Cruel and Unusual Punishment?

Another one of our cases attracts media attention. That seems to be happening more frequently.

ADMIN/REGULATORY • Mar. 29, 2005

Panel Scraps Sex Offender's Life Sentence'Harmless Violation' Shouldn't Be Third Strike, Justices Say

By Hudson Sangree
Daily Journal Staff Writer

SAN FRANCISCO - Going against the tide of recent rulings by the U.S. Supreme Court and California courts, a state appeal panel declared it cruel and unusual punishment to send a man to prison for life because he failed to update his address as a sex offender.

Keith Ishmeal Carmony was a repeat felon who had registered as a sex offender with police a month before his birthday. But he failed to update his registration within five days after his birthday passed, as required by state law.

Although he had not moved since his prior registration, and his parole agent knew he was still at the same address, Carmony was arrested on the felony charge of failing to reregister.

He pleaded guilty and was sentenced by a Shasta County judge to 25 years to life under the state's three-strikes law.

On Friday, two members of a three-justice panel of the 3rd District Court of Appeal in Sacramento said the sentence was cruel and unusual, violating the state and federal constitutions.

The court made its ruling public Monday.

"This case raises the question whether there is an offense so minor that it cannot trigger the imposition of a recidivist penalty without violating the cruel and/or unusual punishment prohibitions of the United States and California Constitutions," wrote Justice Coleman Blease for the majority in People v. Carmony, C038802.

It was not the first time the court had heard Carmony's case.

The first time around, the appeal court ruled that Shasta County Superior Court Judge Wilson Curle had abused his discretion by refusing to strike two of Carmony's three prior convictions.

The California Supreme Court reversed the appeal panel, holding that the judge had not abused his discretion. But the high court sent the case back for the appeal court to consider the constitutional issues it raised.

This time the Sacramento court said Carmony's indeterminate life sentence was grossly disproportionate to his crime.

"It is a rare case that violates the prohibition against cruel and/or unusual punishment," Blease wrote. "However, there must be a bottom to that well. If the constitutional prohibition is to have a meaningful application it must prohibit the imposition of a recidivist penalty based on an offense that is no more than a harmless technical violation of a regulatory law."

Justice Richard Sims sided with Blease.

They said the case could be distinguished from other cases upholding three-strikes sentences triggered by petty offenses because Carmony's offense was an "entirely passive, harmless and technical violation of the registration law," and even less significant than writing a bad check.

"Because a 25-year recidivist sentence imposed solely for failure to provide duplicate registration information is grossly disproportionate to the offense, shocks the conscience of the court and offends notions of human dignity, it constitutes cruel and unusual punishment under both the state and federal constitutions," the justices declared, remanding the case to the trial court for resentencing.

Justice George Nicholson dissented, arguing it was wrong to say Carmony's sentence was out of all proportion to his crimes.

Nicholson had sided with Blease in the court's prior ruling that the trial judge had abused his discretion.

"This case does not present a bottom-of-the-well scenario," wrote Nicholson. "It would be cruel and unusual to torture a third-striker or to give a life term to a petty thief with no prior record. Those are bottom-of-the-well scenarios."

Nicholson pointed out that the U.S. Supreme Court had already rejected a similar argument in Ewing v. California, 538 U.S. 11 (2003), a case in which a defendant was given a life sentence for stealing three golf clubs worth $1,200.

The majority in that case said the defendant was not being punished merely for shoplifting the golf clubs, but for doing so after being convicted of two prior serious or violent felonies.

Nicholson said it was the same with Carmony, who had been convicted years before of child molesting and beating his girlfriends.

"Here, defendant committed the felony of failing to register after having been convicted of two violent or serious felonies," Nicholson wrote. "That is the relevant set of circumstances that must bear the weight of the penalty imposed."

Nicholson argued that Carmony's failure to update his address within five days of his birthday was not a harmless oversight.

"We rightly place strict requirements on sex offenders so we can keep tabs on them," he wrote.

In addition, Nicholson pointed out that another panel of the 3rd District last year in People v. Meeks, 123 Cal.App.4th 695 (2004), upheld a three-strikes sentence against a felon who failed to register as a sex offender after moving and within five days of his birthday.

Sims had written a passionate dissent in that case.

"Defendant violated the same law the defendant in Meeks violated," he wrote. "I see no reason to turn precedent on its ear."