Summary
stating that Const 1963, art 1, § 16 does not contain a proportionality component; that the prohibition against cruel or unusual punishment only forbids certain modes or methods of punishment; and "that because 'imprisonment . . . is, and always has been, in this country and in all civilized countries, one of the methods of punishment,' it does not violate the Cruel or Unusual Punishment Clause"
Summary of this case from People v. StovallOpinion
No. 141388.
December 16, 2010.
Court of Appeals No. 290271.
Leave to Appeal Denied.
I concur in this Court's decision to deny leave to appeal. However, I take this opportunity to express my concerns regarding this Court's decision in People v. Bullock, 440 Mich 15 (1992), and its establishment of proportionality review of criminal sentences under Const 1963, art 1, § 16, which provides that "cruel or unusual punishment shall not be inflicted." Bullock held that proportionality is a component of "cruel or unusual" punishment even though as early as 1890, this Court had rejected such an understanding of the Constitution. People v. Morton, 80 Mich 634 (1890). As this Court explained in Morton:
Counsel for defendants claims that, as properly understood, it means, when used in this connection, punishment out of proportion to the offense. If by this is meant the degree of punishment, we do not think the contention correct. . . .
"We first find the injunction against cruel and unusual punishment in the Declaration of Rights, presented by the convention to William and Mary before settling the crown upon them in 1688. That declaration recites the crimes and errors which had made the revolution necessary. These recitals consist of the acts only of the former king and the judges appointed by him, and one of them was that `illegal and cruel punishment had been inflicted.' * * * The punishments complained of were the pillories, slittings, and mutilations which the corrupt judges of King James had inflicted without warrant of law, and the declaration was aimed at the acts of the executive; for the judges appointed by him, and removable at pleasure, were practically part of the executive. It clearly did not then refer to the degree of punishment, for the criminal law of England was at that time disgraced by the infliction of the very gravest punishment for slight offenses, even
petit larceny then being punishable with death. But the declaration was intended to forbid the imposition of punishment of a kind not known to the law, or not warranted by the law." [ Id. at 638 (citation omitted) (emphasis added).]
The Court then proceeded to quote Justice COOLEY'S treatise, Constitutional Limitations:
"Probably any punishment declared by statute for an offense which was punishable in the same way at the common law could not be regarded as cruel or unusual, in the constitutional sense. And probably any new statutory offense may be punished to the extent and in the mode permitted by the common law for offenses of similar nature. But those degrading punishments, which in any state had become obsolete before its existing constitution was adopted, we think may well be held forbidden by it as cruel and unusual. We may well doubt the right to establish the whipping-post and the pillory in states where they were never recognized as instruments of punishment, or in states whose constitutions, revised since public opinion had banished them, have forbidden cruel and unusual punishments. In such states the public sentiment must be, regarded as having condemned them as cruel, and any punishment which, if ever employed at all, has become altogether obsolete, must certainly be looked upon as unusual." [ Id. at 638-639 (citation omitted) (emphasis added).]
The Court then concluded that because "[i]mprisonment for larceny is, and always has been, in this country and in all civilized countries, one of the methods of punishment," it does not violate the Cruel or Unusual Punishment Clause. Id. at 639 (emphasis added).
While "the Clause disables the Legislature from authorizing particular forms or `modes' of punishment — specifically, cruel methods of punishment that are not regularly or customarily employed," the clause "contains no proportionality guarantee" and, thus, "`the length of the sentence actually imposed is purely a matter of legislative prerogative.'" Harmelin v. Michigan, 501 US 957, 962, 965, 976 (1991) (opinion of Scalia, J., joined by Rehnquist, C.J.) (citation omitted). Indeed, "to use the phrase `cruel and unusual punishment' to describe a requirement of proportionality would have been an exceedingly vague and oblique way of saying what Americans were well accustomed to saying more directly." Id. at 977. "[T]he Clause does not expressly refer to proportionality or invoke any synonym for that term, even though the Framers were familiar with the concept, as evidenced by several founding-era state constitutions that required (albeit without defining) proportional punishments." Graham v. Florida, 560 US at ___; 130 S Ct 2011, 2044 (2010).
US Const. Am VIII prohibits the infliction of "cruel and unusual punishments." (Emphasis added.) The relevance of the distinction between "and" and "or" in the United States and Michigan constitutions, respectively, was at issue in Bullock.
Furthermore, "[w]hile there are relatively clear historical guidelines and accepted practices that enable judges to determine which modes of punishment are `cruel and unusual,' proportionality does not lend itself to such analysis." Harmelin, 501 US at 985 (emphasis in the original). That is, I fail to see how I, as a judge, am any more qualified than the Legislature, as the representative body of the people, to determine the proportionality of a sentence. In her opinion concurring in part and dissenting in part in Bullock, 440 Mich at 63-64, Justice RILEY quoted the amicus curiae brief of the Prosecuting Attorneys Association of Michigan:
"[I]f `evolving standards of decency' as to the appropriate (proportionate) sentence for a crime are to be the measure of the constitutionality of a legislatively set penalty, how is such an inquiry to be carried out? What is the measure? What informs the judgment? What tools does a court have to make it? What enables a court to overrule society's expression of its `standard of decency,' communicated through statute, imposing a different standard, which is also supposed to be society's standard and not the court's? Would not the court's role be to discover or identify society's `standard of decency' — not what it should be, but what it is, and how better could society express [its] standard of decency than through its elected lawmakers? The alternative . . . for the judiciary is that
"it is for us (the judiciary) to judge, not on the basis of what we perceive the Eighth Amendment originally prohibited, or on the basis of what we perceive the society through its democratic processes now overwhelmingly disapproves, but on the basis of what we think `proportionate' and `measurably contributory to acceptable goals of punishment' — to say and mean that, is to replace judges of the law with a committee of philosopher-kings. Standford v. Kentucky [ 492 US 361, 379; 109 S Ct 2969; 106 L Ed 2d 306, 324 (1989)]." [Opinion of Scalia, J, emphasis in original.]
As Justice Thomas recently explained in responding to the majority's admittedly "independent" "moral" determination that the constitution does not permit a juvenile offender to be sentenced to life in prison without parole for a non-homicide offense:
I am unwilling to assume that we, as members of this Court, are any more capable of making such moral judgments than our fellow citizens. Nothing in our training as judges qualifies us for that task, and nothing in Article III gives us that authority. [ Graham, 560 US at ___; 130 S Ct at 2043 (Thomas, J, dissenting).]
And as Justice Scalia also remarked:
[T]he Court having pronounced that the Eighth Amendment is an ever-changing reflection of "the evolving standards of decency' in our society, it makes no senge for the Justices then to prescribe those standards rather than discern them from the practices of our people. [ Roper v Simmons, 543 US 551, 616 (2005) (Scalia, J., dissenting) (emphasis in the original).]
"Proportionality review . . . threatens to undermine the democratic process by preventing the legislative branch from performing one of its most basic functions — defining crime and punishment." Casenote, Atkins v. Virginia .• Nothing left of the independent legislative power to punish and define crime, 11 Geo Mason L R 805, 876 (2003).
Because imprisonment is not a cruel or unusual method of punishment, the Court of Appeals did not err in holding that defendant's minimum sentence of 25 years in prison does not violate the cruel or unusual punishment clause. For that reason, I concur in this Court's decision to deny leave to appeal. However, at some point, this Court should revisit Bullock's establishment of proportionality review of criminal sentences and reconsider Justice RILEY'S dissenting opinion in that case.
CORRIGAN and YOUNG, JJ., joined the statement of MARKMAN, J.
KELLY, C.J., and CAVANAGH, J., would grant leave to appeal.