negative pretrial media attention surrounding his case — including reports of gruesome details about the crime, sympathetic stories about the victim and her family, and "community outcry" against violent sex offenders — made it impossible for Mr. Houston to have a fair proceeding in Davis County. We disagree.
¶ 97 Under Utah Rule of Criminal Procedure 29, a defendant who "believes that a fair and impartial trial cannot be had in the jurisdiction where the action is pending" may "ask to have the trial of the case transferred to another jurisdiction."
¶ 98 Counsel selected twelve jurors and two alternates. The record demonstrates that five of the jurors selected had no knowledge of Mr. Houston and were not exposed to any information about the crimes committed. Of the nine jurors who had heard of the crime, seven indicated that they had not formed an opinion about what Mr. Houston's punishment should be, and two indicated that they had formed opinions. However, subsequent explanations from those two jurors revealed that they had only formed an opinion about Mr. Houston's guilt — an issue that, because of Mr. Houston's plea, was not in dispute. Those jurors thus had not predetermined what Mr. Houston's punishment should be, only that some form of punishment was appropriate. Both jurors indicated that they could rely on the evidence to determine the appropriate sentence and would be fair and impartial in their decision-making.
¶ 99 Although Mr. Houston referenced several graphic and detailed newspaper articles about his case, he has failed to identify anything in the record that supports his claim that this pretrial coverage resulted in a biased juror or jury. While it may have been prudent for Mr. Houston's attorney to seek a change of venue due to the small community and concentrated media attention surrounding Mr. Houston's case, Mr. Houston's claim that this pretrial publicity affected his sentence is speculative at best. Because Mr. Houston has not shown that it was objectively unreasonable not to seek a change of venue or that counsel's decision resulted in an unfair sentencing proceeding, we conclude that this claim of ineffective assistance of counsel fails.
¶ 100 Mr. Houston next argues that his counsel was ineffective when he failed to object, move to strike, or seek a curative instruction to address the testimony from John Ford, an assistant director with the Utah Department of Corrections. Mr. Ford testified that if Mr. Houston was sentenced to life with parole, there was a chance that Mr. Houston could be released before serving at least a twenty-year prison term.
¶ 102 On cross-examination, the prosecutor asked Mr. Ford whether the Board of Pardons could release Mr. Houston before he served twenty years in prison if the jury chose to sentence him to life with parole. Mr. Ford responded, "I don't think [the Board of Pardons] would ever consider doing that. Unless there's a medical [emergency] or unless [the defendant] is no longer a threat." After this comment, the prosecutor and Mr. Ford had the following exchange:
¶ 103 To emphasize the unlikelihood of a release from prison before Mr. Houston served at least twenty years, Mr. Houston's counsel asked on redirect: "It was asked whether or not I guess in theory somebody could be released prior to 20 years. In theory that's possible, but not likely?" Mr. Ford responded, "Not likely." Mr. Houston's counsel then asked, "Especially where you need a three-person majority [of the Board of Pardons] and you indicated that it's most likely that the person will spend much more than the 20 years in prison?" Mr. Ford responded, "That's correct."
¶ 104 Mr. Houston argues that counsel was ineffective in responding to Mr. Ford's testimony. Specifically, Mr. Houston argues that counsel should have objected during the prosecutor's cross-examination of Mr. Ford, and that by bringing the issue back up on redirect, counsel only reinforced to the jury that Mr. Houston's early release was a viable possibility. We find nothing ineffective or prejudicial about Mr. Houston's counsel's response to Mr. Ford's testimony.
¶ 105 A formal objection and request for a curative instruction is not the only objectively reasonable response to unexpected or unfavorable testimony.
¶ 106 We further conclude that Mr. Houston has failed to demonstrate any prejudice resulting from his attorney's response to Mr. Ford's testimony. Before sentencing, the judge instructed the jury to disregard any testimony about possible early release: "[Y]ou are not to take into account any actions the Board of Pardons and Parole might take in the future. Future decisions of the Board are merely speculative and are irrelevant to a jury's determination of an appropriate sentence." This instruction assures us that any improper weight that the jury may have assigned to this line of questioning was
¶ 107 Mr. Houston's next ineffective assistance of counsel argument stems from his counsel's failure to object to a series of jury instructions. Mr. Houston claims that by not objecting to these instructions, counsel allowed the jury to engage in an improper double counting of aggravating factors during sentencing. We disagree.
¶ 108 Jury instruction number 13 states in relevant part:
Jury instruction number 14 states that "[t]he fact that [Mr. Houston] has pled guilty to the crime of Aggravated Murder is not an aggravating circumstance.... However, you may consider as aggravating circumstances the matters that were presented as aggravating circumstances in the charge against the defendant." And finally, jury instruction number 15 lists "rape" and "aggravated sexual assault" as two possible aggravating circumstances the jury could consider. "Aggravated sexual assault" is defined as when an individual "in the course of a rape ..., causes bodily injury to the victim or uses or threatens the victim with the use of a dangerous weapon, such as a knife." Mr. Houston argues that these instructions created overlapping aggravating factors that skewed the weighing process in the minds of the jurors.
¶ 109 During the sentencing proceeding, the judge told the jury that it may find an aggravating circumstance if it concluded that "[Mr. Houston] intentionally or knowingly caused the death of [the victim] while ... engaged in the submission of or an attempt to commit rape or aggravated sexual assault." The judge's instructions made clear that Mr. Houston was charged with and pleaded guilty to aggravated murder because he committed either rape or aggravated sexual assault, but not both. These aggravating factors were read to the jury in the alternative, and thus, the jury could find the presence of an aggravating circumstance if it concluded that either rape or sexual assault occurred. The instruction did not direct the jury to count these as separate aggravating factors, and thus, Mr. Houston's counsel did not err by not objecting to these instructions.
¶ 110 We further conclude that even if there was some confusion surrounding aggravating circumstances in the jury instructions, any confusion did not prejudice Mr. Houston because the jury was instructed to weigh the aggravating and mitigating circumstances not in terms of numbers, but rather in terms of "how compelling or persuasive the evidence is when deciding an appropriate sentence." To emphasize the directive that the jury should not merely count up the aggravating and mitigating circumstances, the trial court stated that "any aggravating factor, standing alone, could be more persuasive than some or all of the mitigating factors in the case. On the other hand, one mitigating factor, standing alone, could be more persuasive than some or all of the aggravating factors." Therefore, even if Mr. Houston is correct in his assertion that the jurors counted the rape and sexual assault as two separate aggravating factors rather than finding the presence of one or the other, the jurors' ultimate decision was still based on what they found most compelling or persuasive considering the totality of the circumstances, not the mere number of aggravating factors present in the case. And in evaluating Mr. Houston's claim of prejudice, we must proceed "on the assumption that the decision-maker
¶ 111 Finally, Mr. Houston argues that we should reverse his sentence under the cumulative error doctrine because the ineffectiveness of counsel alleged above should undermine our confidence in the sentence. To evaluate a cumulative error claim, "we consider all the identified errors, as well as any errors we assume may have occurred."
¶ 112 It is beyond contention that Mr. Houston's case is tragic. This is an extremely uncommon case where the jury, considering the mitigating circumstances inherent to Mr. Houston's youth, nevertheless concluded that life without the possibility of parole was the appropriate sentence for the crime committed. We hold that Mr. Houston properly brought constitutional challenges to his sentence under Utah Rule of Criminal Procedure 22(e); however, we conclude that each of his claims fails. We also hold that Mr. Houston has failed to demonstrate that he received ineffective assistance of counsel. We therefore affirm the jury's sentence of life in prison without the possibility of parole.
Associate Chief Justice LEE, concurring in part and concurring in the judgment:
¶ 113 I concur in the opinion of the court in part and concur in the judgment affirming the conviction entered against Mr. Houston. I write separately, however, to express my disagreement with the majority on two principal points: (1) I would not deem Houston's challenge to his sentence to be properly presented under rule 22(e) of our rules of criminal procedure (but instead subject only to review for plain error); and (2) I would reject Houston's state constitutional challenge to his sentence based on an original understanding of the Utah Constitution, which categorically forecloses the proportionality challenge advanced in this case.
¶ 114 Houston failed to raise a constitutional challenge to his sentence in the proceedings below. Despite that failure, the majority deems the constitutional claims advanced on appeal to be properly presented under rule 22(e) of the Utah Rules of Criminal Procedure. Supra ¶ 26. That provision expressly authorizes a court to "correct an illegal sentence, or a sentence imposed in an illegal manner, at any time." UTAH R.CRIM. P. 22(e). In recent cases, however, we have adopted limiting constructions of this rule. Most recently, in State v. Prion, 2012 UT 15, 274 P.3d 919, we noted that "rule 22(e) is based on an antecedent in the federal rules," and we limited our state rule to the traditional application of its federal antecedent. Id. ¶ 22. Specifically, Prion held that a challenge to an "illegal sentence" under rule 22(e) is limited to "instances `when the sentence imposed exceeds the statutorily-authorized limits, violates the Double Jeopardy Clause, or is ambiguous or internally contradictory.'" Id. (quoting United States v. Pavlico, 961 F.2d 440, 443 (4th Cir.1992)).
¶ 115 As the Prion opinion explained, this traditional limitation (imported from federal
¶ 116 The majority overrules this standard, replacing it with a standard allowing a "facial challenge" to the constitutionality of a sentence but foreclosing "fact-intensive," "as-applied" challenges. Supra ¶¶ 18, 23, 26. The court purports to find support for this standard in Prion and its antecedents. See supra ¶¶ 24-27 (citing Prion and also State v. Candedo, 2010 UT 32, 232 P.3d 1008; State v. Telford, 2002 UT 51, 48 P.3d 228; and State v. Brooks, 908 P.2d 856 (Utah 1995)). But none of our prior opinions adopt the formulation established today.
¶ 117 Granted, the Prion opinion explained the rationale behind this limitation in terms that emphasized the downsides of opening the door to unlimited challenges to the constitutionality of a sentence. Our opinion warned, for example, of the abuse and anomaly that would ensue if our law "elevate[d] challenges to sentencing proceedings over parallel challenges to the guilt phase of a trial." Prion, 2012 UT 15, ¶ 20, 274 P.3d 919. And we cautioned specifically against "a fact-intensive challenge to the legality of a sentencing proceeding asserted long after the time for raising it in the initial trial or direct appeal." Id. But the quoted language was only an explanation of the policy basis for the standard we clarified in Prion; it was not the standard itself.
¶ 118 The Prion standard, rather, was the traditional formulation we imported from longstanding cases interpreting the federal rule incorporated into our rule 22(e) — encompassing only "instances `when the sentence imposed exceeds the statutorily-authorized limits, violates the Double Jeopardy Clause, or is ambiguous or internally contradictory.'" Id. ¶ 22. The majority is mistaken in its assertion that Prion "nowhere stated that we were adopting the federal limitation" as the holding of the court. Supra ¶ 24 n. 35. We did so expressly, and repeatedly. See Prion, 2012 UT 15, ¶ 21, 274 P.3d 919 (noting that "[b]oth grounds" asserted by Prion "to challenge his revised sentence are consistent with the traditional, established bases for a rule 22(e) motion," and indicating that "we accordingly reject the State's procedural argument notwithstanding our acknowledgement of the need for a narrow construction of the rule" (emphasis added)); see also id. ¶ 23 ("[Prion's] 22(e) motion ... is one that comes within the traditional bounds of the rule, and we accordingly uphold it against the State's procedural attack." (emphasis added)).
¶ 119 Our Candedo opinion cannot properly be read to support the majority's new standard. Candedo did not establish a standard dependent on the "facial" or "as-applied" nature of a constitutional challenge to a sentence. Instead, the opinion in Candedo simply reversed the court of appeals' determination that an "illegal" sentence under rule 22(e) was limited to cases "where either the sentencing court has no jurisdiction, or ... the sentence is beyond the authorized statutory range." 2010 UT 32, ¶ 10, 232 P.3d 1008 (alteration in original) (internal quotation marks omitted). And in so doing, Candedo stated generally that "if an offender's sentence is unconstitutional, the sentence is not authorized by the `judgment of conviction,' and is therefore illegal." Id. ¶ 13. On that basis, Candedo held "that the court of appeals erred in failing to reach the merits of Candedo's" constitutional challenge "because the definition of illegal sentence under rule 22(e) is sufficiently broad to include constitutional violations that threaten the validity of the sentence." Id. ¶ 14. Our holding in Candedo, moreover, did not rest on a distinction between facial and as-applied challenges to a sentence.
¶ 121 Our earlier decision in Telford is to the same effect. There we acknowledged that Telford challenged his sentence "on both per se and as applied grounds," 2002 UT 51, ¶ 2, 48 P.3d 228; noted that rule 22(e) is a narrow exception to the rule of preservation, allowing only the "correction of manifestly illegal sentences," id. ¶ 5; and stopped short of defining the limiting standard (of what is "manifestly illegal") because the claims at issue clearly failed on their merits, id. ¶ 6 (rejecting claims under the Sixth Amendment and article I, section 12 of the Utah Constitution on the ground that these provisions provided "no articulable basis for attacking [Telford's] sentence").
¶ 122 The majority also cites State v. Brooks, 908 P.2d 856 (Utah 1995), in support of its new standard, supra ¶ 27, but the Brooks opinion is in line with the approach in Telford and Candedo. As the majority indicates, the Brooks opinion states that "nothing is to be gained by remanding the case to the trial court" when "the pertinent facts are undisputed and a purely legal question with respect to which the trial court has no discretion remains to be decided." 87 Cal.Rptr.2d 132, 980 P.2d at 860. But the Brooks opinion does not adopt the facial/as-applied distinction embraced by the majority. It simply holds that rule 22(e) may sometimes "permit[] the court of appeals to consider the legality of a sentence even if the issue is raised for the first time on appeal," while rejecting the applicability of the rule in the context of a claim that "[i]n substance" challenges the underlying conviction and not the sentence. Id. (explaining that Brooks's claim, while styled as a challenge to his sentence, was ultimately a challenge to his "conviction for a lesser included offense").
¶ 123 I acknowledge the plausibility of the alternative readings of our prior cases advanced by the majority opinion. As that opinion suggests, the Candedo opinion may plausibly be read to have endorsed the viability of any "constitutional violations that threaten the validity of the sentence." See supra ¶ 24 n. 35. As for Telford and Brooks, those opinions may also be understood to have interpreted rule 22(e) in a manner endorsing an operative legal standard — in Telford, the notion that the rule is limited to the correction of sentences that are "manifestly illegal," 2002 UT 51, ¶ 5, 48 P.3d 228; and in Brooks, the principle that the rule encompasses challenges to sentences that are "patently illegal," 908 P.2d at 860.
¶ 124 Yet these constructions of rule 22(e) are untenable. The broad formulation in Candedo would erase our rules of preservation for challenges to sentences and thereby treat sentencing proceedings as somehow more significant than trials. That makes no sense, as even the majority opinion today recognizes. And the standards in Telford
¶ 125 Our Prion opinion filled the gap left by the competing standards set forth in our caselaw. Facing the untenably broad formulation in Candedo and the unworkable premises of Telford and Brooks, Prion was faced with the task of determining conclusively the scope of the rule 22(e) exception. And because the claims in Prion could not easily be brushed aside as meritless, we could not easily sidestep the issue of the appropriate standard under rule 22(e). In addressing this question, moreover, Prion clearly and expressly defined an objective standard under rule 22(e) — a standard, as noted above, that tied our state rule to cases under its federal antecedent, and that limited the challenges countenanced by the rule to those attacking sentences that exceed statutory limits, that violate double jeopardy, or that are ambiguous or internally contradictory.
¶ 126 This holding was significant. It established an objective, historically rooted limitation on the broad terms of rule 22(e) — a limitation that was essential to preserving the policies and domain of the doctrine of preservation, and of avoiding the absurdity of a regime that would preference constitutional challenges to sentences over constitutional challenges to underlying convictions. See id. ¶ 20 (warning of the prospect of "abuse" of a broad standard under rule 22(e), which would undermine the policies behind the law of preservation and would "elevate challenges to sentencing proceedings over parallel challenges to the guilt phase of a trial").
¶ 127 Our decision in Prion was simple, straightforward, and unanimous. I would reaffirm it and apply it here. And I would accordingly deem Houston's challenges to his sentence uncovered by rule 22(e), as none of them involve a claim that his sentence exceeded statutory limits, violated double jeopardy, or was ambiguous or internally contradictory. Thus, I would analyze Houston's constitutional challenges to his sentence under a standard of plain error review, which is the standard that applies to an unpreserved challenge to a sentence that is not covered by rule 22(e).
¶ 128 I would also observe that the court's analysis is itself unfaithful to the standard it postulates. Some of Houston's challenges to his sentence seem to be "as-applied" challenges. See supra ¶¶ 30-32 (addressing Houston's Apprendi challenge); supra ¶¶ 49-51 (addressing Houston's Unnecessary Rigor Clause challenge). These claims clearly implicate a degree of fact-intensive analysis. Even "facial challenges," moreover, may require fact-intensive analysis, in that such challenges require a litigant to "establish that no set of circumstances exists under which the [statute] would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).
¶ 129 The back-and-forth between the majority and dissenting opinions is illustrative. The dissent cites extensive social science research in support of its conclusion that Houston's life-without-parole sentence is incompatible with the standard of proportionality that it advances. Infra ¶¶ 258-269 (cataloguing social science research on the nature of juvenile cognitive functions and its impact on principles of retribution and rehabilitation). And the majority offers responses similarly invoking social science material. Supra ¶¶ 58-59 (addressing the special status of minors based on "science and social science research, including longitudinal studies and brain mapping"). With this background, it seems apparent that the cruel and unusual punishment challenge asserted by Houston is a fact-intensive one. For me, this underscores the untenable nature of the standard adopted by the court today. In time the court will be required to reject it, and replace it with a more workable one. I would avoid that problem by retaining the standard we articulated in Prion.
¶ 130 Finally, I would register a plea that we revisit this issue immediately through our rulemaking process. Our law as it stands under rule 22(e) as written is confusing, fuzzy, and perverse. The confusion is in the terms of the rule. The rule as it stands is a trap for an unwary litigant. We should not retain a rule that says one thing and means another. The fuzziness is in the court's standard as articulated today. There is no clear, established distinction between "facial" and "as-applied" challenges to a sentence.
¶ 131 The majority's standard under rule 22(e) should not stand. We should amend the rule to address the significant problems that are highlighted by today's opinion.
¶ 132 For the above reasons, I would address Houston's constitutional claims under a plain error standard of review. And I would reject all of them under that standard, as Houston has not asserted — and cannot conceivably claim — that the sentence imposed runs afoul of established legal standards. See, e.g., State v. Nielsen, 2014 UT 10, ¶ 58, 326 P.3d 645 (noting that for an error to be "plain" it must be legal in nature, and an "obvious" error "not reasonably in dispute" (internal quotation marks omitted)).
¶ 133 That is as far as we need to go to resolve this case. Because my colleagues see the matter differently, however, and proceed to address the merits of Houston's claims as if they were covered by rule 22(e), it seems appropriate for me to meet their analysis on its own terms. In so doing, I would first note that assuming rule 22(e) to apply to Houston's claims, I would concur in the majority's analysis of Houston's federal constitutional claims. See supra ¶¶ 29-63, 69-108.
¶ 135 Houston's state constitutional claim is another matter. To the extent Houston is challenging his sentence under article I, section 9 of the Utah Constitution, it is our prerogative and responsibility to articulate the applicable legal standard. And on that point my grounds for rejecting Houston's constitutional challenge to his sentence extend beyond those set forth in the majority opinion.
¶ 136 Unlike the majority, I would not assume that the Utah Cruel and Unusual Punishments Clause incorporates a standard of proportionality authorizing appellate courts to second-guess a lawfully imposed sentence on grounds of excessiveness. Supra ¶ 64.
¶ 137 Instead, based on the original meaning of the text of article I, section 9, I would conclude that the Utah Constitution forbids only those modes of punishment that were repudiated as "cruel" at the time of the adoption of this provision and that are "unusual" in the sense of being contrary to established practice. And I would accordingly reject Houston's state constitutional claim on grounds narrower than those embraced by the majority.
¶ 138 First, I would repudiate the dicta in this court's prior interpretations of article I, section 9, which articulate an unworkable standard and accordingly do not merit deference under the doctrine of stare decisis.
¶ 139 In State v. Herrera, 1999 UT 64, ¶ 39, 993 P.2d 854, this court asserted that the Utah Constitution's prohibition of cruel and unusual punishments encompasses a principle of proportionality. In the Herrera court's words, "a criminal punishment is cruel and unusual" under article I, section 9 "if the punishment is so disproportionate to the offense committed that it shock[s] the moral sense of all reasonable men as to what is right and proper under the circumstances." Id. ¶ 33 (alteration in original) (internal quotation marks omitted).
¶ 140 A threshold question for me is whether to afford stare decisis deference to the standard set forth in Herrera. Such deference is a presumptive starting point. See Austad v. Austad, 2 Utah.2d 49, 269 P.2d 284, 290 (1954). And for good reason. "The doctrine of stare decisis is ingrained in our law and is entitled to serious consideration." Id. "The reason underlying [this doctrine] is that people should know what their legal rights are as defined by judicial precedent, and having conducted their affairs in reliance on such rights, ought not to have them swept away by judicial fiat." Id.
¶ 141 Yet the presumption of stare decisis is rebuttable. And it is rebutted where its reliance-based justification is not implicated, as where the precedent in question adopted a standard that is vague or unworkable. State v. Menzies, 889 P.2d 393, 399 (Utah 1994). I would decline to defer to the Herrera standard on two principal grounds.
¶ 142 First and most fundamentally, no majority opinion of this court has ever employed a state standard of proportionality that is distinct from the federal standard. Herrera articulated a state standard, but it did so in a manner that simply parroted the governing federal standard. Thus, in applying the above-quoted standard of proportionality, the Herrera court cited precedent applying the federal standard and concluded that the federal standard "appl[ied] with equal force to our consideration of Herrera's claims under the cruel and unusual punishment[s] clause of the Utah Constitution." 1999 UT 64, ¶ 38, 993 P.2d 854.
¶ 143 In support of the standard it employed, the Herrera court cited State v. Mace, 921 P.2d 1372, 1377-78 (Utah 1996). 1999 UT 64, ¶ 38, 993 P.2d 854. And the "cruel and unusual punishments" analysis in Mace is expressly and exclusively restricted to the Eighth Amendment. Mace, 921 P.2d at 1376 ("Mace has not separately briefed his state constitutional claim, and we do not reach it.").
¶ 144 There is one other authority cited in Herrera for the state standard of proportionality that it adopted. See Herrera, 1999 UT 64 ¶ 33, 993 P.2d 854 (citing State v. Gardner, 947 P.2d 630, 633 (Utah 1997)). But the cited portion of Gardner is to an opinion that was in the minority on that point-an opinion of Justice Durham, joined only by Justice Stewart. See Gardner, 947 P.2d at 653. A majority of the court declined to embrace the Gardner court's state constitutional analysis. See id. (opinion of Zimmerman, A.C.J., expressing the view that the case could be dealt with on federal grounds, while declining to "reach the Utah constitutional issues dealt with by Justice Durham so sweepingly and at such length"); id. at 657 (opinion of Russon, J., joined by Howe, J.) (indicating the view that the sentence in question was constitutional, while asserting that the state constitutional question was not properly before the court given that the defendants "presented their oral arguments solely under the Eighth Amendment to the United States Constitution").
¶ 145 Thus, no majority of this court has ever adopted an independent standard of proportionality under article I, section 9 of the Utah Constitution. For the most part we have simply conflated the state and federal standards and treated them as indistinguishable — a determination that gives no independent significance to the state standard, and thus no basis for stare decisis reliance. And the sole exception to that rule is Gardner, in which a majority of the court refused to embrace any independent state standard. For that reason this is a case where the presumption in favor of stare decisis deference is rebutted, as no litigant could properly identify any independent standard under article I, section 9 that goes beyond a restatement of the binding federal standard.
¶ 146 The second reason for rejecting Herrera is that the standard it identifies is a hazy and unworkable one. This is another ground rebutting the presumption of stare decisis.
¶ 147 This problem is highlighted by the formulation set forth in the dissenting opinion in this case. Quoting the Nevada Supreme Court, the dissent proposes a standard of proportionality that would turn "`largely, if not entirely, upon the humanitarian
¶ 148 For the above reasons, I would not feel bound to follow our prior pronouncements on the meaning of article I, section 9. Instead, I would take a fresh look at the important question of the meaning of the Utah Cruel and Unusual Punishments Clause. In so doing, I would employ an originalist method of interpreting the Utah Constitution.
¶ 149 "Our state and federal constitutions are not just supreme; they are organic or constitutive, in that they establish the fundamental ground rules for lawmaking and fixed bulwarks against potential tyrannies of the majority." State v. Walker, 2011 UT 53, ¶ 35, 267 P.3d 210 (Lee, J., concurring). The founding purpose of the U.S. Constitution was to "form[] the fundamental and paramount law of the nation," by establishing "certain limits not to be transcended" and "designed to be permanent." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-77, 178, 2 L.Ed. 60 (1803) ("[T]hat those limits may not be mistaken, or forgotten, the constitution is written."). And the Utah Constitution serves a similar function. It establishes the foundations of our state government, and the fundamental rights of our citizens.
¶ 150 This is the premise of originalism in constitutional interpretation. We implement the principles of the constitution as originally adopted because that is the very point of having a written constitution. When judges seize the discretion to amend and adapt the provisions of the constitution, those principles cease to be the "paramount law of the nation." Id. at 177. Or at least they can no longer be thought of as "permanent" rules that are "not to be transcended." Id. at 176. Thus, "originalism is not just a wise starting point; it is the beginning and end of the judge's function, and an essential limitation on judicial power." Walker, 2011 UT 53, ¶ 34, 267 P.3d 210 (Lee, J., concurring).
¶ 151 The originalist understands the value — and even the inevitability — of adaptation of the law over time. Thus, the case for originalism is not, as is sometimes assumed, an insistence that the founding generation had a monopoly on wisdom.
¶ 152 These and other forms of legal adaptation refute a common critique of originalism — that it shackles society to rule by a "dead hand."
¶ 153 Thus, the words "cruel and unusual" "must be taken to mean what they meant to the minds of the voters of the state when the provision was adopted." Tintic Standard Mining Co. v. Utah Cnty., 80 Utah. 491, 15 P.2d 633, 637 (1932). This is the approach to constitutional interpretation that this court has embraced — with a few notable exceptions
¶ 155 A constitution rooted in "evolving standards" arising out of a judge's "humanitarian instincts" is no constitution at all. Or at least it is not a "written" constitution capable of "form[ing] the fundamental and paramount law of the nation," or of establishing "certain limits not to be transcended" and "designed to be permanent." Marbury, 5 U.S. (1 Cranch) at 176, 177.
¶ 156 As judges we take an oath to uphold and defend the constitution.
¶ 157 I would accordingly reject the "evolving" anti-originalist approach endorsed by the dissent. Instead, I would adopt an interpretation of article I, section 9 rooted in the understanding of this provision that prevailed in the late nineteenth century. For reasons explored below, I would conclude that that understanding does not deputize the courts to second-guess punishments they deem excessive or lacking in proportionality, but only to proscribe methods of punishment historically rejected as barbaric or torturous. I would base that conclusion on the text and structure of article I, section 9; the history and understanding of this provision's federal and state counterparts at the time of its adoption in the late nineteenth century; and the drafting history and post-ratification history of this provision.
¶ 158 Article I, section 9 provides that "[e]xcessive bail shall not be required; excessive fines shall not be imposed; nor shall cruel and unusual punishments be inflicted."
¶ 159 The first cue from the terms of this provision is structural. In its first two clauses, article I, section 9 expressly calls for proportionality review — by proscribing "[e]xcessive bail" and "excessive fines." The essence of excessiveness, after all, is comparison.
¶ 160 Significantly, however, section 9 limits review of a criminal punishment's excessiveness to bail and fines. For punishments, the Utah Constitution (like the Eighth Amendment) says nothing of excessiveness; it prohibits only those punishments that are "cruel and unusual." That is significant. Where three sets of parallel clauses use two distinct formulations, the clear implication is that a difference is intended. The qualifiers "cruel and unusual" would be "an exceedingly vague and oblique way" of communicating what article I, section 9 communicates directly in the two preceding clauses — proportionality. See Harmelin v. Michigan, 501 U.S. 957, 977, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (lead opinion of Scalia, J.) (offering a parallel conclusion under the U.S. Constitution).
¶ 161 Clearly "cruel and unusual" is not the same as "excessive." The relevant (nineteenth century) sense of "cruel" is "[d]isposed to give pain," "barbarous." WEBSTER'S COMMON SCHOOL DICTIONARY 82 (1892).
¶ 162 "Excessive[ness]," on the other hand, is an unmistakable reference to the principle of proportionality. Historically, this term was understood to mean "[b]eyond any given degree, measure or limit, or beyond the common measure or proportion" and "[b]eyond the laws of morality and religion, or beyond the bounds of justice, fitness, propriety, expedience or utility." WEBSTER'S AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 314 (3d ed. 1830) (emphasis added); see also Webster's Common School Dictionary 118 (defining "excess" as "intemperance; the amount by which one thing exceeds another"). This underscores the structural point highlighted above. Where article I, section 9 employs a term encompassing proportionality review in two of its clauses but not in the
¶ 163 The dissent deems this distinction "unnatural," "incongruous," and "`anomalous.'" Infra ¶ 224 (quoting Solem, 463 U.S. at 289, 103 S.Ct. 3001). And, citing cases interpreting the Eighth Amendment of the U.S. Constitution, the dissent asserts that "[t]he Supreme Court has long held ... that... the Eighth Amendment prohibits disproportionate punishments." Infra ¶ 217 (citing Weems v. United States, 217 U.S. 349, 366, 30 S.Ct. 544, 54 L.Ed. 793 (1910); Solem, 463 U.S. at 290, 103 S.Ct. 3001; O'Neil v. Vermont, 144 U.S. 323, 331-32, 339-40, 12 S.Ct. 693, 36 L.Ed. 450 (1892) (Field, J., dissenting)). I disagree on both points. As to precedent, the cases endorsed by the dissent have been called into question more recently. See supra ¶ 134 n. 5 (describing the impact of the opinions in Harmelin on the analysis in Solem). The lead opinion in the court's more recent pronouncements under the Eighth Amendment, moreover, persuasively refutes the supposed "anomal[y]" of limiting the excessiveness inquiry to the terms with which it is connected (bail and fines):
Harmelin, 501 U.S. at 978 n. 9, 111 S.Ct. 2680 (lead opinion of Scalia, J.).
¶ 164 This is entirely in line with our Utah caselaw, which has long embraced the canon of independent meaning (or, in other words, a presumption against superfluous language). See, e.g., Hi-Country Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶ 24, 304 P.3d 851; Vota v. Ohio Copper Co., 42 Utah. 129, 129 P. 349, 353 (1912). Under this canon, the Cruel and Unusual Punishments Clause should not be presumed to be superfluous. It should be assumed to have independent meaning. And in order to give it such meaning, we must presume that it does more than restate the bar on "excessive fines" in more general terms.
¶ 165 For these reasons, the language and structure of the Utah Constitution are incompatible with the proportionality standard embraced by the dissent. Instead, the terms of this provision appear to be directed at a standard focused on the question whether a punishment is one that is both "barbarous" or "disposed to give pain" and "uncommon" or "rare."
¶ 166 This view is confirmed by evidence of the original public meaning of the Utah Cruel and Unusual Punishments Clause and of its federal and English antecedents. Article I, section 9 traces its roots to a parallel provision in the U.S. Constitution's Eighth Amendment.
¶ 167 This background highlights three additional historical sources that inform my understanding of the meaning of article I, section 9: (1) the English origins of the principle of cruel and unusual punishments, (2) the original understanding of the federal Cruel and Unusual Punishments Clause, and (3) the understanding prevailing at the time of the adoption of the Utah Constitution. All three sources are incompatible with the principle of proportionality endorsed by the dissent, and point instead toward a prohibition of modes of punishment that are unprecedented in their barbarous nature.
¶ 168 I do not doubt that the "maxim that the punishment must fit the crime" is a matter "foundational" to any "reasoned system of criminal justice." Infra ¶ 214. But the question presented does not concern the wisdom or general applicability of this "venerable principle," infra ¶ 214, as a matter of aspirational public policy. Instead, the question is whether and to what extent this principle is incorporated in the terms of the Cruel and Unusual Punishments Clause. And that question must be answered by reference to the original meaning of the operative terms of the constitution.
¶ 169 The quest for original meaning is not simply a search for deeply embedded historical values. Again, the premise of originalism is not that a dusty tome is more worthy of respect than a modern one, but that a written constitution is aimed at cementing established principles in place unless and until they are repealed or amended. See supra ¶¶ 148-152. So the venerable historical sources cited in the dissent — see infra ¶¶ 214-15 (quoting the Code of Hammurabi, Leviticus, Plato, and Cicero) — are ultimately beside the point. The fact that sages of centuries past embraced proportionality in sentencing tells us little about the doctrine embedded in the U.S. Constitution in 1789, or the Utah Constitution in 1896. (And, in any event, the quoted provisions speak only to general aspirational policy of proportionality in criminal punishment; we undoubtedly have long embraced that general policy in the United States, but that doesn't mean that our constitutional law requires our judges to enforce such a principle as against legislatively endorsed punishments.)
¶ 170 To derive an original understanding of the constitution, we must consider its text and legal underpinnings. The Cruel and Unusual Punishments Clause borrows terms and concepts from the English Bill of Rights. Compare An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown, 1 W. & M., 2d sess., ch. 2 (Dec. 16, 1689) ("That excessive bail ought not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."), with U.S. CONST. amend. VIII ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."). So the starting point for any historical study of the Eighth Amendment is an inquiry into the understanding of that provision that prevailed historically.
¶ 171 In its initial invocations of the principle of proportionality, the United States Supreme Court proceeded in open disdain for the original meaning of the Eighth Amendment. In Weems v. United States, for example, the Court openly acknowledged that it was embracing a "progressive" legal standard that was "not fastened to the obsolete." 217 U.S. at 378, 30 S.Ct. 544. Thus, far from attempting to connect up its view with original meaning, the Weems Court endorsed a principle that could "acquire meaning as public opinion becomes enlightened by a humane justice." Id. Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), is to the same effect. There the Court formulated the principle endorsed by the dissent in this case — a proportionality inquiry rooted in "evolving standards of decency that mark the progress of a maturing society." Infra ¶ 213 (quoting Trop, 356 U.S. at 101, 78 S.Ct. 590).
¶ 172 More recent decisions give at least a nod to history. In Solem v. Helm, a majority
¶ 173 The Solem majority, like the dissent in this case, infra ¶ 215, also cited Blackstone in support of its conclusion that the Eighth Amendment incorporated a principle of proportionality. Id. at 285, 103 S.Ct. 3001. Yet although it is true that Blackstone favored a principle under which the designated "`punishment ought always to be proportioned to the particular purpose it is meant to serve,'" infra ¶ 215 (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *12 (facsimile ed.1979) (1765-69)), the quoted provisions simply articulated aspirational legislative policy. See 4 BLACKSTONE, supra at *11 (indicating Blackstone's intent simply "to suggest a few hints for the consideration of such as are, or may hereafter become, legislators"). They do not purport to limit the discretion of the legislature or to indicate that the legislature might lack the power to impose a sentence that a court might later deem to be excessive or disproportionate. To the contrary, Blackstone went out of his way to emphasize the "right of the legislature in any country to [e]nforce it[]s own laws by the death of the transgressor." Id. And he even highlighted a key element of the case against judicial enforcement of a constitutional principle of proportionality — asserting that "the quantity of punishment can never be absolutely determined by any standing invariable rule; but it must be left to the arbitration of the legislature to inflict such penalties as are warranted by the laws of nature and society, and such as appear to be the best calculated to answer the end of precaution against future offences." Id. at *12.
¶ 174 These and other shortcomings of the originalist case for an Eighth Amendment principle of proportionality were highlighted in the lead opinion in Harmelin v. Michigan. In Harmelin, the lead opinion chides the Solem majority for "assum[ing], with no analysis" that the English Declaration of Rights' prohibition on "excessive" bail and fines extended also to "punishments." 501 U.S. at 967, 111 S.Ct. 2680. And, citing the "historical context and contemporaneous understanding of the English guarantee," the Harmelin opinion concludes that the excessiveness limitation was historically understood to be limited to bail and fines, and that the restriction on "punishments" was defined by what was "cruel and unusual" in the sense of a form of punishment aimed at inflicting pain ("cruel") and also contrary to precedent ("unusual").
¶ 175 The Harmelin opinion's basis for this conclusion was the 1685 case of Titus Oates, which was decided the year after the adoption of the English Bill of Rights. Oates was a "Protestant cleric whose false accusations had caused the execution of 15 prominent Catholics for allegedly organizing a `Popish Plot' to overthrow King Charles II in 1679." Id. at 969. Oates was "tried and convicted before the King's Bench for perjury." Id. His crime, of "bearing false witness against another, with an express premeditated design to take away his life, so as the innocent person be condemned and executed,' had, at
Harmelin, 501 U.S. at 970, 111 S.Ct. 2680 (third alteration in original).
¶ 176 Oates challenged his sentence in the House of Lords, and the Lords' opinions form the basis of the Harmelin opinion's sense of the content of the English Bill of Rights' protection against "cruell and unusuall Punishments." Id. "`Not a single peer ventured to affirm that the judgment was legal: but much was said about the odious character of the appellant,' and the Lords affirmed the judgment." Id. "A minority of the Lords dissented, however, and their statement sheds light on the meaning of the `cruell and unusual Punishments' clause." Id. Specifically, as the lead opinion in Harmelin indicated, the dissenting Lords asserted that the King's Bench, "`being a Temporal Court,'" had no authority to divest Oates "`of his canonical and priestly Habit'"; that there was "`no Precedent to warrant the Punishments of whipping and committing to Prison for Life, for the Crime of Perjury'"; and that "`said Judgments were contrary to Law and ancient Practice,'" and thus "`contrary to the Declaration ... that excessive Bail ought not to be required, nor excessive Fines imposed, nor cruel nor unusual Punishments afflicted.'" Id. at 971, 111 S.Ct. 2680.
¶ 177 In further support of this understanding of the English Bill of Rights proscription on cruel and unusual punishments, the Harmelin opinion also quoted from the discussion in connection with a bill passed by the House of Commons, which would have annulled Oates's sentence. Id. That discussion again "confirm[ed] that the `cruell and unusuall Punishments' clause was directed at the Oates case (among others) in particular, and at illegality, rather than disproportionality, of punishment in general." Id. "In all these contemporaneous discussions," the Harmelin opinion noted that "a punishment [was] not considered objectionable because it [was] disproportionate, but because it [was] `out of the [Judges'] Power,' contrary to Law and ancient practice,' without `Precedents' or `express Law to warrant,' `unusual,' `illegal,' or imposed by `Pretence to a discretionary Power.'" Id. "Moreover," the opinion noted that "the phrase `cruell and unusuall' [was] treated as interchangeable with `cruel and illegal,'" such that "the `illegal and cruell Punishments' of the Declaration's prologue... are the same thing as the `cruell and unusual Punishments' of its body." Id. at 973 (fourth alteration in original).
¶ 178 The dissent takes issue with this description of the history of Oates's trial, highlighting statements in the House of Lords that all thought "such an extravagant Judgment ought not to have been given, or a Punishment so exorbitant inflicted on an English Subject," or in the House of Commons that members described the sentence as "excessive" and "extravagant." Infra ¶ 234. It also cites the work of one legal scholar who has concluded, in part based upon his reading of the Oates materials, that the "English Cruell and Unusuall Punishments Clause was originally understood to prohibit new punishments that were excessive in light of prior practice." Infra ¶ 233 (quoting John F.
¶ 179 First, it is not true that Oates's punishment was "unprecedented in its severity," as the dissent puts it. Infra ¶ 234. It is simply not the case that parts of Oates's sentence (like the flogging that would probably have resulted in death) would have been seen as disproportionate to his crime — perjury with the intent (and the result) of having fifteen innocent people executed. See Harmelin, 501 U.S. at 973 n. 4, 111 S.Ct. 2680 (Scalia, J.); see also Anthony F. Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 CALIF. L.REV. 839, 859 n. 97 (1969) (citing 4 THE DIARY OF JOHN EVELYN 445 (E. DeBeer ed.1955) (noting contemporary opinion that Oates's "punishment was but what he well deserved")); 3 THOMAS BABINGTON MACAULAY, THE HISTORY OF ENGLAND FROM THE ACCESSION OF JAMES II 304 (1898) (noting that Oates's "sufferings, great as they might seem, had been trifling when compared with his crimes"). Indeed, the reason Lord Chief Justice Jeffreys complained that "a proportionable punishment of that crime can scarce by our law, as it now stands, be inflicted upon [Oates]," Second Trial of Titus Oates, 10 How. St. Tr. 1227, 1314 (K.B.1685), is that the crime of which Oates was convicted used to be punishable by death. See 4 BLACKSTONE, supra at *196 (noting that under "the antient [sic] common law" it was "a species of killing held to be murder" to "bear[] false witness against another, with an express premeditated design to take away his life, so as the innocent person be condemned and executed"). But such punishment was discontinued and had no statutory authorization. Thus, the problem with Oates's sentence, in the view of the dissenting Lords and the House of Commons, was its unusualness or illegality.
¶ 180 Second, the Lords' and Commons' references to "excessive[ness]" may well have referred to the 2,000 marks Oates was fined, an amount that "may have been excessive" for the time period, Granucci, supra at 859, and which was undoubtedly subject to the Excessive Fines Clause of the English Bill of Rights. See Earl of Devon's Case, 11 State Trials 133, 136 (1689) (condemning a "fine of thirty thousand pounds" as "excessive and exorbitant.").
¶ 181 Finally, scholars and courts have overwhelmingly acknowledged that historical "English practice" was generally incompatible with a principle of proportionality.
¶ 182 Thus, the more careful analysis of the English origins of the Eighth Amendment indicates an understanding in line with the terms and structure of article I, section 9 — that it did not impose a principle of proportionality, but only a limitation on "cruel" forms of punishment that were "unusual" in the sense of being unauthorized by past precedent.
¶ 183 This conclusion is also confirmed by the practice and debate that prevailed in the United States at or around the time of the federal framing. In state conventions leading to the ratification of the United States Constitution, for example, an objection was raised that the Constitution (then without a Bill of Rights) "nowhere restrained" Congress "from inventing the most cruel and unheard — of punishments, and annexing them to crimes." 2 JONATHAN ELLIOT, DEBATES OF THE FEDERAL CONSTITUTION 111 (2d ed. 1854). And, in context, the reference to such "cruel and unheard-of punishments" was not about proportionality, but about form — a concern that without such a "constitutional check," Congress might be inclined to turn to cruel punishments such as "racks and gibbets," which "may be amongst the most mild instruments" imaginable. Id.
¶ 184 "The actions of the First Congress, which are of course persuasive evidence of what the Constitution means, belie any doctrine of proportionality." Harmelin, 501 U.S. at 980, 111 S.Ct. 2680 (opinion of Scalia, J.) (citation omitted). After all, "[s]hortly after proposing the Bill of Rights, the First Congress" extended the punishment of "death by hanging" on a range of crimes, including "forgery of United States securities, `run[ning] away with [a] ship or vessel, or any goods or merchandise to the value of fifty dollars,' treason, and murder on the high seas." Id. at 980-81, 111 S.Ct. 2680 (second and third alterations in original) (quoting 1 Stat. 114). Significantly, "[t]he law books of the time are devoid of indication that anyone considered these newly enacted penalties unconstitutional by virtue of their disproportionality." Id. at 981, 111 S.Ct. 2680.
¶ 185 Early American legal commentary is along the same lines. One commentator spoke of "[t]he prohibition of cruel and unusual punishments" as "mark[ing] the improved spirit of the age, which would not tolerate the use of the rack or stake, or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion." JAMES BAYARD, A BRIEF EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES 154 (2d ed. 1840). Another spoke of the Eighth Amendment's Cruel and Unusual Punishments Clause as prohibiting "[t]he various barbarous and cruel punishments inflicted under the laws of some other countries," such as "[b]reaking on the wheel, flaying alive, rendering asunder with horses, [and] various species of horrible tortures inflicted in the inquisition," such as "maiming, mutilating and scourging to death." BENJAMIN L. OLIVER, THE RIGHTS OF AN AMERICAN CITIZEN 186 (1832).
¶ 187 This same understanding of "cruel and unusual punishments" prevailed at the time of the framing of the Utah Constitution. Thus, even if there were doubt about the original meaning of the federal Cruel and Unusual Punishments Clause, the question presented here would yield a straightforward answer: Article I, section 9, as originally adopted in 1896, is not a license for judicial assessment of the proportionality of criminal punishment; it is merely a prohibition of modes of punishment that are unprecedented in their barbarousness or tendency to inflict pain.
¶ 188 State and federal courts consistently conceived of the constitutional prohibition of cruel and unusual punishments in this way,
¶ 189 This view prevailed throughout the nineteenth century, including in the decade in which our Utah Constitution was adopted. An exemplary decision was Hobbs v. State, 133 Ind. 404, 32 N.E. 1019 (1893). In that case, the Indiana Supreme Court explained that "[t]he word `cruel,' when considered in relation to the time when it found place in the bill of rights, meant, not a fine or imprisonment, or both, but such as that inflicted at the whipping post, in the pillory, burning at the stake, breaking on the wheel, etc." Id. at 1021. And, importantly, the Hobbs court went on to conclude that the prohibition of "cruel and unusual punishments" "does not affect legislation providing imprisonment for life or for years." Id.
¶ 190 This same approach was reflected in legal commentary in the era. "Punishments" were understood as "cruel when they involve[d]
¶ 191 It may be a bit of an overstatement to say that the nineteenth-century view of the courts on this point was "universal." See Harmelin, 501 U.S. at 984, 111 S.Ct. 2680 (opinion of Scalia, J.) (articulating this view); Weems, 217 U.S. at 402, 30 S.Ct. 544 (White, J., dissenting) (same). At or around the time the Utah Constitution was adopted, some courts had endorsed the view that the constitutional prohibition of cruel and unusual punishments encompassed a standard of review for proportionality of prison terms.
¶ 192 The dissent disagrees, asserting that "the preponderance" of courts in the nineteenth century adopted the approach it takes today. Infra ¶ 244. But in so concluding, the dissent ignores — or at least fails to refute or distinguish — a significant segment of the body of cases cited above. See supra ¶¶ 188-89 & nn. 31-35. And in any event the authority it cites does not support this conclusion. Before the dissenting opinion in O'Neil (1892) and then the majority in Weems (1910), the United States Supreme Court had never endorsed proportionality review under the Eighth Amendment. Weems and subsequent Supreme Court caselaw recognize as much. Weems, 217 U.S. at 378, 30 S.Ct. 544 (basing its holding on a "progressive" legal standard "not fastened to the obsolete" but "acquir[ing] meaning as public opinion becomes enlightened by a humane justice"); Furman v. Georgia, 408 U.S. 238, at 265-66, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring) ("Had this historical interpretation of the Cruel and Unusual Punishments Clause prevailed, the Clause would have been effectively read out of the Bill of Rights.... But this Court in Weems decisively repudiated the historical interpretation of the Clause" (internal quotation marks omitted)); id. at 322-25 (Marshall, J., concurring) (concluding that "the history of the clause clearly establishes that it was intended to prohibit cruel punishments," and then noting the tide-change in Eighth Amendment law instigated by the O'Neil dissent and the Weems majority (emphasis added)). The dissent's reading of relevant caselaw prior to Weems is, in my view, in error.
¶ 193 The dissent derides my reading of Pervear as "unduly strained" and somehow meant to sustain the proposition that the Supreme Court "was proclaiming the punishments imposed by statute to be immune from constitutional review." Supra ¶ 239. First, I am not claiming that a legislative enactment can never be cruel and unusual. And no court ever held any such thing.
¶ 194 Of the various cases cited by the dissent purportedly establishing the authority of the judiciary to overturn a disproportionate sentence, only two of them actually overturned a prisoner's sentence. See State ex rel. Garvey v. Whitaker, 19 So. 457 (La. 1896); State v. Driver, 78 N.C. 423 (1878). Of the others, moreover, none are of any material aid to its thesis. At least one of the cited cases appears to be applying proportionality analysis to a fine,
¶ 195 And finally, other cases cited by the dissent cut sharply against its position-notwithstanding the dissent's attempts to discredit them. People v. Smith, 94 Mich. 644,
¶ 196 Aldridge v. Commonwealth, 4 Va. (2 Va. Cas.) 447, 449 (Va.Gen.Ct.1824), also undermines the dissent's view. And the case cannot properly be dismissed on the "racial animus" grounds charged by the dissent. Infra ¶¶ 248-49. Granted, an element of the Aldridge court's analysis was based on the notion that the Bill of Rights did not apply to African Americans. Aldridge, 4 Va. at 449. But the court also articulated an alternative — and legitimate — ground: It expressly held that the Cruel and Unusual Punishments Clause "[had no] bearing on th[e] case" because the provision did not "control the right to determine ... the adequacy of the punishment, but [wa]s merely applicable to the modes of punishment." Id. at 450. And, in the subsequent case of Commonwealth v. Wyatt, 27 Va. (6 Rand.) 694 (Gen. Ct.1828), it is simply not true — as the dissent charges — that the court held that "sentencing judges were constitutionally restrained from sentencing an individual to an excessive number of stripes." Infra ¶ 249. Instead, the court concluded that "[t]he punishment of offences by stripes is certainly odious, but cannot be said to be unusual." Wyatt, 27 Va. at 701. Thus, as far as the discretion of the lower court went, it was restrained by "the discretion always exercised by Common Law Courts to inflict fine and imprisonment." Id. Accordingly, in the same way that Titus Oates's sentence of flogging multiple times (such that he was effectively sentenced to death for a noncapital crime) was illegal (unauthorized by statute or common law), so too would a Virginia judge be constrained in sentencing someone who operated an illegal card game from being lashed so many times that he was effectively sentenced to "death produced by the most cruel torture." Id. at 700. This analysis is entirely consistent with the approach outlined in this opinion. The court confirmed that the constitutional restraint was on the mode and legality of the punishment and sentence, not a subjective assessment of proportionality.
¶ 197 Further support for this view can be found in the most prominent cruel and unusual punishment case out of Utah in the late nineteenth century, People v. Wilkinson, 2 Utah. 158 (Utah Terr.1877), aff'd sub nom. Wilkerson v. Utah, 99 U.S. 130, 136, 25 L.Ed. 345 (1878). This case arose out of a conviction of first-degree murder and a sentence of death. The issue on appeal concerned the legality of the sentence of death — specifically, the proviso imposed by the trial judge that Wilkinson be executed by being "publicly shot." 2 Utah at 159. In challenging that sentence, Wilkinson asserted that the judge's determination of the "mode" of execution was a violation of Utah territorial statutes, the common law, and the Eighth Amendment of the U.S. Constitution. On that latter point, the Territorial Supreme Court affirmed, in terms in line with the approach set forth above:
Id. at 164.
¶ 198 The Wilkinson court's approach is entirely in line with the historically accepted
¶ 199 The United States Supreme Court's decision affirming the Territorial Supreme Court is even clearer. Far from assessing proportionality or excessiveness, the Supreme Court directed its consideration of "cruelty" to methods of punishment involving "torture," or in other words "terror, pain, or disgrace." Wilkerson, 99 U.S. at 135. Thus, in affirming the sentence of death by firing squad, the Supreme Court made reference to modes of barbarous punishment such as "where the prisoner was drawn or dragged to the place of execution," or "where he was embowelled alive, beheaded, and quartered." Id. And in conceptualizing "the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted," the Supreme Court held "that punishments of torture ... and all others in the same line of unnecessary cruelty, are forbidden by that emendment [sic] to the Constitution." Id. at 136. Because "[n]othing of the kind" was involved in this case, the Supreme Court affirmed, rejecting "the theory ... that the court possessed no authority to prescribe the mode of execution" while holding that "death by shooting" was by no means cruel and unusual punishment. Id. at 136-37.
¶ 200 I suppose it's true that the Wilkerson decision did not "define with exactness the [full] extent" of the Eighth Amendment, but held only that "punishments of torture... are forbidden" by it. Infra ¶ 242 (quoting Wilkerson, 99 U.S. at 136). But the quoted statements are the sum and substance of the court's analysis of the Eighth Amendment, and they make no reference to proportionality. And in any event, any doubts about Wilkerson were resolved in In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890), which unequivocally held that "[p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies something inhuman and barbarous, — something more than the mere extinguishment of life." Id. at 447, 10 S.Ct. 930 (emphasis added).
¶ 201 This was the prevailing public understanding of "cruel and unusual punishments" at the time of the framing of the Utah Constitution. As the author of the dissenting opinion today opined previously, "[l]egal scholars and jurists continued to accept this understanding of the phrase [`cruel and unusual'] throughout the nineteenth century despite occasional attempts to expand the cruel and unusual punishments clause to prohibit punishments deemed disproportionate to the crime." State v. Gardner, 947 P.2d 630, 636 (Utah 1997) (Durham, J., plurality opinion) (citing Granucci, supra at 842). At that time a few isolated judges and commentators had alluded to a theory of constitutional review for proportionality, but the overwhelming majority view was to the contrary — foreclosing only those barbarous methods of punishment rejected by law and common practice. And the majority approach had been endorsed by our Territorial Supreme Court in an opinion affirmed by the U.S. Supreme Court.
¶ 202 The history of article I, section 9 supports this same construction. As the dissent indicates, proposed constitutions for the State of Deseret (a series of them, from 1849 to 1872) broadly provided that "[a]ll penalties and punishments shall be in proportion to the offence." DESERET CONST. art. VII, § 8; infra ¶ 216. But this general proviso never became law. By the time we became a state, the people of Utah had abandoned the broad principle of proportionality in the proposed Deseret constitutions. They adopted instead a provision that limits the excessiveness inquiry to the imposition of bail and fines. See UTAH CONST. art. I, § 9.
¶ 203 The dissent interprets this drafting history to preserve a broad principle of proportionality. See infra ¶¶ 216-17 & n. 1. I see no basis for that conclusion. In light of the plain language of article I, section 9, I
¶ 204 Other state constitutions — including many in place at the time of the founding of this state — embrace the formulation in the proposed Deseret provision.
¶ 205 The formulation in other state constitutions — separately requiring that "[a]ll penalties... be proportioned to the nature of the offense" and prohibiting "cruel and unusual punishments" — presupposes that the two provisions have independent meaning. See, e.g., Hi-Country Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶ 24, 304 P.3d 851 (interpreting statute "under the presumption of independent meaning (and/or its converse, the presumption against surplusage)"); Vota v. Ohio Copper Co., 42 Utah. 129, 129 P. 349, 353 (1912) ("It is our duty to give effect to every word or phrase contained in [a] statute...."). That alone suggests that the prohibition of "cruel and unusual punishments" is something other than a requirement of proportionality. It also indicates, by implication, that the framers of the Utah Constitution rejected a principle of proportionality when they declined to include the proportionality provision in article I, section 9.
¶ 206 I suppose it is conceivable that the framers of the Utah Constitution were aware of the outlier cases identified above — cases embracing proportionality review as an element of the constitutional prohibition of cruel and unusual punishments. See supra ¶ 194 & n. 40. But the text our framers adopted strikes me as a highly unlikely mode of embracing this aberrational theory. And if they had intended to buck the prevailing view in other jurisdictions operating under parallel clauses, it seems likely they would have addressed the matter openly in debate — as they did on other such points of dispute.
¶ 207 That conclusion is confirmed by the post-ratification history of this provision in the wake of the U.S. Supreme Court's decision in Weems. The Weems decision was the U.S. Supreme Court's first articulation of a principle of proportionality under the Eighth Amendment of the U.S. Constitution. 217 U.S. at 380-81, 30 S.Ct. 544. As the popular reaction to Weems indicates, however, that decision was hardly viewed as confirming an established view of "cruel and unusual punishments." Instead, Weems was seen as working an innovation in constitutional law. And the reaction in Utah and elsewhere thoroughly undermines the view that the concept of "cruel and unusual punishments" was historically understood to encompass a principle of proportionality.
¶ 208 Local newspaper reports of the Weems decision in Utah noted "agitat[ion] over the action of the supreme court of the United States in inaugurating what is designated as a new era in the punishment of criminals — that of requiring punishment to be proportionate to the offense." New Era in Criminal Penology Commences, SALT LAKE HERALD, at 1 (May 9, 1910) (emphasis added).
¶ 209 At least one other data point cements this conclusion in the specific context of a claim like Houston's (challenging the imposition of a sentence of life without parole on a juvenile): At the time of the framing of the Utah Constitution and for many years thereafter, a juvenile convicted of murder
¶ 210 For all of the above reasons, the Cruel and Unusual Punishments Clause of the Utah Constitution bars only those methods of punishment that are "cruel" in the sense of being barbaric or torturous and "unusual" in the sense of being contrary to law and longstanding practice. Houston's state constitutional claim fails under this standard.
¶ 211 Houston does not — and cannot — complain about any torturous or barbarous form of punishment. His claim, instead, goes to the alleged excessiveness of his prison term. He alleges, specifically, that his "immaturity, vulnerability, impetuosity, and underdeveloped character render him less culpable than an adult with fully developed brain and value systems," and as a result his sentence constitutes "disproportionate punishment."
¶ 212 This is not a cognizable constitutional claim under article I, section 9. Because Houston challenges only the excessiveness of his prison term, he has not asserted a claim under the Utah Constitution as originally understood. I would reject that claim on that basis.
Justice DURHAM, dissenting:
¶ 213 I disagree with the majority's conclusion that sentencing juveniles to life without the possibility of parole (LWOP) is not cruel and unusual under article I, section 9 of the Utah Constitution. In my view, the diminished culpability of juveniles, combined with the exceeding harshness and irreversible nature of LWOP, makes this sentence unconstitutionally disproportionate and inconsistent with the "evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958).
¶ 214 Perhaps no theory of punishment is more foundational to a reasoned system of criminal justice than the maxim that the punishment must fit the crime. This venerable principle can be traced back to the Code of Hammurabi and the Mosaic codes found in the Old Testament. CODE OF HAMMURABI § 196 (c. 1770 B.C.E.) ("If a man destroy the eye of another man, one shall destroy his eye."); Leviticus 24:20 ("Breach for breach,
¶ 215 Consequently, "[t]he principle that a punishment should be proportionate to the crime is deeply rooted and frequently repeated in common-law jurisprudence." Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Indeed, the Magna Carta of 1215 guaranteed rights to proportional punishment: "A free man shall not be [fined] for a trivial offence, except in accordance with the degree of the offence; and for a serious offence he shall be [fined] according to its gravity...." J.C. HOLT, MAGNA CARTA 457 (2d ed.1992). Blackstone later elaborated that "[t]he method ... of inflicting punishment ought always to be proportioned to the particular purpose it is meant to serve, and by no means to exceed it." 4 WILLIAM BLACKSTONE, COMMENTARIES *12; see also Thomas A. Balmer, Some Thoughts on Proportionality, 87 OR. L.REV. 783, 787-88 (2008). Thus, Blackstone reasoned that the application of a disproportionately severe punishment is a form of malpractice performed by the state:
4 WILLIAM BLACKSTONE, COMMENTARIES *17-*18 (footnote omitted).
¶ 216 The early settlers of the Utah Territory intended that the "deeply rooted" common law principle of proportional punishment be constitutionally protected. In 1849, residents of what would become the Utah Territory prepared a proposed state constitution guaranteeing that "[a]ll penalties and punishments shall be in proportion to the offence." CONSTITUTION OF THE STATE OF DESERET 10 (Kanesville, Orson Hyde 1849). Constitutional conventions held in 1856 and 1862 produced proposed state constitutions containing identical guarantees of proportional punishment. Constitution of the State of Deseret, DESERET NEWS, April 2, 1856, at 30; SEN. MISC. DOC. No. 35-240, at 2, 4 (1858); H.R. MISC. DOC. No. 37-78, at 5 (1862).
¶ 217 The fundamental principle of proportional punishment was carried forward into Utah's cruel and unusual punishments clause. The draft constitutions of 1872 and 1882 and the state constitution adopted in 1895 replaced the more explicit guarantee of proportional punishment found in prior draft constitutions with language drawn from the Eighth Amendment of the U.S. Constitution:
¶ 218 Courts have cited two principal reasons for interpreting the text of the Eighth Amendment to guarantee proportional punishment. Some courts have held that the Eighth Amendment's explicit prohibitions of "[e]xcessive bail" and "excessive fines" must extend to bar excessive terms of imprisonment as "cruel and unusual." Solem, 463 U.S. at 289, 103 S.Ct. 3001. Other courts have held that disproportionately harsh sentences are both "cruel" and "unusual" within the meaning of those terms. Weems, 217 U.S. at 364, 377, 30 S.Ct. 544 (A sentence of twelve years of "hard and painful labor" for making false entries in an official document was "cruel in its excess of imprisonment and that which accompanies and follows imprisonment. It is unusual in its character. Its punishments come under the condemnation of the Bill of Rights, both on account of their degree and kind.").
¶ 219 Other states that have similar cruel and unusual punishments clauses in their constitutions have interpreted this clause to protect against disproportionate sentences. See, e.g., McDonald v. Commonwealth, 173 Mass. 322, 53 N.E. 874, 875 (1899); In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, 930 (1972). Although the interpretation given to similar or even identical language found in the federal Constitution or the constitutions of our sister states is not binding, we may look to these interpretations when construing Utah's Constitution. Soc'y of Separationists, Inc. v. Whitehead, 870 P.2d 916, 921 n. 6 (Utah 1993).
¶ 220 This court has also recognized that the cruel and unusual punishments clause of the Utah Constitution provides protections against disproportionate punishments similar to the safeguards provided by the Eighth Amendment. Thus, "[a] criminal punishment is cruel and unusual under article I, section 9 if it is so disproportionate to the offense committed that it shock[s] the moral sense of all reasonable men as to what is right and proper under the circumstances." State v. Lafferty, 2001 UT 19, ¶ 73, 20 P.3d 342 (second alteration in original) (internal quotation marks omitted). Given the deference we afford sentencing judges and the right of the legislature to mandate the maximum sentence for a given offense — so long as it does not stray beyond constitutional bounds — this type of individualized proportionality review is justifiably limited.
¶ 221 In his concurring opinion, Justice Lee argues that we should abandon our caselaw affirming that the cruel and unusual punishments clause of the Utah Constitution forbids disproportionate sentences. The concurrence asserts that both the text of this clause and the historical understanding of the
¶ 222 I, along with a majority of this court, disagree. The text of the cruel and unusual punishments clause demonstrates that disproportionate punishments — not just barbaric methods of punishment — are prohibited. Moreover, the historical understanding of the term "cruel and unusual punishments" at the time Utah adopted its constitution affirms, rather than detracts from, this reading of the text.
¶ 223 Article I, section 9 of the Utah Constitution provides: "Excessive bail shall not be required; excessive fines shall not be imposed; nor shall cruel and unusual punishments be inflicted." This section contains three parallel clauses. The first two clauses prohibit "[e]xcessive bail" and "excessive fines" and expressly incorporate the principle of proportionality. They require the amount of money a defendant may be required to deposit in security to remain free, as well as the amount in fines that a convicted individual may be required to pay, to be commensurate with the crime. The third prohibition against "cruel and unusual punishments" does not contain an explicit reference to proportionality.
¶ 224 Invoking the canon of independent meaning, the concurrence asserts that this structure indicates that the framers of the Utah Constitution intended to protect citizens from disproportionate fines, but not excessive prison sentences or the disproportionate application of the death penalty (both accepted methods of punishment in Utah). Supra ¶¶ 158-65. This structural reading of article I, section 9, however, produces an unnatural and incongruous result. A more appropriate canon of construction to apply to a parallel list of items is that of noscitur a sociis, or "it is known from its associates," which "requires that the meaning of doubtful words or phrases be determined in the light of and take their character from associated words or phrases." Heathman v. Giles, 13 Utah.2d 368, 374 P.2d 839, 840 (1962) (internal quotation marks omitted). This concept of drawing meaning from the context of associated terms has been adopted by the United States Supreme Court in interpreting the nearly identical Eighth Amendment:
Solem, 463 U.S. at 289, 103 S.Ct. 3001 (citation omitted).
¶ 225 The noscitur a sociis canon is also more appropriate because of its long-standing application to this constitutional language. It was first used in Justice Field's influential 1892 dissent in O'Neil v. Vermont, where he reasoned: "The whole inhibition is against that which is excessive either in the bail required, or fine imposed, or punishment inflicted." 144 U.S. at 340, 12 S.Ct. 693 (quoted in Weems, 217 U.S. at 371, 30 S.Ct. 544). Because this canon was applied before Utah adopted article I, section 9, it is more appropriate to apply the noscitur a sociis canon to this constitutional provision.
¶ 226 The plain meaning of "cruel and unusual punishments" reinforces this structural interpretation. The concurrence looks to several nineteenth century definitions of the word "cruel" and argues that because none of these dictionary definitions do not expressly incorporate the concept of proportionality, Utah citizens would have understood "cruel" to exclude this notion. Supra ¶ 161. Under this logic, Utahns in 1895 would not have understood a death sentence imposed for a minor infraction such as public intoxication as a "cruel" punishment because the death penalty was not deemed to be an inherently barbarous penalty. This cannot be the case. The definition of "cruel" is broad enough to
Cox v. State, 181 N.E. 469, 471 (Ind.1932) (internal quotation marks omitted).
¶ 227 The concurrence also argues that the framers of the Utah Constitution would not have understood article I, section 9's prohibition of "cruel and unusual punishments" to forbid disproportionate punishments. Supra ¶¶ 166-67. Most of the historical evidence cited by the concurrence, however, merely supports the conclusion that this phrase was traditionally understood to include barbaric modes of punishment. This evidence does not advance the theory advocated by the concurrence: that the term "cruel and unusual punishments" traditionally excluded cruelly disproportionate applications of otherwise acceptable modes of punishment. A proper historical understanding of "cruel and unusual punishments" includes both the method and the severity of punishment imposed.
¶ 228 As noted by the concurrence, supra ¶ 170, the language for Utah's cruel and unusual punishments clause originated in the English Bill of Rights of 1689, which provides "[t]hat excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted," An Act Declaring the Rights and Liberties of the Subject and Setleing the Succession of the Crowne, in 6 STATUTES OF THE REALM 143 (1819). The concurrence also correctly notes that we may glean some understanding of the original meaning of "cruel and unusual punishments" from the Titus Oates case.
¶ 229 When King James II ascended to the throne, he had Oates tried for perjury for falsely accusing prominent English Catholics of organizing a "Popish Plot" to overthrow his brother, King Charles II. Harmelin v. Michigan, 501 U.S. 957, 969, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (opinion of Scalia, J.). These accusations resulted in the execution of fifteen individuals. Id. Oates was found guilty, and the court sentenced him to life imprisonment and to annually stand in pillory and be whipped through the streets of London. Id. at 970, 111 S.Ct. 2680. Shortly after James II was deposed in the Glorious Revolution of 1688 and the English Bill of Rights was passed, Oates petitioned the House of Lords to overturn his sentence. Id. Even though the Lords considered the judgment of sentence to be "erroneous" and "exorbitant," a majority of the House of Lords declined to overturn the sentence. 10 H.C. Jour. 249 (1689). Instead, the Lords deemed it sufficient to introduce a bill to "prevent ... like Judgments for the future." Id. Members of the House of Commons took up Oates's cause, however, and passed a bill urging the House of Lords to reconsider. Id. at 251.
¶ 230 The record of the proceedings before the House of Lords and the House of Commons reveals that the debate over Oates's fate was largely driven by the sectarian politics and prejudices of the time. Members of the House of Commons argued that Oates's conviction should be set aside as corrupt because the trial was called for by the recently deposed "Papist" King James II after "partial, corrupt, and unqualified Persons were returned, and served on Juries." Id. at 248. House Members also asserted that the Jesuit novices who gave testimony against Oates could not be trusted to honor their oaths as witnesses because their superiors would have instructed them to lie in order
¶ 231 As noted by the concurrence, both members of the House of Commons and the dissenting Lords also proffered a legal argument for overturning Oates's sentence based upon the recently passed English Bill of Rights. Supra ¶¶ 176-77. Given the extent to which national and religious politics pervaded this debate, however, it is somewhat difficult to discern the degree to which these political concerns colored the legal reasoning found in the record. But the comments preserved in the legislative record undoubtably provide some insight into the original meaning of the prohibition against "cruel and unusual punishments" contained in the English Bill of Rights.
¶ 232 The dissenting Lords argued that the sentence imposed upon Oates should be overturned under the cruel and unusual punishments clause of the English Bill of Rights because there were "no Precedents to warrant the Punishments of whipping and committing to Prison for Life, for the Crime of Perjury." 14 H.L. Jour. 228 (1689). Thus, they asserted that the judgment against Oates was "contrary to Law and ancient Practice, and therefore erroneous, and ought to be reversed." Id. Members of the House of Commons likewise decried the unprecedented nature of punishment, calling the sentence "illegal" and "against Law." 10 H.C. Jour. 247 (1689).
¶ 233 The lesson that the concurrence takes from these statements is that certain members of Parliament objected only to the illegal and unprecedented nature of Oates's sentence, and not the disproportionality of the punishment. Supra ¶ 177. But this is a false distinction. The punishments prescribed were unsupported by "Precedents" and were "contrary to Law and ancient Practice" because they exceeded the punishments previously meted out for similar crimes. As one legal commentator put it: "Titus Oates' Case demonstrates that the English Cruell and Unusuall Punishments Clause was originally understood to prohibit new punishments that were excessive in light of prior practice." John F. Stinneford, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause, 97 VA. L.REV. 899, 937 (2011).
¶ 234 This concern that Oates's sentence was cruel and unusual because it was unprecedented in its severity is reflected in the Parliamentary record. The dissenting Lords, who argued that Oates's sentence should have been overturned, asserted that the sentence was "barbarous, inhuman, and unchristian" because "there is no Precedents to warrant the Punishments of whipping and committing to Prison for Life, for the Crime of Perjury." 14 H.L. Jour. 228 (1689). Even the Lords in the majority, who affirmed Oates's sentence in order to prevent "so ill a Man" from serving as witness in the future, conceded that "there was not one Lord, but thought the Judgments erroneous, and was fully satisfied, That such an extravagant Judgment ought not to have been given, or a Punishment so exorbitant inflicted upon an English Subject." 10 H.C. Jour. 249 (1689) (first and second emphases added). Members of the House of Commons likewise described the sentence as "cruel and ignominious," "excessive," "severe and extraordinary,"
¶ 235 Thus the Parliamentary debates over the sentence of Titus Oates, which were conducted in the context of the recently passed English Bill of Rights, demonstrate an original understanding of "cruel and unusual punishments" that includes the concept of proportionality.
¶ 236 Of course, the meaning assigned to "cruel and unusual punishments" in the English Bill of Rights does not control the question of what this phrase means in the context of the Utah Constitution. The relevant issue is what these words meant when our Constitution was drafted and ratified in 1895. The contemporaneous precedents of (1) the U.S. Supreme Court in examining the Eighth Amendment, which is nearly identical to the relevant language of article I, section 9 and (2) state supreme courts that examined similar constitutional clauses reveal that the phrase "cruel and unusual punishments" was generally interpreted in line with its plain meaning: that disproportionately harsh punishments were cruel and unusual punishments.
¶ 237 Although the majority of the U.S. Supreme Court did not squarely address the question of whether the Eighth Amendment prohibited disproportionately harsh punishments prior to the adoption of the Utah Constitution, Supreme Court precedent indicates that the Court had assumed that a disproportionately harsh sentence was a cruel and unusual sentence.
¶ 238 The Court first addressed a proportional punishments argument under the Eighth Amendment in Pervear v. Massachusetts, 72 U.S. (5 Wall.) 475, 18 L.Ed. 608 (1866). The defendant in that case argued that his sentence of a fifty dollar fine and three months imprisonment at hard labor for the illegal sale of intoxicating liquors was "excessive, cruel, and unusual" under the Eighth Amendment. Id. at 479-80. The Court declined to resolve this claim because it held that the Eighth Amendment did not apply to state legislation. Id. The Court went on to opine, however, that even if the defendant could invoke the Eighth Amendment, the defendant's argument would fail on its merits because the sentence was not excessive: "We perceive nothing excessive, or cruel, or unusual in [the defendant's sentence]." Id. at 480. Thus, the Court implicitly recognized that excessive punishments may be cruel and unusual punishments.
¶ 239 The concurrence, however, draws a different conclusion from this opinion. The concurrence focuses on the Court's subsequent observation that the objective of liquor licencing laws is "to protect the community against the manifold evils of intemperance" and that "[t]he mode adopted, of prohibiting under penalties the sale and keeping for sale of intoxicating liquors, without license, is the usual mode adopted in many, perhaps, all of the States. It is wholly within the discretion of State legislatures." Id. The concurrence interprets this language to mean that the "mode" of enforcing liquor licensing laws is completely within the discretion of the state legislature and could never be deemed cruel and unusual so long as the legislature does not employ inherently cruel methods of punishment. Supra ¶ 188 n. 33. This reading is unduly strained. There is no indication that when the Court stated that liquor licensing laws were "wholly within the discretion of State legislatures" that it was proclaiming the punishments imposed by a statute to be immune from constitutional review. Moreover, there is no textual justification for drawing a distinction between inherently cruel methods of punishment and disproportionately cruel sentences such that the former is constitutionally prohibited while the latter is not.
¶ 240 In 1892, just three years before the Utah Constitution was ratified, the Supreme Court again addressed a challenge to the proportionality of a sentence under the Eighth Amendment. The defendant in O'Neil challenged a sentence amounting to
Id. at 339-40, 12 S.Ct. 693. A separate dissenting opinion authored by Justice Harlan and joined by Justice Brewer expressed a similar view, declaring that a sentence of fifty-four years "inflicts punishment which, in view of the character of the offenses committed, must be deemed cruel and unusual." Id. at 371, 12 S.Ct. 693.
¶ 241 For the purpose of the inquiry at issue here — the prevailing understanding of the phrase "cruel and unusual punishments" when the Utah Constitution was drafted and ratified in 1895 — it is of little importance that the opinions of Justices Field, Harlan, and Brewer are not binding precedent. The unchallenged opinion of three Supreme Court justices that a disproportionate sentence is also a cruel and unusual sentence just three years before Utah adopted its constitution is convincing evidence of how contemporaries would have understood this phrase.
¶ 242 The U.S. Supreme Court case that the concurrence relies upon, Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1878), does not contradict this understanding of "cruel and unusual punishments." See supra ¶¶ 197-99. The defendant in that case challenged the manner in which he was sentenced to be executed for first-degree murder in the Supreme Court of the Territory of Utah, arguing that the statutes in force at the time did not permit him to be executed by firing squad. People v. Wilkinson, 2 Utah. 158, 160 (Utah Terr.1877). The territorial supreme court considered sua sponte whether the manner of carrying out the execution, "death by shooting," was cruel and unusual. Id. at 164. The court concluded that death by firing squad was not cruel and unusual because it was not an unusual method and it was not any less humane than other accepted forms of execution. Id. The U.S. Supreme Court granted certiorari and considered the same constitutional question. Wilkerson, 99 U.S. at 130. The Court conceded that "[d]ifficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted." Id. at 135-36. It nonetheless concluded that, at minimum, "it is safe to affirm that punishments of torture ... are forbidden by" the Eighth Amendment. Id at 136. The Court, therefore, determined that the method of execution — firing squad — was constitutional because it was not in the vein of barbarous methods of execution sometimes used in the past, such as disembowelment or being burned alive. Id. at 135-36.
¶ 243 While Wilkerson and the preceding territorial opinion certainly affirm the principle that inherently cruel methods of punishment are proscribed by the Eighth Amendment, these opinions do not provide that this is the outer limit of the protections afforded by this amendment. The Court did not consider whether execution was a disproportionately harsh punishment for first-degree murder for the simple reason that this claim was never raised. Indeed, such an argument certainly would have been deemed frivolous in 1878.
¶ 244 The preponderance of state courts that addressed the proportional punishments question under identical state constitutional provisions agreed with the reading of "cruel and unusual punishments" expressed by Justices Field, Harlan, and Brewer in O'Neil v.
¶ 245 The state cases cited by the concurrence do not significantly undermine these contemporaneous pronouncements that a disproportionate sentence may be a cruel and unusual sentence. The concurring opinion cites several older state opinions that state the general proposition that the severity of a sentence is left to the legislature. See Commonwealth v. Hitchings, 71 Mass. (5 Gray) 482, 486 (1855) ("The question whether the punishment is too severe, and disproportionate to the offence, is for the legislature to determine."); Barker v. People, 20 Johns. 457, 459 (N.Y.Sup.Ct.1823) ("[I]t was altogether discretionary in the legislature to extend [the punishment of disenfranchisement] to other offences."). These broad pronouncements that the legislature has the discretion to determine the severity of sentences do not directly lead to the conclusion that a sentence authorized by statute could never be unconstitutionally disproportionate. Indeed, courts in both Massachusetts and New York later announced that a disproportionately severe sentence could be set aside as cruel and unusual. McDonald v. Commonwealth, 53 N.E. at 875; In re Bayard, 63 How. Pr. 73,77 (N.Y. Gen. Term 1881) (holding that "cruel and unusual punishments" may include "punishments so disproportioned to the offense as to shock the sense of the community").
¶ 246 In a terse opinion, the Michigan Supreme Court also rejected a claim that a sentence was cruel and unusual by stating that "[u]pon the legislature alone is conferred the power to fix the minimum and maximum of the punishment for all crimes." People v. Smith, 94 Mich. 644, 54 N.W. 487, 488 (1893). But just two years later the court clarified that the state legislature's power was not absolute. While acknowledging the legislature's authority to "fix the minimum and maximum of the punishment for all crimes," the court concluded that the legislative prerogative of determining the appropriate amount of punishment for a particular crime was limited by the cruel and unusual punishments clause of the Michigan Constitution:
¶ 247 The concurrence cites several — cases decided before Utah adopted its constitution that directly support the proposition that the phrase "cruel and unusual punishments" refers exclusively to the mode and not the degree of punishment. Supra ¶¶ 188-89. But these cases are of limited utility in determining the commonly understood meaning of this constitutional term, and they do not outweigh the Supreme Court and state precedent supporting proportionality review.
¶ 248 In Aldridge v. Commonwealth, 4 Va. (2 Va. Cas.) 447, 447-48 (Va.Gen.Ct.1824), a defendant challenged the constitutionality of a Virginia statute authorizing his punishment as a "`free man of color'" convicted of larceny to be whipped with thirty-nine lashes, sold into slavery, and transported beyond the borders of the United States. The court denied the defendant's constitutional challenge, arguing that the Eighth Amendment was never intended to extend to slaves or "free blacks and mulattoes." Id. at 449. The court went on to opine in dicta, however, that the constitutional prohibition against cruel and unusual punishments "was never designed to control the Legislative right to determine ad libitum upon the adequacy of punishment, but is merely applicable to the modes of punishment." Id. at 449-50.
¶ 249 The reasoning of Aldridge, however, does not reflect the common understanding of "cruel and unusual punishments" and may best be explained by racial animus. Indeed, just four years later a Virginia court contradicted Aldridge. In Commonwealth v. Wyatt, 27 Va. (6 Rand.) 694, 698 (Va.Gen.Ct. 1828), the court examined a statute permitting a judge to sentence a person guilty of operating an illegal card game to be whipped any number of times, so long as only thirty-nine stripes were inflicted at a time. Addressing an argument that the statute permitted cruel and unusual punishments, the court concluded that the statute was not unconstitutional on its face, but suggested that sentencing judges were constitutionally restrained from sentencing an individual to an excessive number of stripes. Id. at 700-701.
¶ 250 Hobbs v. State, 133 Ind. 404, 32 N.E. 1019 (1893) is likewise of limited usefulness in determining the generally accepted meaning of "cruel and unusual punishments." In addressing a challenge to a prison sentence under the Indiana Constitution, that state's supreme court stated that it had not previously analyzed the cruel and unusual punishments clause in any depth. Id. at 1020. The court therefore cited Joseph Story's treatise for the proposition that the Cruel and Unusual Punishments Clause of the U.S. Constitution prohibits the violent methods of punishment that "had taken place in England in the arbitrary reigns of the Stuarts." Id. at
¶ 251 Under its plain meaning, "cruel and unusual punishments" includes disproportionately harsh punishments. And an examination of how this phase was understood in 1895 does not reveal an interpretation that diverges from this plain meaning. At minimum, however, this court should adhere to prior precedents where we have recognized that article I, section 9 of the Utah Constitution prohibits disproportionate sentences. See Lafferty, 2001 UT 19, ¶ 75, 20 P.3d 342; State v. Herrera, 1999 UT 64, ¶ 37, 993 P.2d 854. An identical interpretation has long been applied by federal courts to the Eighth Amendment. Weems, 217 U.S. at 377, 30 S.Ct. 544. In light of this long-standing interpretation given to identical language, we should not depart from our prior holdings because it is not "clearly convinc[ing] that the rule was originally erroneous or is no longer sound because of changing conditions." State v. Menzies, 889 P.2d 393, 399 (Utah 1994) (internal quotation marks omitted).
¶ 252 Because Utah has recognized that article I, section 9 of the Utah Constitution protects against disproportionately cruel and unusual punishments, I now examine whether sentencing a juvenile to LWOP violates this constitutional protection. As we have previously recognized in State v. Lafferty that "[a] criminal punishment is cruel and unusual under article I, section 9 if it is so disproportionate to the offense committed that it shock[s] the moral sense of all reasonable men as to what is right and proper under the circumstances." 2001 UT 19, ¶ 73, 20 P.3d 342 (second alteration in original) (internal quotation marks omitted). But an individualized proportionality review under the Lafferty standard is not the only kind of constitutional proportionality analysis. Article I, section 9 also requires courts to consider whether a particular punishment is unconstitutionally disproportionate when applied to a less culpable class of individuals — in this case, juveniles.
¶ 253 The Supreme Court has recognized that the Eighth Amendment embodies two distinct types of proportionality review. First, courts may determine that a sentence is unconstitutionally disproportionate, given all of the particular circumstances of an individual case. Graham v. Florida, 560 U.S. 48, 59-60, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). This kind of review is similar to Utah's "shocks the conscience" standard. Second, the Court has recognized that certain sentences are categorically disproportionate when applied to a particular class of individuals. Id. at 60-61, 130 S.Ct. 2011; see also Roper v. Simmons, 543 U.S. 551, 575, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (prohibiting the death penalty for juveniles); Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (prohibiting the death penalty for persons with mental disabilities). This second type of proportionality review does not evaluate a particular sentencing decision, but assesses whether a specific sentence may be applied to a group of individuals with a defining characteristic that makes members of that group less culpable than the general population. Graham, 560 U.S. at 61-62, 130 S.Ct. 2011.
¶ 254 A categorical proportionality analysis is likewise warranted under article I, section
¶ 255 In conducting a categorical proportionality analysis, courts have addressed two questions: (1) whether "community consensus" favors or disfavors the application of a given penalty to a particular group and (2) whether that penalty is disproportionate based on a court's independent assessment. First, courts have asked whether statutory enactments or sentencing practices disfavor a particular punishment, indicating a consensus that the penalty is disproportionate when applied to a particular class. Graham, 560 U.S. at 66-67, 130 S.Ct. 2011 (finding a consensus against juvenile LWOP for nonhomicide offenses); Roper, 543 U.S. at 567, 125 S.Ct. 1183 (consensus against the death penalty for juveniles); Atkins, 536 U.S. at 316, 122 S.Ct. 2242 (consensus against the execution of persons with mental disabilities). Indicia of society's disapproval of a punishment suggest the penalty is disproportionate and "unusual" under the Eighth Amendment. However, "[c]ommunity consensus, while entitled to great weight, is not itself determinative of whether a punishment is cruel and unusual." Graham, 560 U.S. at 67, 130 S.Ct. 2011 (internal quotation marks omitted). The ultimate responsibility for determining whether a punishment violates constitutional protections remains the province of the courts, which must exercise "independent judgment." Id. As the Nevada Supreme Court has noted:
Naovarath v. State, 105 Nev. 525, 779 P.2d 944, 947 (1989) (internal quotation marks omitted). "The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question." Graham, 560 U.S. at 67, 130 S.Ct. 2011.
¶ 256 "To be constitutionally proportionate, punishment must be tailored to a defendant's personal responsibility and moral guilt." Harmelin v. Michigan, 501 U.S. 957, 1023, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (White, J., dissenting); accord Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) ("[T]he punishment should fit the offender and not merely the crime."); United States v. Barker, 771 F.2d 1362, 1365 (9th Cir.1985) ("In each case, a criminal sentence must reflect an individualized assessment of a particular defendant's culpability rather than a mechanistic application of a given sentence to a given category of crime."). The Supreme Court has recognized that certain categories of individuals, such as persons with mental disabilities and juveniles, must be treated differently when evaluating the constitutionality of a sentence because members of these classes are less culpable than other individuals.
¶ 257 In several recent cases, the Supreme Court has recognized that sentences appropriate for adult offenders may not be applied to juveniles. In Roper v. Simmons, the Court held that juveniles may not be subjected to the death penalty because it is "disproportionate punishment for offenders under 18." 543 U.S. at 575, 125 S.Ct. 1183. The Court subsequently held in Graham v. Florida that a juvenile could not be sentenced to LWOP for a nonhomicide crime. 560 U.S. at 82, 130 S.Ct. 2011. Finally, in Miller v. Alabama, the Court held that LWOP may not be imposed on a minor under a mandatory sentencing statute. ___ U.S. at ___, 132 S.Ct. at 2469. The Miller Court explicitly declined to consider, however, whether the Eighth Amendment categorically bars an LWOP sentence for juveniles, leaving that question open under the federal constitution. Id.
¶ 258 Roper, Graham, and Miller are founded upon the special circumstances of childhood that make juveniles less culpable and constitutionally different from adults. Miller, ___ U.S. at ___, 132 S.Ct. at 2464 ("[C]hildren are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform ... they are less deserving of the most severe punishments." (internal quotation marks omitted)); see also Thompson v. Oklahoma, 487 U.S. 815, 835, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (plurality opinion) ("[L]ess culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult."). These cases rely upon three fundamental characteristics of juveniles that separate them from adults: (1) a lack of maturity, (2) a greater vulnerability to negative influences, and (3) the fact that a juvenile's character is less fixed than an adult. Miller, ___ U.S. at ___, 132 S.Ct. at 2464. The mitigating characteristics of youth must also inform a proportionality analysis under the Utah Constitution.
¶ 259 First, juveniles are less culpable because they exhibit "a lack of maturity and an underdeveloped sense of responsibility." Id. (internal quotation marks omitted). The underdeveloped nature of a juvenile's moral compass is not merely a matter of common-sense that "any parent knows" — it is rooted in the science of brain development. Id. (internal quotation marks omitted). Due to a lack of maturity, "`adolescents are overrepresented statistically in virtually every category of reckless behavior.'" Roper, 543 U.S. at 569, 125 S.Ct. 1183 (quoting Jeffrey Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 DEVELOPMENTAL REV. 339, 339 (1992)).
¶ 260 "In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent." Roper, 543 U.S. at 569, 125 S.Ct. 1183; accord Thompson, 487 U.S. at 823, 108 S.Ct. 2687 (plurality opinion) ("Examples of this distinction [between juveniles and adults] abound in our law: in contracts, in torts, in criminal law and procedure, in criminal sanctions and rehabilitation, and in the right to vote and to hold office." (internal quotation marks omitted)). The same markers of immaturity underlying the denial of certain rights to juveniles that are enjoyed by adults support the conclusion that juveniles are comparatively less blameworthy for crimes they may commit. Thompson, 487 U.S. at 835, 108 S.Ct. 2687 (plurality opinion).
¶ 261 Second, juveniles are more vulnerable to negative influences and are generally unable to extricate themselves from crime-ridden environments. Roper, 543 U.S. at 569, 125 S.Ct. 1183. "[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage." Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). This susceptibility to negative influences is almost invariably coupled with a juvenile's inability to change his or her environment. Juveniles are dependent upon their parents or guardians for support and are unable to choose the neighborhood in which they live or, to great extent, the peers with whom they associate. ELIZABETH S. SCOTT & LAURENCE STEINBERG, RETHINKING JUVENILE JUSTICE 135 (2008). Nor do juveniles choose abusive, neglectful, or chaotic family lives that are all too often associated with criminal behavior in minors. Given their increased susceptibility to influences they cannot control, "juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment." Roper, 543 U.S. at 570, 125 S.Ct. 1183.
¶ 262 Third, a juvenile's character is less fixed than an adult and is less likely to be mired in irretrievable depravity and psychological damage. Id. Studies have shown that a majority of juvenile offenders "age out" of criminal behavior as they mature into adulthood. Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 AM. PSYCHOLOGIST 1009, 1014 (2003) ("For most teens, [antisocial] behaviors are fleeting; they cease with maturity as individual identity becomes settled. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood...."); Terrie E. Moffitt, Adolescence-Limited and Life-Course-Persistent Antisocial Behavior: A Developmental Taxonomy, 100 PSYCHOL. REV. 674, 675 (1993) ("The majority of criminal offenders are teenagers; by the early 20s, the number of active offenders decreases by over 50%, and by age 28, almost 85% of former delinquents desist from offending...."). Given the often fleeting nature of juvenile criminal tendencies, "[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption." Roper, 543 U.S. at 573, 125 S.Ct. 1183. Because the adult who serves a life sentence will likely not be the same person who committed even a heinous crime while in their youth, juveniles are less deserving of the harsh sentence of LWOP.
¶ 264 LWOP serves no rehabilitative purpose, because the defendant will never be allowed to participate in society. Miller, ___ U.S. at ___, 132 S.Ct. at 2465 ("Life without parole forswears altogether the rehabilitative ideal." (internal quotation marks omitted)). Indeed, individuals serving LWOP are often denied access to rehabilitation programs in prison for the simple reason they will never be released. Ashley Nellis, The Lives of Juvenile Lifers: Findings from a National Survey, THE SENTENCING PROJECT 23-24 (Mar.2012), http://sentencingproject.org/doc/publications/jj_The_Lives_of_Juvenile_Lifers.pdf.
¶ 265 On the other hand, an LWOP sentence does serve the penological goal of incapacitating the individual from committing future crimes — at least outside of prison. The incapacitation rationale, however, is only valid if the confined individual would commit additional crimes but for his or her incarceration. "To justify life without parole [under an incapacitation theory] on the assumption that the juvenile offender forever will be a danger to society requires the sentencer to make a judgment that the juvenile is incorrigible." Graham, 560 U.S. at 72, 130 S.Ct. 2011. As noted above, however, making a determination that an individual will always be a danger to society based on crimes committed while a juvenile is very difficult given the often transient nature of juvenile criminal tendencies. Supra ¶ 262. Absent reliable indicators that a juvenile will forever be dangerous, the goal of incapacitation is severely undermined.
¶ 266 Juvenile LWOP likewise does not adequately serve the penological goal of deterrence. "Because juveniles' lack of maturity and underdeveloped sense of responsibility... often result in impetuous and ill-considered actions and decisions, they are less likely to take a possible punishment into consideration when making decisions." Graham, 560 U.S. at 72, 130 S.Ct. 2011 (alteration in original) (citation omitted) (internal quotation marks omitted); see also Atkins, 536 U.S. at 319-20, 122 S.Ct. 2242 (the death penalty for persons with mental disabilities does not further the goal of deterrence because they often have a diminished ability to control their conduct based upon potential legal penalties). Thus, potential juvenile offenders are not likely to be deterred by the possibility of an LWOP sentence.
¶ 267 The goal of retribution also does not justify juvenile LWOP. "The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender." Tison v. Arizona, 481 U.S. 137, 149, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). Because juveniles are inherently less culpable than adults, "the case for retribution is not as strong with a minor as with an adult." Miller, ___ U.S. at ___, 132 S.Ct. at 2465 (internal quotation marks omitted). Juveniles are less blameworthy because of their immaturity, susceptibility to negative influences they cannot control, and increased capacity to reform. Supra ¶¶ 259-62. This greatly weakens society's claim to retribution-especially where the punishment involves permanent incarceration. Thus, retribution is a weak justification for juvenile LWOP. Absent sufficient justification within any of the traditional rationales for punishment, juvenile LWOP constitutes the "unnecessary and wanton infliction of pain." See Gardner, 947 P.2d at 634
¶ 268 Finally, when conducting a constitutional proportionality analysis, courts must weigh the culpability of a particular class of individuals against the severity of the penalty. In this case, juveniles are not only less culpable than adults; an LWOP sentence is disproportionate because it is a harsher penalty for juveniles than it is for adults. LWOP sentences "share some characteristics with death sentences that are shared by no other sentence[]" because "[i]mprisoning an offender until he dies alters the remainder of his life by a forfeiture that is irrevocable." Miller, ___ U.S. at ___, 132 S.Ct. at 2466 (internal quotation marks omitted). An LWOP sentence for juveniles "means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days." Graham, 560 U.S. at 70, 130 S.Ct. 2011 (alteration in original) (internal quotation marks omitted). "Under this sentence a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender." Id. An adult and a juvenile sentenced to LWOP "receive the same punishment in name only." Id.
¶ 269 Thus, in weighing the reduced culpability of juveniles against the severity of juvenile LWOP, I conclude such a sentence is unconstitutionally disproportionate under Utah's cruel and unusual punishments clause.
¶ 270 Although community consensus regarding a punishment is not determinative, it is relevant to an analysis of the constitutionality of juvenile LWOP. In gauging community consensus, the Supreme Court has looked to whether "objective indicia of society's standards, as expressed in legislative enactments and state practice, show a national consensus against a sentence for a particular class of offenders." Miller, ___ U.S. at ___, 132 S.Ct. at 2470 (internal quotation marks omitted).
¶ 271 The first indication of society's standards — legislation regarding juvenile LWOP — is inconclusive. In a vast majority of states and in the federal criminal system, sentencing laws permit juvenile LWOP.
¶ 272 In this case, the second consideration when measuring community consensus — actual sentencing practices — provides a more definite indication of consensus. "Actual sentencing practices are an important part of [an] inquiry into consensus." Id. at 62, 130 S.Ct. 2011. Thus, even in jurisdictions where legislative enactments permit a particular penalty, infrequent imposition of the punishment may nonetheless indicate popular disapproval of the punishment. Id. (infrequent imposition of juvenile LWOP for nonhomicide crimes in jurisdictions where the penalty "is permitted by statute discloses a consensus against its use"); Roper, 543 U.S. at 567, 125 S.Ct. 1183 (infrequent imposition of the death penalty on juvenile offenders contributed to the Court's conclusion that society disapproved of the practice); Atkins, 536 U.S. at 316, 122 S.Ct. 2242 (infrequent imposition of the death penalty on persons with mental disabilities indicated community disapproval). A rarely imposed sentence may also indicate the punishment is "unusual" within the meaning of the constitutional ban on cruel and unusual punishments.
¶ 273 Thus, the extreme infrequency of a juvenile LWOP sentence in Utah indicates societal disapproval of the punishment and that the sentence is "unusual" within the meaning of Utah's cruel and unusual punishments clause. Indeed, prior to Mr. Houston receiving an LWOP sentence for a crime he committed while he was a juvenile, the punishment was more hypothetical than real. Mr. Houston is the only person serving a juvenile LWOP sentence in Utah. Juvenile Life Without Parole (JLWOP), NAT'L CONFERENCE OF STATE LEGISLATURES 14 (Feb. 2010), http://www.ncsl.org/documents/cj/jlwopchart.pdf; State Distribution of Estimated 2,589 Juvenile Offenders Serving Juvenile Life Without Parol, HUMAN RIGHTS WATCH (2004), http://www.hrw.org/sites/default/files/related_material/updatedJLWOP10.09.pdf. And there is every indication that despite the fact that juvenile LWOP, as well as the death penalty before the Supreme Court declared it unconstitutional, has long been available through the juvenile transfer statute, Mr. Houston is the only juvenile offender to ever receive such a harsh sentence in Utah. Jesse Fruhwirth, To Die in Prison, STANDARD-EXAMINER, May 6, 2007, at 1A. A sentence so rarely imposed despite its availability through legislative enactment demonstrates this punishment has never garnered wide-spread approval in Utah.
¶ 274 Finally, the international consensus against juvenile LWOP confirms my conclusion that this sentence is cruel and unusual. International consensus regarding a particular penalty may be relevant in determining whether the punishment is cruel and unusual. Roper, 543 U.S. at 575, 125 S.Ct. 1183 ("[A]t least from the time of the Court's decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of `cruel
¶ 275 In the case of juvenile LWOP, the international consensus against the penalty is all but unanimous. The United States is the only country in the world that currently sentences juveniles to a life imprisonment with no chance of release. Connie de la Vega & Michelle Leighton, Sentencing Our Children to Die in Prison: Global Law and Practice, 42 U.S.F. L.REV. 983, 989 (2008). Only ten other counties have laws allowing a juvenile LWOP sentence: Antigua and Barbuda, Argentina, Australia, Belize, Brunei, Cuba, Dominica, Saint Vincent and the Grenadines, the Solomon Islands, and Sri Lanka. Id. at 990. But researchers have been unable to identify any juveniles serving an LWOP sentence in these countries, indicating that, in practice, the United States is the only nation to actually impose irreversible life-long imprisonment on minors. Id. at 990, 1004-07.
¶ 276 International treaties confirm the international community's condemnation of juvenile LWOP. The U.N. Convention on Rights of the Child (CRC), adopted by almost every nation in the world, provides that "[n]either capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age." GA Res. 44/25, Annex, U.N. GAOR, 44th Sess., Supp. No. 49 at 167, U.N. Doc. A/44/49, at art. 37(a) (Nov. 20, 1989). The United States and Somalia are the only countries that have not ratified the CRC. Connie de la Vega & Michelle Leighton, Sentencing Our Children to Die in Prison: Global Law and Practice, 42 U.S.F. L.REV. 983, 1009 (2008); Lisa S. Yun, The United States Stands Alone: An International Consensus Against Juvenile Life Without Parole Sentences, 20 S. CAL. INTERDISC. L.J. 727, 732 (2011); Jelani Jefferson & John W. Head, In Whose "Best Interests"? — An International and Comparative Assessment of U.S. Rules on Sentencing of Juveniles, 1 HUM. RTS. & GLOBALIZATION L.REV. 89, 103 (2008).
¶ 277 I agree with the majority's holding that Utah Rule of Criminal Procedure 22(e) requires this court to review Mr. Houston's unpreserved constitutional challenges to his sentence. I also agree with the majority that the cruel and unusual punishments clause of the Utah Constitution forbids disproportionate punishments — not just methods of punishment that are barbaric. Both this court's prior caselaw and an analysis of the text and history of this clause confirm that a disproportionate sentence may be both cruel and unusual.
¶ 278 I disagree, however, with the majority's conclusion that juvenile LWOP is not unconstitutionally disproportionate. Both the extreme infrequency of a juvenile LWOP sentence in Utah and global rejection of permanent incarceration for crimes committed before adulthood confirm my independent assessment that juvenile LWOP is cruel and unusual under the Utah Constitution. I would remand with instructions to administer the only other sentence available at the time of Mr. Houston's conviction: twenty years to life in prison. See UTAH CODE § 76-5-202(2) (2005); id. § 76-3-207(5)(a)-(c) (2005). Mr. Houston may well prove to be an irretrievably depraved individual, and a parole board may never deem him fit to rejoin society. Under this scenario, Mr. Houston would justifiably spend the rest of his days behind bars. I find it cruel and unusual, however, to make an irreversible determination that he should die in prison based upon even a heinous crime committed while he was a minor.
2010 UT 32, ¶ 14, 232 P.3d 1008. And in Telford, "[a]lthough we rejected Telford's separation of powers and Eighth Amendment challenges to his sentence, we reached and considered the merits of those challenges under rule 22(e)." Id. ¶ 11 (citing Telford, 2002 UT 51, ¶¶ 3-4, 48 P.3d 228) (emphasis added). We would not denigrate our holdings in those cases as "relatively unimportant." Infra ¶ 121 n. 1.
The point in invoking the federal caselaw is not to suggest that we are bound to follow it. Prion was based on the need to adopt an objective, limiting standard under rule 22(e). And the federal standard was the one we chose to fulfill that need.
It is telling that even the majority does not adopt the standard set forth in the outlier federal cases that it cites. Instead, it adopts a new one of its own making, and in so doing it repudiates a square holding that is entitled to deference.
Mace, 921 P.2d at 1377 n. 4.
A principal source for the dissent's view of originalism is the research of Professor Stinneford. See infra ¶ 233 (citing John F. Stinneford, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause, 97 VA. L.REV. 899 (2011)). I find Stinneford's historical analysis helpful on some points, but deem his thesis unsupported by the history that he cites. In any event, it should be noted that Stinneford does not endorse the freewheeling approach to proportionality endorsed by the dissent. See Stinneford, supra at 917 (criticizing the U.S. Supreme Court's "proportionality jurisprudence" as arbitrary and noting "the lack of a workable method for measuring the excessiveness of punishment"); id. at 968 ("The evolving standards of decency test has proven itself an unreliable and ineffective measure of cruelty. [And] [s]ole reliance on the Court's `independent judgment,' on the other hand, would be standardless and potentially antidemocratic." (footnote omitted)); id. at 969 (arguing for proportionality as determined by "the bounds" of the common law and prior practice).
