Houk v. State

Springer, J.,

dissenting:

My quarrel with the majority opinion is its failure to recognize the injustice of “stacking” sentences for relatively minor property crimes to arrive at a punishment that far exceeds that meted out for dreadful offenses like murder, armed robbery, arson, mayhem and sexual assault. My point is simply that at some stage the piling of consecutive sentences becomes excessive, unreasonable and “unusual” under the Nevada Constitution. That stage, the stage of excessiveness, has clearly been reached in this case-fifty years for five bad checks.

Although earlier release is possible, the sentence calls for imprisonment until the year 2037 when the convict is 101 years old. Other courts have recognized the absurdity of such punish *665 ment for property offenses. For example, in Alaska a forty-six-year-old defendant was sentenced to five years for seven bad checks, a total of thirty-five years. The Alaska Supreme Court held that even though the sentence was within the limits set by the legislature, it was constitutionally impermissible because the writing of bad checks was “not of sufficient gravity to justify imposing what amounts to a life sentence.” Faulkner v. State, 445 P.2d 815 (Alaska 1968).

A sentence within statutory limits does not constitute cruel and unusual punishment unless the sentence imposed is disproportionate to the crime in a manner that is shocking to the conscience. Lloyd v. State, 94 Nev. 167 , 576 P.2d 740 (1978). Had the defendant in this case been convicted on all of the bad check charges, she could have faced a penalty of 200 years, and her sentence would still have been “within the statutory limits.” (Majority Opinion, p. 5.) Surely, the majority would want to draw the line somewhere; at some point their consciences must become shockable. I would draw the line here, at fifty years for five bad checks, at “what amounts to a life sentence.” Faulkner , above.

I certainly am not saying that career criminals like appellant Houk should not be severely dealt with. She clearly could have been prosecuted under Nevada’s habitual criminal act and lawfully sentenced to twenty years in prison, or, on subsequent convictions, to life imprisonment. This kind of punishment was apparently not thought to be sufficient and was not pursued.

The habitual criminal act was enacted for the purpose of ensnaring career criminals. Long-term imprisonment is imposed under this act in order to punish, deter and segregate those who persistently refuse to comply with the criminal law. Such prison terms relate not to the commission of serial offenses, often fairly petty in nature, but to the status of the offender as an incorrigible and demonstrably unredeemable societal nuisance. Had Houk been convicted as an habitual criminal, I could not object to her receiving a twenty-year sentence for being such; what I object to is a fifty-year sentence’s being imposed for five acts of bad check writing.

I should grant the appeal and have the appellant returned to the district court for imposition of a reasonable sentence for writing five bad checks.