Opposition Brief — Arizona v. Bartlett

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NO. 90-473

IN THE SUPREME COURT

OF THE

UNITED STATES

October Tera, 1990

STATE OF ARIZONA

Petitioner,

vs.

JOSEPH BARTLETT, JR.

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ARIZONA

BRIBE IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

DAVID P. FLANNIGAN

Attorney at Law, P.C.

606 Highway 92

P.O. Box 4340

Bisbee, Arizona 85603

Tel: (602) 432-5791

Attorney for Respondent

IN THE SUPREME COURT

OF THE

UNITED STATES

October fera, 1990

STATE OF ARIZONA

Petitioner,

vs.

JOSEPH BARTLETT, JR.

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ARIZONA

BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTCLCORARI

DAVID P. FLANNIGAN

Attorney at Law, P.C.

606 Highway 92

P.O. Box 4340

Bisbee, Arizona 85603

Tel: (602) 432-5791

Attorney for Respondent

QUESTIONS PRESENTED FOR REVIEW

Should this Court on the basis of the doctrine of

Stare decisis refuse to abandon its holding in

Solem v. Helm, 463 U.S. 277 103 S.Ct. 3001, 77

L.Ed.2d 637 (1983), for the reason that there are

no subsequent conflicting precedents, and there are

no changes in conditions which justify overruling

it and the case established a workable rule?

Did the Arizona Supreme Court correctly apply the

federal constitutional doctrine set forth in Solem

v. Helm, by finding that Joseph Bartlett Jr.'s 40

year sentence, without the possibility of parole,

pardon or other early release, for engaging in

"nonviolent, nonincestuous, heterosexual and

consensual sexual intercourse with two willing

post-pubescent teenagers," constituted cruel and

unusual punishment under the Eighth Amendment to

the United States Constitution.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE

OF CASES AND AUTHORITIES

STATEMENT OF THE CASE

SUMMARY OF THE ARGUMENT

REASONS FOR NOT GRANTING

THE WRIT OF CERTIORARI

FIRST ARGUMENT:

THE BASIS OF THE DOCTRINE OF STARE DECISIS,

THIS COURT SHOULD REFUSE TO ABANDON SOLEM

v.HELM FOR THE REASONS THAT THERE ARE NO

LATER CONFLICTING PRECEDENTS, THERE ARE NO

CHANGES IN CIRCUMSTANCES WHICH JUSTIFY

OVERRULING IT, AND IT IS A WORKABLE RULE.

PART

| Stare Decisis and Its Purpose

The Doctrine of Stare Decisis

Promotes Certainty In the Law

The Doctrine of Stare Decisis I8

Founded On Equitable Principles.

The Doctrine of Stare Decisis Promotes

Judicial Efficiency.

Judicial Restraint Is a Recognized Goal

of The Doctrine of Stare Decisis.

Abusing the Doctrine of Stare Decisis

Endangers the Structure of Judicial Philosophy.

Be Standards for Overruling Precedent

The Subsequent Conflicting Precedent

Standard.

Change In Conditions As Justifying

Overruling Precedent.

iii

TABLE OF CONTENTS (Con’t)

C. Unworkable Precedent.

1. Prong One: Looking At the Gravity

of the Offense And the Harshness

of the Penalty.

i. The Harshness of the Penalty

ii. Gravity of the Offense

2. Prong Two: Comparing The Sentences

Imposed On Other Criminals in the

Same Jurisdiction.

3. Prong Three: Comparing the Sentences

Imposed For The Same Crime In Other

Jurisdictions.

4. Workability Under Differing

Interpretations

D. Fundamental Precedents and Settled Expectations

SECOND ARGUMENT

THE ARIZONA SUPREME COURT CORRECTLY

APPLIED THE DOCTRINE SET FORTH IN

SOLEM v. HELM

1. Proportionality Analysis As Applied by

the Arizona Supreme Court

2. PRONG ONE: Gravity Of The Offense

And Harshness of the Penalty

3. PRONG TWO: Sentences For Other

Crimes In Arizona.

4. PRONG THREE: Sentences For Similar

Offenses In Other States

CONCLUSION

Page

tot

TABLE OF AUTHORITIES

CAS ES

Atascadero State Hospital v. Scanlon,

473 U.S. 234, 304 (1985)

Brown v. Board of Education,

347 U.S. 483 (1954)

Burnet v. Coronado Oil & Gas Co.,

285 U.S. 393, 407-11 (1932)

Florida Department of Health and

Rehabilitative Service v. Florida

Nursing Home Association,

450 U.S. 147, 153 (1981)

Garcia v. San Antonio Metropolitan Transit

Authority, 465 U.S. 528 (1976).

Mapp v. Ohio,

367 U.S. 643, 651-55 (1961)

National League of Cities v. Usery,

426 U.S. 833 (1976)

Wolf v. Colorado, 338 U.S. 25 (1949)

Harmelin v. Michigan, Supreme Court Case No.

Hutto v. Davis,

454 U.S., at 374, and nan. 3

Monroe v. Pape, 365 U.S. 167, 202 (1961)

O’Neil v. Vermont, 144 U.S. 323 (1894)

Propeller Genesee v. Fitzhugh,

53 U.S. (12 How.) 443 (1851)

Sheddon v. Goodrich,

8 Ves. 497, 32 Eng.Rpt. 441, 447 (1803)

The Steamboat Thomas Jefferson,

23 U.3. (10 Wheat.) €28 (1825)

89-7272

TABLE OF AUTHORITIES (Con't)

CAS ES

Puerto Rico v. Brandstad,

483 U.S. 219 (1987)

Kentucky v. Dennison,

65 U.S. (24 How.) 66 (1861)

Rummel v. Estelle,

445 U.S. 263, 100 $.Ct.

63 L.Ed. 2d 382

Runyon v. McCrary,

95 §.Ct. 2586, 2604, 427 U.S.

(1976)

190-191, 40 L.Ed.2d 415

Smith v. Allwright,

321 U.S. 649, 669 (1942)

Solem v. Helm,

103 U.B. 2ite

77 L.Ed.2d 637,

103 S.Ct. 277 (1983)

State v. Davis,

310 Md. 611, 530 A.2d 1233

State v. Davis,

108 Ariz. 335, 337

498 P.2d 202, 204 (1982)

State v. Bartlett,

1133,

792 P.2d 693 (Ariz. 1990)

State v. Jonas,

972 P.2d 705 (1990)

State v. Mullally,

127 Ariz. 92,

618 P.2d 586 (i980)

Weems v. United States,

217 U.S. 349 (1910)(1980)

23-55, 57, 60-62

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CONSTITUTIONS:

U. S.

Weimar Constitution

STATUTES:

Constitution,

28 U.S.C.

$13-405

$13-604.

01(A)

01(B)

01(G)

Amend VIII

18,

$13-604.01(H)

$13-701 5,

$13-701(B)(5)

$13-702 8,

$13-901

OTHER AUTHORITIES:

vii

30,

52,

10,

STATEMENT OF THE CASE

In January, 1987, Joseph Bartlett, Jr. (Joe), then 23

years of age, was living in a trailer court near the local

high school in Sierra Vista, Arizona. He and his wife Nancy

had separated some months before and Joe was living in the

trailer, sometimes alone or with his mother and sometimes with

Nancy and the three children. The family had moved to Sierra

Vista from Clovis, California, after Joe’s step-father

committed suicide in 1985. Although Joe was unemployed, he

had worked at various jobs in Sierra Vista and had worked as

a security guard for a couple of years in California. Joe had

no felony convictions of any sort and had never experimented

with drugs.

In the latter part of 1986, Joseph Bartlett met Lisa

Drennon, age 14, Heather Tudor, age 14, and Rebecca Griffin,

age 15, who lived or regularly visited in the same trailer

court. Lisa and Heather, who were best friends, were not

virgins when they met Joe, and, in fact, were quite experi-

enced sexually. Joe began to date Heather, who ran away from

home and moved in with Joe’s mother in Fall, 1986. Joe and

Heather had sexual relations when she was 14 years, 10 months

old. Heather testified that her decision to run away had

nothing to do with Joe, and that she stayed with Joe’s mother

because Joe’s sister had been one of her friends. Heather

later moved back home.

In January 1987, Lisa Drennon lied to her mother, Ms.

Michelle Drennon, that Joe had forcibly raped her. On

Saturday evening, January 10, 1987, a Sierra Vista Police

Department officer was dispatched to the mobile home of Ms.

Drennon, who had discharged a rifle while loading it. Ms.

Drennon explained that she had loaded her rifle so that she

could shoot her neighbor, Joe Bartlett. She further explained

that her daughter, Lisa, complained that she had been walking

to school one day in early December, 1986, when Joe had

invited her inside his trailer, offering her a ride to school.

Ms. Drennon claimed that once Lisa was inside Joe’s home, he

dragged her into the bedroom, stripped and raped her. Lisa

also maintained to the officer that she had fought vigorously

to prevent the rape, but afterwards, accepted a ride from Joe

to school.

Ms. Drennon’s rifle was confiscated, and she filed a

Complaint with the Sierra Vista Police Department the follow-

ing Monday morning, January 12, 1987. At that time, Sierra

Vista Police Department Detective Pearce interviewed Ms.

Drennon and scheduled an interview for Lisa later that

afternoon. At her interview, Lisa maintained her previous

rape story to Detective Pearce, and also told him that she

knew of two other female adolescents from the high school, who

had had sexual intercourse with Joe. Police officers also

went to the mobile home park and spoke with neighbors to

confirm that Joe in fact resided there.

Joe learned of the police inquiries from his neighbors,

and, that afternoon, drove to the police station to find out

what the problem was. By that time, the police had concluded

their interview with Lisa and her mother, and, Detective

Pearce had all the relevant information as to Lisa’s accusa-

tion. Meeting Joe in the public lobby of the police station,

Detective Pearce asked him to step back into his office.

Once inside the detective’s office, Joe again asked why

the police had been looking for him. Joe was never acvised of

his Miranda rights; instead, Detective Pearce simply related

that Lisa Drennon had reported that she had been raped by Joe.

Joe Bartlett’s surprised response was that he had not raped

Lisa.

Although he denied any involvement with Lisa at first,

Joe later explained that Lisa had invited herself to his house

one evening and began "teasing" him. He further recounted

that Lisa had begun by massaging the front of his pants, and

then moved her hands to the inside of his pants. At first Joe

resisted, telling her to "knock it off" and go home. Lisa did

go home; however, she returned later that night. She let

herself in, sat on Joe’s lap and kissed him. He went into his

bedroom and she followed. The two disrobed, copulated, and

then she kissed him goodnight.

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At some point during the questioning, Detective Pearce

decided to tape record the interrogation. On tape, he led Joe

through the fact that he had just stated he and Lisa had

consensual sex and further led Joe into admitting that Pearce

had told him he was not under arrest and could leave.

Detective Pearce inquired of Joe as to Lisa’s reputation

with other men. Joe advised that Lisa had openly discussed

her sexual exploits with other men, and thereupon Pearce

requested Joe’s help in locating Lisa’s other lovers,

seeueine Jee that they would not “be in any trouble”.

Pearce then asked Joe about Heather Tudor, whom Lisa had

named as having had sexual intercourse with Joe. As indicated

above, Heather had once been Joe’s girifriend. She also was

once Lisa’s best friend. Joe readily admitted that Heather

had been his girifriend, that they had dated several months,

and had gone to movies, dinner and the like. Sometime during

their courtship, Heather stated to Joe that her mother had

given her advise to the effect that, if they were going to

have sexual relations, she should use some form of birth

control. Jce admitted that the two thereafter had consensual

sexual intercourse.

Toward the conclusion of the tape recorded interview,

Detective Pearce showed Joe the statutory language classifying

as a felony the engaging in sexual relations with minors as is

set forth in A.R.S. $13-1405. Joe indicated that he had

learned that having sex with a minor was illegal while at

security officer school in California (where having consensual

sexual relations with a 14 year old is a misdemeanor).

Detective Pearce managed to lose the tape recording of his

interview with Joe, but only after he had prepared an “edited

transcription” thereof, which he presented and was admitted at

trial.

Joe returned home, and, about a week later, on January

23, 1987, the State presented a three count indictment to the

Cochise County Grand Jury alleging that Joe committed sexual

conduct: In late November, 1986, with Rebecca Griffin, age 15

(a class six felony); in early December, 1986, with Lisa

Drennon, age 14 (a class 2 felony); and two weeks before

Christmas, 1986, with Heather Tudor, age 14 (a class 2

felony). The State alleged that the crimes were in violation

of A.R.S. $13-1405, which is the substantive criminal law

Statute, and of A.R.S §13-604.01, which provides for enhanced

punishment for certain crimes against chiidren, including

sexual conduct with minors under the age of i5 years. If the

sexual conduct is with a 15 year old, or older, then the

general punishment statute A.R.S. §13-701 applies. Copies of

these statutes are annexed hereto as Appendices "A", "B" and

"C", respectively. Under this combination, at the time of the

indictment, in case of a conviction, Joe would be looking at

probation or a minimum term of .75 years, a presumptive term

of 1.5 years and a maximum term of 1.87 years for having had

sexual relations with Rebecca Griffin. At the same time, he

was looking at a minimum term of 15 years, a presumptive term

of 20 years and a maximum term of 25 years, without the

possibility of probation or parole until all of the sentence

was served, if convicted of having had sexual conduct with

either Heather Tudor or Lisa Drennon.

It was established during the course of later police

investigations that Lisa had outright lied about being

forcibly raped by Joe, and Lisa herself subsequently admitted

£&. The evidence ultimately adduced at trial showed that

Joe’s version of the facts was truthful, and that the one act

of intercourse enjoyed between them was fully consensual.

During the pretrial proceedings, the State offered Joe a

plea agreement covering all three alleged offenses and

Stipulating that he serve five years with the Arizona Depart-

ment of Corrections. Joe rejected the plea agreement on June

19, 1987. Joe’s court appointed attorney moved to withdraw,

Stating as the basis therefor the rejection of the plea

agreement. Substitute counsel was then appointed.

The State, apparently in response to Joe’s rejection of

the plea, moved on July 2, 1987 to invoke the enhanced

sentencing provisions of A.R.S. $13-604(H), a copy ot which is

annexed as Appendix "D”. Under this sentencing scheme, and

its counterpart, A.R.S. $§13-604.01(H), included in Appendix

"B", the convictions and the associated sentences must be

staked one on top of the other, to run consecutively, with the

latter conviction being further enhanced. Thus, a conviction

for sexual conduct with Lisa Drennon and Heather Tudor would

carry a minimum term of 40 years, a presumptive term of 50

years, and a maximum term of 60 years, with no possibility of

probation or parole, until all the sentence was served.’

Presented with these numbers, and the reality that consent was

not a defense, Joe returned to California and was tried in

absentia on August 11, 1987.

Following the trial, Joe was convicted of having had

sexual relations with Heather Tudor and Lisa Drennon, both of

whom testified that their acts were completely consensual. He

was acquitted of having engaged in sexual conduct with Rebecca

Griffin. At sentencing, the trial court was required to

sentence Joe to a minimum mandatory sentence of 4C years

without the possibility of early release until every day of

the 40 years was served. Nevertheless, the following stark

facts loomed large in the mind of the sentencing judge:

Ris Joe was born April 1, 1963; he was 23 years, 8

months old when the criminal acts occurred. Upon

imposition of the minimum mandatory term, Joe, if

; At oral arguaenot before the Arizona Supreme Court, it was noted that the statutorily

permissible stacking of felony counts within one indictment, so that one count serves as 4 pricr

conviction to another count, for the purpose of sentence enhancement, 1s provided for ooly io the

- States of Arizona and Florida.

_—

still alive, would be released on October 24, 2027,

at the age of 64 i/2 years of age.

Ze Lisa Drennon was born June 6, 1972; she was approx-

imately 14 years, 6 months old at the time of the

criminal act. Had she been six months older, Joe

would have been sentenced under A.R.S. $13-

701(B)(5), $13-702, et seqg., to probation or im-

prisonment for not less than nine months, nor more

than 22 1/2 months.

ae Heather Tudor was born February 22, 1972; she was

approximately 14 years 10 months at the time of the

criminal act. Had she been two months older, Joe

would have been sentenced under A.R.S. §13-

701(B)(5), $13-702, et seqg., to probation or im-

prisonment for not less than nine months, nor more

than 22 1/12 months.

At sentencing on January 4, i988, the Judge regretfully

applied the minimum sentence of 40 years and made the follow-

ing comments:

"My function, as I view it, is not to second

guess the legislature in regard to sentencing, but

to follow the law. I took an oath to do that. The

law is very severe. The law is more severe than --

or the punishment is very severe. The punishment

is more severe than in many other types of cases

that are very serious offenses. But it is not my

function to second guess what the wisdom of the

sentence is.

"If in fact the sentence is too severe, I

think that’s for the Appellate Court to review. So

I really have nothing else to say in regard to the

sentencing. I’m going to impose the mitigated

term, because I think that it is plenty severe in

this case.”

On appeal to the Court of Appeals, Mr. Bartlett chal-

lenged both the conviction, because of the failure of the

trial court to suppress his allegedly involuntary statements

to Detective Pearce, and the sentence, as being violative of

the State and Federal constitutional proscriptions against

cruel and unusual punishment. The Court of Appeals affirmed,

and the Arizona Supreme Court granted a Petition for Review of

the sentence only, requesting a Solem v. Helm proportionality

analysis. The Arizona Supreme Court held that Joe Bartlett’s

minimum mandatory sentence of every day of 40 years, under

A.R.S. §13-604.01 was so disproportionately severe that it

violated the federal constitutional proscription against cruel

and unusual punishment as was expanded upon by this court in

Solem v. Helm, supra.

Accordingly, the Arizona Supreme Court reversed and

remanded the matter to the trial court for resentencing.

State v. Bartlett, 792 P.2d 693 (Ariz. 1990). The State

Attorney General’s Office filed a Motion to Stay the issuance

of the mandate, because it satended to file a Petition for

Writ of Certiorari with this Court. Counsel for Mr. Bartlett

Successfully opposed the motion, arguing that the United

States Supreme Court perhaps would be interested in knowing

what sentence was ultimately imposed by the trial court.

At resentencing, Joe was facing a sentencing range of 7

to 35 years on two stacked class two felonies, pursuant to

A.R.S. $$ 13-604, 13-701 and 13-702. Specifically, Joe was

facing a minimum of 5.25 years on the first count and 7 years

on the second count, to run concurrently, wherein he must

serve 2/3 of the sentence before becoming parole eligible. He

was facing a maximum of 35 years, if an aggravated term of 14

and 21 years for the first and second counts, respectively,

were applied on each conviction, to be served consecutively.

The presumptive terms for each count were 7 and 10.5 years,

respectively. In this regard, Arizona law provides that if

the facts alleged in the separate counts involve separate

acts, the sentences should run consecutively unless the

sentencing court expressly directs otherwise. Arizona Rules

of Criminal Procedure, Rule 26.13.

At resentencing, the Court was presented with certain

facts that were unknown at the first sentencing. Specifi-

cally, the State stipulated that certain documentation be

admitted into evidence for the purpose of resentencing,

showing that one month after Joe Bartlett was tried, two of

the same "victims" mentioned in the Indictment, Heather Tudor

and Rebecca Griffin, sought the conviction of another man,

Rocco Griftin, for the same offense. Heather had happily

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bragged that she was Mr. Griffin's girlfriend and that the two

had enjoyed sexual intercourse together. Heather Tudor

explained to her friends, in graphic detail, the couple’s

lovemaking, initiated by her voluntary offer of oral sex and

Mr. Griffin’s acceptance of the offer. This was just one

month after she testified in court about her consensual sexual

relations with Joe Bartlett when she was his girlfriend.

Although a criminal complaint had been filed on these charges

against Mr. Rocco Griffin, who was arrested and incarcerated,

the Cochise County Attorney’s office elected not to take that

matter to the Grand Jury.

The reason that the State v. Griffin documentation was

introduced into evidence upon resentencing was its relevance

to the harm to or helplessness of the “victims” as bearing

upon aggravation or mitigation of the presumptive terms. It

was also relevant to show that the girls in this case were not

inexperienced innocents who did not fully appreciate the

meaning of sexual intercourse and were thus incapable of

giving meaningful consent.

At resentencing on August 27, 1990, Mr. Bartlett and

counsel presented the Court with a brief synopsis of Jce’s

life in prison since January 4, 1987 as follows:

Mr. Flannigan: - « « “y. . | treated as a child

molester. . . he’s on the absolutely lowest rung of

the prison society. He has personally suf ered

immensely. He’s been beaten, sexually raped,

abused, victimized, threatened. Those are his day

to day experience[s]. He has suffered, in fact, a

mental breakdown, has had to see a psychiatrist.

Compromised himself in order to survive this kind

of situation. It's an awful, awful world that he

has been introduced into.

“If it could be said according to the evidence

that he at all sinned against these girls, he’s

certainly been sinned against far more than that,

and he has suffered immensely. If the purpose of

punishment is to make him suffer, his suffering at

this point far exceeds any harm to the victims.

Me. BORELett: . . .« “Ss agree with what Mr.

Flannigan says, because it has been hard in prison,

really hard. I want this Court to know that I have

no resentment towards anyone. I have found my

peace with God and with myself.

"My only wish is to finally go home, to be

with my family, get a good, honest job and be a

productive member of society and be the best father

I can to my kids. I ask that this Court have mercy

on me.

Following those comments, and sans any argument by the

State for the imposition of anything more than the mitigated

term, the sentencing judge imposed the minimum term, of

and seven years, to run concurrently, with credit for

served and stated as follows:

"The Court finds that the mitigating factor here

that would require the mitigated term for sentenc-

ing would be that the Defendant had no prior re-

cord, and I just, quite frankly, feel that the

mitigated term is sufficient punishment for the

facts of this case.

five

time

As indicated, Mr. Bartlett will now be required to serve

at least 2/3 of the seven years imposed, which closely

approaches the five years offered by the State’s plea agree-

ment aS an appropriate sentence several years before. Having

served nearly three years of his sentence, Mr. Bartlett will

become eligible for parole in about two years.

SUMMARY OF THE ARGUMENT

A consideration of the time honored principle of stare

decisis compels the conclusion that Solem v. Helm should not

be reversed. It has neither been rendered irrelevant by

charged circumstances or subsequent authority, nor is it

unworkable. To overrule precedent, one of these three special

justifications need be present.

In this case, because of the mandatory sentencing scheme

of A.R.S. $613-604.01, 40 years or the rest of Joseph Bart-

lett’s life was at stake and he did not have the possibility

of a lesser sentence, pardon, parole or other early release

for having had consensual sexual relations with two 14 year

old sexually mature girls.

Under the circumstances, the Arizona Supreme Court

correctiy applied a Solem v. Helm analysis to the gravity of

the offense vis-a-vis the harshness of the penalty, the

sentences imposed on other more serious crimes in Arizona, and

the sentences imposed for the same crime in other states as a

predicate to holding that, in this limited case, the appli-

cation of that mandatory sentencing statute to the facts

constituted cruel and unusual punishment. Accordingly, the

Arizona Supreme Court correctly reversed the sentence and

remanded the case to the trial court for resentencing.

REASONS FOR NOT GRANTING THE WRIT OF CERTIORARI

FIRST ARGUMENT:

A. ON THE BASIS OF THE DOCTRINE OF STARE DECISIS, THIS

COURT SHOULD REFUSE TO ABANDON SOLEM v.HELM FOR THE REASONS

THAT THERE ARE NO LATER CONFLICTING PRECEDENTS, THERE ARE NO

CHANGES IN CIRCUMSTANCES WHICH JUSTIFY OVERRULING IT, AND IT

IS A WORKABLE RULE.

The State of Arizona is asking that this Court overrule

its precedent announced in Solem v. Helm, 103 U.S. 277, 77

L.Ed.2d 637, 103 S.Ct. 277 (1983), a decision the State says

presents an “unworkable rule” and is in conflict with Rummel

v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed. 2d 382

(1980). The State does not present a more workable alterna-

tive, nor does it advocate a new path to follow. The Court,

in this instance, is asked to construct a new path rather than

tollow the lighted way of its recent precedent. Respondent

maintains that, more important than “revisiting” the decision

in Solem v. Helm, supra., is the need to accord to the

doctrine of stare decisis the careful reflection and respect

to which it is entitled. To this end, the Respondent questions

the wisdom of quickly turning the Court’s back on recent

precedent and ignoring the doctrine of stare decisis, as the

State of Arizona has urged. Such would be the judicial

equivalent of strip mining, a process that inherently erodes

the stature of this Court’s jurisprudence and thereby, the

judiciary as a whole.

Respondent’s argument herein proceeds in two parts: Part

I discusses the doctrine of stare decisis and its functional

purposes; and, Part II examines the standards that have been

set by this Court for overruling precedent, and an argument

for not overruling Solem v. Helm hecause it does not meet

those standards tor abandoning the doctrine of stare decisis.

PART I. STARE DECISIS AND ITS PURPOSE.

The Latin term stare decisis et non quieta movere,

meaning to stand by the decisions and not to disturb settled

points, is the name given to the Anglo-American common-law

doctrine which states that the holding of previously decided

cases should be ftollowed. Black’s Law Dictionary, Fitth

Edition, p. 1261.

The importance of stare decisis in Anglo-American

jurisprudence is undisputed. The doctrine ensures stability

and maintains the rule of law, a rule that is premised on the

beiief that we are a nation of laws and not men. As such it

plays a critical role in the coherent development of the

common law.

A. The Doctrine of Stare Decisis Promotes Certainty In The

Law.

The doctrine of stare decisis is essential because of its

many useful purposes. Among these purposes is that its

consistent application assures the legal system a degree of

certainty. Judicial awareness of the need for certainty

accounts for the presence of the doctrine of precedent within

a legal system, inasmuch as order, regularity, and stability

are essential attributes of a legal system. As Lord Eldon,

quoting from Lord Kenyon, said nearly two centuries ago: "It

is better that the law should be certain than that every judge

would speculate upon improvements in it.” Sheddon v. Good-

rich, 8 Ves. 497, 32 Eng.Rpt. 441, 447 (1803).

B. The Doctrine of Stare Decisis Is Founded On Equitable

Principles.

Another justification for the doctrine of stare decisis

is that a universal sense of justice urges that all men be

treated alike in like circumstances. Inequitable judicial

treatment is a primary source of grievance against a judicial

system. To consistently follow previous case precedent

creates the uniformity and equality necessary to legal order,

and avoids the public appearance of injustice. To leave that

consistency, by disturbing precedent, is to disturb the

equality, uniformity, regularity, similarity, and symmetry of

the law.

c. ‘The “ Doctrine of Stare Decisis Promotes Judicial

#fficiency.

’ 16

Yet another purpose of the doctrine of stare decisis is

that the reliance on precedent promotes the efficient admin-

istration of justice.

If precedent could not be relied upon as the rule of law,

the administration of justice would become difficult, tedious,

and near impossible. If a justice, or judge on any level, did

not have the benefit of reliable precedent, then not only must

he or she elucidate, ponder, and evaluate all possible rules

of law which might be formulated for every case, but he or she

must also examine all the reasons that might be advanced for

instituting any one of these rules rather than any other. In

short, the task of the judge would become interminable. The

number of cases subject to proper litigation would be severely

reduced. The function of the judiciary in society would be

rendered infinitely less useful. On the basis of his own

experience as Chief Justice of the New York Court of Appeals,

Mr. Justice Cardozo observed that:

"...the labor of judges would be increased almost

to the breaking point if every past decision could

be reopened in every case, and one could not lay

one’s own course of bricks on the secure foundation

of the courses laid by others who had gone before

him. Perhaps the constitution of my own court has

tended to accentuate this belief. We have had ten

judges, of whom only seven sit at a time. It

happens again and again, where the question is a

close one, that a case which one week is decided

one way might be decided another way the next if it

were then heard for the first time. The situation

would, however, be intolerable if the court were

accompanied by changes in its rulings. In such

circumstances there is nothing to do except to

stand by the errors of our brethren of the week

before, whether we relish them or not.” B. Car-

dozo, The Nature of the Judicial Process, pp. 149-

150., partially quoted in Mr. Justice Steven's

concurring opinion in Runyon v. McCrary, 96 §.Ct.

2586, 2604, 427 U.S. 160, 190-191, 40 L.Ed.2d 415

(1976).

D. Judicial Restraint Is a Recognized Goal of The Doctrine

of Stare Decisis.

Judicial restraint has also been recognized as a basis

for the doctrine of stare decisis. Judicial restraint

establishes affirmative norms of judicial behavior, and one is

reminded of Lord Coke’s statement that “ho wan out of his own

private reason ought to be wiser than the law, which is the

perfection of reason.” The doctrine furnishes a desirable

restriction upon the way in which an individual judge, or

coalition of judges decides a particular case. If one

particular justice had strong feeling regarding the inter-

pretation of the Constitution, his individual conceptions

would not serve to alter the body of constitutional law if he

were bound by the doctrine of stare decisis to respect past

precedent.

E. Abusing the Doctrine of Stare Decisis Endangers the

Structure of Judicial Philosophy.

If restraint in this manner were not given a meaningful

Significance in deciding cases, the appointment of justices

would become little mcre than political appointments secured

by their implied promise of obedience to executive order.

An example of the danger present can be demonstrated by

examining the Court’s past. In the case of Burnet v. Coronado

O1l & Gas Co., 285 U.S. 393, 407-11 (1932), Mr. Justice

Brandeis, in his dissent, provided a comprehensive list of

prior decisions that overruled or qualified earlier constitu-

tional precedent. These twenty-eight cases spanned a period

of roughly 140 years of the Court’s history, taking an average

of five years to overrule or substantiaily qualify a single

case.

After Burnet, the Court took only twelve additional years

to outright overrule twenty-one constitutional decisions, an

average rate of 1.75 cases per year. Between the years 1944-

1979, the Court reversed 107 constitutional decisions, the

rate of reversals having grown to more than three a year.

The rate and kind of reversals, obviously, were generated

by the political currents of the day. For instance, during

the last ten years of the Warren Court, 23 constitutional

cases were overruled. During the first ten years of the

Burger Court, the Court overruled 21 constitutional decisions.

The fabric of the law was unwoven by one Court and fashioned

to its liking, only, in turn to have the politically expedient

process repeated -- a process unlikely to instill stability

and public confidence in the law.

It must be believed, therefore, that political convic-

tions and party beliefs cannot fashion legal reasoning.

Neither can the considered decisions of this Court, which con-

tribute to the wealth of common law, be a proper subject of

Senate inquisition, via the confirmation process of a Supreme

Court appointee. Only by closely following the doctrine of

Stare decisis, via judicial restraint, can the judiciary exist

separate and apart from the fashionable political philosophies

of any particular day.

The Weimar Constitution is an example of this point. As

a threshold matter, it is first acknowledged that the example

is extreme, and has no real comparative value with this

Court’s ability to function independently. However, the

historical lesson of exercising judicial restraint regardless

of popular political conviction should not be lost through

discarding the example as unlikely to recur. History is said

to repeat itself, and often does so when the lessons of the

past are ignored. Viewed as a legal document, the Weimar

Constitution was an extraordinary piece of legal scholarship

that demanded the respect of the greatest legal minds of the

day. However, it quickly lost its meaning, and thereafter its

force, when the judiciary relinquished its ability to fashion

legal reasoning upon judicial review of accepted legal

theories and precedents of the past, instead substituting the

popular changing political convictions of pre-World War II

Germany. The humane intention of the Weimar Constitution had

no voice of its own; that voice had been severed, and the

voice of the popular opinion had been substituted. The sad

consequences are known. H. W. Koch, A Constitutional History

of Germany In the Nineteenth and Twentieth Centuries, Longman

Publishing, London 1987.

The doctrine of stare decisis is the only method by which

we can firmly believe that the carefully considered opinions

of this Court have a past, and, consequently a future. The

warning of Mr. Justice Roberts that overruling decisions will

diminish the authority of the Supreme Court should be heeded:

"|The frequent overruling of decisions would]

tend to bring adjudications of this tribunal into

the same class as a restricted railroad

ticket, good for this day and train only.” Smith

v. Allwright, 321 U.S. 649, 669 (1942).

When the interwoven chain of obligation to the past is

breached in this fashion, law ceases to exist as we know it,

for law was intended to revolve around the concept of respect-

ing the precedent set forth by common law. In expressing his

belief that adherence to precedent should predominate over the

merics of a particular case, Mr. Justice Brandeis wrote:

"Stare decisis is usually the wise policy, because

in most matters it is more important that the

applicable rule of law be settled than that it be

settled right.” Burnet v. Coronado Oil & Gas Co.,

Supra., at 406.

PART II. STANDARDS FOR OVERRULING PRECEDENT.

There is no federal statutory requirement of stare

decisis. Sections 1254, i257, and Title 28 of the United

States Code, which concern review by the Supreme Court on

appeal or writ of certiorari, imply only that the Supreme

Court may reverse the lower court’s decisions or remand with

instructions. 28 U.S.C. at 12854, 28 U.S.C. at 1257, as

amended. Moreover, it is noteworthy that Rule 10, Rule of

Practice of the United States Supreme Court (1990), does not

list the request to overrule its own precedent as one of the

considerations for granting a writ of certiorari.

In overruling precedent, Mr. Justice Stevens has pointed

out that the question whether to overrule is not simply

answered by demonstrating that the case was erroneously

decided and that the Court has the power to correct its past

mistakes. The doctrine of stare decisis requires a separate

examination. Among the questions to be considered are: the

possible significance of intervening events; the possible

impact on settled expectations; and the risk of undermining

public confidence in the stability of our basic rules of law.

Stevens, The Life-Span of a Judge-Made Rule, 58 N.Y.U. L.R.

1 (1983).

In reviewing the constitutional decisions in which this

Court has reversed itself, it is apparent that all but a

handful have been based upon one of three justifications.

First, the Court will overruie when a precedent has been

so eroded by changes in the law that it no longer has an

acceptable legal basis. It may be that there exists a group

of subsequent opinions issued that, taken together, operate to

hollow out or directly conflict with the premise of the

underlying challenged case. See, ¢.g., Puerto Rico v.

Brandstad, $83 U.S. 219 (1987) (overruling Kentucky v.

Dennison, 65 U.S. (24 How.) 66 (1861)).

Second, the Court will overrule when the conditions upon

the which the first decision was premised have changed. See,

e.g., The Propeller Genesee v. Fitzhugh, 53 U.S. (12 How.) 443

(1851) (overruling The Steamboat Thomas Jefferson, 23 U.S. (10

Wheat.) 428 (1825)).

Finally, certain constitutional cases have been overruled

when the majority views the rules set forth in the underlying

precedent as being “unworkable”. See, @.g., Garcia v. San

Antonio Metropolitan Transit Authority, 465 U.S. 528 (1985)

(overruling National League of Cities v. Usery, 426 U.S. 833

(1976)). See also Mapp v. Ohio, 367 U.S. 643, 651-55 (1961)

(overruling Wolf v. Colorado, 338 U.S. 25 (1949)).

The overruling of Solem v. Helm, supra., would involve a

breach of the doctrine of stare decisis. To do so

necessitates that a new majority can justify an overruling on

one of three aforementioned commonly accepted grounds. A

discussion of the relationship of each of these independent

grounds as it relates to Solem v. Helm follows.

A. The Subsequent Conflicting Precedent Standard.

Since the time that Solem v. Helm was announced, no

decision or series of decisions by this Court has challenged

the underlying premise of Mr. Justice Powell’s reasoning.

There is no subsequent conflicting precedent which justifies

the abandonment of Solem v. Helm. The decision of Solem v.

Helm remains controlling in cases presenting narrow factual

circumstances.

The State of Arizona argues, as did the dissent in Solem

v. Helm, that Solem v. Helm conflicts with this Court’s

previous precedent in Rummel v. Estelle, 445 U.S. 263, 100

S.Ct. 1133, 63 L.Ed.2d 382 (1980). Since the case precedent

conflict is said to have occurred before Solem v. Helm and not

Since, members of this Court are essentially being asked to

substitute their opinions for the considered opinions of

recently retired Mr. Justice Brennen and Mr. Justice Stevens.

Whether Rummel was in conflict with the majority’s

decision in Solem v. Helm is an issue that has been decided.

It is simply the law-of-the-case. It was decided that Rummel

was good law, and was to be distinguished from Solem v. Helm.

The distinguishing factors are rather easy to follow. In

Rummel the defendant had the possibility of being released on

parole by earning “good time credit", to be applied to the

reduction of time that he would be obligated to serve. The

defendant in Solem v. Helm did not have that possibility, and

could not obtain “good time credit". He would be eligible for

parole only if he obtained a rarely extended grant of execu-

tive clemency. He applied for clemency and the governor of

South Dakota denied same. It was noted by the Solem v. Helm

majority, at 301, that Texas had "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." (Rummel, supra at 279.) The majority thus concluded

that the South Dakota commutation system was fundamentally

different from the parole system in Texas.

The distinction is clear. It lies within the definition

of what constitutes a "mandatory sentence”. If the sentence

is subject to meaningful early release provisions, it is not,

in reality, a mandatory sentence inasmuch as there is not an

immutable term of years that the defendant must serve. Solem

v. Helm is applicable only if the sentence is unquestionably

a mandatory sentence in the strictest sense.

In the case before the bar, the defendant was not

eligible for parole or any other type of early release, as in

Estelle. The defendant was not even eligible for the remote

possibility of executive clemency as in Solem v. Helm. Solem

v. Helm is unmistakably the controlling authority in this

case.

The minority in Solem v. Helm maintained, as presently

does in the State of Arizona, that the decision reached in

Solem v. Helm was in direct conflict with the holding of

Rummel v. Estelle. The majority, however, decided that the

holdings were actually consistent one with the other.

In Rummel the Court stated that:

~ one could argue without fear of contradic-

tion 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

sentence actually imposed is purely a matter of

legislative prerogative.” S45 8.9., 60 274, i909

S.Ct., at 1139 (emphasis added).

As noted by the majority in solem v. Helm, supra, 463

U.S. at 290, the Supreme Court had not adopted that argument

as a legal standard, based on past precedent, but merely

recognized that the argument was possible. Moreover, the

Court held that the constitutional principle of proportion-

ality had been a matter of stare decisis for almost a century

preceding their ruling. Cf. O’Ne1l v. Vermont, 144 U.S. 323

(1894). It was explicitly held in a landmark non-capital

punishment case, Weems v. United States, 217 U.S. 349 (1910),

that the sentence of 15-years imprisonment at hard labor, for

falsifying a public document, was cruel and unusual

punishment. Mr. Justice McKenna delivered the opinion of the

Court and noted:

",..it 18 a precept of justice that punishment for

crime should be graduated and proportioned to

offense.” Id. at 367.

Further, Rummel v. Estelle was consistent with the

proportionality theory adopted by the majority in Solem Vv.

Helm and Weems v. United States, supra. The Rummel Court

recognized tliat some sentences of imprisonment are so dispro-

portionate tnat they violate the Eighth Amendment. Rummel v.

Estelle, supra, 445 U.S., at 274, n. 11. This view was

consolidated when the Court explained in Hutto v. Davis,

supra, 454 U.S., at 374, and n. 3, that Rummel should not be

read to foreclose proportionality review of sentences of

imprisonment. The theory of judicial proportionality review

of imprisonment was not vacated in Rummel, a conclusion that

was expressly held in Hutto v. Davis. Solem v. Helm simply

held that in Rummel because the defendant was eligible for a

reasonably early parole, his uncertain length of sentence was

not one that was appropriate for a proportionality review. It

is submitted that had the Respondent herein been eligible for

early parole he would have, in this regard, shared a narrow

yet similar factual basis with the defendant in Rummel. This

case would then have been controlled by Rummel, and, like

Rummel, Respondent’s sentence would not be an appropriate

sentence for proportionality review.

However, like Solem v. Helm, the present case is express-

ly distinguishable from Rummel, and both sentences were proper

for proportionality review.

Arguendo, provided that the Court were persuaded that

Solem v. Helm and Rummel v. Estelle were conflicting opinions

and irreconcilable, the standard for overruling Solem v. Helm,

on the basis of conflicting precedents is not whether the

majority was mistaken, but whether it was "egregiously

incorrect.” Atascadero State Hospital v. Scanlon, 473 U.S.

234, 304 (1985); Florida Department of Health and Rehabilita-

tive Service v. Florida Nursing Home Association, 450 U.S.

147, 153 (1981); accord. Monroe v. Pape, 365 U.S. 167, 202

(1961).

Respondent maintains that it is improper to do so because

Estelle was previous rather than subsequent to Solem v. Helm,

and therefore can not be considered a conflicting case

precedent. To hold otherwise would he to overrule the

express holdings in Hutto rs Supra., Weems v. United

States, supra., and O’Neil v. Vermont, supra. that it is

possible, in rare situations, for certain sentences of

imprisonment to be imposed which are so disproportionate to

the crime committed that they are unconstitutional under the

Eighth Amendment, and require remand by the judiciary.

In conclusion, Solem v. Helm cannot be overruled on the

theory of conflicting precedent.

B. Change in Conditions As Justifying Overruling Precedent.

The Court will overrule when the conditions upon which

the first decision was premised have changed. For example, in

The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443

(1851), the Court overruled 26 year old precedent, The

Steamboat Thomas Jefferson, 23 U.S. (10 Wheat.) 428 (1825).

In the Steamboat case, the Court had held that the admiralty

Jurisdiction of the United States was limited to the tradi-

tional English bounds of the “ebb and flow of the tide.” See

id. at 428. By 1850, however, the United States had spread

from the Atlantic Coast well into the interior of the conti-

nent, and a vast trade had emerged on the Mississippi, the

Great Lakes, and other inland bodies of water. The Genesee

Chief, 53 U.S. (12 How.) at 456, recognized that the opening

of the West, only dimly foreseen by the Steamboat Court,

changed the issue presented, and that new conditions demanded

uniform national regulation.

in the present instance, the conditions upon which Solem

v. Helm were premised have not changed.

We are not yet in such enlightened times that our

legislatures can be given a free and unchecked hand in

decreeing punishment for crimes. The possibility exists that

the popular demand may prevail in mandating unconstitutional

punishment for crimes. However, in just such a case the

judiciary must preserve its ability to provide a checks and

balances function on the legislature. It would be a rare

circumstance that the judiciary would find that a sentence is

constitutionally infirm. However, to the extent that the

judiciary denies Eighth Amendment’ review of a constitu-

tionally infirm sentence and thus resigns its responsibility

to provide this protection to the public, it abdicates its

position in the checks and balances scheme.

The development of our system of criminal law has

demonstrated that justice’s ultimate goal is (1) to acquit the

innocent, (2) to convict and to punish the guilty, and (3) to

demand that the punishment fit the crime. To the extent that

our system of justice does so, it is successful and right. To

the extent it does not do so, it fails. This Court is charged

with the vital role of guarding our system of justice from

failing, by giving expression to the conscience of the law,

through the Constitution. The decision in Solem v. Helm

continues to provide the Court the ability to serve the

aforesaid third goal of justice via the review of sentences,

in properly narrowed circumstances. Its need has not been

diminished by time, as in the case of The Thomas Jefferson

Steamship, supra.

C. Unworkable Precedent.

Certain constitutional cases have been overruled when the

Majority views the rules set forth in the underlying prece-

dent as being “unworkable”. See e.g., Garcia v. San Antonio

Metropolitan Transit Authority, supra, (overruling National

League of Cities v. Usery, 426 U.S. 833 (1976)). See also

Mapp v. Ohio, supra, (overruling Wolf v. Colorado, supra.)

The Petitioner argues that the rule in Solem v. Helm is

unworkable because of the number of appellate cases (772)

across the country litigated since it was decided. It is the

Respondent's position that the figures presented by Peti-

tioner are misleading. Even assuming that Solem v. Helm has

been utilized to the extent stated by Petitioner, this does

not necessarily lead to the conclusion that the decision is

unworkable. The utility of the decision is self-evident.

Courts in all jurisdictions have cited Solem v. Helm as a

legal standard to be included in their constitutional common

law. The judiciary across the land has given serious weight

to this landmark decision.

As stated above, the figure of 772 cuses is misleading.

At first glance it appears that this represents the propor-

tionality review of 772 challenged sentences” which were

claimed to be excessive. Actually, this is not so, as this

number only represents citations to published and unpublished

doctetons. A Proportionaliy analysis was not done in each

case. Also the figure assumes that the appellate issue of

challenging sentences, as being cruel and unusual, is a novel

concept in the practice of criminal law, and has been brieted

and addressed only by our ccurts since the announcement of the

holding in Solem v. Helm. This, of course, is not th2 case.

Solem v. Helm was cited in those cases because it is recent

controlling authority on constitutional challenges to imposed

sentences, and previous cases cited previous authority.

Further, there are 370 published and 102 unpublished

appellate decisions among our 50 states that cite Solem v.

Helm as controling authority. Because Solem v. Helm was

announced 7 years, 4 months ago, the annual average number

of published State opinions is 1.02 cases per state, per year.

Even considering the addition of unpublished decisions, the

annual average only rises to 1.3 cases annually per state.

Even considering the greatest annual number, it does not

_tollow that the case load since Solem v. Helm has been

oppressive to the appellate courts. As demonstrated, the

claim that Solem v. Heim is unworkable, because it has

fulfilled the prophecy of Mr. Chief Justice Burger that

the majority’s decision would cause a flood of new

appeals to the appellate courts which would administer the

coup de grace to the courts of appeals as we know them,” is an

exaggerated claim. The Petitioner’s position that this claim

as being present-day reality is not valid.

The Petitioner also argues that Solem v. Heim should be

overruled because the three-prong test utilized therein, in

determining whether an imposed sentence 1s constitutional, is

itself unworkable. The three prongs involve:

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(1) Looking at the gravity of the offense and

the harshness of the penalty;

(2) Comparing the sentences imposed on other

criminals in the same jurisdiction; and

{3) Comparing the sentences imposed for the

same crimes in other jurisdictions.

In argument, the following examination of each prong is

given to demonstrate that they individually, and as a whole,

cannot be defined as “unworkable”.

i Prong One: Looking At The Gravity Or The Offense

And The Harshness Of The Penalty.

This prong calls for a two-part examination beginning

with the harshness of the penalty and in the end reconciling

it with the gravity of the offense. It is Respondent’s

position that, if questioning the harshness of a given

punishment and comparing it to the gravity of the offense is

itself an unworkable proposition, then the conception of what

is just and fair is equally unworkable.

i The Harshness of the Penalty.

No reasonable person could argue that a 40 year sentence

is not harsh, especially when it is clear this sentence cannot

be reduced by the possibility of “good time credit", parole,

Or executive clemency. Judicial review under the Eighth

Amendment, pursuant to Solem v. Helm, is the only method for

obtaining relief from the serving of every day of the imposed

sentence.

Given that, one may suppose that the final disposition of

this case will be effected upon this Court’s consideration and

order. This is not true, if the order of this Court is to

reinstate the initial sentence. There is a subsequent

disposition after this Court puts this matter aside and again

turns to address the pressing onslaught of new cases. That

disposition is the life and death of the Respondent.

Given the hard and violent environment endured by those sent

to our penitentiaries, one cannot readily assume that JOSEPH

BARTLETT, JR. will emerge from confinement at the age of 64

years. Arriving as a slightly built and gentle young man, he

was welcomed with open arms by the hardened criminal popula-

tion behind our state’s prison gates. It is known that one

convicted of the crime of child molestation or its senawekent

is on the lowest rung of prison society and is generally

considered "free game" by both prisoners and guards. The

Respondent’s mode of life in prison has been one of daily

survival. He has been raped and beaten, and his state of

deprivation has compelled him to compromise himself in order

to live another day. The boy’s spirit and body have been

crushed.

ii. Gravity of the Offense.

Certainly, no one can doubt the sound justification for

Statutes defining sexual exploitation of the immature as a

criminal act. The rationale is that it is in the public

interest to protect the sexually naive child from phvsical

trauma, as well as emotional and psychological exploitation.

No reasonable person would hesitate to condemn abnormal sexual

exploitation of an infant child. Societal interests require

the protection of children from physical harm. The very

thought of an adult male pedophile forcing his penis inside an

infant female orifice is revolting, and raises feelings of

outrage and anger in the breast of any responsible adult.

The legislative intent behind Arizona’s enactment of

A.R.S. §13-604.01 is consistent with both popular as well as

universal belief in outlawing such taboo conduct. But, in our

well-founded enthusiasm to promote this protective goal, sight

should not be lost of the crucial object requiring protec-

tion -- the pre-pubescent child -- from the most grotesque,

perverted, and lurking monster -- the child molester. That

criminal commits offenses that every state in the Union

condemns as being the gravest of all offenses, when the victim

is a pre-pubescent child.

There is, however, an obvious distinction between grown

girls who are under the statutory age and a molested child.

Intercourse with a girl in her mid to late teens lacks the

qualities of abnormality and physical danger that were present

when she was a child. Here, the young woman does not experi-

ence the extreme duress and domination seen in child-adult

relationships. By her mid-teens, she may be eager, willing,

and consensual to a young man’s natural desires, and such

desires are not beyond her understanding.

It is clear that the element of victimization gradually

decreases and finally dies away altogether as the young woman,

no longer a mere child, grows older and more sophisticated,

sexually mature and biologically ready for coitus. The

metamorphosis of a child blossoming into a young woman, now

capable of giving and receiving amorous love, was not lost on

the greatest poet ever to write, William Shakespeare. In his

perhaps most powerful and best known work, Romeo and Juliet,

the young women was two-weeks shy of her fourteenth birthday

at the beginning of the play, while the young man was identi-

fied simply as being a young man. William Shakespeare, The

Tragedy of Romeo and Juliet, Washington Square Press, (Ed.

Wright 1959), Act i. 8é@. ifk, GR. LS-2i. If Juilet can be

said to have been too young and incapable of understanding the

nature of her consent to amorous love, it is submitted that no

women since her time has truly reached that understanding.

While the love shared between the fictional characters

Romeo and Juliet differed in tragic tenderness from the

relationship that the Respondent had with his “victims”, an

accurate description of that relationship may have been lost

in opposing counsel’s translation of the actual event as

related in her brief. The actors here are of a more common

cut, Bartlett is no Romeo, neither young woman is a Juliet,

and neither counsel as articulate as Shakespeare. Regardless,

the instructive distinction is that an infant child is not a

young woman or grown girl.

A post-pubescent teen has tne ability, often well

rehearsed, to recognize sexual advances and to reject them if

she wishes. Thus, she has reached a point of maturity at

which, realistically, she may give meaningful consent. The

ability to give operative consent distinguishes the mature

teen from the pre-pubescent child, who has neither the ability

nor the natural desire to participate in sexual encounters.

As such, the infant/child does not have what is termed to be

operative consent. Without such operative and meaningful

consent, the infant/child is in effect raped, just asS a grown

girl would be if force or threats are used to negate her non-

consent. These two offenses justify the extremely harsh

penalties imposed on their perpetrators, as intended by the

legislature.

It is absurd, however, in our culture to talk of teenage

girls of middle and late adolescence as not having knowledge

and appreciation of the sexual act. This knowledge is

commonly acquired by puberty, and certainly is reinforced if

the mature teen gains sexual experience from previous encoun-

ters. She well uncerstands the nature of the sexual act. The

question is no longer one of rape, but of morality.

With respect to this moral and social context, modern

marriage laws sanction mid-teen marriages. Most states allow

girls sixteen or over to marry with their parents’ consent,

and girls under sixteen to marry upon obtaining judicial

consent through a court order. Cf. Arizona, A.R.S. $25-102.

We thus know by statute that in any given year, some percent-

age of marriages will involve girls sixteen or younger.

Query, how many of them involve pregnant girls under the age

of fifteen years? In such cases the class 2 felony of sexual

conduct with a minor, and the companion mandatory sentence, is

and has been magically wiped out by the marriage ceremony, and

one likes to think that the couple will live happily ever

after. But what about those cases where the ceremony does not

occur? Is it not cruel and unusual to caqe tne offending

young man for life?

It is an inescapable fact that many young people engage

in sexual intercourse. In 1976, 6.4% of all sixteen year old

girls in the United States had borne at least one child. U.S.

National Center of Health Statistics of the United States,

Table 1-17 (1978). These numbers tell us that a significant

portion of unmarried fourteen to sixteen year old girls have

engaged in sexual intercourse resulting in pregnancy. This

Strongly suggests that a greater number may well have done so,

without pregnancy resulting.

While not approving of the sexual permissiveness of our

unmarried youth, one can only conclude that this type oft

“offense” is committed many times between young people without

resulting in criminal prosecution. Counsel would venture

to state that this type of offense has historically and

prehistorically occurred, universally, since exactly as long

a time as there have been eager consenting grown girls just

below fifteen years of age and boys in their late teens and

early twenties. Regardless of stated law, the law of nature

dictates that the occurrence is not unique to past and present

times, and will, with frequency, occur in the future.

The gravity of the offense in this case is one that

borders on misdemeanor status. Had the girls been two and six

months older, the defendant would stand convicted of the

lowest class felony defined ed, a class 6 felony. On the

other hand had the girls been two months and six months old,

the defendant would stand convicted of the same offense as he

presently stands, and would be punished under the same

mandatory sentence.

The gravity of the offense in the latter instance is

obvious. The offender would have committed what has been

universally defined as the worst kind of offense. The nature

of his abominable acts would be universally considered to be

extremely grave. Accordingly, a harsh punishment would be

warranted.

The gravity of the offense in the first instance i858

relatively minor. It is simply untrue to say that the gravity

of his offense is that of a child molester. The nature of the

offense is fornication with a statutorily underage girl. The

nature, and hence the gravity, of these two offenses are as

difterent as night and day. In this case, when one compares

the gravity of the ofrense with the severity ofr the sentence,

the only conclusion that a person of reason can come to is

that the two are disproportionate.

However, on this ground alone, one would not find relief

under Solem v. Helm unless it were demonstrable that other

persons convicted of more serious or equally serious types oft

crimes, in his state, had sentences imposed on them which were

less severe than his.

Prong Two: Comparina the Sentences Imposed on

Other Criminals in the Same Jurisdiction.

This prong calls for a comparison of the sentences

imposed on otner criminals convicted ot offenses in the same

jurisdiction, and determining whether the questioned sentence

is disproportionate to these other sentences In the extreme

an example may be given in that if one were sentenced to a

definite 10 year sentence for shoplifting, the sentence would

be disproportionate if armed robbery was punishable with a 3

year sentence. In this instance that latter offense is

‘onsidered to be a more serious offense, and it would be

fundamentally unfair to set the former offense with a harsher

sentence. It is submitted that it would be the most extreme

exception in which a legislature would purposely enact a

mandatory sentence that ignored this obviously fundamental

consideration. fa is only remotely possible that the

judiciary would called upon to correct a mistake such as this.

However, to say that it is remotely possible is not to say

that it is impossible. That which is considered remotely

possibie is, in other words, a rare occurrence, and it is in

such rare circumstances that the judiciary would be compelled

to involve itself ina manner as prescribed in Solem v. Helm.

There are other situations that may occur where the

effect of a mandatory punishment statute is not the intended

result, a result that does not reach the legislative intent

behind the enactment of the underlying statute. Yet, because

the statute is mandatory, the unwanted result can not be

corrected by the trial judge during imposition of the sen-

tence. Such is the case here.

It is self-evident that the result obtained here did not

even remotely reflect what was intended to be addressed by the

Arizona Legislature. The minutes of the Arizona Legislature,

attached to Petitioner’s brief as Appendix D, is unconvincing

of the legislative intent being fulfilled in the instant case.

It is submitted that no reasonable person believes that the

Crime that the Respondent committed deserved the mitigated

sentence of 40 years imprisonment. [Counsel’s belief is based

upon the fact that, because such a punishment has never, in

the recorded history of our nation, been imposed for a crime

such as this, it is simply not a punishment that a sane person

would consider, advocate, or applaud. }

Indeed, every Justice sitting on the Arizona Supreme

Court, a Court that is traditionally very conservative,

believed the sentence imposed in this case was an unjust

result. All these justices, each from differing backgrounds,

beliefs, and philosophies, held the mandatory penalty in this

case was of a kind that was "....so0 severe as to shock the

conscience of society,” and found it cruel and unusual. State

v. Bartlett, supra, at 692. (Citing with favor State v.

Davis, 108 Ariz. 335, 337 498 P.2d 202, 204 (1982). It is

submitted that the Justices of the Arizona Supreme Court are

not so removed from community standards and values that they

could be said to be unable to appreciate the conscience of

society in Arizona. Any reasonable person, be it a legisla-

tor, jurist, carpenter or scientist, would be alarmed at the

sentence in this case. The sentence does not fit the crime

committed. Unlike the opinions held by others, the judge must

act, because he is duty bound, to maintain a relationship

between law and morals, between the precepts of jurisprudence

and those of reason and good conscience. When the legislature

decrees a mandatory sentence of life in prison as a punishment

for assassination, rape, or arson of an occupied structure,

the judiciary should and does carry out the will of the

leqislature and imposes that sentence on the criminal

convicted of the respective offense. However, when the same

harsh mandatory sentence is, either by design or uninten-

tionally, applicable to a person who is guilty of disorderly

conduct, fornication, or vandalism, the judiciary has the

responsibility to balk at meting out such punishment. The

justification for not abiding by the legislative mandate lies,

partly, in the judicial ability to compare the sentences

imposed on other criminals convicted of offenses in the same

Jurisdiction, and then to determine whether the questioned

sentence is disproportionate to those other sentences.

This prong is not unworkable and is not difficult to achieve.

The consulting of the readily accessible annotated criminal

Statute books of a given state provides a ready answer to the

inquiry required under this prong.

However, on this ground alone, one would not find relief

under Solem v. Helm unless it were demonstrable that other

persons convicted of this type of crime in other jurisdictions

had sentences imposed on them significantly less severe than

Respondent's.

3. Prong Three: Comparing the Sentences Imposed For

The Same Crime In Other Jurisdictions.

This prong calls for a comparison of the sentences

imposed for the same crime in other jurisdictions, and

determining whether the questioned sentence is dispropor-

tionate to those other imposed sentences. In other words, if

it were a common legislative practice in the several states to

require a mandatory mitigated sentence of 40 years for every

young man guilty of fornicating with a girl just under the age

of 15 years, then, technically, under Solem v. Helm, no

defendant would be entitled to judicial relief.

The Petitioner takes the position that this prong

actually means ary sentence imposable in other jurisdictions

rather than any sentence actually imposed This argument is,

first, incorrect, and, second, continues to fail in that no

other jurisdiction in the United States has a sentencing judge

been compelled to impose a 4‘ year mitigated mandatory

sentence in a case such as the one before the bench The

sentence imposed in State v. Bartlett is an historical event,

f dubious value, in Anglo-American jurisprudence

As far as Respondent is able tc inderstand the Peti-

tioner’s argument, the State slaims that this prong is

unworkable because an actual comparison among the states i8 an

impossible task. Based on the alleged difficulty involved

the State of Arizona advocates the reversa

and, inturn, State v. Bartiett. To illustrate the point, The

Petitioner has attached to it’s Petition for Writ of Certio-

rari a chart, which Petitioner’s counsel has claimed to have

constructed. Because the Petitioner relies heavily on this

point, several impugning points need to be made.

The first point regards the object that this chart seeks

to demonstrate. The Petitioner has placed 26 stars next to 26

states and the legend refers to these states as "states having

potential sentencing parameters consistent with those in

Arizona." This legend is not factual. A truthful statement

would be that these states have the potential ability to

sentence the Respondent to a sentence as was imposed in

Arizona. For Petitioner’s chart legend to be truthful, it

would be necessary to show that other states share Arizona’s

sentencing "parameters" in like cases. The fact is none do.

There is not one other state in the Union that mandates the

\mposition of 15 to 25 year sentence for a like crime. Other

States provide a wide range of sentences. For example,

Montana provides that, if the Respondent were sentenced there,

he could receive a sentence ranging from 2 to 40 years. The

offense punishable under the Montana statute involves having

sexual relations with a female from birth to the age of 16

years. This is not the same “sentencing parameters" as in

Arizona. Parameter, in the plural sense, has always conveyed

the meaning of two or more constant determining factors or

characteristics in which given variables lie between. In this

case, the constant determining characteristics are the minimum

and maximum sentence allowed, under statute, for having sexual

relations with a 14 year old girl. Again, no other state

mandates a minimum sentence of 15 years. The states with the

next highest minimum sentences are Delaware and Kansas, the

minimum sentence in each of those states being 3 years. The

Petitioner has misrepresented a crucial fact to this Court

when counsel states that 26 other states have similar

sentencing "parameters" as Arizona.

The second point regarding the Petitioner’s chart ig,

that, when possible, there is listed therein the more grave

offense of child molestation, and the consistently harsh

penalties associated with that offense. This is even done

when the controlling statute, which would be applicable to

this case, is available. An example is the first two listed,

Alabama and Alaska. There is no reason to include offenses

committed on 11 and 12 year old girls, which carry the stern

sentences one could expect to see in those types of cases.

None of the references to these types of statutes are rele-

vant. It is submitted that they are given to serve two disin-

genuous purposes: First, to convince this Court that there is

a uniformity in treatment among the states with regard to

sentencing others similarly situated, and in this sense,

these references only serves to place an appearance of consis-

tency where it does not belong; and, second, with painstaking

effort, to attempt to present a mirage that the satisfaction

of this prong is a confusing impossibility and, thus, unwork-

able. In answering a simple question such as: "What is the

range of sentencing in Alaska for the offense of having

consensual intercourse with a girl over 14 years of age yet

under 15 years of aqe? Petitioner’s answer is:

f S 22: Be. tas f

e > 3Y VES; LE SCGOAV., @ VES:

, if 2nd, 15 yvre; if > 2, 25 yrs/# |

> 190 VEE, ROE < © VES, f

{ if 2nd conviction '

Petitioner’s answer serves not to clarify, but only to

s~onfuse. The answer is simply 1 to 10 years for the first

conviction, and 4 to 10 years for the second conviction

The Petitioner’s chart has been represented by counsel as

being their work-product, the result of much diligent effort

on their part. Based on the alleged difficulty involved, it

is further alleged by Petitioner that this prong is unwork-

able. Actually, the State’s effort in this regard is exagger-

ated. Respondent provided both counsel and the Arizona

Appellate Courts the citations to the relevant state criminal

Statutes in the second brief filed by Respondent on October

12, 1988, in the Arizona Court of Appeals. It is not the

unacknowledged use of this information that is objectionable;

rather, it is the implied contention by Petitioner that the

assembly of same is a difficult process that nets a complicat-

ed and obscure result. The assembly is time consuming, yet

neither impossible nor even of exceeding difficulty. The

results may be presented in an obscured, untruthful, and

complicated manner, or they can be represented in a clear and

intelligibie manner. The satisfaction of this prong is not

unworkable.

4. Workability Under Differing Interpretations.

Aside from the Petitioner’s aforesaid allegations that

the individual prongs of the test pronounced by the Solem v.

Helm Court, are unworkable, the Petitioner maintains that the

precedent in Solem v. Helmis also unworkable because certain

other states supposedly misapplied or misinterpreted the

decision. The Respondent questions the Petitioner’s standing

to challenge Solem v. Helm because the highest Court in

Maryland may have been in error in State v. Davis, 310 Md.

611, 530 A.2d 1233 (1987), as cited by Petitioner. Other

States’ interpretations of Solem v. Helm cannot affect a given

State’s interpretation of Solem v. Helm, nor the objectivity

9f the three prongs enunciated in that decision. Solem v.

Helm did not require, as a part of its proportionality

analysis, that a given state reconcile the rule of Solem v.

Helmwith the interpretation of that decision by other states.

Regardless of another state’s interpretation, Arizona

should concern itself with the appellate process of decisions

resulting in its own jurisdiction. Moreover, it is submitted

that the State of Arizona is not sincerely concerned with the

academic method in which our State Supreme Court interpreted

Solem v. Helm. It is noteworthy that the instant case was

consolidated with State v. Jonas, 792 P.2d 705 (Ariz. 1990),

which resulted in a favorable holding to the State of Arizona.

Solem v. Helm, however, was applied with equal interpretation

to both cases. The distinguishment only lies in the result,

not the method by which the result was obtained.

The interpretation that the Arizona Supreme Court gave

Solem v. Helm is what is relevant and is argued in the next

section.

D. Fundamental Precedents and Settled Expectations.

In concluding the present section regarding the status

that Solem v. Helm is to be accorded via the doctrine of stare

decisis, reference is made to the dissertation authored by Mr.

Justice Stevens, Stevens, The Life-Span of a Judge-Made Rule,

58 N.Y.U. L. Rev. 1 (1983). Mr. Justice Stevens recognized

that there are some constitutional decisions which so many

otner institutions and people have built upon, that they

should not be overturned, even if they are thought to be

wrong, since they have become a part of the structure of this

nation. This type of decision has become so interwoven into

our concept of what the iaw stands for that to overrule such

decisions would greatly undermine the public perception of the

law as being a stable institution upon which one could rely.

As such, this type of decision should enioy a more special

Status with regard to stare decisis than other precedents.

See also, Cooper, Symposium: The Federalist Society Sixth

Annual Symposium On Law And Publié Policy; The Crisis In Legal

Theory And The Revival Of Classical Jurisprudence: Stare

Decisis: Precedent And Principle In Constitutional Adjudica-

tion. 73 Cornell L. Rev. 401.

An example given is the broad interpretation of the

ciate ened by the courts. So many statutes, regulations,

governmental institutions, private expectations, and so forth

have been built upon that broad interpretation of the commerce

clause that it would be too late, even if a justice or judge

became certain that the broad interpretation was wrong as a

matter of original intent, to tear it down or overturn it. As

another example, there may be those who maintain that Brown v.

Board of Education, 347 U.S. 483 (1954), was erroneously

decided (See R. BERGER, Government by Judiciary, pp. 116-133

C1977 11; Even if believed true, it certainly is among those

cases that would qualify for a special application of stare

decisis, because it is a landmark decision.

Solem v. Helm is also a landmark decision. Every state

in the Union has accorded due respect and given serious weight

to this decision and structured its constitutional law

accordingly. To inform the States that this Court has changed

it’s mind on the far reaching fundamental constitutional

precedent of Solem v. Helm, is also to tell them that reliance

on this Court’s authority is detrimental to the construction

and development of their own constitutional common law. The

States will be toid to start again on Eighth Amendment

analysis, and rely on yet other authority of tnis Court. The

countermanding of this Court’s precedent decisions regarding

far reaching Eighth Amendment review issues, would render the

States’ reliance on this Court’s authority, dictated by stare

decisis. an unworkable proposition, rather than the precedent

decision itself being unworkable.

The doctrine of stare decisis should not be taken lightly

Or treated cavalierly.

SECOND ARGUMENT:

THE ARIZONA SUPREME COURT CORRECTLY APPLIED THE DOCTRINE SET

FORTH IN SOLEM v. HELM.

1. Proportionality Analysis As Applied by the Arizona

Supreme Court.

Before beginning a discussion of the Arizona Supreme

Court’s application of Solem v. Helm to the facts of this

case, it is important to remember that the Arizona Supreme

Court had previously utilized a similar proportionality

analysis as set forth in Solem v. Helm, even before that case

was decided, in evaluating whether a particular punishment was

cruel and unusual. State v. Mullally 127 Ariz 92, 618 P.2d

586 (1980).

It is also instructive to examine what the Arizona

Supreme Court did not hold in assessing its application of

Solem v. Helm to this case. The Arizona Supreme Court did not

hold that the legislature has no right to determine that girls

under the age of 15 years are incapable of giving consent, nor

did it state that consensual sexual intercourse with such

girls should be declared non-criminal. To the contrary, the

Arizona Supreme Court left totally intact the statute under

which Mr. Bartlett was tried (A.R.S. 413-1403) and the two

offenses’ classification as Ciass 2 felonies, one to serve as

a prior to the other, for punishment enhancement purposes,

Pursuant to the sentencing authority of A.R.S. $12-604(H) and

13-701. The Arizona Supreme Court thus did not redefine Mr.

Bartlett’s crimes to be sentenced within a range of parameters

“promulgated” by the Arizona Court as Petitioner argues.

Likewise, the Arizona Supreme Court did not hold that the

legislature has no right to enact mandatory sentencing

Statutes, such as A.R.S. $13-601.01. In fact, as will be

noted in the companion case of State v. Jonas, 972 P.2d 705

(1990), consoliciated with this case for oral argument, a copy

of which is included as Appendix G, the Arizona Supreme Court

refused to set aside a young man’s mandatory sentence under

A.R.S. $13-601.01 for the sale of one marijuana cigarette for

$1.00 to a 14 year old boy, who was no stranger to crime.

Hence, the Arizona Supreme Court bas refused to open the flood

gates of litigation as Petitioner suggests.

The significance in State v. Bartlett is that, to the

extent that the substantive statute A.R.S. $13-1405 classifies

Joe Bartlett’s offense on equal par with that of raping two

infant children and the sentencing statute A.R.S. $13-604.01

mandates an equally severe sentence of 40 years without the

possibility of parole, the entire statutory scheme, in this

exceedingly narrow instance, has deprived the sentencing judge

from making any meaningful individualized distinction in

punishment for the two totally distinct crimes, thereby giving

rise to the mandatory imposition of cruel and unusual punish-

ment.

In addition to the fact that both in Bartlett and in

Solem v. Helm, the respective defendants received their

lengthy sentences without the possibility of parole, we have

the added fact that only in Arizona did the Defendant have to

be sentenced necessarily to a minimum of 40 years in prison.

Unlike Bartlett, Helm could have been sentenced to less than

25 years. In Bartlett, all meaningful discretion had been

taken away from the judiciary to cure the broad sweep of

A.R.S $13-1405, which classifies both the torturing rape of

an infant and the consensual intercourse with a fully devel-

oped girl almost 15 years old as the same type of Class 2

felony.

a. PRONG ONE: Gravity Of The Offense And Harshness Of

the Penalty.

Solem v. Heim analysis begins with an examination of the

severity of the offense vis-a-vis the harshness of the

penalty. This prong is discussed above in the First Argument

of this Brief; however, Respondent would add that Mr.

Bartlett’s initial sentence of 40 years is more than 1 1/2

times as great as the "penultimate" life sentence without the

possibility of parole for 25 years, which was stricken down by

the Court in Solem v. Helm. That sentence wouid be, in

effect, a sentence to death in prison because it is life in

prison tor virtually the rest of Mr. Bartlett's natural life

expectancy. Hence, even if the sentencing judge had given him

the aggravated sentence of 60 years, aS a practical matter,

that would not have made much difference in the amount of time

Mr. Bartlett ultimately would have to serve. He has only one

lite to live and it is submitted that the average number of

years ailotted unto the average prison inmate is less than the

usual three score and ten.

3. PRONG TWO: Sentences For Other Crimes In

Arizona.

The second prong of the analysis focuses upon the

sentences imposed upon other criminals in the State of

Arizona. This Court stated in Solem v. Helm that this prong

is tested by looking at the sentences of other criminals who

have committed worse offenses, to see whether such sentences

are as harsh or less harsh than that imposed in this case.

The Petitioner argues that we can only make a comparison

with those "offenses committed against children” and thus,

actually punished under A.R.S. $13~604.01, claiming that the

Arizona Supreme Court "refused to make” such a comparison.

That is patently false. State v. Bartlett, supra, 792 P.2d at

699. Furthermore, the State, in order to compel a comparison

of Mr. Bartlett’s acts with those who have been convicted of

gross pedophilia, makes the argument that the only analysis

allowable is a comparison with offenses committed against

children. Even if that comparison were the only analysis re-

quired, this prong of the test most certainly has been met for

the reason the Arizona Supreme Court made the comparison that

crimes such as the molestation of a two year old baby carries

a mandatory term of 12 to 22 years (A.R.S. $13-604.01 (B)),

while the far less severe crime of sex with an experienced 14

year old carries a mandatory term of 15 to 25 years (A.R.S.

$13-604.0i1(A)). This prong would also be met, under the same

constraint as the Fetitioner suggests, by considering the fact

that the second degree murder of a child carries the same

penalty by the same statute as the infinitely less serious

crime for which Mr. Bartlett was convicted.

In this case, where there was no question but that the

girls gave meaningful consent and that they were, for all

practical purposes no different after then before the sexual

conduct, the Arizona Supreme Court had no difficulty in

finding that all dangerous offenses, either with a weapon or

where serious physical injury occurs, are potentially more

serious than Mr. Bartlett’s offenses. Id. at 700. Neverthe-

less, in such instances, even for dangerous Class 2 felonies,

such as armed robbery (A.R.S. $13-1904) and kidnapping (A.R.S.

$13-1304), the minimum sentence for a second offense, with one

Class 2 felony, dangerous prior, is 14 years, with the

possibility of parole upon having served 2/3 of the sentence.

A.R.S. $13-604.01(G). It is very clear that the Arizona Su-

preme Court correctly concluded that, in Arizona, less severe

sentences are imposable on defendants who commit crimes far

more serious than that of Mr. Bartlett.

It should be pointed out in connection with the foregoing

that had the Arizona Supreme Court carried its analysis

further it would have been able to find that the ultimately

more serious crime of second degree murder of an adult, which

is a Class 1 felony (A.R.S. 6$13-1104), i8 punishable by

imprisonment for a minimum of 10 years, of which the Defendant

would have to serve 2/3 of his term.

Finally, it is instructive to analyze this prong a

different way, as was done by the Arizona Supreme Court, by

examining what sentence Respondent would have received had he

waited a few months to have sex with the girls after their

15th birthday. Id. at 698. The acts would have been the same,

the victims have been no different, and yet, the sentence

would have been a maximum of 1.87 years for the first count,

three years for the second count, if the first count served as

a prior, with the possibility of a suspended sentence and

probation. (A.R.S. $$13-1405, 13-701, 13-702, and 13-901).

There is no question but that there is a great disparity

in sentences imposed on other criminals and similarly situated

defendants in the State of Arizona. Prong two of the Solem v.

Helm test, therefore, was correctly applied.

4. PRONG THREE: Sentences For Similar Offenses

In Other States.

The final factor in the Solem v. Helm analysis, involves

a comparison of sentences imposed and imposable on similarly

Situated defendants in other jurisdictions. Since the

Respondent was sentenced separately on each count, with the

sentences to be served consecutively, it is important to

compare the counts separately in determining what he would

have received in other jurisdictions. The Petitioner claims

that the Arizona Supreme Court limited its comparison only to

those sentences actually “imposed” and not "imposable”. In

like manner as the State’s argument in Prong Two, this is

patently false. Id. at p. 701-703.

In Arizona, the minimum penalty for first offense sexual

intercourse with a consenting 14 year old adolescent is every

day of 15 years. As appears more fully in the sentencing

chart, annexed as Appendix "F", the minimum “parameter” for

the same offense in all other 49 states and in the District of

Columbia is three years at the most. Indeed, some states

treat the same conduct as a misdemeanor or no crime at all,

and most of the remaining jurisdictions provide a minimum term

of one or two years. Even in those jurisdictions where the

possible maximum parameters wouid be as high or higher than

the maximum in Arizona, at least the judge has the discretion

to impose a minimum of three years or less.

Even a brief look at the annexed sentencing chart compels

the conclusion that Arizona’s mandatory sentencing scheme is

totally out of line with the rest of the states. A the

™m

Arizona Supreme Court recognized, that to argue, as the

Petitioner does here, that Mr. Bartlett could have gotten 15

years or more elsewhere on a first offense really begs the

question and does not excuse the result for the reason that

only in Arizona would he necessarily have received the 15

years on the first count. Id. at 700-701 Even more alarming

is that, only in Arizona, would Mr. Bartlett necessarily have

received 40 years for both offenses as the minimum tern.

While it is true that a number of states Go provide for

enhanced punishment on a second offense, there is not one

jurisdiction where there would be a mandatory minimum of

anywhere near every day of 25 years for the second separate

offense of consensual sexual relations, let alone where the

second offense is stacked, at the option of the prosecutor,

upon the first predicate felony in the same indictment, to be

served consecutively. Although in Nebraska, a person convict-

ed of sexual assault in the first degree would receive 25 to

50 years for a second offense involving a child under 16,

punishment under that statute, as pointed out by the Arizona

Supreme Court, has only involved more heinous non-consensual

offenses. ig. at Dp. 763. Finally, as the Arizona Supreme

Court recognized, the State of Arizona cited no case authority

and there did not appear to be any from another jurisdiction,

where a criminal defendant received a sentence even remotely

Similar to that of Joe Bartlett for a similar offense, even

where such a sentence might be permissible under that state’s

sentencing scheme. Id. at p. 702.

By concentrating on what might hypothetically be "“impos-

able" in other jurisdiction, but ignoring what really happens,

as 18S memorialized in published opinions, the Petitioner has

entered the ivory tower of possibilities and left reality far

behind. For that reason, perhaps in discussing sentences

actually imposed in the State of Nevada, this Court stated in

Solem v. Helm, supra, at 298 that, “we must compare the

sentences imposed for commission of the same crime in other

jurisdictions." (emphasis added). The Petitioner’s argument

that the Arizona Supreme Court misapplied that test by

focusing on what is "imposed" as opposed to "imposable" is

patently incorrect.

It can be argued, of course, that one state will always

prescribe the most severe penalty. Petitioner thus argues

that a Solem v. Helm analysis tramples on the fundamental

concepts of federalism. One state’s having the most severe

penalty is simply inherent in our system of federalism. There

comes a point, however, where the harshest state penalty, in

a given rare instance, is so out of line with the rest of the

States’ penalties and with its own system of jurisprudence,

such as in this narrow instance, that it is clearly walking on

a separate path of jurisprudence, completely off the track

from the federal constitutional proscription against the

imposition of cruel and unusual punishment. It is precisely

these extremely rare situations which the analysis in Solem v.

Helm is designed to remedy.

In this present case, there is no question but that the

Arizona Supreme Court correctly applied the three prong test

of Solem v. Helm in determining that Mr. Bartlett’s sentence

of every day of 40 years for having consensual sex with the

two fourteen year old girls constituted cruel and unusual

punishment.

It is conceded that in the usual situation an appellate

court should not step in as a superlegislature to disturb the

determination of the elected legislature. However, when the

legislature enacts a statute which, in broad sweeps, demands

an absurd result in 4 rare case, giving rise to the imposition

of cruel and unusual punishment, the Court must exercise its

power of judicial review to declare unconstitutional the

application of such a statute in such rare circumstances.

The Court must be circumspect in protecting the autonomy

envisioned for the judiciary within our Constitution. This

Court’s opinion in Solem v. Helm is consistent with the

protection of such autonomy in the checks and balances scheme.

Further, that most basic and ancient principle of law,

Stare decisis, dictates that Solem v. Helm should not be

overturned for it is neither unworkable nor has it been

rendered irrelevant by changed conditions or subsequent

precedent. A Solem v. Helm analivsis may involve a lot of

work, but that certainly does not make it unworkable, as

claimed by the Petitioner. It is submitted that where

questions of cruel and unusual punishment are raised and where

everyday of 40 years of a man’s life is at stake, the fact

that a lot of work must be done in comparing statutes and

sentences actually imposed for similar offenses, is truly

insignificant. The burden imposed does not equate with

unworkability.

‘

Finally, counsel for the Petitioner has informed the

undersigned that in her Reply, she will ask this Court to hold

this case for resolution pending the outcome in Harmelin v.

Michigan, Supreme Court Case No. 89-7272, which is also

addressing the issue of revisiting Solem v. Helm. Respondent

requests that the Court refuse to do so for the reason that

the offenses and facts involved in the Harmelin case ar

totally different from those of the Bartlett decision.

For the above reasons, Respondent asks that this Court

deny the Petition for Writ of Certiorari.

RESPECTFULLY SUBMITTED,

DAVID P. FLANNIGAN

Attorney at Law, P.C.

sy, SorQ Pade

David P. Flannigan

Attorney for Respondent

TWO COPIES of this Brief were mailed this _ day

October 1990, to:

Vicki Gotkin Adler

Assistant Attorney General

Criminal Division

1275 W. Washington, First Floor

Pnoenix, Arizona 85007

DAVID P. FLANNIGAN

Attorney at Law, P.C.

P.O. Box 4340

Bisbee, AZ 85603

§ 13-1405. Sexual conduct with a minor; classifications

A. A person commits sexual conduct with a minor by intentionally or

knowingly engaging in sexual intercourse or oral sexual contact with any

person who is under eighteen years of age.

B. Sexual conduct with a minor under fifteen years of age is a class 2

felony and is punishable pursuant to § 13-604.01. Sexual conduct with a

minor fifteen years of age or over is a class 6 felony.

Added by Laws 1977, Ch. 142, § 63, eff. Oct. 1, 1978. Amended by Laws 1983, Ch. 202,

§ 8; Laws 1985, Ch. 364, § 18, eff. May 16, 1985.

Historical Note

Source:

Pen.Code 1901, §§ 230, 233.

Pen.Code 1913, §§ 231, 234.

Rev.Code 1928, § 4596.

Code 1939, § 43-4901.

A.R.S. former §§ 13-611, 13-614.

Laws 1962, Ch. 52, §§ 1, 2.

Laws 1967, Ch. 62, § 9.

Laws 1976, Ch. 111, § 5.

The 1983 amendment deleted at the end of

subsec. A “and who is not his or her spouse”;

and rewrote subsec. B, which had read:

“Sexual conduct with a minor under fifteen

years of age is a class 2 felony. Sexual con-

duct with a minor fifteen years of age or over

is a class 6 felony.”

The 1985 amendment rewrote subsec. B

which read:

APPENDIX A

“Sexual conduct with a minor under fifteen

years of age is a class 2 felony, and the person

convicted is not eligible for suspension or com-

mutation of sentencs, probation, pardon, pa-

role, work furlough or release from confine-

ment on any other basis except as specifically

authorized by § 31-233, subsection A or B un-

til the sentence imposed by the court has been

served. Sexual conduct with a minor fifteen

years of age or over is a class 6 felony.”

Former § 13-1405 was renumbered as

§ 13-3885.

1983 Reviser’s Note:

In the section heading “molestation of a mi-

nor;” was deleted pursuant to authority of

§ 41-1304.02.

§ 13-604.01. Dangerous crimes against children; sentences; definitions

A. Except as otherwise provided in this section, a person who is at least

eighteen years of age or who has been tried as an adult and who stands

convicted of a dangerous crime against children in the first degree involving

second degree murder, sexual assault, taking a child for the purpose of

prostitution, child prostitution or sexual conduct with a minor or involving or

using minors in drug offenses shall be sentenced to a presumptive term of

imprisonment for twenty years. If the convicted person has been previously

convicted of one predicate felony the person shall be sentenced to a presump-

tive term of imprisonment for thirty years.

B. Except as otherwise provided in this section, a person who is at least

eighteen years of age or who has been tried as an adult and who stands

convicted of a dangerous crime against children in the first degree involving

aggravated assault, molestation of a child, commercial sexual exploitation of a

minor, sexual exploitation of a minor, child abuse or kidnapping shall be

sentenced to a presumptive term of imprisonment for seventeen years. If the

convicted person has been previously convicted of one predicate felony the

person shall be sentenced to a presumptive term of imprisonment for twenty-

eight years.

C. Except as otherwise provided in this section, a person who is at least

eighteen years of age or who has been tried as an adult and who stands

convicted of a dangerous crime against children in the first degree involving

sexual abuse shall be sentenced to a presumptive term of imprisonment for

250

APPENDIX B, page 1

yrs >

a MR tk ALe

CLASSIFICATIONS; DISPOSITIONS § 13-604.01

Ch. 6

ten years. If the convicted person has been previously convicted of one

predicate felony the person shall be sentenced to a presumptive term of

imprisonment for fifteen years.

D. The presumptive sentences prescribed in subsections A, B and C of this

section may be increased or decreased by up to five years pursuant to the

provisions of § 13-702, subsections C, D and E.

E. A person sentenced for a dangerous crime against children in the first

degree pursuant to this section is not eligible for suspension or commutation

of sentence, probation, pardon, parole, work furlough or release from con-

finement on any other basis except as specifically authorized by § 31-233,

subsection A or B until the sentence imposed by the court has been served.

F. A person who stands convicted of any dangerous crime against children

in the first degree having been previously convicted of two or more predicate

felonies shall be sentenced to life imprisonment and is not eligible for

suspension or commutation of sentence, probation, pardon, parole, work

furlough or release from confinement on any other basis except as specifical-

ly authorized by § 31-233, subsection A or B until the person has served not

fewer than thirty-five years.

G. Notwithstanding chapter 10 of this title,! a person who is at least

eighteen years of age or who has been tried as an adult and who stands

convicted of a dangerous crime against children in the second degree is guilty

of a class 3 felony and shall be sentenced to a presumptive term of imprison-

ment for ten years. The presumptive term may be increased or decreased by

up to five years pursuant to § 13-702, subsections C, D and E. If the person

is sentenced to a term of imprisonment the person is not eligible for release

from confinement on any basis until the person has served not less than

one-half the sentence imposed by the court.

H. Section 13-604, subsections H and I apply to the determination of prior

convictions.

I. In addition to the term of imprisonment imposed pursuant to this

section and notwithstanding any other law, the court shall order that a person

convicted of any dangerous crime against children in the first degree be

supervised on parole after release from confinement on such conditions as

the court or the board of pardons and paroles deems appropriate for the rest

of the person's life. If the person is convicted of any dangerous crime against

children in the second degree the court, in addition to any term of imprison-

ment imposed or in lieu of the term if probation is otherwise authorized, may

order that the person convicted be supervised on probation or on parole after

release from confinement on such conditions as the court or board of pardons

and paroles deems appropriate for any term up to the rest of the person’s life.

J. The sentence imposed on a person by the court for a dangerous crime

against children in the first or second degree shall be consecutive to any other

sentence imposed on the person at any time.

K. In this section:

251

APPENDIX B, page 2

§ 13-604.01 CRIMINAL CODE

Title 13

1. “Dangerous crime against children” means any of the following commit-

ted against a minor under fifteen years of age:

(a) Second degree murder.

(b) Aggravated assault resulting in serious physical injury or committed by

the use of a deadly weapon or dangerous instrument.

(d) Molestation of a child.

(e) Sexual conduct with a minor.

(f) Commercial sexual exploitation of a minor.

(g) Sexual exploitation of a minor.

(h) Child abuse as defined in § 13-3623, subsection B, paragraph 1.

(i) Kidnapping.

(j) Sexual abuse.

(k) Taking a child for the purpose of prostitution as defined in § 13-3206.

(1) Child prostitution as defined in § 13-3212.

(m) Involving or using minors in drug offenses.

A dangerous crime against children is in the first degree if it is a completed

offense and is in the second degree if it is a preparatory offense.

2. “Predicate felony” means any felony involving child abuse, a sexual

offense, conduct involving the intentional or knowing infliction of serious

physical injury or the use or exhibition of a deadly weapon or dangerous

instrument, or a dangerous crime against children in the first or second

degree.

Added by Laws 1985, Ch. 364, § 6, eff. May 16, 1985. Amended by Laws 1987, Ch. 166,

§ 1; Laws 1987, Ch. 307, § 4.

1 Section 13-1001 et seq.

Historical Note

Laws 1987, Ch. 166, § 1, provided in subsec. offenses committed while released from con-

A for taking a child for the purpose of prostitu- finement, was renumbered as § 13-604.02 by

tion and child prostitution, and add pars. (1)k Laws 1985, Ch. 364, § 5, effective May 16,

and 1(/) to subsec. K. 1985.

Laws 1987, oe a os provided for —

ing a minor in a drug offense in subsec. A, an

added aekens. Eitan). 1987 Reviser’s Note:

Former § 13-604.01, added by Laws 1982, This section contains the amendments made

Ch. 322, § 2, amended by Laws 1983, Ch. 32, by Laws 1987, Ch. 166, § 1 and Ch. 307, § 4,

§ 1, Laws 1984, Ch. 163, § 1, and Laws 1985, which were blended together as shown above

Ch. 227, § 1, and relating to punishment for pursuant to authority of § 41-1304.03.

APPENDIX B, page 3

§ 13-701. Sentence of imprisonment for felony; presentence report

A. A sentence of imprisonment for a felony shall be a definite term of

years and the person sentenced, unless otherwise provided by law, shall be

committed to the custody of the state department of corrections.

B. No prisoner may be transferred to the custody of the state department

of corrections without a certified copy of the judgment and sentence, signed

by the sentencing judge, and a copy of a recent presentence investigation

report unless the court has waived preparation of the report.

C. Except as provided in § 13-604 the term of imprisonment for a felony

shall be determined as follows for a first offense:

1. For a class 2 felony, seven years.

2. For a class 3 felony, five years.

3. For a class 4 felony, four years.

4. For aclass 5 felony, two years.

5. For a class 6 felony, one and one-half years.

Added as § 13-901 by Laws 1977, Ch. 142, § 57, eff. Oct. 1, 1978. Renumbered as

§ 13-701 and amended by Laws 1978, Ch. 201, §§ 104, 105, eff. Oct. 1, 1978. Amended

by Laws 1988, Ch. 66, § 1.

Historical Note

Source:

Rev.Code 1928, § 4585.

Code 1939, § 43-2903.

A.R.S. former § 13-453.

The 1978 amendment substituted “shall be a

definite term of years and the person sen-

tenced unless otherwise provided by law, shail

be committed to the custody of the department

of corrections” for “except as provided in

§ 13-704, shall be a presumptive sentence” in

subsec. A, and inserted “except as provided in

§ 13-604" in subsec. B.

The 1988 amendment inserted “state” preced-

ing “department” in subsec. A; inserted subsec.

B; and redesignated former subsec. B as sub-

sec. C,

Section 13-701 as added by Laws 1977, Ch.

142, § 48, eff. Oct. 1, 1978, was transferred and

renumbered as § 13-601; see italicized note

preceding this section.

Original § 13-701, derived from Pen.Code

1901, §§ 30, 31, 33; Pen.Code 1913, §§ 30, 31,

33; Rev.Code 1928, § 4492; Code 1939,

§ 43-5701, and defining treason and provided

punishment therefor, was repealed by Laws

1977, Ch. 142, § 23, eff. Oct. 1, 1978.

For disposition of the subject matter of sec-

tions of the former Criminal Code, see Disposi-

tion Tableat the front of this volume

1978 Reviser’s Note:

Pursuant to authority of § 41-1304.02, a

comma was added after the word “sentenced”

in subsection A, and the words “Except as

provided in § 13-604" were transposed to the

beginning of the sentence in subsection B.

270

APPENDIX C

| ——— :

§ 13-604. Dangerous and repetitive offenders; definition

A. Except as provided in subsection F of this section or § 13-604.01, a

person who is at least eighteen years of age or who has been tried as an adult

and who stands convicted of a class 4, 5 or 6 felony, whether a completed or

preparatory offense, and who has previously been convicted of any felony

within ten years next preceding the date of the present offense shall be

sentenced to imprisonment for not less than the sentence and not more than

twice the sentence authorized by § 13-701 for the offense for which the

person currently stands convicted and shall not be eligible for suspension or

commutation of sentence, probation, pardon or parole, work furlough or

release from confinement on any other basis except as specifically authorized

by § 31-233, subsection A or B until not less than one-half of the sentence

imposed by the court has been served. Upon imposing a sentence pursuant to

this subsection the court shall impose as a presumptive term the median of

the allowable range. The presumptive term may be mitigated or aggravated

within the range prescribed under this subsection pursuant to the terms of

§ 13-702, subsections C, D and E.

B. Except as provided in subsection G of this section or § 13-604.01, a

person who is at least eighteen years of age or who has been tried as an adult

and who stands convicted of a class 2 or 3 felony, whether a completed or

preparatory offense, and who has previously been convicted of any felony

shall be sentenced to imprisonment for not less than the sentence and not

more than three times the sentence authorized by § 13-701 for the offense for

which the person currently stands convicted and shall not be eligible for

suspension or commutation of sentence, probation, pardon or parole, work

furlough or release from confinement on any other basis except as specifical-

ly authorized by § 31-233, subsection A or B until not less than two-thirds of

the sentence imposed by the court has been served. Upon imposing a

211

APPENDIX D, page 1

— nly

C0 wens

§ 13-604 CRIMINAL CODE

Title 13

sentence pursuant to this subsection the court shall impose as a presumptive

term three-fourths of the median of the allowable range. The presumptive

term may be mitigated or aggravated within the range prescribed under this

subsection pursuant to the terms of § 13-702, subsections C, D and E.

C. Except as provided in subsection F or N of this section or § 13-604.01,

a person who is at least eighteen years of age or who has been tried as an

adult and who stands convicted of a class 4, 5 or 6 felony, whether a

completed or preparatory offense, and who has been previously convicted of

two or more felonies shall be sentenced to imprisonment for at least twice the

sentence and not more than three times the sentence authorized by § 13-701

for the offense for which the person currently stands convicted and shall not

be eligible for suspension or commutation of sentence, probation, pardon or

parole, work furlough or release from confinement on any other basis except

as specifically authorized by § 31-233, subsection A or B until not less than

two-thirds of the sentence imposed by the court has been served. Upon

imposing a sentence pursuant to this subsection the court shall impose as a

presumptive term the median of the allowable range. The presumptive term

may be mitigated or aggravated within the range prescribed under this

subsection pursuant to the terms of § 13-702, subsections C, D and E.

D. Except as provided in subsection G or N of this section or § 13-604.01,

a person who is at least eighteen years of age or who has been tried as an

adult and who stands convicted of a class 2 or 3 felony, 1nd who has been

previously convicted of two or more felonies, shall be sent nced to imprison-

ment for at least twice the sentence and not more than four times the

sentence authorized by § 13-701 for the offense for which the person current-

ly stands convicted and shall not be eligible for suspension or commutation of

sentence, probation, pardon or parole, work furlough or release from confine-

ment on any other basis except as specifically authorized by § 31-233,

subsection A or B until not less than two-thirds of the sentence imposed by

the court has been served. Upon imposing a sentence pursuant to this

subsection the court shall impose as a presumptive term three-fourths of the

median of the allowable range. The presumptive term may be mitigated or

aggravated within the range prescribed under this subsection pursuant to the

terms of § 13-702, subsections C, D and E.

E. A person who is at least eighteen years of age or who has been tried as

an adult and who stands convicted of any misdemeanor or petty offense,

other than a traffic offense, and has been convicted of one or more of the

same misdemeanors or petty offenses within two years next preceding the

date of the present offense shall be sentenced for the next higher class of

offense than that for which such person currently stands convicted.

F. Except as provided in § 13-604.01, a person who is at least eighteen

years of age or who has been tried as an adult and who stands convicted of a

class 4, 5 or 6 felony involving the intentional or knowing infliction of serious

physical injury or the use or exhibition of a deadly weapon or dangerous

instrument without having previously been convicted of any felony shall be

sentenced to imprisonment for not less than the sentence and not more than

212

APPENDIX D, page 2

CLASSIFICATIONS; DISPOSITIONS § 13-604

Ch. 6

twice the sentence authorized in § 13-701 for the offense for which the

person currently stands convicted and shall not be eligible for suspension or

commutation of sentence, probation, pardon, parole, work furlough or release

from confinement on any other basis except as specifically authorized by

§ 31-233, subsection A or B until not less than one-half of the sentence

imposed by the court has been served. Except as provided in § 13-604.01,

upon conviction of a class 4, 5 or 6 felony involving the intentional or

knowing infliction of serious physical injury or the use or exhibition of a

deadly weapon or dangerous instrument a person who has once previously

been convicted of any felony involving the intentional or knowing infliction

of serious physical injury or the use or exhibition of a deadly weapon or

dangerous instrument shall be sentenced to imprisonment for twice the

sentence and not more than three times the sentence authorized in § 13-701

for the offense for which the person currently stands convicted and shall not

be eligible for suspension or commutation of sentence, probation, pardon,

parole, work furlough or release from confinement on any other basis except

as specifically authorized by § 31-233, subsection A or B until not less than

two-thirds of the sentence imposed by the court has been served. Except as

provided in subsection N of this section or § 13-604.01, upon conviction of a

class 4, 5 or 6 felony involving the intentional or knowing infliction of serious

physical injury or the use or exhibition of a deadly weapon or dangerous

instrument a person who has been previously convicted of two or more

felonies involving the intentional or knowing infliction of serious physical

injury or the use or exhibition of a deadly weapon or dangerous instrument

shall be sentenced to imprisonment for three times the sentence and not more

than four times the sentence authorized in § 13-701 for the offense for which

the person currently stands convicted and shall not be eligible for suspension

or commutation of sentence, probation, pardon, parole, work furlough or

release from confinement on any other basis except as specifically authorized

by § 31-233, subsection A or B until not less than two-thirds of the sentence

imposed by the court has been served. Upon imposing a sentence pursuant to

this subsection the court shall impose as a presumptive term the median of

the allowable range. The presumptive term may be mitigated or aggravated

within the range prescribed under this subsection pursuant to the terms of

§ 13-702, subsections C, D and E.

G. Except as provided in § 13-604.01, upon a first conviction of a class 2

or 3 felony involving use or exhibition of a deadly weapon or dangerous

instrument or upon conviction of a class 2 or 3 felony when the intentional or

knowing infliction of serious physical injury upon another has occurred, the

defendant shall be sentenced to imprisonment for not less than the sentence

and not more than three times the sentence authorized in § 13-701 for the

offense for which the person currently stands convicted and shall not be

eligible for suspension or commutation of sentence, probation, pardon or

parole, work furlough or release from confinement on any other basis except

as specifically authorized by § 31-233, subsection A or B until not less than

two-thirds of the sentence imposed by the court has been served. Except as

provided in § 13-604.01, upon conviction of a class 2 or 3 felony involving the

213

APPENDIX D, page 3

§ 13-604 CRIMINAL CODE

Title 13

use or exhibition of a deadly weapon or dangerous instrument or the inten-

tional or knowing infliction of serious physical injury upon another, a person

who has once previously been convicted of a class 1, 2 or 3 felony involving

the use or exhibition of a deadly weapon or dangerous instrument or the

intentional or knowing infliction of serious physical injury on another shall

be sentenced to imprisonment for twice the sentence and not more than four

times the sentence authorized in § 13-701 for the offense for which the

person currently stands convicted and shall not be eligible for suspension or

commutation of sentence, probation, pardon or parole, work furlough or

release from confinement on any other basis except as specifically authorized

by § 31-233, subsection A or B until not less than two-thirds of the sentence

imposed by the court has been served. Except as provided in subsection N of

this section or § 13-604.01, upon conviction for a class 2 or 3 felony involving

the use or exhibition of a deadly weapon or dangerous instrument or the

intentional or knowing infliction of serious physical injury upon another, a

person who has been previously convicted of two or more class 1, 2 or 3

felonies involving the use or exhibition of a deadly weapon or dangerous

instrument or the intentional or knowing infliction of serious physical injury

on another shall be sentenced to imprisonment for three times the sentence

and not more than five times the sentence authorized in § 13-701 for the

offense for which the person currently stands convicted, and shall not be

eligible for suspension or commutation of sentence, probation, pardon or

parc le, work furlough or release from confinement on any other basis except

as specifically authorized by § 31-233, subsection A or B until not less than

two-thirds of the sentence imposed by the court has been served. Upon

imposing a sentence pursuant to this subsection the court shall impose as a

presumptive term three-fourths of the median of the allowable range, except

in the case of a person with two or more class 1, 2 or 3 felony convictions in

which case the presumptive term shall be the median of the allowable range.

The presumptive term may be mitigated or aggravated within the range

prescribed under this subsection pursuant to the terms of § 13-702, subsec-

tions C, D and E. For the purposes of this subsection in determining the

applicability of the penalties provided herein for second or subsequent class 2

or 3 felonies, the conviction for any felony committed prior to October 1,

1978 which, if committed after October 1, 1978, could be a dangerous felony

under this section may be designated by the state as a prior felony.

H. Convictions for two or more offenses not committed on the same

occasion but consolidated for trial purposes may, at the discretion of the state,

be counted as prior convictions for purposes of this section. Convictions for

two or more offenses committed on the same occasion shall be counted as

only one conviction for purposes of this section.

I. A person who has been con ‘icted in any court outside the jurisdiction of

this state of an offense which if committed within this state would be

punishable as a felony or misdemeanor is subject to the provisions of this

section. A person who has been convicted as an adult of an offense punisha-

ble as a felony or a misdemeanor under the provisions of any prior code in

this state shall be subject to the provisions of this section.

214

APPENDIX D, page 4

CLASSIFICATIONS; DISPOSITIONS § 13-604

Ch. 6

J. Time spent incarcerated within the ten years next preceding the date of

the offense for which a person is currently being sentenced under subsection

A of this section and time spent incarcerated within the two years next

preceding the date of the offense for which a person is currently being

sentenced under subsection E of this section shall not be included in the ten

years or two years required to be free of convictions for purposes of those

subsections.

K. The penalties prescribed by this section shall be substituted for the

penalties otherwise authorized by law if the previous conviction, the danger-

ous nature of the felony or the allegation that the defendant committed a

felony while released on bond or on his own recognizance as provided in

subsection M of this section is charged in the indictment or information and

admitted or found by the trier of fact. The court shall allow the allegation of

a prior conviction, the dangerous nature of the felony or the allegation that

the defendant committed a felony while released on bond or on his own

recognizance at any time prior to the date the case is actually tried unless the

allegation is filed fewer than twenty days before the case is actually tried and

the court finds on the record that the defendant was in fact prejudiced by the

untimely filing and states the reasons for these findings, provided that when

the allegation of a prior conviction is filed, the state must make available to

the defendant a copy of any material or information obtained concerning the

prior conviction. Before the trial on the charge of the previous conviction or

the allegation that the defendant committed a felony while released on bond

or on his own recognizance, the charge of previous conviction or the allega-

tion that the defendant committed a felony while released on bond or on his

own recognizance shall not be read to the jury. For the purposes of this

subsection, “dangerous nature of the felony” means a felony involving the use

or exhibition of a deadly weapon or dangerous instrument or the intentional

or knowing infliction of serious physical injury upon another.

L. Intentional failure by the court to impose the mandatory sentences or

probation conditions provided in this title shall be deemed to be malfeasance.

M. A person convicted of committing any felony offense, which felony

offense is committed while the person is released on bail or on his own

recognizance on a separate felony offense, shall be sentenced to a term of

imprisonment two years longer than would otherwise be imposed for the

felony offense committed while released on bond or on his own recognizance.

The additional sentence imposed under this subsection is in addition to any

enhanced punishment that may be applicable under any of the other subsec-

tions of this section.

N. A person who is at least eighteen years of age or who has been tried as

an adult and who stands convicted of a serious offense except first degree

murder or any dangerous crime against children, whether a completed or

preparatory offense, and who has previously been convicted of two or more

serious offenses not committed on the same occasion shall be sentenced to

life imprisonment and is not eligible for suspension or commutation of

sentence, probation, pardon, parole, work furlough or release from confine-

215

APPENDIX D, page 5

§ 13-604

CRIMINAL CODE

Title 13

ment on any other basis except as specifically authorized by § 31-233,

subsection A or B until the person has served not less than twenty-five years.

O. As used in this section, “serious offense” means any of the following

offenses if committed in this state or any offense committed outside this state

which if committed in this state would constitute one of the following

offenses:

First degree murder.

Second degree murder.

Manslaughter.

Aggravated assault resulting in serious physical ‘injury or committed by

use of a deadly weapon or dangerous instrument.

Sexual assault.

Any dangerous crime against children.

Arson of an occupied structure.

. Armed robbery.

Burglary in the first degree.

oN aAuNeh wn

10. Kidnapping.

11. Sexual conduct with a minor under fifteen years of age.

12. A drug related felony offense pursuant to § 13-3404.01, a violation of

§ 13-3405 involving an amount of marijuana having a weight at the time of

seizure of eight pounds or more, a felony violation of § 13-3406 or any

violation of §§ 13-3407 through 13-3409.

Added as § 13-704 by Laws 1977, Ch. 142, § 48, eff. Oct. 1, 1978. Renumbered as

§ 13-604 and amended by Laws 1978, Ch. 201, §§ 98, 101, eff. Oct. 1, 1978. Amended

by Laws 1980, Ch. 229, § 7, eff. April 23, 1980; Laws 1981, Ch. 165, § 1; Laws 1982,

Ch. 322, § 1; Laws 1984, Ch. 42, § 1; Laws 1984, Ch. 325, § 1; Laws 1985, Ch. 146,

§ 1; Laws 1985, Ch. 364, § 4, eff. May 16, 1985; Laws 1987, Ch. 307, § 3.

Historical Note

Source: der this subsection” and substituted “13-702,

Pen.Code 1901, 618, 630, 632. subsection C, D and E” for “13-901.01"; in

evap 1913, 726, 738, 739. subsec. B, inserted “of this section”, substituted

Rev.Code 1928, §§ 4898, 4899. "13-701" for “13-901”, “subsection” for “para-

Code 1939, § 43-6112. graph”, and “13-702, subsections C, D and E”

Laws 1951. Ch. 110 § 1. for “13-702”, and inserted “not less than two-

Code 1939, Supp.1952, § 43-6111. thirds of; in subsec. C, inserted “of this sec-

ARS. former §§ 13-1649, 13-1650. tion”, substituted “13-701” for “13-901”, and

inserted “not less than two-thirds of” in the

The 1978 amendment, in subsec. A, inserted first sentence,

“of this section”, substituted “§ 13-701" for

“§ 13-901", and substituted “not less than one-

half of the sentence imposed by the court” for

“the minimum sentence” in the first sentence,

in the second sentence substituted “subsection”

for “paragraph”, deleted “three-fourths of” fol-

lowing “presumptive term” and deleted an ex-

ception clause relating to class 6 felonies, and

in the final sentence inserted “prescribed un-

substituted “subsection” for

“paragraph” and deleted “three-fourths of”, and

an exception clause to class 6 felonies in the

second sentence, and in the final sentence in-

serted “prescribed under this subsection” and

substituted “13-702, subsections C, D and E”

for “13-901.01"; in subsec. D, inserted “of this

section”, substituted “13-701” for “13-901”, and

inserted “not less than two-thirds of” in the

first sentence, in the second sentence substitut-

216

APPENDIX D, page 6

CLASSIFICATIONS; DISPOSITIONS

Ch. 6

ed “subsection” for “paragraph”, and in the

final sentence inserted “prescribed under this

subsection” and substituted “13-702, subsec-

tions C, D and E” for “13-901.01"; in subsec. E,

inserted references to petty offenses and re-

duced convictions from two to one; inserted

subsec. F, and redesignated subsequent subsec-

tions; in subsec. G, substituted “or knowing”

for “knowing or reckless”, “13-701” for “13-

901” and inserted “not less than two-thirds of"

throughout the first sentence, in the second

| sentence substituted “subsection” for “para-

graph” and added exception, in the third sen-

_ tence inserted “prescribed under this subsec-

' tion” and substituted “13-702, subsections C, D

' and E” for “13-901.01", and added the final

sentence; in subsec. H, deleted “or as part of a

single continuing course of action” following

“some occasion”, inserted “at the discretion of

the state”, and added the second sentence; and

in subsec. K, inserted “or the dangerous nature

of the felony” in the first and second sentences,

inserted “of a prior conviction” in the second

sentence and added the final sentence.

The 1980 amendment substituted near the

end of subsec. G “if committed after October 1,

1978, could be a dangerous felony under this

section” for “carries a penalty of up to life

imprisonment”. Prior to amendment, subsec.

G provided:

“Upon a first conviction of a class 2 or 3

felony involving use or exhibition of a deadly

weapon or dangerous instrument or upon con-

viction of a class 2 or 3 felony when the inten-

tional or knowing infliction of serious physical

injury upon another has occurred, the defen-

dant shall be sentenced to imprisonment for

not less than the sentence and not more than

three times the sentence authorized in

§ 13-701 for the offense for which the person

currently stands convicted, and shall not be

eligible for suspension or commutation of sen-

tence, probation, pardon or parole or release

on any other basis until not less than two-

thirds of the sentence imposed by the court has

been served. Upon a second conviction of a

class 2 or 3 felony involving use or exhibition

of a deadly weapon or dangerous instrument

or upon a second conviction for a class 2 or 3

felony when the intentional or knowing inflic-

tion of serious physical injury upon another

has occurred, the defendant shall be sentenced

to imprisonment for twice the sentence and

not more than four times the sentence autho-

rized in § 13-701 for the offense for which the

person currently stands convicted, and shail

not be eligible for suspension or commutation

of sentence, probation, pardon or parole or

release on any other basis until not less than

two-thirds of the sentence imposed by the

court has been served. Upon a third or subse-

quent conviction for a class 2 or 3 felony

§ 13-604

involving use or exhibition of a deadly weapon

or dangerous instrument or upon the third or

subsequent cenviction for a class 2 or 3 felony

when the intentional or knowing infliction of

serious physical injury upon another has oc-

curred, the defendant shall be sentenced to

imprisonment for three times the sentence and

not more than five times the sentence autho-

rized in § 13-701 for the offense for which the

person currently stands convicted and shall

not be eligible for suspension or commutation

of sentence, probation, pardon or parole or

release on any other basis until not less than

two-thirds of the sentence imposed by the

court has been served. Upon imposing a sen-

tence pursuant to this subsection the court

shall impose as a presumptive term three-

fourths of the median of the allowable range,

except in the case of a third or subsequent

conviction in which case the presumptive term

shall be the median of the allowable range.

The presumptive term may be mitigated or

aggravated within the range prescribed under

this subsection pursuant to the terms of

§ 13-702, subsections C, D and E. For the

purposes of this subsection in determining the

applicability of the penalties provided herein

for second or subsequent class 2 or 3 felonies,

the conviction for any felony committed prior

to October 1, 1978 which carries a penalty of

up to life imprisonment may be designated by

the state as a prior felony.

The !°81 amendment included provisions in

subsec. K pertaining to allegations that defen-

dant committed a felony while released on

bond or his own recognizance, and added sub-

sec. M.

The 1982 amendment substituted throughout

the section “work furlough or release from

confinement on any basis except as specifically

authorized by § 31-233, subsection A or B” for

“or release on any other basis”.

Laws 1982, Ch. 322, § 10 provides:

“Notwithstanding the provisions of this act,

the legislature intends that, if the provisions of

title 41, chapter 20 (§ 41-2351 et seq.], Arizona

Revised Statutes, operate to terminate the state

department of corrections or the board of par-

dons and paroles, any provisions regarding

powers, duties, functions or personnel added

or amended by this act terminate on the date

of termination of the agency affected.”

Laws 1984, Ch. 42, § 1, substantially rewrote

provisions for multiple subsequent offenses in-

volving deadly or dangerous weapons in sub-

sec. G.

Laws 1984, Ch. 325, § 1, inserted exception

pertaining to subsec. N in subsecs. F and G,

and added subsec. N.

SARSA—@ 217

APPENDIX D,

page 7

§ 13-604

Laws 1985, Ch. 146, § 1, in subsec. K mod-

ified the second sentence by substituting

“shall” for “in its discretion may”, and insert-

ing “the date the case is actually tried unless

the allegation is filed fewer than twenty days

before the case is actually tried and the court

finds on the record that the defendant was in

fact prejudiced by the untimely filing and

states the reasons for these findings”.

Laws 1985, Ch. 364, § 4, inserted in subsecs.

F and G references to § 13-604.01; inserted in

subsec. N “or any dangerous crime against

children” and substituted same for “Child mo-

lestation” as subsec. O, 6; and added subsec. O,

11.

The 1987 amendment added subsec. O, 12.

APPENDIX

CRIMINAL CODE

Title 13

Former § 13-604 was transferred and re.

numbered as § 13-1004; see italicized note

preceding § 13-601.

Reviser’s Notes:

1984 Note. Prior to the 1985 amendments,

this section contained the amendments made

by Laws 1984, Ch. 42, § 1 and Ch. 325, § 1

which were blended together pursuant to au-

thority of § 41-1304.03.

1985 Note. This section contains the amend-

ments made by Laws 1985, Ch. 146, § 1 and

Ch. 364, § 4 which were blended together as

shown above pursuant to authority of

§ 41-1304.03.

D, page 8

APPENDIX “" E "

-> 2 . a ae CA S ES

Alabama: <52 ‘

Industrial Chemica I ile j

Aetna Life Ins Lavoie = 50 Ala ;

Alabama Power Cx« Cantrel 507 a5 P

Maddox, Callat and Gillum tate

(Ala. 1986)

Harbor v. State 465 2d 46( Ala 985

Bridges v. State, 5 d li A] 1989

Danahoo v. State, 552 S.2d 887 (Ala 1989

505 S.2d 1067 (Ala 92

Johnson v. State, 541 qd 111 (Al 1989

Bethune v. State, 541 S.2d Ala. 1989

Moore v. State, 539 S5.2d 416 (Ala. 1988

Hasberry v. State, 533 S.2d 7% Ala 7Oe

Smith v. State, 529 S.2d 1022, Al 987

Baker v. City of Huntsville, 5l¢€ 2 927 (A /

Kelley v. State, 519 S.2d 136 Ala }

Hammond v. State, 502 $.2d (Ala 1986

Atkins v. State, 497 S.2d 598 (Ala 198°

Hodges v. State, 500 S.2d 1270 (Ala. 198¢

German v. State, 500 S.2d 478 (Ala. 198¢

Maddox v. State, 502 S.2d 790 (Ala. 1986)

Randle v. State, 554 S.2d 1124 (Ala. 1986

Fitts, alias v. State, 482 $.2d 1347 (Ala. 1985)

Burke v. State, 478 S.2d 517 (Ala. 1985)

Olds v. State, 484 S.2d 517 (Ala. 1985)

Weaver, alias v. State, 484 S.2d 1124 (Ala. 1985) 437 So0.2d

651 (1983)

Riley v. State, 480 S.2d 32 (Ala 1985)

Scott v. State, 479 S.2d 1343 ‘Ala. 1985)

Kennard v. State, 531 S.2d 927 (Ala. 1985)

Cogburn v. State, 473 S.2d 625 (Ala. 1985)

Taylor v. State, 462 S.2d 1068 (Ala. 1985)

Moreland, Ballard, McGee v. State, 469 S.2d 1305 (Ala. 1985)

McLester v. State, 460 S.2d 870 (Ala. 1984)

White v. State, 462 S.2d 750 (Ala 1984)

5.2d 1001 (Ala. 1984)

iat

itn

ap)

Casey v. State, 456 S.2d 1142 (Ala. 1984)

Brooks v. State, 456 S.2d 1142 (Ala. 1984)

Norris v. State, 455 S.2d 226 (Ala. 1984)

Minor v. State, 451 S.2d 433 (Ala. 1984)

Anderson v. State, 455 S.2d 957 (Ala. 1984)

Thomas v. State, 447 S.2d 203 (Ala. 1984)

Taylor v. State, 445 S.2d 1004 (Ala. 1984)

Wabbington v. State, 446 S.2d 665 (Ala. 1983)

Hughes v. State, 442 S.2d 1382 (Ala. 1983)

Robertson v. State, 442 §.2d 162 (Ala. 1983)

Minor v

_ State, 437 S.2d 651 (Ala. 1983)

Alaska:

<2 cases>

Dancer v. State, 715 P.2d 1174 (Alaska 1986)

Heathcock v. State, 670 P.2d 1155 (Alaska 1983)

Arizona:

State v.

<37 cases>

Bartlett, 732 P.2d 692 (Ariz. 1990)

State v.

Jonas aka Mecklenburg, 792 P.2d 705 (Ariz. 1990)

State v.

~”>

Taylor aka Pierce, 773 P.2¢d 974 (Ariz. 1989)

State v.

Griffin, 744 P.2d 10 (Ariz. 1987)

State v.

Hurley, 741 P.2d 257 (Ariz. 1987)

State v.

Day, 715 P.2d 743 (Ariz. 1986)

State v.

Allie, 710 P.2d 430 (Ariz. 1985)

State v.

Cocio, 709 P.2d 1336 (Ariz. 1985)

State v.

Borbon, 706 P.2d 718 (Ariz. 1985)

State v.

Perkins, 699 P.2d 364 (Ariz. 1985)

State v

-Williams, 698 P.2d 724 (Ariz. 1985)

State v.

J. Williams, 698 P.2d 678 (Ariz. 1985)

State v.

Hutton, 694 P.2d 216 (Ariz. 1985)

State v.

Goswisk,, 691 P.2d 673 (Ariz. 1984)

State v.

Noriega, 690 P.2d 775 (Ariz. 198)

v. McNair, 687 P.2d 1230 (Ariz. 1984)

v. Garcia, 685 P.2d 734 (Ariz. 1984)

v. Hankins and Satterfield, 686 P.2d

v. Smith, 681 P.2d 1374 (Ariz. 1984)

v. Ross, 67 Ariz. Adv. Rep. 38 (Aug.

1990)

v. Leyva, 60 Ariz. Adv. Rep. 61 (May

v. Wise aka Bowser and Jackson, 795

1980)

v. Lammie, 793 P.2d 134 (Ariz. 1983)

= aits, 786 P.2d 1067 (Ariz. 1989)

v. Marquez-Sosa, 779 P.2d 815 (Ariz.

v. Byrd, 772 P.2d i135 (Ariz. 1988)

v. Olsen, 760 P.2d 603 (Ariz. 1988)

v. Smith, 753 P.2d 1174 (Ariz. 1987)

v. Crego, 742 P.2d 289 (Ariz. 1987)

v. Griffin, 744 P.2d 8 (Ariz. 1986)

v. Pacheco, 730 P.2d 262 (Ariz. 1986)

v. Carson, 720 P.2d 972 (Ariz. 1986)

v. Adams, 703 P.2d 510 (Ariz. 1985)

v. Johnson, 693 P.2d 973 (Ariz. 1984)

v. Riley, } 684 P.2d 896 (Ariz. 1984)

v. Flores, 682 P.2d 1136 (Ariz. 1984)

Arkansas: <1 case>

Thompson v. State, 658 S.W.2d 350 (Ark. 1983)

California:

<11 cases>

People v. Jennings, 760 P.2d 475 (Cal. 1988)

People v Bunyard, 756 P.2d 795 (Cal 1988 )

People v. Poggi, 753 P.2d 1182 (Cal. 1988

People v. Dillon, 668 P.2d 697 (Cal. 1983)

People v. Ladanio, 211 Cal.App.3d 1114 Cal. 989

People v. Valencia, 207 11. App.3d 104: Cal 1989

People v. Jameson, 177 Cal.App.3d 658 (Cal 1986

People v. Ross, 162 Cal.App.3d 1043 (Cal 1984)

People v. Sabados, 160 Cal.App.3d 691 (Cal. 1984)

People v. Oslaver, 157 Cal.App.3d 596 (Cal. 1984)

People v. Courie, 155 Cal.App.3d 415 (Cal. 1984)

Colorado: <7 cases>

Alvarez v. People, No. 89SC169, (Sept. 10, 199 1990)

People v. Hernandez, 686 P.2d 366 (Colo 984)

People v. Austin, No. 87CA1648, ner. 26, if (Col 199

People v. Herrera, 728 P.2d 366 (Colo. 198¢

People v. Wandel, 71 P.2d 398 >] 19€

People v. Nieto, 715 P.2d 1262 (Cola 1985)

People v. Martinez, 689 P.2d 653 (Colo. 1584

Connecticut: <4 cases>

tate v. Hernandez, 528 A.2d 794 (Conn. 1987)

State v. O’Neill, 511 A.2d 321 (Conn. 1986)

tate v. Madera, 503 A.2d 136 (Conn. 1985)

State v. Dupree, 495 A.2d 691 (Conn. 1985)

Deleware: <8 cases>

alloy v. State, 568 A.2d 1072 (Del. 1989)

Pauls v. State, 554 A.2d 1125 (Del. 1989)

Pitts v. State, No. 342 (Sept. 7, 1987) (Deli. 1987)

Williams v. State, 539 A.2d 164 (Del. 1988)

Manchester v. State, 532 A.2d 1000 (Del. 1987)

DeShields v. State, 534 A.2d 630 (Del. 1987)

Flamer v. State, 490 A.2d 104 (Delw. 1984)

Holt vy. U.S., $65 A.2€ 156 (D. C. 1988)

District of Columbia: <l case>

Nelson v. U.S., 479 A.2d 340 (D. C. 1984)

’

Flordia: <13 cases>

Jordon v. State, 562 $.2d 820 (Fla. 1990)

Long v. State, 558 S.2d 1091 (Fla. 1990)

King v. State, 557 S.2d 899 (Fla. 1990)

State v. Nickerson, 541 S.2d 725 (Fla. 1989)

Griffith v. State, 548 S.2d 244 (Fla. 1989)

Vickery v. State, 539 S.2d 499 (Fla. 1989)

State v. Burch and Brown, 545 S.2d 279 (Fla. 1989)

a“

aww

Kendry v.

(Fla.

Golden v.

(Fla.

Bloodworth v. State,

Adamo

(Fla.

Adams

Williams

Winter

Hays v.

State

Tllinois:

People

People.

People

People v

People

as)

548 N.E.2d

(Fla.

1986)

right

14,

Ga. 1986

i 19

1A 1929)

198

1987 )

198

1986}

Contracting

People

Vv.

Gindorf,

People

Vv.

People

Vv.

Hartfield,

People

Boswell,

People v.

People

Vv.

People

Vv.

Indiana:

Moore v.

<7 cases>

Mills v.

Taylor v.

Beach v.

Woods v.

Howard v.

Cunningham v.

Iowa:

State v.

Lamphere

State v.

Cuevas v.

512 N.E.2d 770

4S0 N.E.2d 1345

484 N.E.2d 1136

476 N.E.

A., a minor,

fal

-G&.

511 N.E.2d 1036

496 N.E.2d 43

471 N.E.2d

467 N.E.2d 1

469

357 N.W.

381 N.

378 N.

372 8.8.

469 N.E.2d 449

N.E.2d 4

(Iowa 1984)

{Towa 1984)

(Iowa 1985)

joo

<3 cases>

Kansas:

State v. Combs, 722 P.2d 592 (Kan. 1986)

State v. Potts, 713 P.2d 967 (Kan. 1986)

Moore v State, 700 P.2d 148 (Kan. 1985)

Kentucky: <3 cases>

Commonwealth of Kentucky v. Messex, 736 S.W.2d 341

Hampton v. Commonwealth, 666 S.W.2d 737 (Ky 1984)

Collett v. Commonweath 686 S.W.2d 822 (Ky. 1984)

Louisiana: <23 cases>

State v. Blackburn, 481 S.2d 1322 (La. 1986)

State v. Lewis, 468 S.2d 557 (La. 1985)

State ex. rel, Bailey v. Maggio, 465 S.2d 726 (La

State v. Wingo, 457 S.2d 1159 (La. 1984)

State b. Brogdon, 457 S.2d 616 (La. 1984)

State v. Welcome, 458 S.2d 1235 (La. 1984)

State v. Summit, 454 S.2d 1100 (La. 1984)

State v. Foley, 456 S.2d 979 (La. 1984)

State v. Thomas, 447 S.2d 1053 (La. 1984)

State v. Lathers, 444 S.2d 96 (La. 1983)

State v. Johnson, 553 S.2d 865 (La. 1989)

State v. Mallett, 552 S.2d 28 (La. 1989)

‘

State v. Volkmann, 539 S.2d 1279 (La. 1989)

State v. Melancon, 536 S.2d 460 (La. 1988)

State v. Polkey, 529 S.2d 474 (La. 1988)

State v. Guzman, 520 S.2d 1099 (La. 1987)

(Ky.

1987)

jXo

State v. McDaniel, 515 S.2d 572 (La. 1987)

State v. Payne, 482 S.2d 178 (La. 1986)

State v. Coolie, 483 S$.2d 1048 (La. 1985)

State v. Hookfin, 476 S.2d 481 (La. 1985)

State v. Shields, 454 S$.2d 405 (La. 1984)

State v. Williams, 450 S.2d 721 (La. 1984)

State v. Brown, 440 S.2d 994 (La. 1983)

Maryland: <10 cases>

Randall Book Corp. v. State, 558 A.2d 715 (Md. 1989)

Minor v. State, 546 A.2d 1028 (Md. 1988)

Stanley v. State, 542 A.2d 1276 (Md. 1987)

State v. Davis, 530 A.2d 1223 (Md. 1987), 514 A.2d 1229 (1986)

Schochet v. State, 541 A.2d 183 (Md. 1988)

Wynn v. State, 518 A.2d 1072 (Md. 1987) ~

Levitt v. State, 505 A.2d 140 (Md. 1986)

Teeter v. State, 499 A.2da 503 (Md. 1985)

Anaweck v. State, 492 A.2d 658 (Md. 1985)

Bryan v. State, 492 A.2d 644 (Md. 1984)

Massachusetts: <7 cases>

Commonwealth v. Therriault, 515 N.E.2d 1198 (Mass. 1987)

Commonwealth v. Tuitt, 473 N.E.2d 1103 (Mass. 1984)

Commonwealth v. Varney, 461 N.E.2d 177 (Mass. 1984)

Commonwealth v. Bianco, 454 N.E.2d 901 (Mass. 1983)

Commonwealth v. Diatchenko, 443 N.E.2d 894 (Mass. 1982)

Commonwealth v. Dougan, 505 N.E.2d 894 (Mass. 1987)

Commonwealth v. Marcus, 454 N.E.2d 1277 (Mass. 1983)

Michigan: <2 cases>

People v. Milbourn, No. 80475,

People v. Moore, 439 N.W.2d 684

Mississippi: <15 cases>

Lonnel v. State, No. 07-KA-59207

(Sept. 11, 1990) (Mich. 1990)

(Mich. 1989)

» (Aug. 22, 1990) (Miss. 1990)

Turner v. State, No. 03-82, (Nov. 22, 1989) (Miss. 1990)

Leatherwood v. State, 548 S.2d

Ashley v. State, 538 S$.2d 1181

Huntley v. State, 524 §$.2d 572

Clowers v. State, 523 S$.2d 957

389 (Miss. 1989)

(Miss. 1989)

(Miss. 1988)

Jones v. State, 510 S.2d 794 (Miss. 1987)

David aka Luckett v. State, 498

Abram v. State, 538 S$.2d 1181

S.2d 843 (Miss. 1986)

(Miss. 1989)

Burt v. State, 493 S.2d 1325 (Miss. 1986)

Jackson v. State,, 483 S.2d 1353 (Miss. 1986)

Jenkins v. State,, 483 S.2d 1330 (Miss. 1986)

Presley v. State,, 474 $S.2d 612

(Miss. 1985)

Seely v. State,, 451 S.2d 213 (Miss. 1984)

King v. State, , 451 S.2d 765 (Miss. 1984)

Missouri: <13 cases>

State

Vv.

Storment, 791 N.W.2d 955 (Mo. 1990)

State

Vv.

Johnson, 770 N.W.2d 263 (Mo. 1989)

State

Schwer, 757 N.W.2d 258 (Mo. 1988)

State

Wallace, 745 N.W.24 233 (Mo. 1987)

Grady

State, 743 N.W.2d 535 (Mo. 1987)

State

Taylor, 735 N.W.2d 412 (Mo. 1987)

State

Vv.

Carlton, 733 N.W.2d 23 (Mo. 1987)

State

Vv.

Koonce, 73 N.W.2d 431 (Mo. 1985)

Deaton v.

State, 705 N.W.2d 70 (Mo. 1986)

State

Vv.

Freeman aka Washington, 702 N.W.2d 869

State

Vv.

Hurt, 668 N.W.2d 206 (Mo. 1984)

State

Rider, 664 N.W.2d 617 (Mo. 1984)

State

Bailey, 659 N.W.2d 559 (Mo. 1983)

Watson, 686 P.2d 879 (Mont. 1984)

Nebraska:

<6 cases>

State

Vv.

Sianouthai, 402 N.W.2d 316 (Neb. 1987)

State

Vv.

Michalski, 377 N.W.2d 510 (Neb. 1985)

State

Loschen, 376 N.W.2d 792 (Neb. 1985)

State

Stratton, 374 N.W.2d 31 (Neb. 1985)

State

Brand, 363 N.W.2d 516 (Neb. 1985)

State

Ruzicka, 357 N.W.2d 457 (Neb. 1984)

(Mo.

1986)

Nevada: <3 cases>

Noavarath v. State, 779 P.2d 944 (Nev. 1989)

Houk v. State, 474 P.2d 1376 (Nev. 1987)

State v. The 8th Judicial Dist. ct. of Nevada, Ciark County

et al., 677 P.2d 1044 (Nev. 1984)

New Hampshire: <5 cases>

State v. Pliskaner, 517 A.2da 79% N.H Re

State v. Dayutis, 498 A.id 325 N oH 19Rc

State v. Etzweiller, 48 A.2da 87 N.H l

State v. Elbert, 480 A 1 854 (N.H 1984

State v. Sweeney, 469 A.2da 13: moms. J

New Jersey: <5 cases>

State v. Dunbar, 527 A.2d ae N.J. 198

State v. Pratt, 544 A i 39 N.J BR

State v Johnson S502 A 4 149 N.J 1985

State v. Yar igh_ and Smith ak Yarbough } A 1 4

(N.J 1984)

State v. New Jersey Waste Assn 465 A.2d 59¢ N.J 192

New Mexico: <7 cases>

State v. Escamilla, 760 P.2d 1276 (N.M 1988

State v. Cheadle, 681 P.2d 708 (N.M 198

State v. Case 711 P.2d 19 (N.M 1985

State v. Harris, 677 P.2d 625 (N.M. 1984)

State v. McCall, 686 P.2d 958 (N.M. 1983)

State v. Burdex, 668 P.2d 313 (N.M 1983)

State v. Brabham, 481 N.Y.S.2d 111 (N.Y 1984

North Carolina:

State v.

Oklahoma:

Maxwell

<3 cases>

a‘

rs)

a s

Oregan:

State v.

<1 case>

Broadsword, 672 P.2d 366 (Ore. 1983)

Pennsylvania: <3 cases>

Commonwealth v. Fuller, No.

300 Harrisberg (July 27, 1990)

(Pa. $1990)

Commonwealth v. Middleton, 467 A.2d 841 (Pa. 1986)

State v.

Ouimette, 479 A.2d 702 (Pa. 1984)

South Carolina: <2 cases>

State v.

Kiser, 343 S.E.2d 292 (N.C. 1986)

State v.

Perkins, 444 N.W.2d 34 (S.D. 1984)

South Dakota: <2 cases>

State v.

Groethe, 439 N.W.2d 554 (S.D. 1989)

State v.

Dale, 439 N.W.2d 98 (S.D. 1989)

State v.

Brown, 435 N.W.2d 225 (S.D. 1989)

In the Matter of T.J.E. Alleged Delinquent Child, 426 N.W.2d

23 (S.D.

State v.

1988)

Myers, 411 N.W.2d 402 (S.D. 1987)

State v.

O’Connor, 408 N.W.2d 754 (S.D. 1987)

State v.

Swallow, 405 N.W.2d 29 (S.D. 1987)

State v.

Macy, 403 N.W.2d 743 (S.D. 1987)

State v.

Bonrud, 393 N.W.2d 785 (S.D. 1986)

State v.

Andrews, 393 N.W.2d 76 (S.D. 1986)

State v.

Sheridan, 383 N.W.2d 865 (S.D. 1986)

Holiday

v. Solem, 383 N.W.2d 871 (S.D. 1986)

State v.

O‘Connor, 378 N.W.2d 248 (S.D. 1985)

onpeaniinas meat

State v. Rederth, 376 N.W.2d 579 (S.D. 1985)

State v. Janssen, 371 N.W.2d 353 (S.D. 1985)

State v. Graycek, 368 N.W.2d 815 (S.D. 1985)

State v. Weiker, 366 N.W.2d 823 (S.D. 1984)

State v. Big Head, 363 N.W.2d 556 (S.D. 1984)

State v. Cofield, 351 N.W.2d 467 (3.D. 1984)

State v. Lohnes, 344 N.W.2d 686 (S.D. 1984)

State v. Williamson, 342 N.W.2d 15 (S.D. 1983)

State v. Weiker, 342 N.W.2d 7 (S.d. 1983)

Tennessee: <22 cases>

State v. Busler, 704 S.W.2d 310 (Tenn. 1986)

State v. Evitts, Nc 89-131-III, (July 8, 1990)(Tenn. 1990)

State v. Kilby, alias, 763 S.W.2d 389 (Tenn. 1988)

State v. Baker, et al., 751 S.W.2d 154 (Tenn. 1987)

Givens v. State, 702 S.W.2d 578 (Tenn. 1985)

State v. Jackson, 697 S.W.2d 366 (Tenn. 1985)

Texas: <14 cases>

State v. Summers and Tick Enterprises, Inc., 692 S.W.2d 439

(Tenn. 1985)

State v. Badgett, 693 S.W.2d 917 (Tenn. 1985)

State v. Wilson, 687 S.W.2d 720 (Tenn. 1984)

State v. Flynn, 675 S.W.2d 494 (Tenn. 1984)

State v. Hall, 667 S.W.2d 507 (Tenn. 1983)

State v. Freeman, 669 S.W.2d 688 (Tenn. 1983)

State v. Cole, 665 S.W.2d 407 (Tenn. 1983)

State v. Duffel, 665 S..2d 402 (Tenn. 1983)

Washington v. State,

Childress v.

(Texas 1990)

677 S.W.2d 524

State, No.

(Tex. 1984)

01-87-00183-CR (July 12, 1990)

Quintana v. State, 777 S.W.2d 474 (Tex. 1989)

Townsend v. State, 725 S.W.2d 463 (Tex. 1987)

Hypke v. State, 720 S.W.2d 158 (Tex. 1986)

Simpson v. State, 668 S.W.2d 915 (Tex. 1984)

Utah: <7 cases>

State v. Cude, 784 P.2d 1197 (Utah 1989)

State v. Bell, 754 P.2d 55 (Utah 1988)

State v. Bishop, 717 P.2d 261 (Utah 1985)

State v. Howell, 707 P.2d 115 (Utah 1985)

State v. Saunders, 699 P.2d 738 (Utah 1985) _

State v. Amicone, 689 P.2d 1341 (Utah 1984)

State v. Kinsey, No. 890296-CA. (July 13, 1990) (Utah 1990)

Vermont: <2 cases>

State v. Saari, 586 A.2d 344 (Vt. 1989)

State v. Venman, 564 A.2d 574 (Vt. 1989)

Washington: <4 cases>

State v. Fladebo, 779 P.2d 707 (Wash. 1989)

State v. Creekmore, 783 P.2d 1068 (Wash. 1989)

State v. Heggins, 779 P.2d 285 (Wash. 1989)

State v. Bowen, 751 P.2d 1226 (Wash. 1988)

West Virginia: <4 cases>

State ex rel Bosso v. Hedrick, 391 S.E.2d 614 (Va. 1990)

State v. Woodall, 385 S.E.2d 253 (W. Va. 1989)

State v. Oxier, 369 S.B.2d 866 (W. Va. 1988)

State v. Deal, 358 S.E.2d 226 (W. Va. 1987)

Wisconsin: <2 cases>

State v. Schmitt dba Carl Schmitt Sanitary Landfill, 429

N.W.2d 518 (Wisc. 1988)

State v. Coley, 409 N.W.2d 669 (Wisc. 1987)

Wyoming: <13 cases>

Schuler v. Wyoming, 771 P.2d 1217 (Wyo. 1989)

Smallwood v. State, 771 P.2d 798 (Wyo. 1989)

Kavanaugh v. State, 7359 P.2d 908 (Wyo. 1989)

Sanchez v. State, 755 P.2d 245 (Wyo 1988)

Whiteny v. State, 745 P.2d 902 (Wyo. 1987)

Pote v. State, 733 P.2d 1018 (Wyo. 1987)

Christy v. State, 731 P.2d 1204 (Wyo. 1987)

Yates v. State, 723 P.2d 37 (Wyo. 1986)

Shepard v. State, 720 P.2d 37 (Wyo. 1986)

Martin v. State, 720 P.2d 894 (Wyo. 1986)

Oakley v. State, 715 P.2d 1374 (Wyo. 1986)

Bell v. State, 693 P.2d 769 (Wyo. 1985)

Engberg v. State, 686 P.2d 541 (Wyo. 1984)

APPENDIX " E "

FEDERAL cAS SE S

Clemons v. State, 108 L.Ed.2d 725 (Miss. 1990)

Penry v. Lynaugh, 106 L.E.2d 256 (Tex. 1989)_

832 F.2d 915 (Sth Cir. 1987)

Stanford v. State, 106 L.E.2d 306 (Ky. 1989)

Browning-Ferris Ind. of Vermont, Inc. v. Kelco Disposal, Inc.,

106 L.E.2d 219 (Vt. (1989)

McClenskey v. Kemp, 95 L.Ed.2d 262 (Ga. 1987)

Tison v. State, 95 L.Ed.2d 127 (Ariz. 1987)

Ford v. Wainwright, 91 L.Ed.2d 335 (Fla. 1986)

752 F.2d 526 (1ith Cir. 1985)

Cabana v. Bullock, 88 L.Ed.2d 704 (Miss. 1986)

DeGarmo v. State, 88 L.Ed.2d 322 (Tex. 1985)

State v. Garner, 85 L.Ed.2d 1 (Tenn. 1985)

Moran v. State, 83 L.Ed.2d 285 (Ohio 1984)

Berkemer v. McCarty, 82 L.Ed.2d 317 (Ohio 1984)

Spaziano v. State, 82 L.Ed.2d 340 (Fla. 1984)

Pulley v. Harris, 79 L.Ed.2d 29 (1984)

Pennhurst State School and Hospital v. Halderman, 79 L.Ed.2d 67

(1983)

State v. Ramos, 77 L.Ed.2d 1171 (Ca. 1983)

U.S. v. Alvarez, No. 89-2670, (Sept. 27, 1990)

U.S. v. Mendes, No. 89-4070, (Aug. 28, 1990) (10th Cir. 1990)

U.S. v. 141 St. Corp., 911 F.2d 870 (2nd. Cir. 1990)

U.S. v. Wilkins, 911 F.2d 337 (9th Cir. 1990)

King v. Armstrong World Ind., Inc., 906 F.2d 1022 (1990)

U.S. v. Avant, 907 F.2d 623 (6th Cir. 1990)

U.S. v. Freeman, 907 F.2d 153 (7th Cir. 1990)

U.S. _v. Wayne, 905 F.2d 54 (4th Cir. 1989)

U.S. v. Harris, 903 F.2d 770 (10th Cir. 1990)

U.S. v. Owens, 902 F.2d 1154 (4th Cir. 1990)

U.S. _v. Pryba, 900 F.2d 748 (4th Cir. 1990)

U.S. v. Winfrey, 900 F.2d 1225 (8th cir. i990)

U.S. v. Hughes, 901 F.2d 830 (10th Cir. 1990)

U.S. v. Thomas, 900 F.2d 37 (4th Cir. 1990)

U.S. v. Torres, et al., 301 F.2d 203 (2nd Cir. 1990)

U.S. v. Guinan, 902 F.2d 37 (7th Cir. 1990)

U.S. v. Newsome, 898 F.2d 199 (10th Cir. 1990)

U.S. v. Razsi, 897 F.2d 530 (6th cir. 1990)

U.S. v. Sullivan, 895 F.2d 373 (10th Cir. 1990)

U.S. v. Colbert, 894 F.2d 373 (10th cir. 1990)

U.S. v. Goot, 894 F.2d 231 (7th Cir. 1989)

U.S. v. Larouche, 896 F.2d 815 (4th Cir. 1990)

U.S. v. Buckner, 894 F.2d 975 (8th cir. 1989)

U.S. v. Whyte, etc., 892 F.2d 1170 (3rd Cir. 1989)

U.S. v. Rivalta, 892 F.2d 223 (2nd Cir. 1989)

U.S. v. Denardi, et al., 892 F.2d 269 (3rd Cir. 1989)

U.S. v. Cyrus, aka Barlow, 890 F.2d 1245 (D.C. 1989)

U.S. v. Benefield, 889 F.2d 1061 (llth Cir. 1989)

U.S. v. Collins, 890 F.2d 417 (6th Cir. 1989)

U.S. v. Francois, 889 F.2d 1341 (4th cir. 1989)

U.S. v. George, 891 F.2d 140 (7th Cir. i989)

U.S. v. Tanner, 888 F.2d 1392 (6th Cir. 1989)

U.S. v. Atlantic Disposal Svc., Inc., 887? F.2d 1208

(3rd. Cir. 1989)

Sutton v. State, 886 F.2d 708 (4th Cir. 1989)

U.S. v. Elkins, 885 F.2d 775 (11th Cir. 1989)

U.S. v. Bernal, 884 F.2d 1518 (list Cir. 1989)

U.S. v. Harvey, 885 F.2d 181 (4th cir. 1989)

U.S. v. Glantz and Bucci, 884 F.2d 160 (5th Cir. 1989)

Edwards v. Butler, 882 F.2d 160 (5th Cir. 1989)

U.S. v. Williams, 884 F.2d 581 (6th Cir. 1989)

—_>

Young v. Miller, 883 F.2d 1276 (6th Cir. 1989)

Slusarski v. Quarles, 880 F.2d 1322 (6th Cir. 1989)

U.S. v. Berryhill, 880 F.2d 275 (10th cir. 1989)

U.S. v. Linn aka Long, 880 F.2d 209 (10th Cir. 1989)

U.S. v. Predigo, 879 F.2d 1315 (6th Cir. 1988)

U.S. v. Parker, 877 F.2d 327 (5th Cir. 1989)

Blandford v. Sowders, 878 F.2d 381 (6th Cir. 1989)

U.S. v. Ofchinick , 877 F.2d 251 (3rd Cir. 1989)

U.S. v. Dombrowski, 877 F.2d 520 ‘(7th Cir. 1989)

U.S. v. DeGuzman and Hoyos, 875 F.2d 868 (6th Cir. 1989)

U.S. v. Williams, 875 F.2d 868 (6th Cir. 1989)

Black v. Livesay, 872 F.2d 1024 (6th Cir. 1989)

U.S. v. Berryhill, 872 F.2d 949 (19th Cir. 1989)

U.S. De Rosas, 873 F.2d 1177 (9th Cir. 1989)

Cocio v. Bramlett, 872 F.2d 889 (9th Cir. 1989)

U.S. v. Cannistraro, 871 F.2d 1210 (3rd Cir. 1989)

Robtoy v. Kincheloe, 871 F.2d 1478 (9th Cir. 1989)

U.S. v. Hoyt, 879 F.2d 505 (9th Cir. 1988)

U.S. v. Kidder, 869 F.2d 1328 (9th Cir. 1988)

———EeEeEeEeEeEeEeEeEeEeEeEeEeEeEGueOoeeeee |

U.S. v. Monroe, 866 F.2d 1357 (1ith Cir. 1989)

Alford v. Rolfs, 867 F.2d 1216 (9th cir. 1989)

U.S. v. Salerno, et al., 868 F.2d 524 (2nd Cir. 1987)

Sutton v. State of Maryland, 865 F.2d 608 (4th Cir. 1989)

U.S. v. Foutz, 865 F.2d 617 (4th Cir. 1989)

U.S. v. Porcelli, 865 F.2d 1352 (2nd cir. 1989)

U.S. v. Martorano aka Cowboy George, 866 F.2d 62 (3rd Cir. 1988)

U.S. v. Aiello, 864 F.2d 257 (2nd Cir. 1988)

U.S. v. Johnson, 861 F.2d 1290 (D.C. 1988)

U.S. v. 300 Cove Rd., Ashland, Oregon, 861 F.2d (9th Cir. 1988)

U.S. v. Frank, aka Roy, 864 F.2d 992 (3rd cir. 1988)

U.S. v. Klein, 860 F.2d 1489 (9th Cir. 1988)

U.S. v. Brown, 859 F.2d 974 (D.C. 1988)

U.S. v. Cook, 859 F.2d 777 (9th Cir. 1988)

Stotts v. Jones, 858 F.2d 289 {6th Cir. 1988)

U.S. v. Whitworth, 856 F.2d 1268 (9th Cir. 1988)

U.S. v. Persico, 853 F.2d 134 (2nd Cir. 1988)

Adams v. Dugger, 850 F.2d 1495 (1lith Cir. 1988)

U.S. v. Feldman, 853 F.2d 648 (9th cir. 1988)

U.S. v. Yarbrough, et al, 852 F.2d 1522 (9th cir. 1988)

U.S. v. Baker, 850 F.2d 1365 (9th cir. 1988)

Little v. Butler, 848 F.2d 73 (5th Cir. 1988)

U.S. v. Blliott aka Biddie, 849 F.2d 866 (4th Cir. 1988)

Terrebonee v. Butler, 848 F.2d 500 (5th Cir. 1988)

Hesler v. Parke, 848 F.2d 191 (6th cir. 1988)

U.S. v. Gilliard, 847 F.2d 21 (ist cir. 1988)

U.S. v. Heisinger, 846 F.2d 1168 (8th Cir. 1988)

U.S. v. Whitehead, 849 F.2d 849 (4th Cir. 1988)

U.S. v. Brandon, 847 F.2d 625 (10th cir. 1988)

Williams v. Johnson, 845 F.2d 906 (lith Cir. 1988)

U.S. v. Savinovich, 845 F.2d 834 (9th Cir. 1988)

U.S. v. Kinsey, 843 F.2d 383 (9th Cir. 1988)

U.s. v. Citro, 842 F.2d 1149 (9th Cir. 1988)

U.S. v. Holmes, 838 F.2d 1175 (11th Cir. 1988)

U.S. v. Milburn, 836 F.2d 419 (8th Cir. 1988)

U.S. v. McCann, 835 F.2d 1184 (6th Cir. 1988)

U.S. v. Goodface, 835 F.2d 1233 (8th Cir. 1987)

U.S. v. Gourley, 835 F.2d 249 (10th cir. 1987)

Bethea v. Scully, 834 F.2d 257 (2nd Cir. 1987)

U.S. v. Horak, 833 F.2d 1235 (7th Cir. 1987)

Ivey v. Wilson, et al., 832 F.2d 950 (6th Cir. 1986)

U.S. Fry, 831 F.2d 664 ((6th Cir. 1987)

U.S. v. Amen, 831 F.2d 373 (2nd Cir. 1987)

U.S. v. Ray, et al., 828 F.2d 399 (7th Cir. 1987)

U.S. v. Romano, et al., 825 F.2d 725 (2nd Cir. 1987)

Marrero v. Dugger, et al., 823 F.2d 1468 (llth Cir. 1987)

U.S. v. Manotas-Mejia, 824 F.2d 360 (5th Cir. 1987)

U.S. v. Johnson, 823 F.2d 840 (5th Cir. 1987)

Terrebonne v. Butler, 820 F.2d 156 (5th Cir. 1987)

Tuitt v. Fair, 822 F.2d 166 (5th Cir. 1987)

Tyler v. Grammer, 819 F.2d 869 (8th Cir. 1987)

U.S. v. Busher, 817 F.2d 1409 (9th Cir. 1987)

U.s. v. Guglielmi, 819 F.2d 451 (4th Cir. 1987)

Poloykoff, et al. v. Collins, 816 F.2d 1326 (9th Cir. i987)

U.S. v. Sato, 814 F.2d 449 (7th Cir. 1987)

Chandler v. Jones, 813 F.2d 773 (6th cir. 1987)

U.S. v. Hillsberg, 812 F.2d 328 (7th Cir. 1986)

U.S. v. Glomb, 811 F.2d 787 (2nd cir. 1987)

U.S. v. Holland, 810 F.2d 1215 (D.C. 1987)

U.S. v. Bruchey, 810 F.2d 456 (4th Cir. 1987)

U.S. v. Villa, 810 F.2d 715 (7th Cir. 1987)

U.S. v. Gaggi, et al., 811 F.2d 47 (2nd Cir. 1987)

Kilby v. Jones, et al., 809 F.2d 324 (6th Cir. 1986)

Whitley v. Lecureux, 811 F.2d 608 (6th Cir. 1986)

U.S. v. Cutler, 806 F.2d 608 (9th Cir. 1986)

U.S. v. Rosenberg and Lisa, 806 F.2d 1169 (3rd Cir. 1986)

Moore v. Jones, 810 F.2d 202 (6th Cir. 1986)

Clifton v. Cook, 810 F.2d 200 (6th Cir. 1986)

McLester v. Smith, 802 F.2d 1330 (5th cir. 1986)

U.S. v. Wheeler, et al., 802 F.2d 778 (5th Cir. 1986)

U.S. v. Meyer, 802 F.2d 348 (9th Cir. 1986)

Mira v. Marshall, 806 F.2d 636 (6th Cir. 1986)

Chapman v. Pickett, 801 F.2d 912 (7th Cir. 1986)

Passman v. Blackburn, 797 F.2d 1335 (5th Cir. 1986)

———_

U.S. v. Eggleton, 799 F.2d 378 (8th Cir. 1986)

Berg v. Kincheloe, 794 F.2d 457 (9th Cir. 1986)

U.S. v. Erwin, et al., 793 F.2d 656 (5th Cir. 1986)

Holley v. Smith, 792 F.2dd 1046 (1ith Cir. 1986)

U.S. v. Amend, 791 F.2d 1120 (4th Cir. 198

U.S. v. Mithcell, 788 F.2d 1232 (7th Cir. 1986)

Stevens aka Stephens v. Armontrout, 787 F.2d 1282 (8th Cir.

U.S. v. Wilson, 787 F.2d 375 (8th Cir. 1986)

U.S. v. Terrovona, 785 F.2d 767 (9th Cir. 1986)

Clanton v. Dutton, 787 F.2d 588 (6th Cir. 1986)

1986)

U.S. v. Garcia, 785 F.2d 214 (8th Cir. 1986)

Robert L. Kohley v. U.S., 784 F.2d 332 (&th Cir. 1986)

Castaldi v. U.S., 783 F.2d 119 (8th Cir. 1986)

U.S. v. Hack, 782 F.2d 862 (10th Cir. 1986)

U.S. v. Lamp, 779 F.2d 1008 (5th cir. 1986)

U.S. v. Kimberlin, 781 F.2d 1247 (7th Cir. 1985)

Gov't of Virgin Islands v. Martinez, 780 F.2d 302 (3rd Cir.

U.S. v. Rhodes, 779 F.2d 1019 (4th Cir. 1985)

U.S. v. Barker, 771 F.2d 1362 (9th Cir. 1985)

Haybood v. Younger, 769 F.2d 1350 (9th cir. 1985)

U.S. v. McCoy, 770 F.2d 647 (7th Cir. 1985)

U.S. v. Bonnet, 769 F.2d 69 (2nd cir. 1985)

U.S. v. Harrington, 761 F.2d 1482 (11th Cir. 1985)

Mullings v. Cook, 762 F.2d 1010 (6th Cir. i965)

Ross v. Kemp, 756 F.2d 1483 (lith cir. 1985)

U.s. v. Lewis, 759 F.2d 1316 (8th cir. 1984)

U.S. v. Gracia, et al., 755 F.2d 984 (2nd Cir. 1985)

U.S. v. Golomb, 754 F.2d 86 (2nd Cir. 1985)

Moore v. City of Charlotte NC, 754 F.2d 1100 (4th Cir.

In re Petition of Lauer, 788 F.2d 135 (8th Cir. 1985)

U.S. v. Panza, et al., 750 F.2d 1141 (2nd Cir. 1984)

U.S. v. Fischback and Moore, Inc., etc., et al.,

750 F.2d 1184 (3rd Cir. 1984)

U.S. v. Darby, et al., 744 F.2d 1508 (11th Cir. 1984)

Albers v. Whitley, 743 F.2d 1372 (9th Cir. 1984)

— —

U.S. v. McMahan, 744 F.2d 647 (8th Cir. 1984)

Whitmore v. Maggio, 742 F.2d 230 (5th Cir. 1984)

U.S. v. Brown, 744 F.2d 905 (2nd Cir. 1984)

U.s. v. Ortiz, 742 F.2d 712 (2nd Cir. 1984)

1985)

1986)

U.s. v. Stead, 740 F.2d 657 (8th Cir. 1984)

U.S. v. Serhant, 740 F.2d 548 (7th Cir. 1984)

U.S. v. Ambrose, 740 F.2d 505 (7th Cir. 1984)

U.S. v. Richard, 738 F.2d 1120 (10th Cir. 1984)

U.S. v. Peeples, 739 F.2d 262 (7th Cir. 1984)

Williams aka Sherrard v. Duckworth, et al., 738 F.2d 828 (7th

Cir.1984)

Serritt v. State of Alabama, 731 F.2d 728 (lith Cir. 1984)

Stepniewski v. Gagnon, et al., 732 F.2d 567 (7th Cir. 1983)

U.s. v. Won Cho, 730 F.2d 1260 (9th Cir. 1984)

U.S. v. Rosandich, 729 F.2d 1512 (8th Cir. 1984)

U.8s. v. Francesco, 725 F.2d 817 (ist Cir. 1984)

Haygood v. Younger, 718 F.2d 1472 (9th Cir. 1983)

U.s. v. Ely, 719 F.2d 902 (7th Cir. 1983)

McClaskey v. U.S. Dept. of Energy, 720 F.2d 583 (9th Cir. 1983)

Moreno v. Estelle, 717 F.2d 171 (5th Cir. 1983)

U.S. v. Hollis, 718 F.2d 277 (8th Cir. 1983)

Union County Jail Inmates v. DiBuono, et al., 713 F.2d 984 (3rd

Cir. 1983)

U.S. v. Zylstra, 713 F.2d 1332 (7th Cir. 1983)

U.S. v. DeBright,, 710 F.2d 1404 (9th Cir. 1983)

Helm v. Solem, 684 F.2d 582 (8th Cir. 1982)

U.S. v. 38 Whalers Cove Dr., Babylon, NY, (Sept. 18, 1990)

(N.Y. Dist 1990)

U.S. v. Rivera, No. 90 C 1474, (Sept 11, 1990) (Ill. 199

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