A Rare Decision Holding a Potential Life Sentence To Be “Cruel and Unusual Punishment”

Despite the Court’s recent decisions limiting life sentences for juvenile defendants, generally speaking it’s very rare for courts to hold that sentences other than death sentences constitute “cruel and unusual punishment.” But State v. Proctor (Kan. Ct. App. July 6, 2012) so holds, in a way that seems likely to affect many similar cases in Kansas (and perhaps in other states that have similar schemes):

In this case, the court must address the constitutionality of a sentence potentially subjecting Defendant Daniel Proctor to lifetime postrelease supervision and, in turn, to imprisonment for life without parole if he were later to commit any felony, including a property crime otherwise calling for probation. Proctor faces that prospect because he pled guilty to a sex offense — aggravated indecent solicitation of a child — for which he has received a permissible guideline sentence of probation. For Proctor, a man in his early 20′s, the statutory sentencing scheme could put him behind bars for 50 years if he were to shoplift a $1,000 ring or computer or to write a bad check for them.

Given Proctor’s circumstances and the peculiarly harsh result that could be inflicted on him, the sentence violates the protections against cruel and unusual punishment contained in § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. The punishment may be considered grossly disproportionate in that context and incompatible with the general purposes of incarceration as a sanction in the criminal justice system. We, therefore, vacate the sentence imposed on Proctor to that extent and remand to the Saline County District Court for resentencing.

The governing statutes create the prospect of an exceptionally severe punishment … for persons convicted of designated sex offenses who then commit property crimes. For Proctor, the disparity between his criminal conduct and that punishment reflects an imbalance of a magnitude implicating constitutional protections. The Kansas sentencing statutes permit probation for both his underlying offense in this case and property crimes amounting to felonies. But the commission of those two offenses in that order may lead to life in prison with no prospect for release.

Controlling authority from the United States Supreme Court and the Kansas Supreme Court construing the federal and state constitutional prohibitions on cruel and unusual punishment cannot be reconciled with that result. The sentencing scheme exacts a punishment harsher than those for murder, kidnapping, and other crimes the Kansas Legislature has designated as more serious than Proctor’s. It also appears to be more severe than similar statutes applied to sex offenders in the vast majority of other states. Those are the ingredients of an unconstitutionally disproportionate punishment.

A bit more about the nature of the offense:

The facts about Proctor’s offenses are limited based on the disposition of the case in the district court. In 2010, Proctor pled guilty to one count of aggravated indecent solicitation of a child in violation of K.S.A. 21–3511 and two counts of lewd and lascivious behavior in violation of K.S.A. 21–3508(a)(2). Aggravated indecent solicitation entails “enticing or soliciting” a child younger than 14 years old to engage in an unlawful sex act. It is a severity level 5 person felony. Lewd and lascivious conduct requires that the perpetrator, motivated by a sexual urge, expose his or her genitals in the presence of a nonconsenting person. If the nonconsenting individual is younger than 16 years old, the offense is a severity level 9 person felony.

At the time of the plea, Proctor was 19 years old and had no criminal history. The factual basis for the plea showed the crimes took place in 2009. The victim was T.C., a 12–year–old boy. Proctor had known T.C. and his family for some time. For reasons that are not entirely clear from the record, Proctor lived with T.C. and his family for several months in 2009 and committed the crimes during that time. Proctor apparently cajoled T.C. into having manual and oral contact with Proctor’s penis. Proctor also had manual contact with T.C.’s penis, behind, and anus. The record indicates multiple occurrences of illicit contact, but the precise or approximate number was not specified.

T.C. suffered no physical injuries. He did, however, have ongoing emotional problems and was in counseling. Other than recurrent insomnia, those problems were not detailed in the record. T.C. did not attend Proctor’s sentencing, and nobody appeared on his behalf or submitted a written statement for the district court’s consideration.

Proctor was himself a victim of sexual abuse in his early adolescence but apparently never received counseling. He also had not been through any sort of treatment program for sex offenders. Information submitted to the district court at sentencing indicated Proctor would likely benefit significantly from such a program.

Given his lack of criminal history, Proctor fell in a border box on the sentencing grid for the aggravated solicitation conviction and faced incarceration for between 21 and 34 months. The border box sentences are treated as calling for presumptive incarceration. But a district court may impose a nonprison sentence on a border-box defendant upon a finding that he or she is amenable to “an appropriate treatment program” and participation in the program would be more effective than incarceration in “reducing the risk of … recidivism” consistent with “community safety interests.” The district court made that finding based on the availability of sex offender treatment for Proctor.

The district court imposed a standard sentence of 32 months in prison on Proctor for the aggravated solicitation conviction, put him on a 36–month probation, and ordered that he be placed in community corrections and participate in the treatment program. The district court imposed other restrictions and requirements on Proctor, such as refraining from use of alcohol or illegal drugs, obtaining gainful employment, and reporting as required to court officers supervising his probation. The sentence is not considered a departure.

The lewd and lascivious convictions were presumptive probation offenses. The district court granted Proctor probation on them. The district court imposed a standard 6–month sentence on each of those counts and ordered that they be run consecutive to one another and to the aggravated solicitation count, yielding a controlling prison term of 44 months. At sentencing, the district court told Proctor that he would be required to register as a sex offender under K.S.A. 22–4901 et seq. and that he would be subject to lifetime postrelease supervision under K.S.A.2009 Supp. 22–3717(d)(1)(G), (d)(2)(F).

Given the potential impact of the case, I expect the state will ask the Kansas Supreme Court to review the case, and that the Kansas Supreme Court will indeed agree to do so.