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November 15, 2017

West Virginia Supreme Court finds life sentence under recidivist statute violates state constitution's proportionality principle

During a recent class discussion on the future of Eighth Amendment jurisprudence as a limit on extreme prison terms, I mentioned the important reality that some state constitutions have punishment provisions with text providing defendants with more protections than the federal constitution.  For example, Article III, Section 5, of the West Virginia Constitution states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.  Penalties shall be proportioned to the character and degree of the offence."

Marc A. Kilmer is surely very grateful for the last sentence quoted above, because yesterday that provision led to the West Virginia Supreme Court, by a 4-1 vote, declaring his life sentence unconstitutional in West Virginia v. Kilmer, No. 15-0859 (W. Va. Nov 14,2017) (majority opinion available here).  Here are the essential from the start of the majority opinion:

Marc A. Kilmer was sentenced to life in prison under the recidivist statute based upon a predicate felony conviction for unlawful assault and two prior felony convictions for driving while license revoked for driving under the influence (DUI).  Mr. Kilmer argues on appeal that his life sentence violates the proportionality clause of Article III, Section 5 of the West Virginia Constitution because the two prior felony offenses do not involve actual or threatened violence.  The State asserts that the violence of the predicate felony for unlawful assault satisfies the goals of the recidivist statute and that Mr. Kilmer’s two prior felony convictions are factually similar to those in other cases in which we have upheld recidivist life sentences.  We conclude that the felony offense of driving on a license revoked for DUI does not involve actual or threatened violence and reverse the circuit court’s imposition of Mr. Kilmer’s recidivist life sentence.

The Chief Justice was the sole dissent to this opinion, and his dissenting opinion starts this way:

I dissent to the majority’s decision to reverse the petitioner’s recidivist sentence.  This sentence — life in prison with the possibility of parole — is mandated by the Legislature through West Virginia Code § 61-11-18(c) (2014): “When it is determined . . . that such person shall have been twice before convicted” of a felony, “the person shall be sentenced to be confined in the state correctional facility for life.” Id. (emphasis added).  Contrary to the majority’s conclusion, there is nothing constitutionally disproportionate about imposing a sentence of life with the possibility of parole upon a criminal who brutally beats and then sexually assaults an injured woman, when these violent offenses represent an escalation in the culprit’s existing felonious criminal record.

November 15, 2017 at 04:53 PM | Permalink


1/15/2017 03:12 pm ET
Judge Overturns Conviction Of Innocent Man Sentenced To Life More Than 40 Years Ago
Wilbert Jones will finally get his freedom after spending most of his life in prison.

By Taryn Finley
A Louisiana man who was wrongfully convicted of rape more than four decades ago will finally get to walk free on Wednesday.
Wilbert Jones was 19 when he was arrested on suspicion that he kidnapped a nurse at gunpoint and raped her in 1971, The Associated Press reports.
The nurse, who died in 2008, had a “questionable identification” of Jones: She picked him out of a police lineup but also told officers that her assailant was taller and had a “much rougher” voice, according to the AP. Another man who matched the nurse’s description was arrested for the rape of another woman 27 days later, but he was only charged and convicted of armed robbery after attacking a woman in 1973.
[Jones has spent] over 16,000 days in prison for something he didn’t do, and come out with faith in God and humanity. Emily Maw, Innocence Project New Orleans director
Despite the inconsistencies, Jones was convicted of aggravated rape in 1974 and sentenced to life without parole. A judge overturned the conviction on Oct. 31, 15 years after lawyers from the Innocence Project New Orleans took on Jones’ case.
State District Judge Richard Anderson called the case against Jones “weak, at best” and said authorities withheld evidence that could have exonerated him at the time.
Anderson granted the 65-year-old his freedom and set his bail at $2,000.
“Our courts have been willing to go back and recognize injustice from 1972, acknowledge that it happened and try to stop the damage,” Emily Maw, director of Innocence Project New Orleans, told The Advocate. “[Jones has spent] over 16,000 days in prison for something he didn’t do, and come out with faith in God and humanity.”
Jones, who spent the most recent portion of his sentence at Elayn Hunt Correctional Center in St. Gabriel, Louisiana, plans to live with his brother and sister-in-law. A Razoo page has been set up with a goal of raising $45,000 to help Jones transition back into society and rebuild his life.
“It is a clear injustice, a real tragedy,” Maw told local news outlet WAFB. “While we are thrilled for the Jones family that they will be reunited, there is a heaviness to somebody having lost 45 and a half years.”

Posted by: Ted | Nov 15, 2017 6:16:04 PM

In the West Virginia case: "Sentences for the other convictions were time served for the two counts of domestic battery, one to five years for the second count of unlawful assault and ten to twenty-five years for sexual assault in the second degree." Presumably, the unlawful assault charge to which he was sentenced to life in prison would otherwise have been punishable by one to five years in prison.

The opinion doesn't clarify if these sentences were to be served concurrently or consecutively, but they do all seem to arise out of one factual core set of evidence so assume that they are concurrent. If that is the case, the only comparison sentences is ten to twenty-five years for sexual assault with the time on all of the other counts served long before then.

We also don't know how old the Defendant in this case is (something that should always be included in a case involving a life sentence). He is more than 25 years old since he has a seven year old conviction for driving with a license suspended for repeat DUI. Suppose he is actually 30 years old to give him some time to commit a few DUI offenses and get his license revoked based upon repeat DUI convictions first.

Suppose that he has a life expectancy of about 45 to 50 years. Certainly, 25 years is within the range for a first time offender, so that is still proportional, so the excess is 20-25 years from that with a life sentences plus the lack of any hope of ever being free.

It isn't clear from the opinion if the conclusion is that any recidivist sentence for two prior non-violent offenses is disproportional, or just life in prison. Presumably, two prior felonies justify some enhancement, even if not life in prison, on a constitutional proportionately basis under the state constitution. Would maximum sentence plus 50% be too much - that would be 37.5 years v. 45 to 50 years and a lack of any hope with a life sentence?

I wouldn't be surprised if the end result ends up being 15 to 40 years with the exact amount left in the hands of a parole board, after this decision, which means a potential 10 to 35 years of remaining freedom, which is probably worth it to him.

Posted by: ohwilleke | Nov 16, 2017 7:12:10 PM

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