State Of Iowa Vs. Jordan Kevin Lamar Bruegger

• Court: Supreme Court of Iowa
• Decided: October 2, 2009
• Docket: 07–0352
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 07–0352

Filed October 2, 2009

STATE OF IOWA,

Appellee,

vs.

JORDAN KEVIN LAMAR BRUEGGER,

Appellant.

Appeal from the Iowa District Court for Sioux County, James D.

Scott, Judge.

Defendant appeals sentence for statutory rape as violating federal

and state prohibitions against cruel and unusual punishment.

SENTENCE VACATED AND CASE REMANDED WITH DIRECTIONS.

Matthew R. Metzgar and R. Scott Rhinehart of Rhinehart Law,

P.C., Sioux City, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant

Attorney General, and Coleman McAllister, County Attorney, for appellee. 2

APPEL, Justice.

In this case, we are confronted with a claim by a defendant

convicted of statutory rape that a twenty-five-year prison sentence

amounts to cruel and unusual punishment. His term of incarceration

was substantially lengthened based upon a prior incident of sexual

misconduct committed by the defendant as a juvenile. For the reasons

expressed below, we vacate the sentencing order of the district court and

remand for further proceedings.

I. Background Facts and Prior Proceedings.

According to the victim, K.B., she engaged in a sexual relationship

with the then twenty-one-year-old defendant, Jordan Bruegger, shortly

after her fifteenth birthday. K.B. considered Bruegger to be her boyfriend

and believed she was in love with him.

On January 29, 2006, K.B. and a friend were driving around

Hudson, South Dakota. Bruegger joined them in the auto cruising, but

eventually left the minors to go to a local bar. K.B. returned home

without Bruegger.

At two or three o’clock the next morning, an intoxicated Bruegger

drove his truck to K.B.’s home, appeared at K.B.’s window, and woke her.

K.B. agreed to leave with Bruegger. Eventually, K.B. and Bruegger drove

into Iowa and arrived at a gravel pit in Sioux County owned by

Bruegger’s family. Bruegger drove the truck off-road, resulting in the

vehicle becoming stuck in the mud. K.B. and Bruegger exited the mired

vehicle and attempted to walk toward a trailer at the entrance to the

gravel pit, but it was too dark and the pair returned to the truck.

After talking for a while, the two had sexual intercourse in the

vehicle. They then fell asleep in the truck. After being awoken by the

defendant’s father later that morning, K.B. and Bruegger walked to the 3

trailer, which was unlocked and unoccupied. Once in the trailer, K.B.

and Bruegger engaged in sexual intercourse on a couch and again fell

asleep.

On February 14, Bruegger was arrested by Iowa authorities. He

was charged with sexual abuse in the third degree upon Jane Doe, being

fifteen years of age, and Bruegger, being five or more years older under

Iowa Code section 709.4(2)(c)(4) (2005). The crime involved—consensual

sexual intercourse with an underage teenager—is commonly referred to

as statutory rape.

On November 22, the State moved to amend its trial information to

include a second count of statutory rape stemming from the second act

of intercourse occurring in the trailer.

One week later, the State filed a request for a preliminary ruling,

stating that it intended to use Bruegger’s Faribault County, Minnesota

“conviction” for the crime of sexual conduct in the first-degree to enhance

Bruegger’s sentence under Iowa Code section 901A.2(3). Iowa’s sentence

enhancement statute relating to sexual offenders provides that “a person

convicted of a sexually predatory offense which is a felony,” including

statutory rape, will receive an enhanced, mandatory sentence of twenty-

five years, with the person’s sentence reduced by a maximum of fifteen

percent, if the offender has a prior conviction of a sexually predatory

offense. Iowa Code §§ 901A.1, .2(3).

A person who commits the crime of statutory rape as a first

offender is subject to a prison sentence of up to ten years, with a

reduction for various good time and earned credits. Id. §§ 709.4(2)(c)(4),

902.9(4). The district court also retains discretion to sentence the

offender to less than ten years incarceration, and the offender would

likely be eligible for parole well in advance of the expiration of any 4

sentence imposed. A person convicted of a sexually predatory offense

who is subject to sentence enhancement because of a prior sexually

predatory offense, however, is subject to a much harsher mandatory

prison term of twenty-five years, without the possibility of parole for

approximately 21.25 years.

The conviction which the State intended to use to enhance

Bruegger’s sentence occurred when Bruegger was twelve years old.

Under Iowa Code section 901A.1(2), the term “prior conviction” includes

an “adjudication of delinquency.” The term “sexually predatory offense”

further includes sexual offenses which, if committed in another

jurisdiction, would constitute an equivalent offense to those covered

under Iowa law. Id. § 901A.1(f). Bruegger does not contest that the

Minnesota adjudication qualified as a prior sexually predatory offense for

purposes of Iowa’s sexual predator sentencing statute.

On January 10, 2007, the State filed a motion to amend the trial

information to add the sentencing enhancement based upon Bruegger’s

juvenile adjudication in Minnesota. On the morning of trial, the State

filed another motion to amend that was nearly identical. Bruegger did

not resist the enhancement amendment, which the court orally allowed

prior to trial.

On January 12, the jury found Bruegger guilty of sexual abuse in

the third degree as to count one (the incident in the truck), but not guilty

as to count two (the incident in the trailer). After the verdict was

rendered, Bruegger admitted to the Minnesota juvenile adjudication. As

a result of the admission, a bifurcated trial on the enhancement was not

necessary, and the jury was excused. Later that afternoon, the State

filed a supplemental trial information. This trial information made no

reference to Bruegger’s juvenile adjudication. 5

On February 12, the parties filed documents with the district court

prior to sentencing. The State filed a Minnesota court order authorizing

the release of Bruegger’s juvenile records with appropriate redactions,

the original petition filed in Minnesota on March 13, 1997, alleging that

Bruegger was delinquent under Minnesota law, a disposition order dated

September 26, 1997, adjudicating Bruegger as a delinquent, and copies

of Minnesota law relating to sexual misconduct.

In the petition filed with the Minnesota juvenile court, Minnesota

authorities alleged that Bruegger committed two counts of criminal

sexual conduct in the first-degree between October and November 1996.

The first count alleged that Bruegger engaged in sexual penetration of

another who was under the age of thirteen when Bruegger was more

than thirty-six months older than the other person. The second count

alleged that Bruegger engaged in sexual penetration of another with a

person under the age of thirteen when Bruegger had a significant

relationship with that person. The petition further alleged that Bruegger

admitted incidents of sexual touching and oral sex with the other person.

The other person allegedly stated that Bruegger laid on top of her and

rubbed his penis against her private area over her panties. The

misconduct occurred while Bruegger was babysitting a younger child.

The dispositional order revealed that Bruegger was adjudicated a

delinquent, placed in the custody of the Faribault County Human

Services, placed in a therapeutic foster home with a social service

agency, and placed on indefinite probation on the condition that he

successfully complete a social awareness program and any aftercare

recommendations.

Bruegger filed three documents with the court. These documents

included a statement from his daughter’s mother that he is a loving 6

father, did not drink, and was a good role model, a statement from his

stepfather that he was a hard worker and good father, and a letter from

his mother offering her perspective on the prior juvenile adjudication and

describing the suffering her family endured after Bruegger’s arrest.

None of these filings mattered under Iowa law. The district court

sentenced Bruegger, as required by statute, to twenty-five years

incarceration, with a mandatory minimum of eighty-five percent, a

suspended fine of $1000, a civil penalty of $200, a special sentence

committing him to the custody of the Director of the Iowa Department of

Corrections for the remainder of his life, an additional term of parole or

work release not to exceed two years, supervised electronic tracking, and

submission of a DNA sample.

After imposing sentence, the court noted: In reaching this sentencing decision, the court is following the mandates of the Iowa legislature. Our legislature has chosen to focus on sexual offenses and, I believe, in this case has produced a very harsh result. I have taken an oath to uphold the Constitution of the United States and the State of Iowa. And unless I find the statute is unconstitutional, it’s my duty to enforce that statute, and that’s what I’m required to do in this case. In my opinion this statute is not unconstitutional. However, I think it produces an unintended result of an unfairly harsh punishment for this crime of consensual sexual contact between the defendant and the victim. Bruegger filed a timely notice of appeal. On appeal, he claims that use of

his prior juvenile adjudication to enhance his sentence for statutory rape

was in error as: (1) the court lacked jurisdiction to consider the

enhancement, (2) the sentence enhancement constituted cruel and

unusual punishment, and (3) the court failed to adequately inform him of

the consequences of admitting to the prior adjudication. 7

II. Standard of Review.

A challenge to the trial court’s jurisdiction is reviewed for

correction of errors at law. State v. Oetken, 613 N.W.2d 679, 686 (Iowa

2000). A defendant may challenge an illegal sentence at any time. State

v. Parker, 747 N.W.2d 196, 212 (Iowa 2008). This court reviews

constitutional questions de novo. State v. Brooks, 760 N.W.2d 197, 204

(Iowa 2009).

III. Challenge to Subject Matter Jurisdiction.

Bruegger asserts that the district court lacked subject matter

jurisdiction to enhance his sentence. Bruegger admits that the State, in

documents filed on January 10 and 11, sought to amend the information

to allege that his offense of sexual abuse in the third degree was a second

offense for purposes of Iowa Code chapter 901A. Bruegger asserts,

however, the controlling document in this case is an additional

supplemental information filed by the State on January 12. This final

document contained no mention of the enhancement or Iowa Code

chapter 901A.

According to Bruegger, the supplemental filing controls in this

case, and because it lacks reference to the enhancement, the district

court was without authority to impose the enhancement. Bruegger relies

upon State v. Thacker, No. 05AP-834, 2006 WL 1826079 (Ohio Ct. App.

June 30, 2006), in support of his argument. In Thacker, an appellate

court held that the trial court erred by finding the defendant a violent

sexual offender at sentencing when no such specification appeared in the

indictment. Thacker, No. 05AP-834, 2006 WL 1826079, at *2.

The State counters that this case is controlled by Oetken. In

Oetken, the defendant claimed that the State filed a substituted and

supplemental trial information that did not mention his purported status 8

as an habitual offender, thereby depriving the court of jurisdiction to

sentence him as a habitual offender. Oetken, 613 N.W.2d at 686. This

court held that the substituted and supplemental trial information was

filed to comply with Iowa Rule of Criminal Procedure 6(5), which provides

that a “ ‘supplemental indictment shall be prepared for the purpose of

trial of the facts of the current offense only’ ” in cases where a prior

conviction will be used for enhancement purposes. Id. at 687 (quoting

Iowa R. Crim. P. 6(5) (now rule 2.6(5))). Failure of the supplemental

information to note the enhancement thus did not deprive the court of

jurisdiction over the enhancement. Id.

Bruegger responds that under Oetken, the State must first file a

trial information alleging the previous crime that is the basis for

enhancement and only then may file a supplemental trial information.

Bruegger argues that because the file does not contain a file-stamped

copy of an amended trial information, the holding in Oetken does not

apply.

We disagree. The record shows that on November 28 the State

requested a preliminary ruling on the issue of the sentencing

enhancement and outlined the facts related to the Minnesota juvenile

offense. Bruegger thus had sufficient notice of the State’s intent to add

the sentencing enhancement.

While it is true that the record contains no file-stamped copy of

any version of the second-amended-and-substituted trial information,

the district court at a hearing on January 12 stated that the State’s

second motion to amend the trial information, together with its proposed

supplemental information, was before the court. When asked if he

wished to be heard on the matter, Bruegger’s counsel stated, “No, Your

Honor. I think that this complies with the law. . . . I don’t have any 9

objection to it.” The court then stated that the second amended trial

information simply alleged a prior conviction and a sentencing

enhancement, that the State gave the defendant notice of its intention in

November, and that there is no unfair surprise or prejudice by the

motion. As a result, the district court sustained the motion to amend

orally.

In light of these facts, Bruegger’s claim, stripped to its essentials,

is that the failure of the State to file copies of the second-amended-and-

substituted trial information after the hearing prevents this court from

relying upon them in any way. We reject this assertion. In a number of

contexts, we have held that technical irregularities in the development of

the record do not require reversal if the record clearly shows what

transpired at trial and there was no prejudice to the defendant. See

State v. Sheffey, 234 N.W.2d 92, 95 (Iowa 1975) (holding information

may be amended by order of court before or during trial to correct errors

of form or substance); State v. Harding, 204 Iowa 1135, 1143–44, 216

N.W. 642, 646 (1927) (holding that information filed shortly before its

approval by district judge has same effect as if it had been approved and

then filed); State v. Japone, 202 Iowa 450, 455, 209 N.W. 468, 471 (1926)

(holding that failure to make amendment after leave was not prejudicial

error, where trial was conducted as if amendment had been made).

Under the circumstances presented here, we conclude that the

technical failure of the State to file an approved second-amended-and-

substituted trial information, where the motion to amend was not

resisted by the defendant and which was sustained by the district court,

does not defeat subject matter jurisdiction in this case. We further hold,

as in Oetken, that the supplemental information was simply designed to 10

comply with Iowa Rule of Criminal Procedure 2.6(5) and does not provide

Bruegger with grounds for relief.

IV. Threshold Question of Issue Preservation.

Bruegger did not claim that his sentence violated the prohibition

against cruel and unusual punishment in the proceedings below. On

appeal, he argues that he may raise the issue for the first time for two

reasons. First, he asserts that his sentence is unconstitutional, as it

inflicts cruel and unusual punishment, and thus amounts to an illegal

sentence that can be challenged at any time. Second, he asserts that the

failure of his trial counsel to raise the constitutional issue amounts to

ineffective assistance of counsel. Neither of these claims is subject to

traditional preservation of error or waiver constraints.

We first address the issue of whether Bruegger’s challenge to his

sentence as cruel and unusual punishment amounts to an attack on an

illegal sentence.1 There is substantial authority in other jurisdictions for

1Bruegger did not claim either below or on appeal that the use of his juvenile adjudication to enhance his sentence constitutes an illegal sentence because it violates due process. There is a split in the courts regarding whether juvenile adjudications may be utilized as sentence enhancements in criminal cases in light of the United States Supreme Court’s ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and its progeny. Compare United States v. Tighe, 266 F.3d 1187, 1194 (9th Cir. 2001) (holding the use of juvenile adjudications without right to jury trial violates due process of law under Apprendi), and State v. Brown, 879 So. 2d 1276, 1290 (La. 2004) (same), with United States v. Burge, 407 F.3d 1183, 1191 (11th Cir. 2005), United States v. Jones, 332 F.3d 688, 696 (3d Cir. 2003), and United States v. Smalley, 294 F.3d 1030, 1033 (8th Cir. 2002). There is also a substantial body of literature which questions, on due process grounds, whether juvenile court adjudications may be considered the same as criminal convictions for purposes of sentence enhancement statutes. Generally, the critics note: (1) the different purposes of a juvenile adjudication and the juvenile justice system as a whole, (2) the prevalence of pleas in the juvenile system, (3) the lack of a jury trial in most juvenile proceedings, (4) the difficulty of juveniles to meaningfully participate in a process they do not fully understand and do not control, and (5) the lack of incentives to thoroughly litigate in juvenile proceedings. See, e.g., Courtney P. Fain, Note, What’s in a Name? The Worrisome Interchange of Juvenile “Adjudications” with Criminal “Convictions,” 49 B.C. L. Rev. 495 (2008); Alissa Malzmann, Note, Juvenile Strikes: Unconstitutional Under Apprendi and Blakely and Incompatible with the Rehabilitative Ideal, 15 S. Cal. Rev. L. & Women’s Stud. 171 (2005); Brian P. Thill, Comment, Prior “Convictions” Under 11

such a proposition. See Defoe v. State, 750 A.2d 1200, 1201 (Del. Super.

Ct. 2000) (finding a sentence that violates the Double Jeopardy Clause

illegal); State v. Kido, 654 P.2d 1351, 1356 (Haw. Ct. App. 1982)

(considering a cruel and unusual sentence to be illegal); Randall Book

Corp. v. State, 558 A.2d 715, 719 (Md. 1989) (same); Brown v. State, 99

P.3d 489, 491 (Wyo. 2004) (finding challenge to illegal sentence to

include challenges that the sentence is unconstitutional). But see State

v. Spriggs, 754 So. 2d 84, 84 (Fla. Dist. Ct. App. 2000) (finding motion to

correct an illegal sentence not proper vehicle for bringing a cruel-and-

unusual-punishment claim); Trevino v. State, 174 S.W.3d 925, 927–28

(Tex. Ct. App. 2005) (same).

We, however, have not taken this approach. In State v. Ramirez,

597 N.W.2d 795, 797 (Iowa 1999), the defendant claimed that he was not

required to preserve error on a claim that his sentence constituted cruel

and unusual punishment. We rejected the argument, holding that the

proper avenue for considering the alleged error was through an

ineffective-assistance-of-counsel claim. Id. Similarly, in State v. Ceaser,

585 N.W.2d 192, 195 (Iowa 1998), we held a claim that a sentence was

illegal because it violated equal protection did not amount to an illegal

sentence and was governed by our normal error preservation rules.

We conclude the better view is that a challenge to an illegal

sentence includes claims that the court lacked the power to impose the

sentence or that the sentence itself is somehow inherently legally flawed,

including claims that the sentence is outside the statutory bounds or

Apprendi: Why Juvenile Adjudications May Not be Used to Increase an Offender’s Sentence Exposure if They Have Not First Been Proven to a Jury Beyond a Reasonable Doubt, 87 Marq. L. Rev. 573 (2004); Barry C. Feld, The Constitutional Tension Between Apprendi and McKeiver: Sentence Enhancements Based on Delinquency Convictions and the Quality of Justice in Juvenile Courts, 38 Wake Forest L. Rev. 1111 (2003). 12

that the sentence itself is unconstitutional. This conclusion does not

mean that any constitutional claim converts a sentence to an illegal

sentence. For example, claims under the Fourth, Fifth and Sixth

Amendments ordinarily do not involve the inherent power of the court to

impose a particular sentence. Nor does this rule allow litigants to

reassert or raise for the first time constitutional challenges to their

underlying conviction.

We further find that this course is consistent with interpretations

of the comparable federal rule. Our Rule of Criminal Procedure

2.24(5)(a), formerly rule 23(5)(a), which allows a defendant to challenge

an illegal sentence at any time is based on the pre-1966 federal rule.

Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001). As the United States

Supreme Court made clear, under the federal rule the purpose of

allowing review of an illegal sentence is “to permit correction at any time

of an illegal sentence, not to re-examine errors occurring at the trial or

other proceedings prior to the imposition of the sentence.” Hill v. United

States, 368 U.S. 424, 430, 82 S. Ct. 468, 472, 7 L. Ed. 2d 417, 422

(1962). The Supreme Court went on to note that challenges to an illegal

sentence include whether [t]he punishment meted out was . . . in excess of that prescribed by the relevant statutes, multiple terms were . . . imposed for the same offense, . . . [or] the terms of the sentence itself [were] legally or constitutionally invalid in any other respect. Id. (emphasis added).

Where, as here, the claim is that the sentence itself is inherently

illegal, whether based on constitution or statute, we believe the claim

may be brought at any time. To the extent our cases stand for a contrary

proposition, they are overruled. Because we find Bruegger’s claim a 13

challenge to an illegal sentence we will address it directly and not under

the guise of an ineffective-assistance-of-counsel claim.2

V. Cruel and Unusual Punishment Under the United States Constitution. A. United States Supreme Court Framework.

1. General approach. The United States Constitution prohibits the

imposition of “cruel and unusual” punishment. U.S. Const. amend. VIII.

The clause embraces a bedrock rule of law that punishment should fit

the crime. This basic concept stands for the proposition that even guilty

people are entitled to protection from overreaching punishment meted

out by the state. The United States Supreme Court has struggled with

the proper approach to “cruel and unusual” punishment. In recent

years, the cases of the Supreme Court have produced a multitude of

majority, plurality, and dissenting opinions.

Nonetheless, there are some principles that can be distilled from

these opinions. Although some have argued that the Cruel and Unusual

Punishment Clause is designed to address only methods of punishment,

the Supreme Court has firmly held that the Cruel and Unusual

Punishment Clause applies to a sentence for a term of years. Lockyer v.

2 We note that Bruegger raises an additional claim of ineffective assistance of counsel, namely that trial counsel was ineffective for not requiring the court to conduct a colloquy ensuring that Bruegger knowingly and voluntarily stipulated to his prior adjudication. The significance of stipulating to a prior felony conviction for recidivist sentencing purposes applies equally to stipulations of juvenile adjudications used for enhanced sentencing. In Oetken, we acknowledged that “ ‘defendant’s admission of prior felony convictions which provide the predicate for sentencing as an habitual offender is so closely analogous to a guilty plea that it is appropriate to refer to our rules governing guilty pleas . . . .’ ” Oetken, 613 N.W.2d at 687 (quoting State v. Brady, 442 N.W.2d 57, 58 (Iowa 1989)). Under the current record, however, we are unable to dispose of this ineffective-assistance-of-counsel claim. There is nothing in this record to indicate whether or not Bruegger’s counsel adequately informed him of the consequences of his stipulation. “Such evidence could be a significant part of our prejudice analysis.” State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006). This claim is thus reserved for postconviction relief. 14

Andrade, 538 U.S. 63, 73, 123 S. Ct. 1166, 1173, 155 L. Ed. 2d 144, 156

(2003); Ewing v. California, 538 U.S. 11, 20, 123 S. Ct. 1179, 1185, 155

L. Ed. 2d 108, 117 (2003). Thus, a reviewing court has the authority to

consider whether imprisonment for a term of years for a particular crime

or crimes is so excessive as to violate the Cruel and Unusual Punishment

Clause.

The Supreme Court has also emphasized that legislative

determinations of punishment are entitled to great deference. In order to

establish a claim for cruel and unusual punishment, a sentence must be

“grossly disproportionate” to the underlying crime. Rummel v. Estelle,

445 U.S. 263, 271, 100 S. Ct. 1133, 1138, 63 L. Ed. 2d 382, 389 (1980).

As Justice Rehnquist suggested, a life sentence for a parking ticket could

run afoul of cruel and unusual punishment as being grossly

disproportionate to the crime. Id. at 274 n.11, 100 S. Ct. at 1139 n.11,

63 L. Ed. 2d at 391 n.11. Strict proportionality in sentencing, however,

is not required, and a reviewing court is not authorized to generally blue

pencil criminal sentences to advance judicial perceptions of fairness.

“Severe, mandatory penalties may be cruel, but they are not unusual in

the constitutional sense, having been employed in various forms

throughout our Nation’s history.” Harmelin v. Michigan, 501 U.S. 957,

994–95, 111 S. Ct. 2680, 2701, 115 L. Ed. 2d 836, 864 (1991). While a

sentence to a term of years might be so lengthy as to violate the Cruel

and Unusual Punishment Clause, such an occurrence outside the

context of capital punishment has been “exceedingly rare.” Rummel, 445

U.S. at 272, 100 S. Ct. at 1138, 63 L. Ed. 2d at 390.

In evaluating whether a lengthy sentence is “grossly

disproportionate” under the Cruel and Unusual Punishment Clause, the

Supreme Court has developed a three-part test. Solem v. Helm, 463 U.S. 15

277, 292, 103 S. Ct. 3001, 3011, 77 L. Ed. 2d 637, 650 (1983), as

modified in Ewing, 538 U.S. at 23–24, 123 S. Ct. at 1186–87, 155

L. Ed. 2d at 118–19. The first part of the test, sometimes referred to as

the threshold test, involves a preliminary judicial evaluation of whether

the sentence being reviewed is “grossly disproportionate” to the

underlying crime. Solem, 463 U.S. at 290–91 & n.17, 103 S. Ct. at 3010

& n.17, 77 L. Ed. 2d at 649 & n.17. This preliminary test involves a

balancing of the gravity of the crime against the severity of the sentence.

Id. at 291, 103 S. Ct. at 3010, 77 L. Ed. 2d at 650. The Supreme Court

has not articulated what factors go into this initial determination, but

has stated that it is a “ ‘rare case in which a threshold comparison of the

crime committed and the sentence imposed leads to an inference of gross

disproportionality.’ ” Ewing, 538 U.S. at 30, 123 S. Ct. at 1190, 155

L. Ed. 2d at 123 (quoting Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707,

115 L. Ed. 2d at 871 (Kennedy, J., concurring in part and concurring in

judgment)).

If the threshold test has been crossed, the Supreme Court

proceeds to steps two and three. Harmelin, 501 U.S. at 1005, 111 S. Ct.

at 2707, 115 L. Ed. 2d at 871 (Kennedy, J., concurring in part and

concurring in judgment). In step two, the Supreme Court engages in

intrajurisdictional analysis, comparing the challenged sentence to

sentences for other crimes within the jurisdiction. Solem, 463 U.S. at

292, 103 S. Ct. at 3011, 77 L. Ed. 2d at 650. In step three, the Supreme

Court engages in interjurisdictional review, comparing sentences in other

jurisdictions for the same or similar crimes. Id. These last two steps

introduce objectivity into the determination of “gross disproportionality.”

The general theory under Solem, Harmelin, and Ewing seems to be

that a sentence for a term of years within the bounds authorized by 16

statute is not likely to be “grossly disproportionate” under the Cruel and

Unusual Punishment Clause. Legislative judgments are generally

regarded as the most reliable objective indicators of community

standards for purposes of determining whether a punishment is cruel

and unusual. See McCleskey v. Kemp, 481 U.S. 279, 301–02, 107 S. Ct.

1756, 1772, 95 L. Ed. 2d 262, 284–85 (1987).

While the Supreme Court, particularly in recent years, has

emphasized objective factors in analyzing cruel and unusual punishment

cases, the Court has also noted that “objective evidence, though of great

importance, [does] not ‘wholly determine’ the controversy, ‘for the

Constitution contemplates that in the end our own judgment will be

brought to bear on the question . . . . ’ ” Atkins v. Virginia, 536 U.S. 304,

312, 122 S. Ct. 2242, 2247, 153 L. Ed. 2d 335, 345 (2002) (quoting

Coker v. Georgia, 433 U.S. 584, 597, 97 S. Ct. 2861, 2868, 53 L. Ed. 2d

982, 992 (1977)).

2. Validity of enhanced sentences for recidivists. The Supreme

Court has had three occasions to directly consider the validity of lengthy

sentences under criminal statutes that impose enhanced sentences on

recidivists. In Rummel, the Court upheld a lifetime sentence—with the

possibility of parole in ten or twelve years—under a Texas three strikes

statute where the defendant’s offenses all involved nonviolent property

crimes and the monetary value of all three crimes totaled less than

$250.00. Rummel, 445 U.S. at 265–66, 284, 100 S. Ct. at 1134–35,

1144–45, 63 L. Ed. 2d at 385–86, 397. In Solem, the Court vacated a

sentence where the defendant, convicted of uttering a “no account” check

for $100, was sentenced to life in prison without possibility of parole

because of six prior felony convictions. Solem, 463 U.S. at 279–81, 303,

103 S. Ct. at 3004–05, 3016, 77 L. Ed. 2d at 642–43, 657–58. Finally, in 17

Ewing, the Court held that the theft of three golf clubs valued at $1200,

when coupled with prior nonviolent property crimes, was sufficient to

support a sentence of twenty-five years to life. Ewing, 538 U.S. at 18–20,

29–30, 123 S. Ct. at 1183–85, 1189–90, 155 L. Ed. 2d at 115–16, 123.

In a fourth case, Lockyer, the defendant was sentenced as a

recidivist to two consecutive terms of twenty-five years to life where the

final conviction consisted of stealing nine videotapes on two separate

occasions. Lockyer, 538 U.S. at 66–68, 123 S. Ct. at 1169–71, 155

L. Ed. 2d at 152–53. The defendant’s cruel-and-unusual-punishment

claim, however, was raised in the context of a federal habeas corpus

proceeding with a restricted standard of review. Id. at 69, 123 S. Ct. at

1171, 155 L. Ed. 2d at 154. The court in Lockyer declined to intervene,

noting that the sentence did not violate “clearly established law.” Id. at

77, 123 S. Ct. at 1175, 155 L. Ed. 2d at 159.

As is apparent from these cases, the Supreme Court has generally

supported harsh and severe sentences for repeat offenders even when the

later offense was nonviolent. Further, the Supreme Court has found that

incapacitation is among the legitimate penological objectives that a state

may further through long prison sentences. Ewing, 538 U.S. at 25, 123

S. Ct. at 1187, 155 L. Ed. 2d at 120; Harmelin, 501 U.S. at 999, 111

S. Ct. at 2704, 115 L. Ed. 2d at 867–68 (Kennedy, J., concurring in part

and concurring in judgment).3 3. Role of individualized determination. In Woodson v. North

Carolina, 428 U.S. 280, 303–04, 96 S. Ct. 2978, 2990–91, 49 L. Ed. 2d

944, 960–61 (1976), the Supreme Court held that in death penalty cases,

courts must engage in consideration of the character and record of the

3Incapacitation as a goal of criminal sentencing has been criticized in academia. See generally Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice, 114 Harv. L. Rev. 1429 (2001). 18

individual offender and the circumstances of the particular offense before

the death penalty may be imposed. See also Enmund v. Florida, 458 U.S.

782, 798, 102 S. Ct. 3368, 3377, 73 L. Ed. 2d 1140, 1152 (1982).

Woodson established a prerequisite legal requirement in all death penalty

cases.

The question arises whether a criminal defendant in a noncapital

case may attempt to attack a sentence as applied as constituting cruel

and unusual punishment. The question of whether a defendant may

attack a statute as applied as cruel and unusual is a different question

than that considered in Woodson, where the statute was facially invalid.

A noncapital criminal statute that does not require an individualized

determination regarding the appropriate sentence may be valid in many,

but not all applications.

In Rummel, the Supreme Court seemed to utilize an individualized

approach where a defendant challenged his lengthy noncapital sentence

under recidivist statutes. The Court noted that the defendant did not

challenge the constitutionality of the applicable recidivist statute as a

general proposition. Rummel, 445 at 270–71, 100 S. Ct. at 1137, 63

L. Ed. 2d at 388–89. Instead, Rummel challenged only the result of

applying a concededly valid statute to the facts of his case. Id. The court

then proceeded to consider, among other factors, the length of a prison

term in real time (time that is likely to be served), the defendant’s

triggering criminal conduct (the offender’s actual behavior or other

offense-related circumstances), and the offender’s criminal history. Id. at

265–81, 100 S. Ct. at 1134–43, 63 L. Ed. 2d at 385–95.

The Court seemed to take a similar approach in Solem. There, the

court noted, among other things, that the culpability of the offender,

including his intent or motive in committing a crime, may be considered 19

in determining the proportionality of the penalty to the offense. Solem,

463 U.S. at 293, 103 S. Ct. at 3011, 77 L. Ed. 2d at 651.

After Rummel and Solem, the court decided Harmelin. Among

other arguments, Harmelin claimed that it was “cruel and unusual” to

impose a mandatory sentence of life in prison for drug possession.

Harmelin, 501 U.S. at 994, 111 S. Ct. at 2701, 115 L. Ed. 2d at 864. In

part IV of his plurality opinion, Justice Scalia expressly refused to

consider expanding the “individualized capital sentencing doctrine”

outside the capital punishment context. Id. at 995, 111 S. Ct. at 2701–

02, 115 L. Ed. 2d at 865. Justice Scalia noted, “We have drawn the line

of required individualized sentencing at capital cases, and see no basis

for extending it further.” Id. at 996, 111 S. Ct. at 2702, 115 L. Ed. 2d at

865.

Justice Scalia’s opinion could be broadly interpreted to mean that

when considering cruel and unusual punishment challenges to a

sentence, individualized analysis of the seriousness of the crime and the

culpability of the offender is never appropriate outside the capital

context. But there is also a narrower interpretation. In part IV, Justice

Scalia was responding to the position that a statute imposing a

mandatory sentence of life in prison, on its face, is unconstitutional and

could not be applied against anyone. Justice Scalia rejected this facial

argument. But a rejection of a facial challenge to a mandatory

sentencing statute on the ground that individualized sentencing is not

statutorily required does not mean that individualized analysis is never

appropriate in a noncapital cruel and unusual punishment case.

Narrowly read, the only proposition in part IV of Justice Scalia’s

opinion in Harmelin is that a mandatory sentencing statute cannot be

stricken from the statute books and applied to no one, even the most 20

deserving defendant, because of a lack of individualized sentencing. Part

IV of the Scalia opinion simply does not address the question of whether

a defendant may concede the facial validity of a mandatory sentencing

statute, but then attack the constitutionality of its application in a

particular case in light of all the facts and circumstances involved.

A narrow reading of part IV of Justice Scalia’s Harmelin opinion is

supported by the Court’s subsequent opinion in Ewing. In Ewing, the

Court considered the constitutionality of a recidivist statute imposing a

twenty-five-years-to-life sentence for property crimes. Ewing, 538 U.S. at

19–20, 123 S. Ct. at 1184–85, 155 L. Ed. 2d at 116. In Ewing, the Court

was highly fractured and no opinion commanded a majority. In her

opinion joined by two other members of the court, Justice O’Connor

examined the details of Ewing’s criminal record, which included

numerous separate terms of incarceration, commission of crimes while

on parole, and serious felonies including robbery and three residential

burglaries. Id. at 18–19, 123 S. Ct. at 1183–84, 155 L. Ed. 2d at 115–16.

Under these facts and circumstances, Justice O’Conner declared that

“Ewing’s is not ‘the rare case in which a threshold comparison of the

crime committed and the sentence imposed leads to an inference of gross

disproportionality.’ ” Id. at 30, 123 S. Ct. at 1190, 155 L. Ed. 2d at 123

(quoting Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707, 115 L. Ed. 2d at

871 (Kennedy, J., concurring in part and concurring in judgment)).

In reaching her decision, Justice O’Conner does not seem to be

conducting a facial examination of the statute, where the underlying

facts and circumstances would be entirely irrelevant. Instead, Justice

O’Connor appears to be undertaking an analysis of the constitutionality

of the statute as applied to Ewing. According to Justice O’Connor, it is

Ewing’s case that does not meet the gross disproportionality threshold of 21

Solem, not the statute itself. Justice Breyer’s dissenting opinion in

Ewing, joined by three other members of the court, explicitly embraces

the fact-specific approaches in Rummel and Solem. Id. at 36–39, 123

S. Ct. at 1193–95, 155 L. Ed. 2d at 127–29 (Breyer, J., dissenting). As a

result, a majority of the Supreme Court in Ewing seems to approve of an

as-applied challenge to an otherwise valid statute under the Cruel and

Unusual Punishment Clause of the Eighth Amendment.

4. Relevance of juvenile status in cruel and unusual punishment

analysis. The Supreme Court has also struggled with the proper

application of the Cruel and Unusual Punishment Clause to juvenile

defendants facing the death penalty. The cases have meandered.

Compare Thompson v. Oklahoma, 487 U.S. 815, 838, 108 S. Ct. 2687,

2700, 101 L. Ed. 2d 702, 720–21 (1988) (vacating death sentence in case

involving juvenile), and Eddings v. Oklahoma, 455 U.S. 104, 116–17, 102

S. Ct. 869, 877–78, 71 L. Ed. 2d 1, 12 (1982) (same), with Stanford v.

Kentucky, 492 U.S. 361, 379–80, 109 S. Ct. 2969, 2980, 106 L. Ed. 2d

306, 324–25 (1989) (finding death penalty could be applied to sixteen- or

seventeen-year-olds).

Most recently, however, the Supreme Court in Roper v. Simmons,

543 U.S. 551, 556, 125 S. Ct. 1183, 1187, 161 L. Ed. 2d 1, 13 (2005),

considered a death sentence imposed on a seventeen-year-old convicted

of murder. Justice Kennedy begins his analysis with a review of other

jurisdictions. Roper, 543 U.S. at 564, 125 S. Ct. at 1192, 161 L. Ed. 2d

at 18. Although twenty states did not formally prohibit the death penalty

for juveniles, Justice Kennedy stressed that, in practice, juvenile

execution was infrequent. Id. at 564, 125 S. Ct. at 1192, 161 L. Ed. 2d

at 18–19. Based on the infrequency of its use even when it remained on

the books and the growing trend toward abolition of the practice, Justice 22

Kennedy concluded that juveniles were “ ‘categorically less culpable than

the average criminal.’ ” Id. at 567, 125 S. Ct. at 1194, 161 L. Ed. 2d at

20–21 (quoting Atkins v. Virginia, 536 U.S. 304, 316, 122 S. Ct. 2242,

2249, 153 L. Ed. 2d 335, 347 (2002)).

After noting that the Eighth Amendment applied to the death

penalty with “special force,” Justice Kennedy next turned to

consideration of the mental abilities of juveniles. Id. at 568, 125 S. Ct. at

1194, 161 L. Ed. 2d at 21. Citing the common experience of parents,

confirmed by scientific and sociological studies, Justice Kennedy noted

that juveniles tend to have immature judgment and act impulsively and

without a full appreciation of the consequences of their actions, were

more susceptible to negative peer influences than adults, were dependent

on parents and others, and had personalities that were less well

developed and more transitory than adults. Id. at 569–72, 125 S. Ct. at

1195–96, 161 L. Ed. 2d at 21–23. Justice Kennedy noted that as a result

of their immature judgment, impulsivity, dependence on others, and lack

of responsibility, nearly all states prohibit persons under eighteen years

of age from voting, serving on juries, or marrying without parental

consent. Id. at 569, 125 S. Ct. at 1195, 161 L. Ed. 2d at 22. Finally,

Justice Kennedy surveyed international law, noting that various sources

of international law condemn the death penalty for juveniles and that

only a few countries continue the practice. Id. at 576–77, 125 S. Ct. at

1198–99, 161 L. Ed. 2d at 26–27.

Because of the psychosocial and neurological differences between

juveniles and adults, Justice Kennedy wrote that the penological

justifications for the death penalty—retribution and general deterrence—

apply to juveniles “with lesser force than to adults.” Id. at 571, 125

S. Ct. at 1196, 161 L. Ed. 2d at 23. Justice Kennedy noted that 23

“punishment of life imprisonment without the possibility of parole is

itself a severe sanction, in particular for a young person.” Id. at 572, 125

S. Ct. at 1196, 161 L. Ed. 2d at 23. As a result, the death penalty

categorically could not be applied to juveniles.

Roper involved the constitutionality of the death penalty applied to

juveniles, but its analysis has potentially broader impact

notwithstanding the language of limitation in the opinion. In particular,

academics began to assert that the analysis in Roper could be applied to

challenge sentences of juveniles to life without possibility of parole.4 The

Supreme Court has recently agreed to hear two cases involving juveniles

sentenced to imprisonment for life without possibility of parole for

noncapital crimes. See Sullivan v. State, 987 So. 2d 83 (Fla. Dist. Ct.

App. 2008) (thirteen-year-old convicted of sexual battery in connection

with burglary sentenced to life without possibility of parole), cert.

granted, 78 U.S.L.W. 3015 (U.S. May 4, 2009) (No. 08-7621); Graham v.

State, 982 So. 2d 43 (Fla. Dist. Ct. App. 2008) (sixteen-year-old

sentenced to life in prison without possibility of parole based on armed

burglaries, attempted robberies, and parole violation), cert. granted, 78

U.S.L.W. 3015 (U.S. May 4, 2009) (No. 08–7412). These cases could shed

some light on the viability of a Roper-type reasoning outside the death

4 See generally Barry C. Feld, A Slower Form of Death: Implications of Roper v. Simmons for Juveniles Sentenced to Life Without Parole, 22 Notre Dame J.L. Ethics & Pub. Pol’y 9 (2008). Melanie Deutsch, Minor League Offenders Strike Out in the Major League: California’s Improper Use of Juvenile Adjudications as Strikes, 37 Sw. U. L. Rev. 375 (2008); Elisa Poncz, Rethinking Child Advocacy After Roper v. Simmons: “Kids Are Just Different” and “Kids Are Like Adults” Advocacy Strategies, 6 Cardozo Pub. L. Pol’y & Ethics J. 273 (2008); Enrico Pagnanelli, Children as Adults: The Transfer of Juveniles to Adult Courts and the Potential Impact of Roper v. Simmons, 44 Am. Crim. L. Rev. 175 (2007); Suzanne Meiners-Levy, Challenging the Prosecution of Young “Sex Offenders”: How Developmental Psychology and the Lessons of Roper Should Inform Daily Practice, 79 Temp. L. Rev. 499 (2006). 24

penalty context under the Cruel and Unusual Punishment Clause of the

United States Constitution.

B. Federal Cruel and Unusual Punishment Cases.

1. Introduction. The lower federal courts have, of course, followed

the cruel and unusual punishment framework developed by the United

States Supreme Court. In light of the fact that the Supreme Court has

found only two noncapital sentences invalid under the Cruel and

Unusual Punishment Clause in the past one hundred years, Weems v.

United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed 793 (1910), and

Solem, the vast majority of federal appellate cases apply the stringent

standards developed by the Supreme Court and deny relief to defendants

in a conclusory fashion. In the words of one federal appellate court,

finding a sentence grossly disproportionate under the Eighth Amendment

will be “hen’s-teeth rare.” United States v. Polk, 546 F.3d 74, 76 (lst Cir.

2008).

2. Validity of as-applied challenge. Some federal appellate courts

have been willing to engage in an examination of the specific facts and

circumstances involved in a crime when a defendant challenges a

sentence as cruel and unusual as applied. For instance, in Henderson v.

Norris, 258 F.3d 706, 707 (8th Cir. 2001), the Eighth Circuit Court of

Appeals invalidated a life sentence for first-offense delivery of .238 grams

of cocaine base. The court emphasized the small amount of drug

involved, the fact that the defendant did not initiate contact with an

informant who bought the drug, and that there was no indication that

the defendant engaged in violence, had any weapons, or indicated any

other “trappings” of the drug trade. Henderson, 258 F.3d at 710; see

also United States v. Nagel, 559 F.3d 756, 763 (7th Cir. 2009) (analyzing

both a facial and an as-applied cruel-and-unusual-punishment 25

challenge); Hawkins v. Hargett, 200 F.3d 1279, 1283 (10th Cir. 1999)

(noting the defendant’s age as a factor in his cruel-and-unusual-

punishment claim).

Many federal courts engage in what one commentator has referred

to as “color matching” by comparing the facts of a given case with those

of Rummel, Solem, Harmelin, or Ewing to determine whether the facts of

the case at hand, at a very high level of abstraction, are on par with

those in the Supreme Court precedents. Donna H. Lee, Resuscitating

Proportionality in Noncapital Criminal Sentencing, 40 Ariz. St. L.J. 527,

579–82 (2008). “Color matching is legal analysis by analogy as opposed

to a deeper, rule-based analysis that legitimately applies principles of

stare decisis.” Id. at 579.

3. Federal appellate cases considering Roper outside the capital

context. A number of federal appellate courts have also had occasion to

consider whether the reasoning in Roper—namely, that juveniles are

categorically not as criminally culpable as adults—extends outside the

death penalty context. Federal courts in the Fifth, Seventh, and

Eleventh Circuits have declined to extend Roper outside the death

penalty in a variety of situations. See, e.g., United States v. Salahuddin,

509 F.3d 858, 863–64 (7th Cir. 2007) (upholding sentence enhancement

based on armed robbery conviction committed as a juvenile); United

States v. Mays, 466 F.3d 335, 340 (5th Cir. 2006) (upholding life

sentence for possession with intent to distribute crack cocaine under

recidivist statute where prior adult conviction occurred at age seventeen);

United States v. Wilks, 464 F.3d 1240, 1243 (11th Cir. 2006) (upholding

enhanced sentence where prior youthful offender convictions included

aggravated assault, grand theft, burglary with assault, and strong-arm

robbery). 26

In limiting Roper’s application outside the capital context, lower

federal courts generally stress that “death is different”—the Eighth

Amendment applies with “special force” in death penalty cases.

Salahuddin, 509 F.3d at 863–64; Mays, 466 F.3d at 340; Wilks, 464 F.3d

at 1243. These courts also distinguish Roper, where the defendant’s

punishment for a crime committed as a juvenile was at issue, from cases

where a defendant’s sentence for a crime committed as an adult is

enhanced by a prior conviction committed when the defendant was

under eighteen. Salahuddin, 509 F.3d at 863–64; Mays, 466 F.3d at

340; Wilks, 464 F.3d at 1243.5

5 Yet, there is at least a filament in recent case law recognizing age as a relevant consideration in sentencing. For instance, in United States v. Gall, 374 F. Supp. 2d 758, 763 (S.D. Iowa 2005), the district court sentenced a defendant who pled guilty to one count of conspiracy to distribute “ecstasy” to thirty-six months probation. The district court noted that all of the defendant’s criminal conduct, including the offense for which he was being sentenced, occurred when Gall was twenty-one years old or younger. Gall, 374 F. Supp. 2d at 762. In considering the appropriate sentence, the district court reasoned, “Immaturity at the time of the offense conduct is not an inconsequential consideration.” Id. at 762 n.2. The court went on to note that it was “of critical importance in the area of criminal law” that brain development may not be complete until age twenty-five. Id. Citing Roper, the district court concluded that while age did not excuse the behavior, it should be taken into account when inquiring into the conduct of the defendant. Id.

On appeal, the Court of Appeals for the Eighth Circuit reversed, concluding, among other things, that the district court improperly relied upon general studies that showed persons under the age of eighteen generally lack maturity and are less culpable than adults. United States v. Gall, 446 F.3d 884, 890 (8th Cir. 2006). According to the Eighth Circuit, the general studies did not explain the defendant’s behavior in the instant case. Id. Further, the appellate court pointed out that the defendant sold ecstasy as a twenty-one-year-old adult, not as an adolescent. Id.

The United States Supreme Court reversed the Eighth Circuit. Gall v. United States, 552 U.S. 38, 59, 128 S. Ct. 586, 602, 169 L. Ed. 2d 445, 463 (2007). In an opinion by Justice Stevens, the Supreme Court noted that under applicable federal law, the district court was to “consider ‘the nature and circumstances of the offense and the history and characteristics of the defendant.’ ” Gall, 552 U.S. at 50 n.6, 128 S. Ct. at 596–97 n.6, 169 L. Ed. 2d at 457 n.6 (quoting 18 U.S.C. § 3553(a)(1) (2000 ed., Supp. V.)). Reviewing the district court’s treatment of the age issue, the Supreme Court concluded that “it was not unreasonable for the District Judge to view Gall’s immaturity at the time of the offense as a mitigating factor . . . .” Id. at 58, 128 S. Ct. at 601, 169 L. Ed. 2d at 462. 27

C. Cruel and Unusual Punishment Under State Constitutions.

1. Introduction. Most state constitutions contain cruel and

unusual punishment provisions that are similar, if not identical, to the

Cruel and Unusual Punishment Clause of the Eighth Amendment.6 In construing the meaning of these state constitutional provisions, state

courts are free to develop their own independent approaches to state

constitutional doctrine. Some state supreme courts have followed the

lead of the United States Supreme Court and adopted approaches to

state constitutional provisions that mirror the developing federal law and

have achieved similar results. See Adaway v. State, 902 So. 2d 746,

747–52 (Fla. 2005) (upholding life sentence for thirty-six-year-old

engaging in oral sex with eleven-year-old under state and federal

constitutions by comparing seriousness of crime with offenses in

Harmelin and Ewing). Some have gone even further and held that a

sentence that falls within the legislatively-established range of sentences

cannot be declared cruel and unusual. See Price v. State, 898 So. 2d

641, 655 (Miss. 2005). Other state courts, however, have adopted a more

searching approach to cruel and unusual punishment.7

2. Acceptance of federal framework with independent application. One line of state supreme court cases departs from United States

6A majority of the state constitutions prohibit “cruel and unusual” punishment. See, e.g., Ariz. Const. art. II, § 15; Colo. Const. art. II, § 20; Mo. Const. art. I, § 21. Some state constitutions, however, prohibit “cruel or unusual” punishment. See, e.g., Mich. Const. art. I, § 16; Okla. Const. art. II, § 9.

7See In re Lynch, 503 P.2d 921, 927–30 (Cal. 1972) (employing a shocks the conscience and offends human dignity test); People v. Sharpe, 839 N.E.2d 492, 498 (Ill. 2005) (disjunctive test involving wholly disproportionate penalties or penalties more harsh than for less serious or identical offenses); State v. Ortega-Cadelan, 194 P.3d 1195, 1198 (Kan. 2008) (applying disjunctive three-pronged test including individual analysis of the nature of offense and character of offender). 28

Supreme Court precedent by generally adopting the Supreme Court’s8

analytical framework for cruel-and-unusual-punishment claims but

applying it in a more stringent fashion. For instance, in People v.

Bullock, 485 N.W.2d 866, 870–71 (Mich. 1992), the Michigan Supreme

Court reviewed the same drug-sentencing statute upheld by the United

States Supreme Court in Harmelin under its state constitution. The

Michigan Supreme Court generally accepted the principles developed by

the Supreme Court, but emphasized that it was free to follow what the

court considered the better-reasoned dissenting opinions. Bullock, 485

N.W.2d at 870–74. The court then proceeded to rely heavily on Justice

White’s dissenting opinion in Harmelin, emphasizing that “ ‘punishment

must be tailored to a defendant’s personal responsibility and moral

guilt.’ ” Id. at 876 (quoting Harmelin, 501 U.S. at 1023, 111 S. Ct. at

2716, 115 L. Ed. 2d at 883) (White, J., dissenting)); see also State v.

Fain, 617 P.2d 720, 723, 725–28 (Wash. 1980) (generally applying the

framework developed by the United States Supreme Court but relying in

part on dissent in Rummel to reach a different result); Wanstreet v.

Bordenkircher, 276 S.E.2d 205, 212–14 (W. Va. 1981) (invalidating life

sentence under recidivist statute using Solem-type review).

3. Validity of as-applied challenge. Many state courts have also

considered whether a criminal defendant may attack a sentence as cruel

8The approach of the United States Supreme Court to the Cruel and Unusual Punishment Clause has its critics. Some emphasize the inconsistency in the Court’s relatively aggressive approach to punitive damages and its highly deferential approach to criminal sanctions. See, e.g., Erwin Chemerinsky, The Constitution and Punishment, 56 Stan. L. Rev. 1049 (2004); Adam M. Gershowitz, Note, The Supreme Court’s Backwards Proportionality Jurisprudence: Comparing Judicial Review of Excessive Criminal Punishments and Excessive Punitive Damages Awards, 86 Va. L. Rev. 1249 (2000). Some embrace parts, but not all, of the Supreme Court’s framework. See generally Donna H. Lee, Resuscitating Proportionality in Noncapital Criminal Sentencing, 40 Ariz. St. L.J. 527 (2008). 29

and unusual punishment as applied. Under an as-applied attack, a

criminal statute imposing a certain sentence is not facially invalid in all

circumstances, but only as applied under the facts and circumstances in

a particular case.

Many state courts, particularly post-Ewing, have allowed as-

applied attacks based on individualized facts and circumstances. See

Graham, 982 So. 2d at 48 (discussing difference in cruel and unusual

punishment context between facial attack and attack as applied);

Humphrey v. Wilson, 652 S.E.2d 501, 510 (Ga. 2007) (citing narrow age

difference and fact that fifteen-year-old girl initiated oral sex as factors in

invalidating sentence as cruel and unusual); People v. Miller, 781 N.E.2d

300, 306–09 (Ill. 2002) (finding application of statutes that treat fifteen-

year-old who stood as a lookout during the shooting and had only a

moment to consider his participation, but never handled a gun, the same

as the shooter in imposing life in prison without possibility of parole

unconstitutional under state constitution); Kills on Top v. State, 928 P.2d

182, 206–07 (Mont. 1996) (finding individualized determination beyond

reckless indifference required to determine validity of death penalty in

felony murder context); Naovarath v. State, 779 P.2d 944, 948–49 (Nev.

1989) (invalidating as cruel and unusual punishment a life sentence

without possibility of parole on thirteen-year-old in light of specific facts).

4. State cases considering Roper outside capital context. A number

of state cases have considered the application of Roper outside the

context of capital punishment. The case that is closest to the present

controversy is State v. Rideout, 933 A.2d 706 (Vt. 2007). In Rideout, the

defendant was convicted of two counts of lewd and lascivious conduct

with a child and one count of furnishing drugs to a child. Rideout, 933

A.2d at 708. He was subsequently sentenced under a Vermont habitual 30

offender statute to two concurrent sentences of twenty to fifty years. Id.

at 710. The defendant asserted that the sentence as applied to him

constituted cruel and unusual punishment because four of his six

predicate felonies occurred when he was sixteen years of age. Id. at 713.

The Rideout court rejected the claim. Id. at 716. The court cited

extensive federal and state case law prior to Roper generally standing for

the proposition that convictions of minors in adult court may be used to

enhance sentences of adults convicted of crimes. Id. at 715. The Rideout

court distinguished cases refusing to allow juvenile adjudications to

count toward habitual offender status on the ground that they were

based upon the lack of procedural protections in juvenile court,

specifically, the right to a jury trial. Id. at 715–16.

The Rideout court distinguished Roper, noting the imposition of the

death penalty and not imprisonment was “a distinction critical to Roper’s

reasoning.” Id. at 718. Further, citing Witte v. United States, 515 U.S.

389, 400, 115 S. Ct. 2199, 2206, 132 L. Ed. 2d 351, 364 (1995), the

Rideout court noted that the defendant in Roper was sentenced to death

solely for an offense committed while he was a minor, whereas in

Rideout, the defendant was receiving a sentence for an adult crime even

though the adult sentence was enhanced by crimes committed as a

minor. Id. at 719. According to the Rideout court, Roper was premised,

in part, on the opportunity for minor offenders to mend their ways. Id.

The Rideout court noted that when dealing with recidivist adult

offenders, with juvenile records, that possibility has largely gone by. Id.

A few other state court cases have considered whether a Roper-

type analysis applies outside the death penalty for juvenile conduct.

These cases have generally declined to extend Roper to other contexts.

See State v. Allen, 958 A.2d 1214, 1233–36 (Conn. 2008) (declining to 31

extend Roper to eighteen-year-old sentenced to life without possibility of

parole); Wallace v. State, 956 A.2d 630, 641 (Del. 2008) (declining to

extend Roper to fifteen-year-old defendant sentenced to life in prison);

England v. State, 940 So. 2d 389, 406–07 (Fla. 2006) (finding use of

juvenile convictions as aggravating factors supporting death penalty not

contrary to Roper).

5. Case law involving challenges to nonviolent sex crimes generally.

State courts have invalidated lengthy sentences for nonviolent sex

crimes. In State v. Davis, 79 P.3d 64, 66–67 (Ariz. 2003), a twenty-year-

old defendant was sentenced to a mandatory minimum of fifty-two years

without the possibility of parole as a result of his conviction on four

counts of statutory rape for engaging in consensual sex with two post-

pubescent teenage girls. After reviewing recent Supreme Court cases,

the Davis court overruled its prior precedent and held that the court

could undertake an individualized analysis of the penalty under the facts

of the case. Davis, 79 P.3d at 71. The Davis court found under the facts

of the case that the threshold test of gross disproportionality had been

met, noting that Davis was “caught in the very broad sweep” of a statute

which makes any sexual conduct with a person younger than fifteen years old by a person older than eighteen years old a “dangerous crime against children,” whether the offense is a rape-incest by a step-parent who forces sex on a trusting ward or a pedophile who uncontrollably preys upon young children . . . or the more benign boyfriend-girlfriend situation in which one party is older than eighteen and the other younger than fifteen. Id. at 72 (quoting State v. Taylor, 773 P.2d 974, 976 (Ariz. 1989)). The

court noted that the fact that other courts impose lengthy sentences for

sex crimes “demonstrate[s] why, when considering the proportionality of

a sentence imposed, this court must look beyond the nomenclature of 32

the crime charged and consider the facts of each particular case.” Id. at

74.

D. Approach to Cruel and Unusual Punishment Under the Iowa

Constitution. Article I, section 17 of the Iowa Constitution prohibits

cruel and unusual punishment in language materially identical to its

federal counterpart. Our past cases have generally assumed that the

standards for assessing whether a sentence amounts to cruel and

unusual punishment under the Iowa Constitution are identical to the

Federal Constitution. State v. Musser, 721 N.W.2d 734, 749 (Iowa 2006).

In a number of cases, we have addressed whether the court may

consider individual facts and circumstances in evaluating a challenge to

a sentence as cruel and unusual. Our recent cases, relying in part on

Harmelin, have indicated that an individualized challenge to the

application of a statutorily-authorized sentence may not lie in the context

of convictions for indecent exposure, criminal transmission of HIV, first-

degree burglary, and commission of multiple forceable felonies. State v.

Wade, 757 N.W.2d 618, 624 (Iowa 2008); Musser, 721 N.W.2d at 749;

State v. Rubino, 602 N.W.2d 558, 564 (Iowa 1999); State v. August, 589

N.W.2d 740, 743 (Iowa 1999).

We have also considered attacks on mandatory sentences. In State

v. Fuhrmann, 261 N.W.2d 475 (Iowa 1978), we considered an attack on

Iowa Code section 690.2, which mandated a life sentence for first-degree

murder. We rejected the challenge, noting that life imprisonment for

first-degree murder does not shock the conscience or sense of justice.

Fuhrmann, 261 N.W.2d at 479–80. We considered the holding in

Fuhrmann as dispositive in State v. Horn, 282 N.W.2d 717, 732 (Iowa

1979), where a defendant challenged a life sentence without the

possibility of parole as cruel and unusual based on the fact that he was 33

twenty years old at the time of the offense. We have also upheld

mandatory prison terms in the face of cruel and unusual punishment

challenges in a variety of other contexts. See State v. Phillips, 610

N.W.2d 840, 843–44 (Iowa 2000) (holding ten-year mandatory sentence

for second-degree robbery does not rise to cruel and unusual

punishment); August, 589 N.W.2d at 744 (finding forty-two-and-one-half-

year mandatory, consecutive sentence for kidnapping in the second-

degree and first-degree robbery not cruel and unusual); State v. Lara,

580 N.W.2d 783, 786 (Iowa 1998) (finding mandatory minimum sentence

of over twenty-one years for first-degree robbery permissible).

E. Application of Principles to Bruegger’s Claim Under the

Iowa Constitution.

1. Standard to be applied under state constitution. Because

Bruegger has not advanced a standard for interpreting the cruel and

unusual punishment provision under the Iowa Constitution differently

from its federal constitutional counterpart, we will apply the general

principles as outlined by the United States Supreme Court for addressing

a cruel-and-unusual-punishment challenge under the Iowa Constitution.

See In re Detention of Garren, 620 N.W.2d 275, 280 n.1 (Iowa 2000).

Even so, we do not necessarily apply the federal standards in the

same way as the United States Supreme Court. For instance, in Racing

Association of Central Iowa v. Fitzgerald, 648 N.W.2d 555, 562 (Iowa

2002), this court ruled that a statutory scheme taxing slot machines at

racetracks at a higher rate than similar machines on riverboats violated

equal protection. The United States Supreme Court reversed, holding

that the Federal Equal Protection Clause, as properly applied, did not

invalidate the classification. Fitzgerald v. Racing Ass’n of Cent. Iowa, 539

U.S. 103, 110, 123 S. Ct. 2156, 2161, 156 L. Ed. 2d 97, 105 (2003). On 34

remand, we applied established federal equal protection principles in a

different and more stringent fashion under our state constitution.

Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 6–7 (Iowa 2004)

[hereinafter RACI]. We declared that a rational-basis review of legislation

was not a “toothless” exercise in Iowa, and we came to a different result

than that reached by a unanimous Supreme Court in the same case. Id.

at 9.

The principles of RACI apply in the cruel and unusual punishment

context as well. As in RACI, we conclude that review of criminal

sentences for “gross disproportionality” under the Iowa Constitution

should not be a “toothless” review and adopt a more stringent review

than would be available under the Federal Constitution. See, e.g., Fain,

617 P.2d at 725–28; Wanstreet, 276 S.E.2d at 212–14.

We also consider the applicability of Roper under the Iowa

Constitution. As noted previously, the Supreme Court in Roper

emphasized that its categorical ruling that the death penalty could not be

applied to any person under the age of eighteen for any crime was limited

to death penalty cases. Nonetheless, the reasoning in Roper, namely,

that psychosocial and neurological studies show that juvenile brains are

less developed and that, as a result, they are less culpable than adult

offenders, has applicability outside the death penalty context. While it

may be, as Roper suggests, that the only penalty that is categorically off

the table for persons under eighteen is death, this does not mean that

the age of an offender can never be a factor for cruel and unusual

punishment analysis.

2. Attack on sentence as applied. Bruegger does not clearly

distinguish between a facial attack or an attack as applied in his appeal.

The language in Bruegger’s brief, however, emphasizing the specific facts 35

of the case, including a claim that K.S. was in love with him and

consented to sexual intercourse, and that, as a result, the degree of his

criminal culpability based upon his current crime and prior juvenile

adjudication did not justify the lengthy mandatory sentence, evidences

an as-applied challenge. Although not properly labeled, Bruegger’s brief

is essentially an attack on his sentence as cruel and unusual as applied

to him, under all the facts and circumstances.

We recognize that many of our cases reject individualized

determinations in connection with cruel-and-unusual-punishment

challenges in a number of contexts. See, e.g., Wade, 757 N.W.2d at 624;

Musser, 721 N.W.2d at 749; Rubino, 602 N.W.2d at 564; August, 589

N.W.2d at 743. It is not always clear in these cases whether the court

was rejecting a mandatory requirement of an individualized showing, as

was required in Woodson, or the possibility of an as-applied challenge.

In any event, we do not believe that a defendant can never

challenge a sentence as cruel and unusual as applied. If individualized

consideration of the facts and circumstances were never allowed,

legislatures could eviscerate judicial review of the proportionality of

punishment by broadly defining crimes and imposing mandatory stiff

penalties in all cases. Such broadly-framed statutes would survive facial

attack if the accompanying penalties were appropriate to some but not

all crimes within the statute’s broad ambit.

As a result, we conclude that, at least in some instances,

defendants who commit acts of lesser culpability within the scope of

broad criminal statutes carrying stiff penalties should be able to launch

an as-applied cruel and unusual punishment challenge. See Davis, 79

P.3d at 72–73 (holding where broad sweep of statute makes no

distinction between perpetrators of incest, serial pedophiles, and 36

statutory rape, an as-applied challenge was permissible); State v.

Berniard, 860 So. 2d 66, 75 (La. Ct. App. 2003) (holding defendant may

attack mandatory sentence by showing he is exceptional, that legislature

has failed to assign sentences that are meaningfully tailored to the

gravity of the offense, the culpability of the offender, and the

circumstances of the case).

The question is, then, whether this is a relatively rare case where

an individualized assessment of the punishment imposed should be

permitted. We conclude that it is. This case involves an unusual

combination of features that converge to generate a high risk of potential

gross disproportionality—namely, a broadly framed crime, the

permissible use of preteen juvenile adjudications as prior convictions to

enhance the crime, and a dramatic sentence enhancement for repeat

offenders. Each of these factors, standing alone, has the potential of

introducing a degree of disproportionality into a sentence, but the

convergence of these three factors presents a substantial risk that the

sentence could be grossly disproportionate as applied. We thus conclude

that Bruegger should be allowed to make an individualized showing that

the sentence is cruel and unusual as applied to him.

The first factor, breadth of crime, is an important one. The crime

of statutory rape covers a wide variety of circumstances, from Romeo and

Juliet relationships to much more objectionable situations involving the

luring of youngsters by older individuals using manipulative techniques,

positions of authority, threats of violence, and other aggravating factors.

The legislature has, in part, recognized the variety of contexts in which

the crime is committed by providing a broad range of penalties for the

unenhanced crime of statutory rape. 37

The second factor—namely, Bruegger’s age as a preteen when the

predicate offense was committed—is also material. If the prior crime

occurred while the defendant was an adult, that might yield a different

result. Here, however, the prior crime occurred when Bruegger was

twelve. The underlying rationale in Roper is that a past act as a juvenile

is not comparable to an adult act, and yet that is exactly what the

statute does here, making no distinction between prior juvenile

adjudications and prior adult convictions.

It is true that under Ewing, the focus is said to be on the current

crime, and Bruegger did commit his current crime as an adult. But the

prior criminal history is what makes the current crime more aggravated,

and if the prior criminal offense was committed by a preteen, it seems to

follow that Bruegger is entitled to an opportunity to show that the

consequences of his adolescent act become grossly disproportional to his

sentence for the adult crime.

We also note that the legislative policy regarding juvenile offenders

is not entirely clear or consistent. In Iowa, a person who is under

fourteen years of age cannot be tried as an adult in criminal court. Iowa

Code § 232.45(6)(a). This limitation appears to be a recognition that

persons under fourteen should not be criminally culpable for their acts.

If this is true, it seems inconsistent to suggest that the act of a twelve-

year-old is a sufficient basis to dramatically enhance an adult sentence

for the crime of statutory rape.

We finally note that the increase in sentence under Iowa Code

section 901A.2(3) is geometric. The maximum sentence for Bruegger’s

crime, without enhancement, was ten years, subject to various good time

credits. His likely prison term, even if he received the maximum

sentence, would have been about four years. Under the enhanced 38

sentencing scheme, Bruegger must serve at least 21.25 years in prison, a

five hundred percent increase in sentence. This geometric increase in

sentence is another factor that contributes to our conclusion that, in this

case, Bruegger is entitled to attempt to show that the enhanced

sentence, as applied to him, amounts to cruel and unusual punishment.

Our narrow conclusion that Bruegger, in light of the unusual

convergence of a broadly-defined criminal statute, the use of a juvenile

adjudication when he was twelve to enhance his sentence, and the

dramatic increase in his punishment as a result the enhancement, may

bring a cruel and unusual punishment challenge to Iowa Code section

901A.2(3) as applied to him, does not resolve the case. Before the trial

court, Bruegger did not raise the issue of cruel and unusual punishment.

As a result, there was no evidentiary hearing where the parties presented

evidence for the purpose of addressing a claim that, under the facts and

circumstances, the enhanced sentence of section 901A.2(3) could not

constitutionally be applied to Bruegger.

In light of this procedural posture, it is not surprising that the

record is factually deficient in a number of respects. Notably, although

some documents relating to Bruegger’s prior Minnesota juvenile

adjudication were introduced at sentencing, the record is limited

regarding the underlying facts and circumstances of this offense.

Further, the State has not had an opportunity to show in an evidentiary

hearing that under all the facts and circumstances, a sentence under

section 901A.2(3) is not cruel and unusual as applied to Bruegger. For

instance, the State may wish to develop evidence regarding the impact of

Bruegger’s conduct on K.S. and her family, his lack of remorse, the

nature of services provided in Minnesota and his inability to respond to

such services, the need to incapacitate him through long-term 39

incarceration, and any other potential factors that tend to aggravate the

gravity of the offense and magnify the consequences on K.S. We

conclude, therefore, that the current record is simply inadequate to

resolve the issue. The Solem-type approach for evaluating Bruegger’s

cruel-and-unusual-punishment claim cannot be applied without a

proper record. In closing, we note that Bruegger has committed a serious crime for which the legislature may impose a serious penalty. We do not view statutory rape as a victimless crime in light of the risk of disease, pregnancy, and serious psychological harm that can result from even apparently consensual sexual activity involving adults and adolescents. Nor do we believe that Bruegger’s conduct as a juvenile is irrelevant to sentencing. Our sole concern here is whether, under the facts and circumstances, a mandatory sentence of 21.25 years is “off the charts.” We, therefore, vacate the sentencing order of the district court and remand the case for a new sentencing hearing to allow Bruegger and the State to present evidence as to the constitutionality of section 901A.2(3) as applied to the defendant.9 We do not retain jurisdiction. VI. Conclusion. For the above reasons, the district court’s sentencing order10 is vacated and the case remanded for further proceedings. SENTENCE VACATED AND CASE REMANDED WITH DIRECTIONS. All justices concur except Cady and Wiggins, JJ., who dissent and Baker, J., who takes no part.

9Our holding is based on Article I, section 17 of the Iowa Constitution. Because his cruel-and-unusual-punishment claim under the United States Constitution does not give him any protection beyond that afforded by the Iowa Constitution, we do not give Bruegger’s federal claim further consideration.

10Bruegger does not challenge his conviction, but only his sentence, on appeal. 40 #59/07–0352, State v. Bruegger CADY, Justice (dissenting).

I respectfully dissent. While the majority opinion is thoughtful and

compelling, I refrain from joining in it because sentencing parameters is

an area of the law for which courts are required to give great deference to

the policies of the legislature as written into sentencing statutes. The

individual-assessment approach introduced by the majority in this case

will only permit the courts to substitute their judgment for that of the

legislature in cases to follow. This approach is contrary to the principles

of judicial restraint and separation of powers.

Our legislature has substantially reworked the criminal-sentencing

statutes over the last couple of decades in a purported effort to get tough

on crime. These amendments have, in many instances, resulted in the

imposition of harsh mandatory sentences for criminal offenders as

compared to the sentencing scheme of yesteryear. This legislative shift

has often frustrated sentencing judges, who previously possessed

discretion in many instances to impose a sentence that not only fit the

particular criminal act, but the particular offender. Yet, what was

formerly considered a strength in the judicial branch of government

turned into criticism that fueled change in the legislative branch of

government. Today, sentencing in criminal cases has increasingly been

transformed into the imposition of a predetermined punishment that

paints all offenders of a particular crime with a single broad stroke of the

brush. The new landscape, while well-intentioned, has come at a huge

cost. Ultimately, it visits as much harm on society as it does to the

individual offender.

Notwithstanding, the sentencing policies of today are our policies.

They are a product of our legislature, as representatives of the people. 41

Courts do not intervene to alter these policies except when the resulting

legislative scheme runs contrary to constitutional mandates. In this

case, the constitutional principle at stake is the Cruel and Unusual

Punishment Clause. This Clause represents one of the basic

constitutional values that collectively defines us as a people, which

cannot be altered by the legislature through the enactment of a statute.

It embodies who we are as a people.

While I agree with the majority that there may be cases in Iowa in

which courts may need to apply the Cruel and Unusual Punishment

Clause in an individual manner to properly test its application to a

particular sentence imposed on a particular offender, this case is not

one. Instead, I would place the bar higher. The factors relied upon by

the majority in this case do not warrant an as-applied challenge.

First, the nature of the crime does not warrant an as-applied

challenge. Rape is a serious crime and is not diminished in any way

because the offender committed the crime by playing upon the youthful

vulnerabilities of the victim instead of physically overpowering the victim.

Second, the defendant was not sentenced for the conduct he

engaged in as a child. Instead, he was sentenced only for his conduct as

a twenty-one-year-old adult. It is abundantly clear that recidivism

statutes do not punish for past conduct, but punish the conduct

represented by the present offense. See Witte v. United States, 515 U.S.

389, 400, 115 S. Ct. 2199, 132 L. Ed. 2d 351, 364 (1995) (“In repeatedly

upholding such recidivism statutes, we have rejected double jeopardy

challenges because the enhanced punishment imposed for the later

offense ‘is not to be viewed as either a new jeopardy or additional penalty

for the earlier crimes,’ but instead as ‘a stiffened penalty for the latest

crime, which is considered to be an aggravated offense because a 42

repetitive one.’ ” (quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct.

1256, 1258, 92 L. Ed. 1683, 1687 (1948)); accord Ewing v. California,

538 U.S. 11, 25, 123 S. Ct. 1179, 1188, 155 L. Ed. 2d 108, 120 (2003)).

Thus, the most compelling factor to support a claim for cruel and

unusual punishment is actually a red herring. For sure, the defendant

was subjected to an enhanced sentence as a consequence of a prior

juvenile act, but he was nevertheless only punished for his act as an

adult. Our constitution does not contain a cruel and unusual

consequence clause. The question in this case is only whether the

punishment the defendant received for committing the adult crime of

statutory rape was cruel and unusual.

Finally, I agree the consequences visited on the defendant for his

juvenile act as a twelve-year-old child are substantial. His sentence is

two and a half times longer than it would have otherwise been, and the

actual time he will be incarcerated is five to six times longer. Yet, even if

the enhancement of the statute was for jaywalking as a juvenile, the

question is still whether the sentence of twenty-two years for statutory

rape by an adult is cruel and unusual punishment. Under our strict

test, it is not. A sentence of twenty-two years for rape is not “grossly

disproportionate” to the crime, given the great deference that the

legislature is entitled to receive. Rummel v. Estelle, 445 U.S. 263, 274,

100 S. Ct. 1133, 1139, 63 L. Ed. 2d 382, 391 (1980); see Price v. State,

898 So. 2d 641, 655 (Miss. 2005) (upholding a forty-year sentence for

three counts of statutory rape).

While some constitutional principles might be receptive to

defendant’s plight, the Cruel and Unusual Punishment Clause is not

among them. Courts must adhere to the constitutional framework, even

when the result is difficult to swallow. Furthermore, we must not forget 43

that we are not the only guardians of justice in our government. For

example, prosecutors must use sound judgment in charging and

prosecuting defendants who may be swept up by broad legislative

policies that were not likely intended to capture them. The governor, too,

is empowered to commute a sentence viewed to be unjust. Finally,

consistent with the one true strength of our democracy, the legislature

can repair mistakes.

I would affirm the judgment and sentence of the district court and

rely upon the other components of government to mete out justice in this

case.

Wiggins, J., joins this dissent.