684 F.2d 582
Jerry HELM, Appellant,
Herman SOLEM, etc., Appellee.
United States Court of Appeals,
Submitted April 23, 1982.
Decided Aug. 4, 1982.
John J. Burnett, Rapid City, S. D., for appellant.
Grant Gormely, Asst. Atty. Gen., Pierre, S. D., for appellee.
Before LAY, Chief Judge, BRIGHT and ROSS, Circuit Judges.
BRIGHT, Circuit Judge.
Jerry Buckley Helm appeals from the denial of his petition for a writ of habeas corpus. He asserts that the sentence he received as an habitual offender, life imprisonment without parole, constitutes cruel and unusual punishment. We agree, and, accordingly, reverse and remand for further proceedings consistent with this opinion.
Helm entered a guilty plea to a felony charge of uttering a "no account" check for $100. Against the advice of counsel, Helm also admitted to six prior felony convictions and, as a result, was sentenced as an habitual offender.
The record indicates that Helm, age thirty-six at the time of his conviction, is an alcoholic and has spent much of the last fifteen years in the South Dakota State Penitentiary. State v. Helm, 287 N.W.2d 497, 499 (S.D.1980). Alcohol contributed to Helm's actions leading to this conviction and each of his prior convictions. In describing the facts prior to his guilty plea to the bad check charge, Helm stated:
"I was working in Sioux Falls, and got my check that day, was drinking and I ended up here in Rapid City with more money than I had when I started. I knew I'd done something I didn't know exactly what. If I would have known this, I would have picked the check up. I was drinking and didn't remember, stopped several places." (State v. Helm, supra, 287 N.W.2d at 501.)
Following entry of his guilty plea, Helm waived his right to a presentence investigation and requested immediate sentencing. The state trial judge acceded to his request and made the following statement in pronouncing Helm's life sentence from the bench:
"Well, I guess most anybody looking at this record would have to acknowledge you have a serious problem, if you've been drinking all this time and your prior imprisonments have not had any effect on your drinking problem, so far as motivating you for change. If you get out in the near future, you're going to be committing further crimes, so I can't see any purpose in my extending any leniency to you at all here and I intend to give you a life sentence.
It will be up to you and the parole board to work out when you finally get out, but I think you certainly earned this sentence and certainly proven that you're an habitual criminal and the record would indicate that you're beyond rehabilitation and that the only prudent thing to do is to lock you up for the rest of your natural life, so you won't have further victims of your crimes, just be coming back before Courts. You'll have plenty of time to think this one over." (State v. Helm, supra, 287 N.W.2d at 500.)
The statute in effect at the time of Helm's sentencing provided that "(a) person sentenced to life imprisonment is not eligible for parole by the board of pardons and paroles." S.D. Codified Laws Ann. § 24-15-4 (1979). Thus, by imposing a life sentence, the sentencing judge committed Helm to the state penitentiary for the remainder of his natural life, barring a pardon or commutation of his sentence.
Helm appealed from his sentence, contending that the imposition of a sentence of life imprisonment without parole denied him due process and constituted cruel and unusual punishment. The Supreme Court of South Dakota, with two justices dissenting, affirmed the judgment of the trial court. State v. Helm, supra.
Helm then petitioned for a writ of habeas corpus in federal district court alleging that his sentence constituted cruel and unusual punishment, and that the sentencing procedure violated his right to due process because the judge imposed the maximum sentence allowed by law without a presentence investigation. The State filed an answer to Helm's petition, and the district court denied the petition without a hearing. In a memorandum opinion, the district court determined that Helm had effectively waived any right to a presentence investigation, and that Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), disposed of Helm's claim that the sentence imposed constituted cruel and unusual punishment. Helm filed this appeal.
On appeal, Helm presses only his claim that a life sentence without parole under the circumstances of this case violates his constitutional right to be free from cruel and unusual punishment. Helm contends that Rummel v. Estelle does not control this case, because the life sentence imposed on Rummel carried with it the possibility of parole. We agree that Rummel is not dispositive.
In Rummel, the Supreme Court upheld the imposition of a mandatory life sentence under Texas' recidivist statute upon Rummel's felony conviction for obtaining $120.75 by false pretenses. At the time, Rummel had two prior felony convictions-passing a forged check in the amount of $28.36, and fraudulently using a credit card to obtain $80 worth of goods or services. 445 U.S. at 265-66, 100 S.Ct. at 1134-35. Rummel challenged his life sentence on the ground that it violated the proscription of the eighth and fourteenth amendments against cruel and unusual punishment because it was so grossly disproportionate to the severity of his crime. The Court rejected the disproportionality analysis urged by Rummel, concluding that the task of drawing lines between one term of years and a shorter or longer term of years properly belonged to the legislature, not the courts. Id. at 275-76, 100 S.Ct. at 1139-40. The Court stated that
one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative. (Id. at 274, 100 S.Ct. at 1139 (footnote omitted).)
The Court in Rummel, however, did not totally reject the idea that a term of imprisonment might be so disproportionate to the offense as to be unconstitutional. The plurality noted: "This is not to say that a proportionality principle would not come into play in the extreme example mentioned by the dissent, * * * if a legislature made overtime parking a felony punishable by life imprisonment." Id. at 274 n.11, 100 S.Ct. at 1139. More importantly for the analysis in this case, the Court distinguished the life sentence at issue in Rummel from a life sentence without parole.
Texas, we are told, has a relatively liberal policy of granting "good time" credits to its prisoners, a policy that historically has allowed a prisoner serving a life sentence to become eligible for parole in as little as 12 years. * * * We agree with Rummel that his inability to enforce any "right" to parole precludes us from treating his life sentence as if it were equivalent to a sentence of 12 years. Nevertheless, because parole is "an established variation on imprisonment of convicted criminals," Morrissey v. Brewer, 408 U.S. 471, 477 (92 S.Ct. 2593, 2598, 33 L.Ed.2d 484) (1972), a proper assessment of Texas' treatment of Rummel could hardly ignore the possibility that he will not actually be imprisoned for the rest of his life. If nothing else, the possibility of parole, however slim, serves to distinguish Rummel from a person sentenced under a recidivist statute like Mississippi's, which provides for a sentence of life without parole upon conviction of three felonies including at least one violent felony. See Miss.Code Ann. § 99-19-83 (Supp.1979). (Id. at 280-81, 100 S.Ct. at 1142-43.)
The State in this case contends, however, that no meaningful distinction exists between a life sentence with parole and one without parole. It relies on Hutto v. Davis, --- U.S. ----, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (per curiam), to support its contention that a disproportionality analysis does not apply in noncapital cases. There, the Court upheld the imposition of two consecutive twenty-year sentences upon Davis' convictions for possession and distribution of less than nine ounces of marijuana. In rejecting Davis' cruel and unusual punishment claim, the Court stated that
Rummel stands for the proposition that federal courts should be "reluctan(t) to review legislatively mandated terms of imprisonment," id. at 274, 100 S.Ct., at 1139, and that "successful challenges to the proportionality of particular sentences" should be "exceedingly rare," id. at 272, 100 S.Ct., at 1138. (102 S.Ct. at 705 (footnote omitted).)
We recognize that Rummel and Davis caution federal judges against imposing their subjective views of sentencing upon the states when reviewing claims that state sentences constitute cruel and unusual punishment because of their length. Neither case, however, addressed the precise issue before us. Davis received consecutive sentences for a definite term of years. More significantly, the sentences imposed upon both Rummel and Davis carried the prospect of parole. By contrast, Helm must serve the rest of his life behind bars.
A life sentence without parole differs qualitatively from a sentence for a term of years or a life sentence with the prospect of parole. As with the death penalty, the State totally rejects rehabilitation as a basic goal of our criminal justice system by imposing a life sentence without parole. Because a life sentence without parole differs in kind from other sentences of imprisonment, the constitutional prohibition against cruel and unusual punishment requires that it bear some relationship to the severity of the underlying crime.
In comparing the length of sentence in this case to the offense, we remain mindful of the Supreme Court's admonition that a determination that a particular punishment is excessive should depend upon objective factors to the maximum extent possible. Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977). Accordingly, we take into account the collective judgment of the fifty state legislatures and the nature of the offense in evaluating the appropriateness of Helm's life sentence without parole. We recognize that some state will always bear the distinction of treating particular offenders more severely than any other state. See Rummel v. Estelle, supra, 445 U.S. at 282, 100 S.Ct. at 1143. When a disproportionality analysis is appropriate, however, the punishment that other states authorize for similar offenses provides an objective backdrop against which to judge the sentence under attack. See Coker v. Georgia, supra, 433 U.S. at 593-96, 97 S.Ct. at 2866-68.
Helm could have received a life sentence without parole for his offense in only one other state, Nevada. Other states either do not authorize such a drastic sanction for habitual offenders, or require at least one prior felony conviction for a violent crime as a prerequisite to a sentence of life imprisonment without parole. Because Helm had no prior convictions for violent crimes, see supra note 1, he contends that life imprisonment without parole is grossly disproportionate to the severity of his offense. Based on our comparison of the laws of the other states, we agree. By refusing to impose a life sentence without parole upon habitual offenders or by reserving such a sentence for habitual offenders whose felonies include at least one crime of violence, the overwhelming majority of states indicate the inappropriateness of such a sentence in the circumstances of this case.
An examination of the circumstances surrounding each of Helm's prior felony convictions indicates that a life sentence without parole is grossly disproportionate. In each of his crimes alcohol was a contributing factor. Although Helm's alcoholism does not excuse his failure to bring his conduct within the social norms prescribed by the criminal law, it is nonetheless a condition amenable to treatment. See Powell v. Texas, 392 U.S. 515, 562, 88 S.Ct. 2145, 2169, 20 L.Ed.2d 1254 (1968) (Fortas, J., dissenting). To forsake rehabilitation by imposing a life sentence without parole on an individual whose alcoholism has caused him to run afoul of the law, does not accord with "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 596 (1958). Accordingly, we conclude that a life sentence without parole in the circumstances of this case is so grossly disproportionate to the nature of the offense that its imposition constitutes cruel and unusual punishment in violation of the eighth and fourteenth amendments.
We reverse and remand with directions to issue the writ if, within sixty days following the issuance of our mandate, the State has not resentenced Helm.