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July 14, 2012

Fascinating Eighth Amendment ruling by Kansas appeals court about (uniquely?) extreme sex offender sentence

I have been slow to note a remarkable Eighth Amendment opinion handed down late last week by a Kansas appellate court in State v. Proctor, No. 104,697 (Kan. Ct. App. July 6, 2012) (available here). (Hat tip to Eugene Volokh.)  The lengthy opinion and its (limited?) import are hard to summarize, so I will quote in full the start of the opinion here:

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 — life in prison without parole is second only to a death sentence in its extremity — 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.

The analysis by this appellate panel to back up these conclusions is quite interesting and worth a close read by any and everyone interested in the development of modern Eighth Amendment jurisprudence.

July 14, 2012 at 10:32 AM | Permalink


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Interesting. I'm glad the court addressed the ripeness issue, which is the first thing that occurred to me.

Posted by: Michael J.Z. Mannheimer | Jul 14, 2012 1:38:24 PM

More in the annals of lawyer great stupidity. Before people quote back to me my 123D, 123D is for violent crime, such as putting a gun to someone's head and taking their stuff.

None of the crimes cited above warrant draconian sentencing. The sole explanation is the feminist lawyer witch hunt of the productive male, with mala prohibita gotchas. None merit expensive or cheap incapacitation.

What deserves incapacitation is the feminist lawyer in its bad faith rent seeking. I consider rent seeking to be a violent crime. Try not paying your taxes. A man with a gun, a feminist running dog thug, will show up at your house, and help you pay them. Rent seeking would therefore count in 123D.

Even the appellate judges had to back up a bit on this one. There is something deeply wrong, troubling and stupid about the lawyer profession of today. I hope to bring sanity back to it, without recourse to violence. But it's always been rent seeking, nuts and stupid, since the days of Rome. So Little hope exists for its peaceful evolution.

Posted by: Supremacy Claus | Jul 14, 2012 7:25:57 PM

My son was sentenced to 260 years for child porn. He was 50years old at the time and does not have a history of this type of crime. Not only has he lost everything he accumulated in 50 years, his family and basically his life. Yes, he should be punished but 260 years for a one time of being stupid is a bit over the top. We need some help.


Posted by: Carmen | Feb 15, 2014 6:12:12 PM


Posted by: Carmen | Feb 15, 2014 6:13:33 PM

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