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May 1, 2009

California appellate court finds juve LWOP sentence unconstitutional

A helpful reader pointed me to an important ruling yesterday from a california appellate court finding a juvenile life sentence unconstitutional.  The ruling in In re Nunez, No. G040377 (Cal. App. 4th Dist. April 30, 2009) (available here), starts this way:

Antonio de Jesus Nuñez filed a petition for habeas corpus in the California Supreme Court on grounds, inter alia, that his sentence of life in prison without parole (LWOP) for kidnapping for ransom (Pen. Code, § 209, subd. (a)) — an offense he committed when he was 14 years old — constitutes cruel and unusual punishment under the Eighth Amendment or, alternatively, cruel or unusual punishment in violation of article I, section 17, of the California Constitution. Concluding Nunez established a prima facie case for relief, the Supreme Court ordered Nuñez's prison custodian to show cause before this court justifying the constitutionality of Nuñez's LWOP sentence.  After we placed the matter on calendar, petitioner and the Attorney General submitted briefs and argued the matter.

Petitioner contends his LWOP sentence violates article I, section 17's proportionality requirement based on, among other factors, his youth, the lack of injury to any victim, and the circumstance that LWOP is not a sentencing option for kidnappers his age who — unlike petitioner — murder their victims. We agree that under our state Constitution the LWOP sentence imposed on petitioner is void both in the abstract for society‟s most youthful offenders and as applied to petitioner in particular. We do not reach this conclusion lightly.  As stated by our Supreme Court in In re Lynch (1972) 8 Cal.3d 410, 414-415 (Lynch): “We recognize that in our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments, and that such questions are in the first instance for the judgment of the Legislature alone. [Citations.]  [¶] Yet legislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment, adopted by the people of this state as an integral part of our Declaration of Rights.  It is the difficult but imperative task of the judicial branch, as coequal guardian of the Constitution, to condemn any violation of that prohibition.”  When such a showing is made, as here, “we must forthrightly meet our responsibility „to ensure that the promise of the Declaration of Rights is a reality to the individual.‟ [Citation].” (Id. at p. 415.)

And because petitioner is the only known offender under age 15 across the country and around the world subjected to an LWOP sentence for a nonhomicide, no-injury offense, we also conclude his severe sentence is so freakishly rare as to constitute arbitrary and capricious punishment violating the Eighth Amendment.  Accordingly, as required by the state and federal Constitutions, we vacate defendant‟s LWOP sentence on his kidnapping conviction and remand to the trial court for resentencing.

May 1, 2009 at 07:55 AM | Permalink


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It looks like there's a decent chance Texas may eliminate LWOP for juveniles legislatively this year.

Posted by: Gritsforbreakfast | May 1, 2009 11:17:48 AM

4 DCA Div. 3 is to California what the Ninth Circuit is to the federal system.

Posted by: Kent Scheidegger | May 1, 2009 11:49:19 AM

Case seems very well reasoned to me. Congrats to the court for its courageous opinion. "Justice, justice, shalt thou purse."

Posted by: Michael R. Levine | May 1, 2009 12:10:42 PM

oops. should be "pursue"

Posted by: Michael R. Levine | May 1, 2009 12:11:33 PM

In other words, 4 DCA Div. 3 kind of likes the Constitution. The real question here is why would an ADA seek and a judge sentence LWOP for a non-injury crime? No one should get LWOP for a non-injury crime. When everything is most heinous, nothing is.

Posted by: George | May 1, 2009 12:27:14 PM

"kind of likes" may be code for "approves of but does not understand".

Posted by: Ben | May 1, 2009 2:19:20 PM

Interesting. I haven't read the opinion yet, but this and the Genarlow Wilson cases are the only ones of which I'm aware that hold that a lengthy term of incarceration is unconstitutional under the Eighth Amendment.

From a brief skim of the opinion, it's pretty awful and reads more like an advocacy piece than anything that passes for judicial reasoning. In a paragraph distinguishing cases where the defendants had "a history of violent crime," the court gives a laughable downplaying of the defendant's burglary conviction, his arrest for possessing a concealed weapon, and his arrests for drug possession and possessing stolen property (all by the age of 14, no less). I suspect that this was a cut-and-paste job from the briefs.

More generally, kidnapping for ransom is only a "no-injury crime" if one assumes a very narrow definition of "injury," and I suspect that the reason sentences like this one are "freakishly rare" is because 14-year-olds who kidnap others for ransom are "freakishly rare," and NOT because there's some kind of consensus against juvenile LWOP for "no-injury crimes." The court makes no mention of any data regarding other 14-year-olds who kidnap people for ransom without killing them. I'll have to read the opinion more closely at some point, but my gut reaction is that I'd defer to the state's judgment that this particular 14-year-old kidnapper with a lengthy criminal record needed to be thrown away. The sentence is a statistical outlier, but so is the defendant, which is why the sentence is appropriate.

Posted by: anonymous | May 1, 2009 2:25:38 PM

Well said. I'm not so sure I agree that this sentence is appropriate but I am sure that it is not so inappropriate that it rises to the level of being cruel and unusual, particularly since I would submit that Eighth Amendment analysis based on "evolving standards of decency" is fundamentally broken. Your comment, anonymous, that "14-year-olds who kidnap others for ransom are 'freakishly rare'" is spot-on.

Posted by: Ben | May 1, 2009 2:31:18 PM

I agree with Michael Levine that there's some "courage" involved in signing one's name to that sort of opinion, but I suspect that we have different views of how to describe that courage.

George, read the opinion, or at least the facts section.

Posted by: anonymous | May 1, 2009 2:31:47 PM

Drug dealers will now use juveniles to kidnap the children of those who owe them money, or of those who compete with them. If you love the high chance of being kidnapped in South America and in Iraq, that risk is coming to California. Thank the criminal lover judge. The judge will sign the death warrant of viable babies, by the millions. The judge will not allow anyone to substantively punish vicious, violent criminals.

If anyone has a child kidnapped by a juvenile vicious criminal, there is full moral and intellectual justification for the family to kidnap judges as kidnapping accomplices, and demand ransoms of a $1. I bet nobody pays.

The increase in kidnapping has the foreseeability of planetary orbits. They are not even human, not the kidnappers, not their enabling, criminal lover judges.

Posted by: Supremacy Claus | May 1, 2009 8:18:13 PM

Anonymous, you're right, I should have read it, and have now. Reading only the facts, well, maybe you're right, but keep reading. The opinion is right under the law. "But the state, in imposing an LWOP sentence, has judged him irredeemable while at the same time extending hope of rehabilitation and parole to all juvenile kidnappers, including those significantly older than petitioner, who murder their victims. This anomaly violates article I, section 17 of the California Constitution." *

Ben, the Court uses "freakishly rare" and that supports its opinion. This sentence was excessive when compared to other similar crimes.

This kid is not a murderer. Simple as that.

* Why don't newspapers link to the opinion in these cases? Could courts require newspapers provide a link to the opinion?

Posted by: George | May 1, 2009 10:30:06 PM

A difficult opinion, but LWOP is not warranted here because fortuitously no one was injured. I'm not sure what length of time is "deserved" for such an offense. I think the state could have avoided the Writ by requesting "Life" rather than LWOP; but who could have predicted a reversal by Habeas on cruel and unusual grounds at the time of the original trial? Juries in Texas pass out life sentences like candy in cases with these circumstances. 14-year old defendants are certified as adults in Texas quite often, as well. I'm not saying a substantial sentence isn't warranted, just not the hope-destroying LWOP.

Posted by: Mark#1 | May 2, 2009 5:16:48 AM

Why is it more important to give hope to a vicious predator than to crime victims living in fear for their and their children's lives?

The criminal generates lawyer jobs for three vile criminal lover, cult criminals, the two on opposing sides and the big criminal lover, cult criminal on a high bench, with a stupid gavel, wearing a Halloween costume, playing Dominican Inquisitor. The crime victim generates nothing, and may rot as far as the criminal lover, cult criminals are concerned.

Posted by: Supremacy Claus | May 2, 2009 8:57:10 AM

The setup of the court, its architecture, the high bench, the gavel, the judge robe, the standing, the oath, the stentorian tones, those are indicia of the Church origin, content, and affiliation of the common law and of the trial itself. These are all unlawful in our secular nation, and violate our Establishment Clause.

They need to be banned. Make the criminal lover, cult criminals wear sweatshirts with the logo, Criminal Lover, Cult Criminal on the back. They can sit around card tables in a basement, when cock fights are not scheduled.

Posted by: Supremacy Claus | May 2, 2009 9:03:18 AM

S. Clause, the issue is never either hope for the victim or hope for the defendant. That is a false dichotomy. The kidnap victim in this case may have been a volunteer, and if so, the victims were those who were almost shot. If you want real hope for victims, support an effort to implement Washington State's nursing programs nationwide, which saves about $2.88 for every dollar spent on criminal justice and gives hope, before the fact, for both defendants and victims. That program may have prevented this crime and the Sandra Cantu murder. Punishment is too late. See

Program cuts would endanger children, public safety.

In this sense, and only in this sense, I agree there is a sort of cult that maintains the status quo. I believe many who use "tough on crime" as an attack on everything liberal intentionally use the victim's rights movement like McCarthy used communism., even if it would work like these programs do. Nothing can help victims more than preventing their victimization in the first instance.

Posted by: George | May 2, 2009 11:41:52 AM

Ben and Anonymous are just scary.

And I'm sure it would come as a great shock to lots of Americans to discover just how at odds their brand of "judicial reasoning" appears to be with the basic concept of justice.

It strikes me as nothing short of sad and dangerous when "movement judges" and supportive lawyers put more stock in draconian laws routinely cranked out by cynical legislators than in their own latent powers to help bring about just outcomes.

Is applying the rules-are-rules test to this 14-year-old's LWOP sentence really any less an act of "advocacy" than deliberately skirting yet another piece of moronic, grandstanding legislation?

Posted by: John K | May 2, 2009 12:31:22 PM

George: You have to support a clamp down on lawyer encouraged bastardy before being taken seriously. Why does the lawyer try to destroy the family? It competes with government for authority.

A cult usually indoctrinates its members with supernatural beliefs, such as the Medieval garbage, lawyer core doctrines. They are impossible to rebut because they do not exist, when the hierarchy uses them to impose its tyranny.

Greater punishment is not a fraudulent supernatural belief. See crime rates after the guidelines stopped the encouragement of crime by judges. See the same rates in 5 years after these were made discretionary in the Scalia Bounce series of cases.

Posted by: Supremacy Claus | May 2, 2009 6:00:21 PM

George, as Anonymous pointed out, the "freakishly rare" comment cuts both ways.

And I'm not saying that I think LWOP was appropriate in this case. I just don't believe that it was unconstitutional. There's a difference.

Posted by: Ben | May 4, 2009 8:41:42 AM

I could not agree further George.


Posted by: Rodney | Sep 9, 2009 11:41:21 AM

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