OPINION
MARTONE, Justice.
A despondent mother’s attempt to commit suicide and infanticide by asphyxiation was interrupted by an alert neighbor. All survived and, fortunately, no one was injured. She was not charged with attempted murder but, instead, with two counts of intentional or knowing child abuse under A.R.S. § 13-3623(B)(1) which carries a much more severe sentence. Upon conviction, the court sentenced her to two consecutive 17 year prison terms which require her to serve the full 34 years before release. We are asked to decide whether this sentence is cruel and unusual under the federal and state constitu[29]*29tions. We conclude that it is not. However, we also conclude, in the exercise of our statutory authority, that the sentence is excessive in light of the circumstances of this particular crime and thus reduce it to the minimum statutory mitigated term of 24 years.
I. THE FACTS
Colette DePiano had been, by all accounts, a very good mother. Her husband deserted her shortly after her second child was born. Despite the difficulty of raising two boys while working as a flight attendant with America West Airlines, DePiano appeared to manage. A few years after her husband deserted her, she began dating a co-worker at America West. Six months later she was hospitalized for post-abortion psychological complications. About one month before the suicide-infanticide attempt, she broke up with her boyfriend. She moved out of the house they shared, although she had no income and no place to live. She stole $300 from her ex-boyfriend to pay bills. A friend allowed her to live rent-free at her Tempe house. She was depressed, upset, and disillusioned.
On October 16, 1991, DePiano went to dinner with some friends at America West and came home late. At 2:00 a.m., a neighbor woke up to the sound of what he thought was a washing machine. His bedroom was right next to DePiano’s garage. After checking things out, the neighbor noticed that the noise was coming from a car in the garage. He knocked on the garage door and the front door, but got no answer. He called the police.
A Tempe police officer came out, went into the sealed garage and brought DePiano and her two children out to the front yard. The police and paramedics took them to the hospital where she told the attending physician that she was depressed and had attempted suicide.
At her child abuse trial, she denied she was trying to commit suicide and claimed that she was trying to fix her car. After closing arguments and before the jury returned its verdicts of guilty, she left town.
In a 2-1 decision, the court of appeals affirmed her convictions and sentence. State v. DePiano, 187 Ariz. 41, 926 P.2d 508 (App.1995). We granted review on whether the sentence was constitutional and ordered supplemental briefing to consider whether we should reduce DePiano’s sentence under A.R.S. § 13^t037(B), which authorizes the court to reduce sentences that, although constitutional, are otherwise excessive under the facts of a given case.
II. CRUEL AND UNUSUAL PUNISHMENT
DePiano’s sentence of 34 years is the result of the confluence of three separate sentencing enhancements. First, although most class 2 felonies then carried a 7 year presumptive term, A.R.S. § 13-701 (1989), intentional or knowing child abuse carried a presumptive term of 17 years. A.R.S §§ 13-604.01(B), 13-3623(B)(1). Second, A.R.S. § 13-604.01(E) requires that persons convicted of child abuse must serve the entire term. Third, sentences imposed for intentional child abuse, where the victim is under 15 years of age, must be served consecutively. A.R.S. § 13-604.01(J) (now A.R.S. § 13-604.01(1)). DePiano argues that her resulting sentence of 34 straight years without the possibility of release violates the prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and art. 2, § 15 of the Arizona Constitution.
While it is clear that a cruel and unusual sentence violates both constitutions, what is cruel and unusual is not so clear. The United States Supreme Court addressed this issue in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Harmelin had been convicted of possessing 672 grams of cocaine and was sentenced to life imprisonment without possibility of parole. Although there was no majority opinion, it was the judgment of the Court that the sentence did not violate the Eighth Amendment. Justice Kennedy’s plurality opinion was the closest thing to an opinion of the Court. Under his view, the Eighth Amendment “forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Id. at 1001, 111 S.Ct. at 2705. If a sentence raises an inference of gross dispro[30]*30portionality, an intra-jurisdictional and inter-jurisdictional analysis of similar crimes is appropriate to validate the inference. Id. at 1005, 111 S.Ct. at 2707. If no such inference of gross disproportionality arises, no intra- or inter-jurisdictional analysis is required. The plurality concluded that a life sentence without parole for the possession of 672 grams of cocaine was constitutional. The plurality focused on the offense generally, without analyzing the particular circumstances of the crime or the offender. Because of the gravity of the offense, and the correlation between drugs and crime, particularly violent crime, “the Michigan Legislature could with reason conclude that the threat posed to the individual and society by possession of this large an amount of cocaine — in terms of violence, crime, and social displacement — is momentous enough to warrant the deterrence and retribution of a life sentence without parole.” Id. at 1002-05, 111 S.Ct. at 2706-07. Having found that the sentence was not grossly disproportional, no inter- or intra-jurisdictional analysis was required. Id. at 1005, 111 S.Ct. at 2707.
In State v. Bartlett, 171 Ariz. 302, 830 P.2d 823 (1992) (Bartlett II), this court agreed that, at least until the Supreme Court of the United States reached a majority on the issue, it would use the standard articulated by Justice Kennedy to resolve such questions under the Eighth Amendment. But three members of this court looked to the particular facts and circumstances of the crime and the offender in analyzing the threshold question of gross disproportionality. Two members of this court would have done what Justice Kennedy did, not look at the particular crime or the particular offender, but whether the offense generally poses a sufficient threat to warrant the sentence imposed.
We do not believe that Bartlett II is entitled to the sort of precedential value one ordinarily would associate with an opinion of this court.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
MARTONE, Justice.
A despondent mother’s attempt to commit suicide and infanticide by asphyxiation was interrupted by an alert neighbor. All survived and, fortunately, no one was injured. She was not charged with attempted murder but, instead, with two counts of intentional or knowing child abuse under A.R.S. § 13-3623(B)(1) which carries a much more severe sentence. Upon conviction, the court sentenced her to two consecutive 17 year prison terms which require her to serve the full 34 years before release. We are asked to decide whether this sentence is cruel and unusual under the federal and state constitu[29]*29tions. We conclude that it is not. However, we also conclude, in the exercise of our statutory authority, that the sentence is excessive in light of the circumstances of this particular crime and thus reduce it to the minimum statutory mitigated term of 24 years.
I. THE FACTS
Colette DePiano had been, by all accounts, a very good mother. Her husband deserted her shortly after her second child was born. Despite the difficulty of raising two boys while working as a flight attendant with America West Airlines, DePiano appeared to manage. A few years after her husband deserted her, she began dating a co-worker at America West. Six months later she was hospitalized for post-abortion psychological complications. About one month before the suicide-infanticide attempt, she broke up with her boyfriend. She moved out of the house they shared, although she had no income and no place to live. She stole $300 from her ex-boyfriend to pay bills. A friend allowed her to live rent-free at her Tempe house. She was depressed, upset, and disillusioned.
On October 16, 1991, DePiano went to dinner with some friends at America West and came home late. At 2:00 a.m., a neighbor woke up to the sound of what he thought was a washing machine. His bedroom was right next to DePiano’s garage. After checking things out, the neighbor noticed that the noise was coming from a car in the garage. He knocked on the garage door and the front door, but got no answer. He called the police.
A Tempe police officer came out, went into the sealed garage and brought DePiano and her two children out to the front yard. The police and paramedics took them to the hospital where she told the attending physician that she was depressed and had attempted suicide.
At her child abuse trial, she denied she was trying to commit suicide and claimed that she was trying to fix her car. After closing arguments and before the jury returned its verdicts of guilty, she left town.
In a 2-1 decision, the court of appeals affirmed her convictions and sentence. State v. DePiano, 187 Ariz. 41, 926 P.2d 508 (App.1995). We granted review on whether the sentence was constitutional and ordered supplemental briefing to consider whether we should reduce DePiano’s sentence under A.R.S. § 13^t037(B), which authorizes the court to reduce sentences that, although constitutional, are otherwise excessive under the facts of a given case.
II. CRUEL AND UNUSUAL PUNISHMENT
DePiano’s sentence of 34 years is the result of the confluence of three separate sentencing enhancements. First, although most class 2 felonies then carried a 7 year presumptive term, A.R.S. § 13-701 (1989), intentional or knowing child abuse carried a presumptive term of 17 years. A.R.S §§ 13-604.01(B), 13-3623(B)(1). Second, A.R.S. § 13-604.01(E) requires that persons convicted of child abuse must serve the entire term. Third, sentences imposed for intentional child abuse, where the victim is under 15 years of age, must be served consecutively. A.R.S. § 13-604.01(J) (now A.R.S. § 13-604.01(1)). DePiano argues that her resulting sentence of 34 straight years without the possibility of release violates the prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and art. 2, § 15 of the Arizona Constitution.
While it is clear that a cruel and unusual sentence violates both constitutions, what is cruel and unusual is not so clear. The United States Supreme Court addressed this issue in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Harmelin had been convicted of possessing 672 grams of cocaine and was sentenced to life imprisonment without possibility of parole. Although there was no majority opinion, it was the judgment of the Court that the sentence did not violate the Eighth Amendment. Justice Kennedy’s plurality opinion was the closest thing to an opinion of the Court. Under his view, the Eighth Amendment “forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Id. at 1001, 111 S.Ct. at 2705. If a sentence raises an inference of gross dispro[30]*30portionality, an intra-jurisdictional and inter-jurisdictional analysis of similar crimes is appropriate to validate the inference. Id. at 1005, 111 S.Ct. at 2707. If no such inference of gross disproportionality arises, no intra- or inter-jurisdictional analysis is required. The plurality concluded that a life sentence without parole for the possession of 672 grams of cocaine was constitutional. The plurality focused on the offense generally, without analyzing the particular circumstances of the crime or the offender. Because of the gravity of the offense, and the correlation between drugs and crime, particularly violent crime, “the Michigan Legislature could with reason conclude that the threat posed to the individual and society by possession of this large an amount of cocaine — in terms of violence, crime, and social displacement — is momentous enough to warrant the deterrence and retribution of a life sentence without parole.” Id. at 1002-05, 111 S.Ct. at 2706-07. Having found that the sentence was not grossly disproportional, no inter- or intra-jurisdictional analysis was required. Id. at 1005, 111 S.Ct. at 2707.
In State v. Bartlett, 171 Ariz. 302, 830 P.2d 823 (1992) (Bartlett II), this court agreed that, at least until the Supreme Court of the United States reached a majority on the issue, it would use the standard articulated by Justice Kennedy to resolve such questions under the Eighth Amendment. But three members of this court looked to the particular facts and circumstances of the crime and the offender in analyzing the threshold question of gross disproportionality. Two members of this court would have done what Justice Kennedy did, not look at the particular crime or the particular offender, but whether the offense generally poses a sufficient threat to warrant the sentence imposed.
We do not believe that Bartlett II is entitled to the sort of precedential value one ordinarily would associate with an opinion of this court. The court was almost equally divided on the meaning of a plurality opinion of the United States Supreme Court. We are thus left with two levels of informed speculation. The first is whether the plurality opinion in Harmelin would command a majority today. The second is whether the majority or the minority read Harmelin correctly in Bartlett II. We agree with Bartlett II that until the Supreme Court of the United States holds otherwise, we shall follow Justice Kennedy’s plurality opinion. But we disapprove of that part of Bartlett II that concludes that Justice Kennedy’s analysis would require an examination of the facts and circumstances of the particular crime and the particular offender. We agree with the minority in Bartlett II that the initial threshold disproportionality analysis is to be measured by the nature of the offense generally and not specifically. We think this is particularly true for serious violent offenses.
Under this framework of analysis, and turning to this case, child abuse is a serious violent crime. The abuse must occur under “[circumstances likely to produce death or serious physical injury.” A.R.S. § 13-3623(B)(1). Child abuse is a violent crime and probably a more severe offense than the possession of 672 grams of cocaine. If, under Harmelin, a life sentence without the possibility of parole is not grossly disproportional to the offense of possession of cocaine, a fortiori, a shorter sentence for a more severe offense is not grossly disproportional. Therefore, without looking at the particular circumstances surrounding her offense, we reject DePiano’s claim that her sentence violates the Eighth Amendment to the United States Constitution and art. 2, § 15 of the Arizona Constitution.
III. STATUTORY REDUCTION
DePiano’s sentence is constitutional because the prohibition against cruel and unusual punishment embodies a very narrow proportionality principle. A sentence is cruel and unusual only where there is gross disproportionality between the crime generally and the sanction imposed by the legislature. We ordered supplemental briefing on whether DePiano’s sentence should nevertheless be reduced under A.R.S. § 13-4037(B), which, in contrast to the Eighth Amendment, allows the court to look at the particular circumstances of the crime and the offender and reduce any sentence that it finds to be excessive, even though the sentence is constitutional. A.R.S. § 13-4037(B) provides:
[31]*31Upon an appeal from the judgment or from the sentence on the ground that it is excessive, the court shall have the power to reduce the extent or duration of the punishment imposed, if, in its opinion, the conviction is proper, but the punishment imposed is greater than under the circumstances of the case ought to be inflicted. In such a case, the supreme court shall impose any legal sentence, not more severe than that originally imposed, which in its opinion is proper. Such sentence shall be enforced by the court from which the appeal was taken.
This court cannot engage in appellate sentencing. Nor can we ordinarily substitute our judgment for that of the trial judge. We cannot and would not micromanage the administration of criminal justice in Arizona. We have neither the competence nor the ability to do so. We thus exercise our power under this statute only with great caution. E.g., State v. Patton, 120 Ariz. 386, 388, 586 P.2d 635, 637 (1978); State v. Killian, 91 Ariz. 140, 142, 370 P.2d 287, 289 (1962). We will only reduce a sentence if it clearly appears to be too severe. E.g., State v. Herrera, 121 Ariz. 12, 15, 588 P.2d 305, 308 (1978). As we said in Patton, “[t]he power of this Court to modify sentences should further be tempered by the realization that a defendant appears in person before the trial judge, rendering that judge, in most instances, more able than ourselves to evaluate the defendant and his circumstances.” 120 Ariz. at 388, 586 P.2d at 637.
Such cases will be rare. Indeed, until today, we had not seen such a case in years. Although her children were with her, the crime here is essentially a botched suicide. Her suicide note, uncorrected, reads in part:
To all the people who made my life somewhat bearable;
Although none of this makes much sense to you—
I just know that I cannot put my sons through the coldness + hate that goes on — People talk above love — what does that mean — your parents tell you your out of house when your 18 — your spouse leaves + believes he doesn’t need to pay child support — Your children look up to you— what do you have to offer—
Dear God — I’ve taken my sons with me in hopes that we’d be somewhere away from the place we are now ...
To my Mom — You’ve instilled in me that raising children is a nightmare + all they do is grow up to resent you — That’s all the appreciation I get huh, — a resentment— You don’t even call me! — Boy—that really pisses me off—
Jeff1 — I lived your life, your problems your confusion — I loved you — what a waste—
Jim2 — what a loser you are for not helping me with the boys — I tried so hard to do it by myself — I tried so hard! — You bastard — how can anyone not want to see these two boys succeed — They deserve more than what I can offer as a single income family — Why couldn’t you help us — Just with day care expenses — they’re your kids—
God only know how much I believe in life — but I look around me + see everyone lying cheating stealing[.] no one has any morals—
I’m not a 90s person — I don’t want my sons to be a part of the hate we all spread around—
They are beautiful and pure + no one will take that away from us—
We are descent + honest ...
Jordan — You’ve been the best of friends— I love you with all my heart — I love you — I love you — You’ve been wonderful to us—
Jordan you of all people know how disheartened I am with the hatefulness of people—
People look at you tell you they love you + walk away—
This note, and all of the other matters of record leading up to this sad incident, illustrate that DePiano’s suicide-infanticide attempt was motivated by despair, not the evil, [32]*32wicked, depraved, or otherwise bad state of mind one associates with child predators. Neither her depression nor her despair excuse her guilt, but we believe it is so mitigating here that it sets this case apart from the norm.
The trial court found her lack of a prior criminal record and the absence of injury to the children to be mitigating. But he found her two month flight after the verdict was announced to be aggravating. He believed these factors balanced out and sentenced her to the presumptive term. In the ordinary case, a presumptive sentence could well be indicated. But the sentence here was driven more by the confluence of a series of nondiscretionary sentencing enhancements than individual judgment tailored to this particular offense and offender. We do not criticize the trial judge. Given these enhancements, the range available to him was narrowly severe. But A.R.S. § 13-4037(B) gives this court the responsibility to put the sentence in context. Had this been a typical child abuse case, we would have left this defendant where we found her. But it is not. Even most first degree murderers are eligible for parole after 25 years. A.R.S. § 13-703. We believe a 34 year flat sentence is excessive for this case and therefore DePiano is entitled to some relief under A.R.S. § 13-4037(B).
Our authority to reduce an otherwise constitutional sentence is limited by § 13-4037(B) to “one within the statutory range enacted by the legislature.” State v. Bartlett, 164 Ariz. 229, 241, 792 P.2d 692, 704 (1990) (Bartlett I). We therefore give her only the relief we are authorized to give. We reduce her sentence to 24 years (two consecutive 12-year terms), the minimum mitigated term to which she could have been sentenced. Executive clemency is an avenue of potential further relief in the future. Compare Ariz. Const. art. 5, § 5 with A.R.S. § 13-604.01(E) (1989) (amended 1993).
IV. DISPOSITION
We vacate that part of the opinion of the court of appeals that relates to the cruel and unusual punishment issue. We affirm DePiano’s convictions, but under the authority of A.R.S. § 13-4037(B), the 17 year term of imprisonment for each count is reduced to 12 years for each of the two counts. The sentences in all other respects are affirmed, including the flat provisions of A.R.S. § 13-604.01(E) and the consecutive provisions of A.R.S. § 13-604.01(J).