# State v. Fain > Washington Supreme Court · October 2, 1980 · 94 Wash. 2d 387 URL: https://www.frixlaw.com/law-library/cases/9538293 ## Case - **Full name:** The State of Washington, Respondent, v. Jimmy Fain, Petitioner - **Court:** Washington Supreme Court - **Decided:** October 2, 1980 - **Citations:** 94 Wash. 2d 387; 617 P.2d 720; 1980 Wash. LEXIS 1387 - **Precedential status:** Published - **Opinion:** Dissent by Rosellini - **Judges:** Williams, Rosellini - **Cited by:** 142 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9538293 ## How later opinions describe it (automated extraction) - explaining that a challenge to the constitutionality of the habitual criminal statute would have failed based on this deference because "we must and do defer to the legislative decision to impose an enhanced penalty on recidivists" - holding that article I, § 14 is more protective than the Eighth Amendment in a case arising under the former habitual *675 criminal statute (ROW 9.92.090) - holding that article I, § 14 is more protective than the Eighth Amendment in a case arising under the former habitual criminal statute (RCW 9.92.090) - holding that multiple crimes of fraud used to obtain small amounts of money were non-threatening to persons or property and thus "relatively minor" ## Opinion text Rosellini, J. (dissenting) — The majority concedes that the petitioner's crimes qualify him for the status of habitual criminal under RCW 9.92.090. It also concedes that the United States Supreme Court, in affirming Rummel v. Estelle, 587 F.2d 651 (5th Cir. 1978), has held that a life sentence for the type of recidivism exhibited here does not violate the eighth amendment to the United States Constitution, in other words, does not constitute cruel and unusual punishment. Rummel v. Estelle, 445 U.S. 263 , 63 L. Ed. 2d 382 , 100 S. Ct. 1133 (1980). The wording of the Eighth Amendment is substantially the same as that of Const, art. 1, § 14. Nevertheless, it does not hesitate to find in the same words a meaning quite different from that which the highest court of the land has found. It has done this with no valid justification, in my opinion. It is the general rule that language in our state constitution will be given the same interpretation as that given the federal constitutional provision by the United States Supreme Court. Northend Cinema, Inc. v. Seattle, 90 Wn.2d 709 , 585 P.2d 1153 (1978); Housing Auth. v. Saylors, 87 Wn.2d 732 , 557 P.2d 321 (1976). In the latter case, we indicated that there is room for a different construction only where the language of the provision differs. However, we have since departed from that doctrine to the extent that we may reject the reasoning of the United States Supreme Court if we do not find it persuasive. What was that reasoning in Rummel? First, the Supreme Court majority opinion recalled the court's prior statements to the effect that the Eighth Amendment prohibits the imposition of a sentence which is grossly disproportionate to the severity of the crime, noting that the proposition had *404 appeared most frequently in recent years in opinions dealing with the death penalty, a penalty which differs in kind from all others, because of its obvious finality, its rejection of rehabilitation as an objective of criminal justice, and its renunciation of "all that is embodied in our concept of humanity." The court then noted the rarity of successful challenges to the proportionality of particular sentences, outside the context of capital punishment, finding only one case, that of Weems v. United States, 217 U.S. 349 , 54 L. Ed. 793 , 30 S. Ct. 544 (1910), in which it has held a punishment short of death to be violative of the Eighth Amendment. The Supreme Court then pointed out that in Weems , the 12-year penalty for falsifying a single record, whether or not anyone was injured as a result, was not the controlling factor. Rather the other incidents of punishment imposed, called "accessories, or accompaniments", 8 constituted the evil which persuaded the court to find the punishment cruel and unusual. Absent some such punishment, which is of a different nature than the imprisonment customarily imposed, and without some objective criteria by which to measure proportionality of a sentence, the court is apt to find itself in the position of substituting the views of justices for those of legislators, the court said. The court in Rummel was confronted with the same propositions which have won the approval of the majority, and wisely rejected them. It was there argued that Rummel's crimes had involved the theft of only small sums of money, and that much more serious crimes were punishable by milder sentences than life. But the court quite properly *405 pointed out that Rummel was attempting to equate his series of crimes with a single offense of another. The court said: In this case, however, we need not decide whether Texas could impose a life sentence upon Rummel merely for obtaining $120.75 by false pretenses. Had Rummel only committed that crime, under the law enacted by. the Texas Legislature he could have been imprisoned for no more than 10 years. In fact, at the time that he obtained the $120.75 by false pretenses, he already had committed and had been imprisoned for two other felonies, crimes that Texas and other States felt were serious enough to warrant significant terms of imprisonment even in the absence of prior offenses. Thus the interest of the State of Texas here is not simply that of making criminal the unlawful acquisition of another person's property; it is in addition the interest, expressed in all recidivist statutes, in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law. By conceding the validity of recidivist statutes generally, Rummel himself concedes that the State of Texas, or any other State, has a valid interest in so dealing with that class of persons. Rummel, at 276. Rummel also attempted to convince the court that there was a significant trend toward lighter sentences in other states, but the court observed that the charts which he offered the court required complex comparisons which the court did not find it necessary to embark upon, for the sound reason that the constitution does not require uniformity in the criminal laws among the several states. The court also noted that penologists are not in agreement as to whether sentences should be light or heavy, discretionary or determinative, and that this fact makes it all the more imperative that decisions with respect to the appropriate punishment should be left to the legislature. The purpose of a recidivist statute, the majority opinion said, is not to simplify the task of prosecutors, judges or juries, but to deter repeat offenders, and at some point in *406 such an offender's career, to separate him from society for an extended period of time. This segregation is based not merely on the latest offense, but on the propensities the individual has shown over a period of time. The court's conclusion was that it was the proper province of the legislature to determine the point at which recidivism is established and the appropriate amount of time the recidivist will be separated from society. If one doubts that recidivists are professional criminals, dedicated to that way of life, he should examine the results of a study made by Frank Smalleger, about which he writes in the magazine Human Nature (March 1979), in an article entitled "World of the Career Criminal." According to his studies, there is a vast difference between the one-time offender (usually a naive person, often one who commits a "crime of passion") and the repeater. The latter pursues crime as a way of life, with its own incentives, techniques, skills, and rewards. He views the period of imprisonment as merely an aspect, and not an altogether unpleasant one, of his career. Until we find a method of converting such persons from commitment to the criminal life to dedication to a life which conforms to society's standards, it does not appear at all unreasonable that the legislature should see fit to isolate them for extended periods. The majority opinion refuses to attach significance to the fact that in reality a life sentence is rarely if ever a sentence for life, and that it can last for little more than a dozen years. The Supreme Court majority in Rummel, on. the other hand, recognized that the possibility of parole is a factor that cannot rightly be disregarded. This court has agreed in State v. Smith, 93 Wn.2d 329 , 610 P.2d 869 (1980) and State v. Fairbanks, 25 Wn.2d 686 , 171 P.2d 845 (1946), both of which the majority has seen fit to ignore. In the latter case, we said that a claim of cruel and unusual punishment cannot be considered until after the minimum sentence has been set. And in Smith , we viewed the punishment in the light of the actual sentence imposed, *407 which was a deferred sentence of 5 years. It was there contended that to make the possession of a specified quantity of marijuana felonious constituted cruel and unusual punishment. We there found the punishment prescribed to be in harmony with present societal values, and not in conflict with historical attitudes. Only if the punishment were grossly disproportionate to the offense would the court be justified in invalidating it as cruel and unusual, the majority of this court said in Smith . And punishment is grossly disproportionate only if the conduct should never be proscribed or if the punishment is clearly arbitrary and shocking to the sense of justice. To my mind, the reasoning of the Supreme Court in Rummel is valid and should be adopted by this court in construing our own constitutional provision, the essence of which does not differ from that of the federal constitution. The majority approach does not accord to the people, acting through their legislature, the deference that is due their judgment upon this matter, which is at the very least one upon which reasonable minds may differ. Thus the majority substitutes its judgment for that of the legislature, and casts that judgment in constitutional cement. I would affirm the Court of Appeals and hold the statute constitutional as applied in this instance. Stafford, Wright, and Brachtenbach, JJ., concur with Rosellini, J. Reconsideration denied November 17, 1980. "The punishment of cadena temporal is from twelve years and one day to twenty years (arts. 28 and 96), which 'shall be served' in certain 'penal institutions.' And it is provided that 'those sentenced to cadena temporal and cadena perpetua shall labor for the benefit of the state. They shall always carry a chain at the ankle, hanging from the wrists; they shall be employed at hard and painful labor, and shall receive no assistance whatsoever from without the institution.' Arts. 105, 106. There are besides certain accessory penalties imposed, which are defined to be (1) civil interdiction; (2) perpetual absolute disqualification; (3) subjection to surveillance during life." Weems , at 364. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9538293. Public record. Not legal advice.