                   This opinion is subject to revision before
                     publication in the Pacific Reporter

                                2015 UT 36


                                   IN THE

        SUPREME COURT OF THE STATE OF UTAH

                             STATE OF UTAH,
                                Appellee,
                                      v.
                    ROBERT CAMERON HOUSTON,
                            Appellant.

                            No. 20080625
                       Filed February 24, 2015

                    Second District, Farmington
                   The Honorable Glen R. Dawson
                          No. 0601700273

                                Attorneys:
          Sean D. Reyes, Att‘y Gen., Christopher D. Ballard,
            Asst. Att‘y Gen., Salt Lake City, for appellee
              John P. Pace, Salt Lake City, for appellant

  JUSTICE NEHRING authored the opinion of the Court, in which
JUSTICE PARRISH joined, CHIEF JUSTICE DURRANT joined except as to
        section II.F.2, and JUSTICE DURHAM joined in Part I.
   ASSOCIATE CHIEF JUSTICE LEE authored a concurring opinion.
       JUSTICE DURHAM authored a dissenting opinion, in which
              CHIEF JUSTICE DURRANT concurred in Part I.


   JUSTICE NEHRING, opinion of the Court:1
                          INTRODUCTION
   ¶ 1 Robert Cameron Houston was seventeen and a half
years old when he murdered R.E., a staff member of the


   1 Justice Nehring took part in this decision and authored this
opinion prior to his retirement.
                        STATE v. HOUSTON
                      Opinion of the Court

residential treatment center for youth where Mr. Houston was
temporarily residing. The State charged Mr. Houston with
aggravated murder, aggravated sexual assault, and rape.
Mr. Houston pleaded guilty to aggravated murder, and the State
agreed to drop the other charges.
   ¶ 2 The parties agreed to a sentencing hearing where a jury
would determine whether Mr. Houston would be sentenced to life
in prison without the possibility of parole or an indeterminate
term of twenty years to life. Following the sentencing hearing,
eleven of the twelve jurors voted to sentence Mr. Houston to life
imprisonment without the possibility of parole.
   ¶ 3 On appeal Mr. Houston brings numerous constitutional
challenges to his sentence. He also contends that his counsel
rendered ineffective assistance of counsel during the sentencing
proceeding in violation of the Sixth Amendment to the United
States Constitution. After a careful review of the record, we
conclude that Mr. Houston‘s sentence is constitutional, and his
counsel was not ineffective. We therefore affirm the jury‘s
sentence.
                        BACKGROUND
   ¶ 4 Mr. Houston had a very difficult childhood, and he
became an early juvenile offender and a troubled young adult.
   ¶ 5 Mr. Houston was born with a deformed ear, which left
him almost completely deaf on one side and made it difficult for
him to learn to talk. As a child, he struggled with this physical
deformity and was also ridiculed by his peers for being
overweight. Mr. Houston‘s parents fought often and eventually
divorced, and his father was physically and verbally abusive.
When his father left the home, Mr. Houston struggled emotionally
over the separation. At age eight, Mr. Houston attempted suicide
and was diagnosed with major depressive disorder. When he was
twelve, he was sexually abused by his brother‘s friend for several
months.
    ¶ 6 Mr. Houston committed several violent sexual offenses
as a young teenager, which led to his placement in a residential
treatment program for juvenile sex offenders. In 2003, at age
fourteen, Mr. Houston attempted to rape his teenage stepsister at
knifepoint. He was charged with aggravated sexual assault.
Mr. Houston entered a guilty plea, though the record does not


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specify to what charge he pleaded. In February 2004, at age
fifteen, Mr. Houston attempted to rape his aunt, also at knifepoint.
Mr. Houston was charged with aggravated sexual assault and
pleaded guilty, although the record again does not specify to what
charge Mr. Houston pleaded. As a result of these violent sexual
assaults, Mr. Houston was placed with Youth Health Associates
(YHA), a residential treatment facility for juvenile sex offenders
located in Clearfield, Utah.
    ¶ 7 The State also presented evidence that two months after
Mr. Houston‘s arrival at YHA he allegedly attempted to sexually
assault a female staff member. The staff worker fought back and
was able to gain control. After the incident, Mr. Houston
allegedly explained to other staff workers that he wanted to hurt
and sexually assault her. Mr. Houston did not have a weapon
during that incident.
    ¶ 8 On February 15, 2006, when Mr. Houston was seventeen
years old, he committed the murder that led to this appeal. At
that time, Mr. Houston resided at an independent living home
associated with YHA.         It was snowing that night, and
Mr. Houston did not want to walk the four blocks home from
YHA to the independent living home. He asked R.E., a female
staff worker, for a ride. Although it was against YHA‘s policy to
give a ride in a personal vehicle to a resident, R.E. was
sympathetic and did not want Mr. Houston to have to walk home
in the bad weather.
    ¶ 9 When they arrived at the independent living home, R.E.
followed Mr. Houston inside to sign the log book. As she turned
to leave, Mr. Houston grabbed her from behind, covered her
mouth with his hand, and held a knife to her throat. Mr. Houston
then forced R.E. into his bedroom and ordered her to remove her
clothing. R.E. told Mr. Houston that she was a virgin and that she
did not want to have sexual intercourse. Mr. Houston responded
angrily, and raped her. R.E. screamed and begged him to stop.
Mr. Houston responded by pressing a knife to her throat. When
R.E. continued to scream, Mr. Houston stabbed her in the side of
the neck and sliced her throat. He then stabbed her repeatedly in
the chest, side, and back. When R.E. continued to struggle,
Mr. Houston attempted to kill her by snapping her neck. R.E.
continued to scream, and Mr. Houston became scared and fled.



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                          Opinion of the Court

    ¶ 10 Mr. Houston climbed into R.E.‘s car and sped off. He
drove into a house, which he later explained was an attempt to
kill himself. Mr. Houston was arrested and taken to the hospital.
He was interviewed by Detective Mike Valencia shortly after
arrival. Mr. Houston confessed to attempting to kill R.E. and
described in detail to the detective how he had tried to rip out
R.E.‘s trachea to stop her from screaming. The detective noted
that Mr. Houston was unemotional as he described the details of
the crime.
    ¶ 11 Mr. Houston was charged with aggravated murder,
aggravated sexual assault, and rape. In exchange for the State‘s
promise to drop the other charges, Mr. Houston pleaded guilty to
aggravated murder. The parties agreed that the sentencing
hearing would be held before a jury. Following a five-day
hearing, eleven of the twelve jurors voted to sentence
Mr. Houston to life imprisonment without the possibility of
parole (LWOP). After he was sentenced, Mr. Houston obtained
new appointed counsel and subsequently filed a timely appeal to
challenge his sentence. We stayed the case in anticipation of the
ruling in a United States Supreme Court case, Miller v. Alabama,2
and the parties provided supplemental briefing concerning the
effect of Miller on Mr. Houston‘s case.
   ¶ 12 We have jurisdiction under Utah Code section 78A-3-
102(3)(i).
                      STANDARD OF REVIEW
   ¶ 13 We begin our discussion of the standard of review by
noting that Mr. Houston did not preserve any of the issues
presented on appeal. ―As a general rule, claims not raised before
the trial court may not be raised on appeal‖3 unless a plain error
occurred,4 exceptional circumstances warrant our review,5 or the
defendant‘s attorney rendered ineffective assistance of counsel.6


   2   132 S. Ct. 2455 (2012).
   3   State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346.
   4  Id. ¶¶ 11, 13 (noting that to establish plain error, the
defendant has the burden to show that ―(i) [a]n error exists; (ii) the
error should have been obvious to the trial court; and (iii) the
error is harmful, i.e., absent the error, there is a reasonable
                                                               (con‘t.)

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                         Opinion of the Court

    ¶ 14 The parties disagree about the standard of review that
should apply to Mr. Houston‘s claims. Mr. Houston admits that
none of his claims are preserved, and thus argues under both
plain error and ineffective assistance of counsel doctrines.
However, Mr. Houston also argues for two alternative,
heightened standards of review. First, Mr. Houston contends that
he was charged with a ―capital‖ offense, and therefore this court
should apply a ―manifest prejudice‖ standard of review to each of
his claims. Second, Mr. Houston argues that his sentence is
unconstitutional and therefore he can challenge it on appeal as an
―illegal‖ sentence under Utah Rule of Criminal Procedure 22(e),
and is thereby excused from the obligation to preserve issues for
appeal. In support of his rule 22(e) argument, Mr. Houston cites
State v. Candedo, in which this court interpreted rule 22(e) to
permit review of certain unpreserved constitutional challenges.7
    ¶ 15 The State disagrees with Mr. Houston. First, the State
contends that ―capital‖ review does not apply here because this is
not a ―capital‖ case.8 According to the State, a ―capital‖ case is
one where the death penalty is sought or imposed; because of his
status as a juvenile, Mr. Houston was not, and could not have
been, sentenced to death, and as such, ―capital‖ appellate review
is not available. Second, the State argues that even if this court
can reach Mr. Houston‘s unpreserved claims under rule 22(e),
State v. Candedo was wrongly decided and should be overruled.
In support of its effort to undo Candedo, the State argues that the
opinion lacks sufficient analysis and citation to authority, creates
an unjustifiable disparity between this court‘s treatment of
unpreserved constitutional challenges to convictions and


likelihood of a more favorable outcome‖ (alteration in original)
(internal quotation marks omitted)).
   5   Id. ¶ 11.
   6   State v. Low, 2008 UT 58, ¶ 19, 192 P.3d 867.
   7 2010 UT 32, ¶ 13, 232 P.3d 1008 (―[I]f an offender‘s sentence is
unconstitutional, the sentence is not authorized by the ‗judgment
of conviction,‘ and is therefore illegal.‖).
   8 The State also argues that, in any event, the ―manifest and
prejudicial error standard is equivalent to plain error review.‖



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                           STATE v. HOUSTON
                          Opinion of the Court

unpreserved constitutional challenges to sentences, and is
inconsistent with the rule announced in State v. Yazzie.9
    ¶ 16 As we describe in greater detail below, we hold that each
of Mr. Houston‘s constitutional challenges falls within the narrow
scope of rule 22(e)‘s exception to the preservation of claims. We
therefore decline the State‘s request to overrule our precedent in
State v. Candedo. Under rule 22(e), we treat Mr. Houston‘s claims
as if they had been preserved, reviewing conclusions of law for
correctness and granting no deference to the district court.10
Because rule 22(e) provides a higher standard than ―manifest
prejudice‖ review, we decline to address Mr. Houston‘s
alternative argument.
    ¶ 17 A claim of ineffective assistance of counsel is also an
exception to our preservation doctrine.11          For ―ineffective
assistance of counsel claims, we review a lower court's purely
factual findings for clear error, but [we] review the application of
the law to the facts for correctness.‖12
                               ANALYSIS
      I. MR. HOUSTON PROPERLY BROUGHT FACIAL
    CONSTITUTIONAL CHALLENGES TO HIS SENTENCE
    UNDER UTAH RULE OF CRIMINAL PROCEDURE 22(e)
    ¶ 18 Utah Rule of Criminal Procedure 22(e) provides that
―[t]he court may correct an illegal sentence, or a sentence imposed
in an illegal manner, at any time.‖ We hold that the rule
encompasses facial constitutional challenges to the sentence that
do not implicate a fact-intensive analysis. We also conclude that
each of Mr. Houston‘s constitutional challenges to his sentence
meets these criteria, and therefore his claims are properly brought
under rule 22(e).
   ¶ 19 Under our traditional preservation doctrine, ―generally
an appellant must properly preserve an issue in the district court

   9   2009 UT 14, ¶ 13, 203 P.3d 984.
   10   See State v. Prion, 2012 UT 15, ¶ 13, 274 P.3d 919.
   11   Low, 2008 UT 58, ¶ 19.
   12 Archuleta v. Galetka, 2011 UT 73, ¶ 25, 267 P.3d 232 (alteration
in original) (internal quotation marks omitted).



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                          Opinion of the Court

before it will be reviewed on appeal.‖13 The issue must have been
―presented to the district court in such a way that the court has an
opportunity to rule on [it].‖14 These preservation rules exist both
to serve judicial economy and to prevent a defendant from failing
to object to an issue in the hopes of reversal of a conviction on
appeal.15 However, ―[o]ur preservation requirement is self-
imposed and . . . . [c]onsequently, we exercise wide discretion
when deciding whether to entertain or reject matters that are first
raised on appeal.‖16 We have therefore recognized limited
exceptions to the rule, including when the issue arises under
exceptional circumstances or where a plain error has occurred.17
   ¶ 20 Rule 22(e) operates as another limited exception to the
preservation doctrine.18 In State v. Candedo, we explained that the
rule ―allows an appellate court to vacate [an] illegal sentence‖
even if the legality of the sentence was never raised in the
proceedings below.19 We stated that our preservation rules do not
apply in the context of a rule 22(e) challenge ―because an illegal
sentence is void and, like issues of jurisdiction [may be raised] at
any time.‖20




   13 O’Dea v. Olea, 2009 UT 46, ¶ 15, 217 P.3d 704; accord Patterson
v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828.
   14Patterson, 2011 UT 68, ¶ 12 (alteration in original) (internal
quotation marks omitted).
   15 State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346; see also State v.
Prion, 2012 UT 15, ¶ 19, 274 P.3d 919.
   16   Patterson, 2011 UT 68, ¶ 13.
   17   Holgate, 2000 UT 74, ¶¶ 11–13.
   18 Prion, 2012 UT 15, ¶ 20; State v. Brooks, 908 P.2d 856, 860
(Utah 1995) (―[R]ule 22(e) permits the court of appeals to consider
the legality of a sentence even if the issue is raised for the first
time on appeal.‖).
   19 2010 UT 32, ¶ 9, 232 P.3d 1008 (internal quotation marks
omitted).
   20   Id. (alteration in original) (internal quotation marks omitted).



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                           Opinion of the Court

    ¶ 21 While it is clear that the preservation rule does not apply
to a defendant‘s challenge to an illegal sentence, we have had few
occasions to discuss what constitutes an ―illegal sentence.‖ In
State v. Yazzie, we adopted a definition of ―illegal sentence‖ from
the United States Court of Appeals for the Tenth Circuit:
         [An illegal sentence is] one which is ambiguous with
         respect to the time and manner in which it is to be
         served, is internally contradictory, omits a term
         required to be imposed by statute, is uncertain as to
         the substance of the sentence, or is a sentence which
         the judgment of conviction did not authorize.21
    ¶ 22 In Candedo, we elaborated on this definition. We
concluded that ―if an offender‘s sentence is unconstitutional, the
sentence is not authorized by the ‗judgment of conviction,‘ and is
therefore illegal.‖22 In that case, the district court placed
Francisco Candedo on nine years‘ probation after he pleaded
guilty to three felonies arising from his involvement in a
fraudulent investment scheme.23 Rather than object to the length
of his probation at sentencing, Mr. Candedo challenged on direct
appeal the legality of the duration of his probation sentence
under rule 22(e), arguing that his sentence violated his

   21 2009 UT 14, ¶ 13, 203 P.3d 984 (alteration in original)
(quoting United States v. Dougherty, 106 F.3d 1514, 1515 (10th Cir.
1997)).
   22  2010 UT 32, ¶ 13. We disagree with the State that this
definition is inconsistent with Yazzie, or that it is otherwise
unsupported by legal authority. We squarely rejected these
arguments in Candedo. See id. ¶¶ 12–14. We also note that our
holding in Candedo—that an illegal sentence encompasses an
unconstitutional sentence—is consistent with the Tenth Circuit‘s
definition and application of this term. See United States v. Groves,
369 F.3d 1178, 1182 (10th Cir. 2004) (―Because the defendant
reserved the right to appeal an ‗illegal sentence,‘ and because an
unconstitutional sentence is ‗illegal,‘ we hold that the defendant is
entitled to challenge his sentence . . . .‖); United States v. Lyman,
261 F. App‘x 98, 100 (10th Cir. 2008) (noting that an
unconstitutional sentence is an example of an illegal sentence).
   23   2010 UT 32, ¶ 1.



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                            Opinion of the Court

substantive due process rights under the United States
Constitution.24 The court of appeals affirmed Mr. Candedo‘s
sentence without reaching the merits of his constitutional claim.25
On certiorari review, we determined that the court of appeals
erred when it failed to reach Mr. Candedo‘s constitutional
challenge.26 We concluded that ―[b]ecause an illegal sentence
under rule 22(e) includes constitutional violations,‖ a defendant
may raise arguments concerning the constitutionality of the
sentence, even if unpreserved.27
    ¶ 23 We again considered the scope of rule 22(e) in State v.
Prion, a case in which the defendant raised statutory and double
jeopardy challenges to his sentence.28 We recognized that the
Candedo ―formulation, if broadly construed, raises the prospect of
abuse.‖29 We cautioned that such abuse could arise ―if rule 22(e)
were construed broadly to sanction a fact-intensive challenge to
the legality of a sentencing proceeding asserted long after the time
for raising it in the initial trial or direct appeal.‖30 In considering
the scope of the rule, we also explained that our rule 22(e) derived
from a former Federal Rule of Criminal Procedure that authorized
a court to correct illegal sentences.31 We recognized that federal
courts traditionally limited challenges under the federal rule to
attack sentences that exceeded the statutory maximum, violated
double jeopardy, or were facially ambiguous or internally
inconsistent.32 Some circuits appear to have recognized a broader


   24   Id.
   25   Id.
   26   Id. ¶ 2.
   27 Id. ¶ 11. We nonetheless affirmed Mr. Candedo‘s sentence
because we determined that it did not violate due process. Id.
¶ 25.
   28   2012 UT 15, ¶ 10.
   29   Id. ¶ 20 (internal quotation marks omitted).
   30   Id.
   31Id. ¶ 22; see FED. R. CRIM. P. 35(a) (1984). The federal rule
was repealed in 1987. See Prion, 2012 UT 15, ¶ 22 n.8.
   32   Prion, 2012 UT 15, ¶ 22 (citing United States v. Pavlico, 961
                                                                (con‘t.)

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                         STATE v. HOUSTON
                        Opinion of the Court

application of the federal rule, such as when the sentence is
generally ―in violation of the Constitution,‖33 is based on
―misinformation of a constitutional magnitude,‖34 or even when
the sentence violates another federal rule.35
   ¶ 24 In Prion, we held that the defendant‘s statutory and
double jeopardy challenges properly fell within the ambit of rule
22(e).36 Such challenges attacked ―facial defects‖ that ―could

F.2d 440, 443 (4th Cir. 1992), and Hill v. United States, 368 U.S. 424,
430 (1962)); see also State v. Higginbotham, 917 P.2d 545, 551 (Utah
1996) (remanding to the trial court under rule 22(e) to correct a
sentence enhancement made in violation of the statute).
   33 United States v. Hovsepian, 307 F.3d 922, 927–28 (9th Cir.
2002); see also Hill, 368 U.S. at 430 (finding no illegal sentence
under rule 35(a) when the sentence was not ―legally or
constitutionally invalid in any other respect‖).
   34 United States v. Plain, 856 F.2d 913, 916 (7th Cir. 1988)
(quoting United States v. Tucker, 404 U.S. 443, 447 (1972)
(considering a rule 35 motion when a sentencing authority bases
the sentencing decision on erroneous factual information)).
   35 Cook v. United States, 171 F.2d 567, 569 (1st Cir. 1948)
(vacating a sentence that violated Federal Rule of Criminal
Procedure 43 because the defendant was not present before the
court when his sentence was increased).
   36  2012 UT 15, ¶¶ 23–24. The concurrence misreads our
holding in Prion as limiting rule 22(e) challenges to only those
permitted under the antecedent federal rule. Infra ¶¶ 114–31. But
we nowhere stated that we were adopting the federal limitation.
In fact, reading Prion to adopt such a limitation would require us
to have overruled our earlier decisions in Candedo, 2010 UT 32,
and State v. Telford, 2002 UT 51, 48 P.3d 228 (per curiam). In
Candedo, we expressly found that the defendant‘s substantive due
process claim fell within the scope of the rule:
          We therefore hold that the court of appeals erred
          in failing to reach the merits of Candedo‘s
          substantive due process challenge because the
          definition of illegal sentence under rule 22(e) is
          sufficiently broad to include constitutional
          violations that threaten the validity of the
                                                                (con‘t.)

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                         Opinion of the Court

easily be corrected without the need for factual development in
the original trial court.‖37 We therefore reviewed the defendant‘s
claims on the merits, ultimately concluding that his sentence
violated double jeopardy.38
   ¶ 25 Mr. Houston now brings a host of constitutional claims
that we have not previously addressed under rule 22(e). Today,
we draw on our previous decisions to articulate the standard for a
criminal defendant who brings an unpreserved claim under rule
22(e) that his or her sentence is illegal, and we reiterate the
concern expressed in earlier cases that ―rule 22(e) claims must be
narrowly circumscribed to prevent abuse.‖39
   ¶ 26 We therefore hold that under rule 22(e), a defendant
may bring constitutional challenges that attack the sentence itself
and not the underlying conviction,40 and which do so as a facial
challenge rather than an as-applied inquiry.41 This standard

         sentence. This holding allows us to reach the
         merits of Candedo‘s claim . . . .
2010 UT 32, ¶ 14. And in Telford, ―[a]lthough we rejected Telford‘s
separation of powers and Eighth Amendment challenges to his
sentence, we reached and considered the merits of those challenges
under rule 22(e).‖ Id. ¶ 11 (citing Telford, 2002 UT 51, ¶¶ 3–4)
(emphasis added). We would not denigrate our holdings in those
cases as ―relatively unimportant.‖ Infra ¶ 121 n.1.
   37   Prion, 2012 UT 15, ¶ 22.
   38   Id. ¶ 63.
   39   Candedo, 2010 UT 32, ¶ 9 (quoting Telford, 2002 UT 51, ¶ 5).
   40 See Brooks, 908 P.2d at 859 (―[A]n appellate court may not
review the legality of a sentence under rule 22(e) when the
substance of the appeal is . . . a challenge, not to the sentence itself,
but to the underlying conviction.‖).
   41 The State argues that such a rule creates an unjustifiable
disparity between unpreserved challenges to convictions and to
sentences. To the extent that such a dichotomy exists, it is
inherent in the rule itself, which allows illegal sentences to be
challenged at any time. Moreover, our decision today limits that
disparity by restricting constitutional challenges under the rule to
only facial attacks.


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                         Opinion of the Court

comports with previous rule 22(e) decisions of this court. For
example, in State v. Telford, we permitted the defendant to bring
some unpreserved constitutional challenges to his sentence under
rule 22(e) while ruling that other constitutional claims did not
properly fall within the scope of rule 22(e) review.42 We
authorized the defendant‘s challenge to the indeterminate
sentencing scheme under the separation of powers clause of the
Utah Constitution.43 We also allowed claims under the cruel and
unusual punishments clauses of the Utah and United States
Constitutions, but only to the extent that the defendant argued for
―a per se violation.‖44 In contrast, we concluded that to the extent
that the defendant contested the constitutionality ―as applied to his
particular case, he impermissibly attempt[ed] to employ rule 22(e)
to attack his underlying conviction.‖45 Similarly, we prohibited
review of claims brought under the Sixth Amendment of the
United Sates Constitution and article I, section 12 of the Utah
Constitution because those clauses did not relate to sentencing.46
   ¶ 27 Limiting constitutional challenges to facial attacks serves
judicial economy. As we recognized in Brooks, ―[w]hen the
pertinent facts are undisputed and a purely legal question with
respect to which the trial court has no discretion remains to be
decided, nothing is to be gained by remanding the case to the trial
court.‖47 The concurrence argues that our standard creates an
unworkable rule because even facial challenges can be fact-

   42   2002 UT 51, ¶¶ 2–5.
   43   Id. ¶ 3.
   44 Id. ¶ 4; see Candedo, 2010 UT 32, ¶ 11 (recognizing that in
Telford we reviewed separation of powers and cruel and unusual
punishment challenges on their merits).
   45   Telford, 2002 UT 51, ¶ 7 (emphasis added).
   46Id. ¶ 6. We ultimately concluded that Mr. Telford‘s sentence
did not amount to a constitutional violation. Id. ¶¶ 3–4.
   47 908 P.2d at 860; see also Prion, 2012 UT 15, ¶ 20 (warning
against permitting rule 22(e) to ―sanction a fact-intensive
challenge‖); id. ¶ 22 (explaining that facial defects can easily be
corrected by an appellate court without the need to remand for
factual development).



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                           Opinion of the Court

intensive.48 But this argument also misses the mark. In this
context, a fact-intensive analysis is one in which ―the pertinent
legal facts‖ are disputed or unclear. But where there is a facial
constitutional attack, the court need not delve into the record or
make findings of fact. Instead, the court is tasked with resolving a
legal issue. But that does not mean the analysis will be easy or
devoid of any reference to facts. As the opinions in the present
case demonstrate, analysis of a purely legal question is often
difficult and warrants rigorous debate. The rule we articulate
here is not untenable just because it requires hard work by the
court.
    ¶ 28 In the end, finality of judgment and preservation of
claims are important, but so too is a criminal defendant‘s right to
endure only those sentences that can be constitutionally imposed.
Because Mr. Houston facially attacks the constitutionality of the
statute that authorized his sentence, we hold that he has properly
challenged it as an ―illegal sentence‖ under Utah Rule of Criminal
Procedure 22(e).49 We next turn to the merits of Mr. Houston‘s
claims. For analytical clarity, we separate his claims into two
categories. First, we address his facial constitutional claims, and
we analyze the sentence for correctness under rule 22(e)‘s
exception to preservation. Next, we address Mr. Houston‘s claims
brought under the framework of ineffective assistance of counsel.
We ultimately conclude that all of Mr. Houston‘s claims fail and
therefore affirm his sentence of life without the possibility of
parole.
        II. MR. HOUSTON‘S SENTENCE OF LIFE WITHOUT
            PAROLE DOES NOT VIOLATE THE UTAH OR
              THE UNITED STATES CONSTITUTION
   ¶ 29 We begin by addressing Mr. Houston‘s six constitutional
challenges to his sentence. Mr. Houston argues that his sentence:
(A) is unconstitutional under the United States Supreme Court
case Apprendi v. New Jersey,50 (B) is unconstitutional because the


   48   Infra ¶¶ 128–29.
   49In light of this limiting construction, we decline the State‘s
request for us to overrule our holding in Candedo, 2010 UT 32.
   50   530 U.S. 466 (2000).



                                   13
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                         Opinion of the Court

sentencing statute does not contain a ―beyond a reasonable
doubt‖ standard of proof, (C) violates the Utah uniform operation
of laws clause and the United States Equal Protection Clause,
(D) violates the due process clauses of the Utah and United States
Constitutions, (E) violates the unnecessary rigor clause of the
Utah Constitution, and (F) violates the cruel and unusual
punishments clauses of the Utah and United States Constitutions.
We take up each of these issues in turn.
              A. Mr. Houston’s Sentence Is not Unconstitutional
                    Under Apprendi v. New Jersey
   ¶ 30 Mr. Houston first argues that Apprendi v. New Jersey51
renders the sentencing statute unconstitutional.52 This claim is
grounded in the Fifth and Sixth Amendments to the United States
Constitution.    According to Mr. Houston, his sentence is
unconstitutional because Apprendi mandates that ―any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury and proved beyond a
reasonable doubt.‖
    ¶ 31 In Apprendi, the New Jersey statutory scheme permitted
a judge to impose a sentence beyond the statutory maximum if
the judge determined, by a preponderance of the evidence, that
the defendant committed a hate crime.53 The United States
Supreme Court held that this sentencing scheme was
unconstitutional because ―any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt.‖54



   51   Id.
   52  The concurrence claims that this argument is not a facial
challenge. Infra ¶ 128. But Mr. Houston argues that the
sentencing statute violates Apprendi‘s constitutional protections by
allowing the sentencer to impose LWOP, rather than the
presumptive twenty year sentence, if the sentencer deems it
appropriate. We conclude that this is a challenge on the face of
the statute and not to Mr. Houston‘s particular circumstances.
   53   530 U.S. at 468–69.
   54   Id. at 490 (emphasis added).



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    ¶ 32 Unlike in Apprendi, however, the sentencing statute
under which Mr. Houston was sentenced does not require the
judge to make factual findings that increase an offender‘s
sentence. By pleading guilty to aggravated murder, Mr. Houston
admitted all the facts relevant to the offense and became subject to
any sentence authorized under Utah law.              Under Utah‘s
sentencing statute, a juvenile defendant guilty of aggravated
murder can be sentenced to either life with the possibility of
parole or LWOP.55 There were no factual findings to be made by
a jury, only a determination that LWOP would or would not be
appropriate. Because the sentencing statute did not permit the
jury to impose a sentence ―beyond the prescribed statutory
maximum,‖ the Apprendi rule did not apply, and there is no
violation.
      B. The Sentencing Statute Is not Constitutionally Defective
    for Failing to Include a ―Beyond a Reasonable Doubt‖ Standard
   ¶ 33 Mr. Houston next argues that the sentencing statute is
invalid and unconstitutional because it does not articulate a
standard of proof for sentencing.56 Relying on this court‘s
decision in State v. Wood,57 Mr. Houston contends that Utah‘s
sentencing scheme requires that a jury find ―beyond a reasonable
doubt‖ that an LWOP sentence is justified and appropriate. We
disagree.
    ¶ 34 We begin by examining the language of the sentencing
statute at issue. Utah Code section 76-3-207 provides that ―the
jury shall . . . determine whether the penalty of life in prison
without parole shall be imposed . . . . The penalty of life in prison
without parole shall only be imposed if the jury determines that
the sentence of life in prison without parole is appropriate.‖58




   55See UTAH CODE § 76-3-207(5)(c) (2008). This statute was
amended in 2010, but we cite to the version in effect at the time
Mr. Houston was sentenced.
   56   See id.
   57   648 P.2d 71 (Utah 1982).
   58   UTAH CODE § 76-3-207(5)(c) (2008).



                                   15
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                          Opinion of the Court

   ¶ 35 In Wood, we interpreted an earlier version of this statute
and held that, in order to impose a death sentence under this
section, the sentencing authority must find that (1) the
aggravating circumstances outweigh the mitigating circumstances
beyond a reasonable doubt and (2) the sentence is justified and
appropriate in the circumstances beyond a reasonable doubt.59
Mr. Houston asks us to extend the Wood ―beyond a reasonable
doubt‖ standard to LWOP sentences. We decline to do so.
   ¶ 36 We begin by noting that, unlike Mr. Houston‘s case,
Wood was a death penalty case, and our holding in Wood was
premised on the unique nature of a proceeding in which the
defendant‘s life is at stake. We explained:
         We reject the proposition that the death penalty may
         be imposed when there is substantial doubt whether
         it should be. . . . ―Death[,] in its finality, differs from
         life imprisonment more than a hundred-year prison
         term differs from one of only a year or two. Because
         of that [qualitative] difference, there is a
         corresponding difference in the need for reliability
         in the determination that death is the appropriate
         punishment in a specific case.‖60
Throughout the Wood opinion, we emphasized the ―irrevocable‖
nature of a death sentence, and the corresponding degree of
conviction that a judge or jury must have to impose it.
   ¶ 37 In State v. Bell, we returned to our holding in Wood in the
context of a different sentencing statute.61 In Bell, the defendant
argued that Utah‘s sentencing scheme for aggravated sexual
assault was unconstitutional because it did not assign a burden of
proof with respect to aggravating and mitigating circumstances in
determining which of the mandatory presumptions should be
imposed.62 We held that the burden of proof rule articulated in


   59   648 P.2d at 83.
   60 Id. at 80–81 (quoting Woodson v. North Carolina, 428 U.S. 280,
305 (1976) (plurality opinion)).
   61   754 P.2d 55, 59 (Utah 1988).
   62   Id. at 57.



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Wood does not apply when the jury is not considering death as a
possible sentence.63 We explained that ―the choice of death, being
unique, justifies requiring the most persuasive reasons and a high
degree of subjective certainty. However, those reasons do not
have great force in choosing one of three possible sentences, none
of which has the finality of death.‖64
   ¶ 38 Because a death sentence is uniquely irrevocable and the
most severe of all sentences, we have an interest in ensuring that
no reasonable doubt remains before we authorize the taking of a
human life. But, as we stated in Bell, outside this context, there
are no ―clear considerations of fairness that militate in favor of a
particular standard, except to the extent that one may quarrel with
the wisdom of the statute—which is beyond our prerogative.‖65
   ¶ 39 Here, our legislature has determined that a jury may
sentence a defendant to life without parole if it determines that
the State has satisfied its burden to demonstrate that this is the
―appropriate‖ sentence to impose.66 Mr. Houston has not
demonstrated that we are constitutionally required to interfere
with the legislature‘s authority and write a ―beyond a reasonable
doubt‖ standard into the sentencing statute.
   C. The Sentencing Statute Does not Violate the Equal Protection
          Clause or the Uniform Operation of Laws Clause
   ¶ 40 Mr. Houston next argues that the sentencing statute
violates the uniform operation of laws clause of the Utah
Constitution and the Equal Protection Clause of the United States
Constitution because the statute ―provides no guidance to jurors
in determining which sentence to impose.‖ This, he contends,
creates a substantial probability of arbitrary sentencing and
disproportionate penalties.
   ¶ 41 Because we have held that Utah‘s uniform operation of
laws clause ―is at least as rigorous as the federal guarantee,‖67 we


   63   Id. at 59 (distinguishing Wood).
   64   Id.
   65   Id.
   66   See UTAH CODE § 76-3-207(5)(c) (2008).
   67   State v. Drej, 2010 UT 35, ¶ 33 n.5, 233 P.3d 476; see also ABCO
                                                                 (con‘t.)

                                   17
                           STATE v. HOUSTON
                          Opinion of the Court

first analyze Mr. Houston‘s claims under the Utah Constitution. If
we determine that the statute survives scrutiny under Utah‘s
uniform operation of laws provision, then we must conclude that
it is constitutional under the United States Constitution‘s Equal
Protection Clause as well.68
    ¶ 42 Mr. Houston contends that two juvenile defendants
could commit aggravated murder, and, due to the lack of
guidance in the statute, a jury could arbitrarily sentence one of the
juvenile offenders to life with parole and sentence the other to life
without parole. Mr. Houston argues that by failing to narrow in a
principled way those who may receive life without parole, the
statute disparately treats similarly situated offenders without a
rational basis for the disparate treatment. We disagree.
    ¶ 43 The uniform operation of laws provision of our
Constitution requires us to address three questions: (1) ―what, if
any, classification is created under the statute,‖ (2) ―whether the
classification imposes on similarly situated persons disparate
treatment,‖ and (3) whether ―the legislature had any reasonable
objective that warrants the disparity.‖69
    ¶ 44 Examining Utah‘s statute in light of these criteria, we
conclude that it does not violate the uniform operation of laws
clause because it creates no impermissible classifications and it
treats all similarly situated defendants the same.
   ¶ 45 We begin by examining the plain language of the
challenged sentencing statute ―to determine what classification[, if
any,] is created by [the] legislative enactment.‖70 At the time of
Mr. Houston‘s sentencing, the sentencing statute provided:
         If the jury is unable to reach a unanimous
         decision imposing the sentence of death, the jury


Enters. v. Utah State Tax Comm’n, 2009 UT 36, ¶ 14, 211 P.3d 382
(concluding that uniform operation of laws and Equal Protection
claims need only be analyzed under the more rigorous Utah
provision).
   68   Drej, 2010 UT 35, ¶ 33 n.5.
   69   Id. ¶ 34 (internal quotation marks omitted).
   70   Id. ¶ 35.



                                      18
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         shall then determine whether the penalty of life in
         prison without parole shall be imposed . . . . The
         penalty of life in prison without parole shall only
         be imposed if the jury determines that the
         sentence of life in prison without parole is
         appropriate.71
This statute classifies defendants into two categories—those
eligible for a death sentence and those ineligible for a death
sentence. And under the language of this statute, all defendants
who are ineligible for a sentence of death are similarly situated
and are treated equally—they are subject to a jury‘s determination
that either a sentence of life with parole or a sentence of life
without the possibility of parole is the more appropriate sentence
based on the jury‘s evaluation of a particular case. Although it is
true that two defendants who commit aggravated murder may
receive different sentences from a jury, this is either because the
defendants were not similarly situated (for example, one
defendant committed a much more heinous crime) or the jury in
the course of its deliberations finds it more ―appropriate‖ to
sentence one defendant to a more lenient or more severe penalty.
   ¶ 46 We conclude that the sentencing statute treats all
similarly situated defendants the same and it does not contain any
impermissible classifications. It subjects all defendants guilty of
aggravated murder to a jury‘s determination of what sentence is
most ―appropriate‖ given the particular circumstances of each
case. Mr. Houston‘s argument accordingly fails.
          D. The Statute Is not Unconstitutionally Vague Under
                the Due Process Clause of the Utah or the
                       United States Constitutions
   ¶ 47 Mr. Houston also argues that the sentencing statute is
unconstitutionally vague in violation of due process under the
federal and state constitutions because it lacks clear standards to
guide the jury in sentencing a defendant.               Specifically,
Mr. Houston claims that the sentencing statute only advises the
jury to impose an LWOP sentence if ―appropriate,‖ but it does not
provide a standard of proof for aggravating factors, nor does it
contain a standard for determining when LWOP is an

   71   UTAH CODE § 76-3-207(5)(c) (2008).



                                  19
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                           Opinion of the Court

―appropriate‖ sentence.     He alleges that these deficiencies
provided him with no notice as to whether pleading guilty would
result in a life sentence with or without parole. Thus, he
contends, the lack of standards created a ―roll of the dice‖ as to
which sentence he would receive.
    ¶ 48 We agree that, standing alone, the statutory directive
that an LWOP sentence may be imposed if ―appropriate‖ is
troubling. The term ―appropriate‖ contributes little or nothing to
the solemn task in which it plays a central role. ―Appropriate‖ is
defined as ―specially suitable‖ or ―belonging peculiarly.‖72 But
everyday experience may not equip a juror with the ability to
determine when it is ―specially suitable‖ to imprison a juvenile for
the remainder of his life. Nonetheless, ―we do not interpret the
‗plain meaning‘ of a statutory term in isolation.‖73 Instead, we
―determine the meaning of the text given the relevant context of
the statute.‖74 The sentencing statute supplies guidance to the
decision-maker by illustrating examples of aggravating and
mitigating factors that should be considered in making this
weighty decision.75 For example, the statute specifically lists ―the
youth of the defendant at the time of the crime‖ as a mitigating
factor to consider.76 Moreover, the sentencing authority is free to
consider ―any other fact in mitigation of the penalty.‖77 We
conclude that this guidance sufficiently contextualizes the
―appropriate‖ standard such that the statute is not
unconstitutionally vague.78



   72  WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 106
(1961).
   73   Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 12, 248 P.3d 465.
   74   Id.
   75   See UTAH CODE § 76-3-207(3), (4) (2008).
   76   Id. § 76-3-207(4)(e).
   77   Id. § 76-3-207(4)(g).
   78 Moreover, the trial judge instructed the jurors that it was
their ―duty to consider all of the aggravating and mitigating
evidence in determining the appropriate penalty.‖ The judge
listed several mitigating factors that may be considered in
                                                                (con‘t.)

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                          Opinion of the Court

             E. Mr. Houston’s Sentence Does not Violate the
            Unnecessary Rigor Clause of the Utah Constitution
    ¶ 49 Mr. Houston also contends that his sentence violates
Utah‘s unnecessary rigor clause because ―it constitutes
unnecessary rigor to sentence a juvenile to die in prison with no
hope of parole.‖ According to Mr. Houston, it is unconstitutional
to impose the severe sentence of life without parole on a juvenile
due to the immaturity, vulnerability, and undeveloped character
associated with youth.79 Mr. Houston argues that LWOP for
juveniles is particularly rigorous because juveniles do not pose a
great threat to public safety and are amenable to rehabilitation.
Although some of these observations about the nature of youth
are almost certainly true, they do not implicate the nature and
purpose of the unnecessary rigor clause.
    ¶ 50 Article I, section 9 of the Utah Constitution provides that
―[p]ersons arrested or imprisoned shall not be treated with
unnecessary rigor.‖ This clause protects arrested or imprisoned
individuals from the infliction of treatment during their
confinement that is incompatible with the values of a civilized
society.80 ―The restriction on unnecessary rigor is focused on the
circumstances and nature of the process and conditions of



sentencing, including Mr. Houston‘s youth and his capacity to
appreciate the wrongfulness of his conduct. The judge also
emphasized that the jury ―should not merely add up the number
of aggravating and mitigating circumstances or factors, or
otherwise apply a mechanical rule‖ to their consideration of the
evidence. And finally, the judge explained that the presumptive
sentence was life with the possibility of parole and that the
―burden rests upon the State to persuade [the jury] that a sentence
of life in prison without parole [was] the appropriate sentence‖ to
impose.
   79 The concurrence argues that this is an as-applied challenge.
Infra ¶ 128. But Mr. Houston does not claim that LWOP
constitutes unnecessary rigor given the specifics of his case; he
argues that LWOP is unnecessarily rigorous when applied to any
juvenile offender, regardless of the facts of the crime.
   80   State v. Perea, 2013 UT 68, ¶ 124, 322 P.3d 624.



                                    21
                            STATE v. HOUSTON
                          Opinion of the Court

confinement,‖ not on ―the sentence imposed.‖81 This provision is
targeted at eliminating ―unreasonably harsh, strict, or severe
treatment‖ in prison such as ―being unnecessarily exposed to an
increased risk of serious harm.‖82
    ¶ 51 We hold that the unnecessary rigor clause does not
apply to Mr. Houston‘s challenge. Mr. Houston does not object to
the conditions of his confinement, but rather the length of the
sentence imposed by statute.         Although a defendant may
challenge the length of his or her sentence as unconstitutional, this
claim is more properly characterized as a cruel and unusual
punishments claim and may not be brought under the
unnecessary rigor clause.
           F. Mr. Houston’s Sentence Does not Violate the Cruel
               and Unusual Punishments Clause of the Utah
                    or the United States Constitution
1. Cruel and Unusual Punishments Clause of the United States
   Constitution
    ¶ 52 Finally, Mr. Houston claims that sentencing a juvenile to
LWOP violates the cruel and unusual punishments clauses of the
Utah and United States Constitutions. In support of his federal
argument, Mr. Houston cites three recent United States Supreme
Court cases: Graham v. Florida, holding that it is unconstitutional
to sentence a juvenile to LWOP for a nonhomicide crime;83 Roper
v. Simmons, holding that it is unconstitutional to sentence a
juvenile to death;84 and Miller v. Alabama, holding that it is
unconstitutional to impose a mandatory LWOP sentence on a
juvenile.85 Mr. Houston argues that the particular characteristics
of youth undermine the penological basis for imposing an LWOP
sentence, and that LWOP for a juvenile therefore constitutes cruel
and unusual punishment.



   81   Dexter v. Bosko, 2008 UT 29, ¶ 17, 184 P.3d 592.
   82   Id. ¶ 19.
   83   560 U.S. 48, 82 (2010).
   84   543 U.S. 551, 578 (2005).
   85   132 S. Ct. 2455, 2475 (2012).



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                       Opinion of the Court

    ¶ 53 We recognize that there are unique characteristics of
juveniles that distinguish them from adult offenders, and we
conclude that Utah‘s sentencing statute treats juveniles in a
manner that accounts for these unique characteristics. For
example, a juvenile cannot be sentenced to death, regardless of the
offense committed. LWOP is neither a mandatory sentence nor
the presumptive sentence under Utah‘s sentencing statute. And
the statute directs the sentencing authority to consider any
relevant mitigating circumstances. We therefore hold that Utah
Code section 76-3-207 is facially constitutional. We begin by
addressing Mr. Houston‘s claim under the United States
Constitution and then turn to Mr. Houston‘s argument under the
Utah Constitution.
    ¶ 54 The Eighth Amendment to the United States
Constitution provides: ―Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted.‖86 We have recognized that ―[a] criminal punishment
may be cruel and unusual when it is barbaric, excessive, or
disproportional to the offense committed.‖87 Moreover, despite
an evolving analytical framework, the fundamental principle of
the Eighth Amendment remains unchanged:                  ―[C]riminal
punishments are prohibited if they are excessive or contravene
evolving standards of decency and human dignity.‖88 We also
note, however, that sentencing statutes derive from a variety of
often imprecise policy considerations. For this reason, we must
accord ―substantial deference . . . to the prerogatives of legislative


   86 The Eighth Amendment‘s Cruel and Unusual Punishments
Clause is incorporated against the states via the Due Process
Clause of the Fourteenth Amendment. Robinson v. California, 370
U.S. 660, 675 (1962); State v. Herrera, 1999 UT 64, ¶ 33 n.13, 993
P.2d 854.
   87 State v. Mace, 921 P.2d 1372, 1377 (Utah 1996) (footnote
omitted) (citing Solem v. Helm, 463 U.S. 277, 284 (1983)).
   88 State v. Lafferty, 2001 UT 19, ¶ 76, 20 P.3d 342 (alteration in
original) (internal quotation marks omitted); see also Trop v. Dulles,
356 U.S. 86, 101 (1958) (―The [Eighth] Amendment must draw its
meaning from the evolving standards of decency that mark the
progress of a maturing society.‖).



                                 23
                            STATE v. HOUSTON
                           Opinion of the Court

power ‗in determining the types and limits of punishments for
crimes.‘‖89 For this reason, ―absent a showing that a particular
punishment is cruelly inhumane or disproportionate, we are not
apt to substitute our judgment for that of the legislature regarding
the wisdom of a particular punishment or of an entire sentencing
scheme.‖90
   ¶ 55 The United States Supreme Court has not ruled on
whether the Eighth Amendment prohibits the imposition of
LWOP for a juvenile convicted of homicide.91 But the Court
considered related questions in Graham, Roper, and Miller. We
find those cases instructive and determine that the Eighth
Amendment does not prohibit the imposition of LWOP for a
juvenile homicide offender.
    ¶ 56 We deferred our consideration of Mr. Houston‘s appeal
while Miller v. Alabama was pending before the United States
Supreme Court.92 In Miller, two defendants who had committed
unrelated murders at the age of fourteen challenged an Alabama
statute that mandated an LWOP sentence.93 The Supreme Court
announced its decision in 2012, holding that a sentencing scheme
that mandates an LWOP sentence for a juvenile constitutes cruel
and unusual punishment under the United States Constitution.94
The Court explained that the Eighth Amendment requires
individualized sentencing procedures for juveniles so that the
sentencing authority may consider the mitigating circumstances
inherent in youth.95 Miller did not, however, categorically


   89State v. Bishop, 717 P.2d 261, 269 (Utah 1986) (quoting Solem,
463 U.S. at 290).
   90 Mace, 921 P.2d at 1377–78 (citation omitted) (internal
quotation marks omitted).
   91  See Miller, 132 S. Ct. at 2469 (explicitly reserving ruling on
this issue).
   92 The parties provided supplemental briefing addressing the
effects of the Miller decision on the instant case.
   93   Miller, 132 S. Ct. at 2460.
   94   Id. at 2469.
   95    Id. at 2475 (―Graham, Roper, and our individualized
                                                              (con‘t.)

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                          Opinion of the Court

prohibit LWOP for juveniles.96 The Court explained that it ―[did]
not foreclose a sentencer‘s ability‖ to sentence a juvenile convicted
of homicide to LWOP.97
    ¶ 57 In Miller, the Supreme Court grounded its decision in an
analysis of proportionality. The Court reiterated ―the basic
precept of justice that punishment for crime should be graduated
and proportioned to both the offender and the offense.‖98 This
proportionality analysis implicated two lines of cases. The first
involves ―categorical bans on sentencing practices based on
mismatches between the culpability of a class of offenders and the
severity of a penalty.‖99 In that line of cases, the Court struck
down the death penalty for nonhomicide offenders,100 juveniles,101
and individuals with severe mental disabilities.102 Using similar
reasoning, the Court prohibited LWOP for juveniles who commit
nonhomicide crimes.103 The second line of cases addresses the
mandatory imposition of sentences—in other words, sentencing
schemes that leave the sentencing authority without power to
consider the individual circumstances of the offense or the
offender.104    For example, the Court invalidated statutes
prescribing a mandatory death penalty sentence.105            The


sentencing decisions make clear that a judge or jury must have the
opportunity to consider mitigating circumstances before imposing
the harshest possible penalty for juveniles.‖).
   96   Id. at 2469.
   97   Id.
    Id. at 2463 (quoting Roper, 543 U.S. at 560) (internal quotation
   98

marks omitted).
   99   Id.
   100   Kennedy v. Louisiana, 554 U.S. 407, 469 (2008).
   101   Roper, 543 U.S. at 574–75.
   102   Atkins v. Virginia, 536 U.S. 304, 321 (2002).
   103   Graham, 560 U.S. at 75.
   104   Miller, 132 S. Ct. at 2463–64.
   105Woodson v. North Carolina, 428 U.S. 280, 303 (1976) (plurality
opinion).



                                      25
                            STATE v. HOUSTON
                          Opinion of the Court

confluence of these two lines of precedent led the Miller Court to
strike down Alabama‘s mandatory sentencing scheme imposing
LWOP. The Court held that, as applied to juveniles, the
punishment was severe and Alabama‘s statute did not allow for
the consideration of possible mitigating factors.106 Therefore, the
Court concluded that mandatory LWOP sentences for juveniles
could not be sustained under the Eighth Amendment.107
    ¶ 58 Drawing from evidence in Graham and Roper, the Court
explained that juveniles ―are constitutionally different from adults
for purposes of sentencing.‖108 This is because ―juveniles have
diminished culpability and greater prospects for reform,‖ and
thus ―they are less deserving of the most severe punishments.‖109
Roper and Graham identified three areas of ―significant gaps‖
distinguishing juveniles from adults:
         First, children have a ―lack of maturity and
         underdeveloped sense of responsibility,‖ leading to
         recklessness, impulsivitity, and heedless risk-taking.
         Second, children ―are more vulnerable . . . to
         negative influences and outside pressures,‖
         including from their family and peers; they have
         limited ―contro[l] over their own environment‖ and
         lack the ability to extricate themselves from horrific,
         crime-producing settings.       And third, a child‘s
         character is not as ―well formed‖ as an adult‘s; his
         traits are ―less fixed‖ and his actions less likely to be
         ―evidence of irretrievabl[e] deprav[ity].‖110
These conclusions were informed by science and social science
research, including longitudinal studies and brain mapping.111
These decisions also recognized that ―the distinctive attributes of


   106   Miller, 132 S. Ct. at 2468–69.
   107   Id. at 2475.
   108   Id. at 2464.
   109   Id. (internal quotation marks omitted).
   110  Id. (alterations in original) (citations omitted) (quoting
Roper, 543 U.S. at 569–70) (internal quotation marks omitted).
   111   Id. at 2464–65, 2465 n.5.



                                     26
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                           Opinion of the Court

youth diminish the penological justifications‖ for punishment,
particularly regarding rehabilitation and retribution.112
    ¶ 59 But despite this evidence about the characteristics of
youth, the Supreme Court has nonetheless narrowly limited its
decisions. In Graham, the Court applied its ban on LWOP for
juveniles only where the underlying offense was a nonhomicide
crime.113    The Court distinguished homicide crimes from
nonhomicide crimes on the basis of ―both moral culpability and
consequential harm.‖114 Similarly, Miller declined to adopt a
categorical bar to LWOP for juveniles; instead, the Court
foreclosed only mandatory LWOP sentences because such
sentences ―prohibit a sentencing authority from assessing whether
the law‘s harshest term of imprisonment proportionately punishes
a juvenile offender.‖115 And the Court recognized that there could
be ―appropriate occasions‖ for imposing LWOP on a juvenile
offender, rare as those circumstances may be.116 Moreover, the
Court explained that it did ―not foreclose a sentencer‘s ability to
[impose LWOP] in homicide cases,‖ so long as the sentencer
―take[s] into account how children are different, and how those
differences counsel against irrevocably sentencing them to a
lifetime in prison.‖117 Thus, though the penological justifications
for LWOP may be diminished for a juvenile compared to an adult,
such a sentence is not without justification in our criminal
sentencing scheme.
   ¶ 60 We therefore agree with the Supreme Court and with the
dissent118 that juveniles represent a unique class warranting
special considerations in sentencing. We believe that the unique
characteristics of youth are accounted for, both by Utah law and
through federal constitutional protections. We note again that


   112   Id. at 2465.
   113   560 U.S. at 82.
   114   Miller, 132 S. Ct. at 2465 (citing Graham, 560 U.S. at 69–70).
   115   Id. at 2466.
   116   Id. at 2469.
   117   Id.
   118   Infra ¶ 258.



                                    27
                             STATE v. HOUSTON
                            Opinion of the Court

juveniles are not eligible for the death penalty, regardless of the
offense committed, under both Utah law119 and the Supreme
Court‘s decision in Roper.120 Similarly, state law121 and federal
precedent122 prohibit LWOP for juveniles who commit a
nonhomicide crime. And finally, as required by Miller, Utah‘s
sentencing statute does not impose a mandatory LWOP sentence
on juveniles.123 Instead, the statute provides a presumptive
sentence of twenty years; LWOP may be imposed only if ten or
more jurors agree it is appropriate.124
    ¶ 61 Importantly, our statutory scheme enables the kind of
individualized sentencing determination that the Supreme Court
has deemed necessary for serious offenses. Utah Code section
76-3-207 permits the sentencer to consider any and all relevant
factors which would affect the sentencing determination. The
statute directs the sentencing authority to consider aggravating
circumstances and mitigating factors, and it specifically provides
a nonexhaustive list of each to aid the sentencer.125 In fact, the
statute specifically directs the sentencer to consider ―the youth of
the defendant at the time of the crime.‖126 We thus conclude that
the statute meets the ―requirement of individualized sentencing
for defendants facing the most serious penalties,‖127 and places
particular emphasis on youth as a mitigating factor.




   119   UTAH CODE § 76-5-202(3)(e).
   120   543 U.S. 551.
   121 See, e.g., UTAH CODE § 76-5-302(6) (removing the possibility
of LWOP for juveniles charged with aggravated kidnapping); id.
§ 76-5-402(3)(b)(ii) (same for rape); id. § 76-5-405(b) (same for
aggravated sexual assault).
   122   Graham, 560 U.S. at 74.
   123   UTAH CODE § 76-3-207(5)(c) (2008).
   124   Id.
   125   Id. § 76-3-207(3), (4).
   126   Id. § 76-3-207(4)(e).
   127   Miller, 132 S. Ct. at 2460.



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                        Cite as: 2015 UT 36
                        Opinion of the Court

    ¶ 62 We are not alone in this conclusion. The Supreme Court
has explained that ―[i]n considering categorical bars to . . . life
without parole, we ask as part of the analysis whether objective
indicia of society‘s standards, as expressed in legislative
enactments and state practice, show a national consensus against
a sentence for a particular class of offenders.‖128 As the dissent
notes, a great majority of states as well as the federal system
permit LWOP sentences for juveniles.129 As of 2010, thirty-nine
states allowed such sentences130 while only six jurisdictions
affirmatively prohibited them.131 In looking to these as an
indication of society‘s standards, we cannot conclude that the
―national consensus‖ favors the prohibition of LWOP for juveniles
convicted of homicide.
   ¶ 63 In sum, we conclude that imposing LWOP on a juvenile
convicted of homicide does not violate the Eighth Amendment‘s
prohibition on cruel and unusual punishments. We therefore
deny Mr. Houston‘s challenge under the United States
Constitution.
2. Cruel and Unusual Punishments Clause of the Utah
   Constitution
    ¶ 64 We next turn to article I, section 9 of the Utah
Constitution, which provides that ―cruel and unusual
punishments [shall not] be inflicted.‖ In State v. Lafferty, we held
that ―[a] criminal punishment is cruel and unusual under article I,
section 9 if it is so disproportionate to the offense committed that
it shock[s] the moral sense of all reasonable men as to what is
right and proper under the circumstances.‖132 The concurrence

   128 Id. at 2470 (quoting Graham, 560 U.S. at 61; Roper, 543 U.S. at
563) (internal quotation marks omitted).
   129   Infra ¶ 271.
   130Brief for Petitioner, Jackson v. Hobbs, 132 S. Ct. 2455 (2012)
(No. 10-9647), 2012 WL 92506, at *1a (combined case with Miller v.
Alabama).
     Graham, 560 U.S. at 82 (Alaska, Colorado, Montana, Kansas,
   131

Kentucky, and Texas).
   132 Lafferty, 2001 UT 19, ¶ 73 (second alteration in original)
(internal quotation marks omitted).


                                 29
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                          Opinion of the Court

concludes that this determination merits no deference and should
be repudiated because it is ―an unworkable standard.‖133 We do
not agree. The basic concept of article I, section 9 flows from the
precept of justice that punishment should be graduated and
proportioned to both the offender and the offense. Like the
Supreme Court, we recognize that ―[w]hile the State has the
power to punish,‖ we must ―assure that this power be exercised
within the limits of civilized standards.‖134 Fines, imprisonment,
and even execution may be imposed depending upon the
enormity of the crime.
    ¶ 65 Moreover, it would be inappropriate for us to deviate
from our prior jurisprudence in the present case. Both the State
and Mr. Houston have relied on the standard announced in
Lafferty, and they have grounded their arguments in discussions
of proportional punishment. The parties have not asked this court
to consider the interpretation Justice Lee now advocates, and
therefore the court does not have the benefit of adversarial
briefing on the issue. As a general rule, we decline to rule or
opine on issues that are not briefed by the parties.135 We therefore


   133  Infra ¶ 138. The concurrence bases its argument ―most
fundamentally‖ on the fact that ―no majority opinion of this court
has ever employed a state standard of proportionality that is
distinct from the federal standard.‖ Infra ¶ 142; see also infra ¶ 145
(arguing that because we have treated the state and federal
standards as indistinguishable, there is ―no independent
significance [for] the state standard‖ and ―thus no basis for stare
decisis reliance‖). We fail to see how this supports the view that
our prior pronouncements warrant no respect. While we are
certainly not required to adopt a federal interpretation for our
state provision, we likewise are not forbidden from doing so. Our
jurisprudence does not garner precedential weight if, and only if,
we adopt a standard that diverges from federal practice. Such a
view contradicts our long-standing practice of looking to federal
interpretation for guidance.
   134   Trop, 356 U.S. at 100.
     See Utah Safe to Learn–Safe to Worship Coal., Inc. v. State, 2004
   135

UT 32, ¶ 19, 94 P.3d 217 (―The courts are not a forum for hearing
academic contentions or rendering advisory opinions.‖ (internal
                                                               (con‘t.)

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find no reason to depart from the proportionality standard
employed in Lafferty.136
    ¶ 66 Because we conclude that a punishment must be
proportionate to the offense, we look to federal decisions as a
guide in determining whether ―a particular punishment is cruelly
inhumane or disproportionate.‖137 We therefore look to the
characteristics of juveniles that set them apart from adult
offenders. We again acknowledge the unique characteristics of
youth—its impetuosity, vulnerability to outside influence, and
potential for change.138 We also consider the penological goals of
the sentence, recognizing that they may be diminished in the case
of juveniles.139 But we do not conclude that these circumstances
render LWOP cruel and unusual for juveniles as a class. Under
Utah law, this severe sentence is only permitted for the gravest of
offenses and requires at least ten members of the jury to


quotation marks omitted)); State v. Ball, 685 P.2d 1055, 1061 (Utah
1984) (declining to consider the scope of a state constitutional
provision when the issues were not briefed by the parties because
they ―deserve thorough treatment by counsel and careful
consideration by the Court‖); see also Winward v. State, 2012 UT 85,
¶ 18 n.4, 293 P.3d 259 (recognizing that it would be ―imprudent to
now resolve [an] extremely important issue without the benefit of
adversarial briefing‖); State v. Baker, 2010 UT 18, ¶ 57, 229 P.3d 650
(―[W]here the law . . . is unsettled and we are without the benefit
of adversarial briefing on the subject, we would be ill-advised to
resolve this case on that basis.‖).
   136 We also note that our conclusion that Mr. Houston‘s
sentence does not violate proportionality principles, see infra
¶¶ 66–67, ultimately renders a decision on which standard to
apply unnecessary in this case. Mr. Houston‘s challenge fails
regardless of whether we apply the Lafferty proportionality
analysis or Justice Lee‘s more limited originalist approach, infra
¶ 210.
   137 Lafferty, 2001 UT 19, ¶ 74 (internal quotation marks
omitted).
   138   See Miller, 132 S. Ct. at 2464.
   139   Id. at 2465.



                                     31
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                           Opinion of the Court

determine that, given the circumstances of the crime and the
offender‘s background, LWOP is appropriate. Moreover, we note
that a majority of our sister states as well as the federal system
permit LWOP for juveniles convicted of the most heinous
crimes.140 Applying a proportionality analysis, we conclude that
the imposition of LWOP for juveniles convicted of homicide does
not violate the Utah Constitution.
   ¶ 67 We reiterate the hope expressed by the Supreme Court
that LWOP sentences for juveniles will be rare.141 It is the most
severe sentence a judge or jury can impose on a juvenile, and it
should be carefully considered and reserved for only the most
severe crimes and most incorrigible juvenile offenders. But
where, as here, we find no constitutional violation, we may not
―substitute our judgment for that of the legislature regarding the
wisdom of a particular punishment.‖142 We therefore hold that
Mr. Houston has not demonstrated that his LWOP sentence
violates the cruel and unusual punishments clauses of either the
Utah or United States Constitution.
   ¶ 68 Because we reject each of Mr. Houston‘s constitutional
challenges to his sentence of life without parole, we conclude that
Mr. Houston has failed to demonstrate that his sentence was
unconstitutional and therefore illegal under Utah Rule of Criminal
Procedure 22(e).
          III. MR. HOUSTON HAS FAILED TO ESTABLISH
                 THAT HIS COUNSEL RENDERED
                    INEFFECTIVE ASSISTANCE
    ¶ 69 On appeal, Mr. Houston presents seven claims of
ineffective assistance of counsel during his sentencing proceeding.
First, Mr. Houston argues that his counsel was ineffective for not
objecting to certain statements made by the prosecutor in closing
argument, and alternatively that the trial court plainly erred in
failing to intervene. Second, he contends that his counsel was
ineffective in failing to find and call certain mitigation expert
witnesses. Third, Mr. Houston claims that his counsel was

   140   Supra ¶ 62.
   141   See Miller, 132 S. Ct. at 2469.
   142   Mace, 921 P.2d at 1377–78.



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deficient in conducting voir dire. Fourth, Mr. Houston argues
that his counsel was ineffective for failing to seek a change of
venue. Fifth, he claims his counsel was deficient for not objecting
to certain testimony at the proceeding. Sixth, Mr. Houston
contends that his counsel was deficient for not objecting to certain
jury instructions. Finally, Mr. Houston argues that even if none of
these errors alone is enough to constitute ineffective assistance of
counsel, the cumulative effect of the errors should nonetheless
undermine our confidence in the result of his sentencing
proceeding. We determine that Mr. Houston has not established
that his counsel provided ineffective assistance.
    ¶ 70 The right to counsel under the Sixth Amendment to the
United States Constitution includes ―the right to the effective
assistance of counsel.‖143 In Strickland v. Washington, the United
States Supreme Court announced the two-part test for ineffective
assistance of counsel claims.144 First, the defendant must show
that ―his counsel rendered a deficient performance in some
demonstrable manner, which performance fell below an objective
standard of reasonable professional judgment.‖145 Second, the
defendant must demonstrate ―that counsel‘s performance
prejudiced the defendant.‖146 We have acknowledged ―the
variety of circumstances faced by defense counsel [and] the range
of legitimate decisions regarding how best to represent a criminal
defendant.‖147 As a result, ―we must indulge in a strong
presumption that counsel‘s conduct [fell] within the wide range of
reasonable professional assistance, and that, under the




   143 McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); accord
State v. Templin, 805 P.2d 182, 186 (Utah 1990).
   144   466 U.S. 668, 687 (1984).
   145   Id.; accord Archuleta v. Galetka, 2011 UT 73, ¶ 38, 267 P.3d
232.
   146Archuleta, 2011 UT 73, ¶ 38 (internal quotation marks
omitted).
   147 Templin, 805 P.2d at 186 (alteration in original) (internal
quotation marks omitted).



                                     33
                        STATE v. HOUSTON
                      Opinion of the Court

circumstances, the challenged action might be considered sound
trial strategy.‖148
   ¶ 71 With this framework in mind, we now address each of
Mr. Houston‘s ineffective assistance of counsel claims.
     A. Mr. Houston Has Failed to Demonstrate that His Counsel
         Was Ineffective when Counsel Did not Object to the
          Prosecutor’s Closing Argument or that the Trial
             Court Plainly Erred by Failing to Intervene
    ¶ 72 Mr. Houston argues that his counsel rendered ineffective
assistance when counsel failed to object to statements made in the
closing argument. Alternatively, Mr. Houston contends that the
trial court committed plain error for allowing the statements
during closing argument.149     Mr. Houston fails to make either
showing.
    ¶ 73 During the sentencing proceeding, Mr. Houston‘s expert
neuropsychologist testified that another doctor had diagnosed
Mr. Houston with a ―conduct disorder‖ when he was an
adolescent. On cross-examination, the prosecution asked the
neuropsychologist if she, too, had concluded that Mr. Houston
had a conduct disorder. The neuropsychologist explained that
she did not conclude that Mr. Houston suffered from a conduct
disorder because Mr. Houston was an adult when she evaluated
him and ―conduct disorder‖ is not an available diagnosis for an
adult. The prosecutor then asked the neuropsychologist if she
believed     that   Mr. Houston     was    ―antisocial.‖      The
neuropsychologist testified that Mr. Houston may show signs of
being antisocial, but ultimately she did not conclude that he met
the test for an antisocial diagnosis. The neuropsychologist also
testified that she did not believe Mr. Houston suffered from
psychopathy. In supporting her opinion, the neuropsychologist
contrasted Mr. Houston with the well-known serial killer and
psychopath Ted Bundy.


   148State v. Lenkart, 2011 UT 27, ¶ 25, 262 P.3d 1 (alteration in
original) (internal quotation marks omitted).
   149  Mr. Houston raises this argument under the plain error
doctrine because he acknowledges that it was not preserved. See
State v. Weaver, 2005 UT 49, ¶ 18, 122 P.3d 566.



                                34
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   ¶ 74 In closing argument, the prosecution emphasized the
conduct disorder that Mr. Houston was diagnosed with as a child.
Mr. Houston argues the State erroneously claimed that
Mr. Houston still has the conduct disorder:
         I think it is important that you look at [the conduct
         disorder] diagnosis, because what does it say? That
         diagnosis says, yeah, [Mr. Houston] has depression,
         but he has a conduct disorder. That means he‘s a
         violent character. He‘s a criminal. And they had to
         take that into consideration as they dealt with him.
Then the prosecution challenged the neuropsychologist‘s
conclusion that Mr. Houston did not suffer from antisocial
behavior as an adult:
         [The defense] expert didn‘t even look at [the conduct
         disorder] as antisocial behavior, . . . didn‘t even say
         that it was [antisocial] despite the fact that [Mr.
         Houston] had committed three violent acts.
    ¶ 75 Mr. Houston argues that his counsel was ineffective in
failing to object to these statements. According to Mr. Houston,
the State‘s closing argument was ―incorrect and inflammatory‖
because the State ―effectively argued—with no basis in the record
whatsoever—that [Mr.] Houston is antisocial pathologic,
incurably violent.‖ By not objecting, moving to strike, or in any
way addressing these statements, Mr. Houston contends that
counsel left the jury ―free to equate [Mr.] Houston with Ted
Bundy.‖ We disagree with Mr. Houston‘s characterization and
conclusions.
    ¶ 76 First, Mr. Houston‘s counsel did not render ineffective
assistance when he did not object to the prosecutor‘s statements.
We have recognized that ―[c]ounsel for both sides have
considerable latitude in their closing arguments. They have the
right to fully discuss from their perspectives the evidence and all
inferences and deductions it supports.‖150          Moreover, ―[a]
prosecutor has the duty and right to argue the case based on the
total picture shown by the evidence.‖151 When we review an


   150   State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989).
   151   State v. Hales, 652 P.2d 1290, 1291 (Utah 1982) (internal
                                                                   (con‘t.)

                                    35
                           STATE v. HOUSTON
                          Opinion of the Court

attorney‘s failure to object to a prosecutor‘s statements during
closing argument, the question is ―not whether the prosecutor‘s
comments were proper, but whether they were so improper that
counsel‘s only defensible choice was to interrupt those comments
with an objection.‖152 Here, we conclude that the prosecutor
appropriately exercised his discretion to emphasize Mr. Houston‘s
childhood diagnosis of conduct disorder, and to challenge the
defense expert‘s conclusion that Mr. Houston did not suffer from
an antisocial behavior disorder as an adult. The record contained
evidence that Mr. Houston was a violent offender and had
extensive history with the criminal justice system. The prosecutor
was free to draw on this record evidence and question the
conclusions of Mr. Houston‘s expert. The jury was informed that
what lawyers ―say during their closing arguments is not
evidence‖ and that the members of the jury should rely ―on [their]
memory of the evidence‖ in reaching a sentencing decision.
None of the prosecutor‘s statements were so inflammatory that
―counsel‘s only defensible choice was to interrupt those
comments with an objection.‖153
   ¶ 77 We also disagree that the court plainly erred when it did
not address the prosecutor‘s statements. We do not impose a
duty on the courts ―to constantly survey or second-guess the
nonobjecting party‘s best interests or trial strategy.‖154 As stated
above, the prosecutor was free to emphasize Mr. Houston‘s past
diagnosis. The prosecutor was also free to challenge the defense
expert‘s conclusion that Mr. Houston was not antisocial.
    ¶ 78 Because we determine that neither Mr. Houston‘s
counsel nor the trial judge had an obligation to object to the State‘s
closing argument, we conclude that Mr. Houston has failed to
meet his burden to show that the prosecutor‘s statements
necessitate reversal.



quotation marks omitted).
   152Bussard v. Lockhart, 32 F.3d 322, 324 (8th Cir. 1994)
(emphasis added).
   153   Id.
   154   State v. Labrum, 925 P.2d 937, 939 (Utah 1996).



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         B. Mr. Houston Has Failed to Show that His Counsel Was
          Ineffective in Selecting and Presenting Expert Witnesses
    ¶ 79 Mr. Houston‘s second claim of ineffective assistance of
counsel concerns his attorney‘s selection and presentation of
expert witnesses relevant to Mr. Houston‘s mitigation defense.
Specifically, Mr. Houston claims that his counsel was ineffective
in ―failing to retain experts qualified to (1) tell the jury why youth
is a mitigating factor, (2) rebut self-serving testimony about the
supervision provided at YHA, which fatally undermined
counsel‘s primary theory, and (3) testify as to risk mitigation and
rebut the state‘s future dangerousness theme.‖
    ¶ 80 ―[C]ounsel‘s decision to call or not to call an expert
witness is a matter of trial strategy, which will not be questioned
and viewed as ineffectiveness unless there is no reasonable basis
for that decision.‖155 Thus, to demonstrate that his counsel was
ineffective in retaining and presenting expert witnesses,
Mr. Houston must ―rebut the strong presumption that under the
circumstances, [counsel‘s] action might be considered sound trial
strategy.‖156 This is because there are ―countless ways to provide
effective assistance in any given case,‖ and ―[e]ven the best
criminal defense attorneys would not defend a particular client in
the same way.‖157
    ¶ 81 At the sentencing proceeding, Mr. Houston‘s counsel
called a forensic neuropsychologist to testify about Mr. Houston‘s
mental and emotional development. She explained to the jury
that there were available treatments to help Mr. Houston confront
his mental and emotional issues and to stop his violent reactions
to his life circumstances. Our review of the record demonstrates
that Mr. Houston‘s counsel did not act unreasonably in calling
this qualified expert witness or in declining to call any additional
expert witnesses on the same issue.




   155   State v. Tyler, 850 P.2d 1250, 1256 (Utah 1993).
   156Taylor v. State, 2007 UT 12, ¶ 73, 156 P.3d 739 (internal
quotation marks omitted).
   157   Strickland, 466 U.S. at 689.



                                        37
                           STATE v. HOUSTON
                          Opinion of the Court

1. Mr. Houston Has Failed to Demonstrate that His Counsel Was
   Ineffective for not Calling a Human Development Expert
    ¶ 82 Mr. Houston first argues that his counsel should have
called a ―human development‖ expert to testify about the effects
of youth on the decision-making process. While such testimony
may have been helpful to Mr. Houston‘s defense, we conclude
that this testimony was not required, and it certainly was not
ineffective for Mr. Houston‘s counsel not to retain an expert on
this topic.
    ¶ 83 We have stated before that expert testimony is most
helpful to explain topics that are ―beyond the common knowledge
of ordinary jurors.‖158       Mr. Houston‘s counsel could have
reasonably concluded that the jurors would understand from life
experience that a seventeen-year-old‘s decision-making is not as
reasoned as that of an adult. Moreover, throughout the sentencing
procedure, Mr. Houston‘s counsel emphasized his youth in a
manner that fell within the wide range of professionally
competent assistance. Therefore, it was not essential for counsel
to retain an expert on this issue.
2. Mr. Houston Has Failed to Demonstrate that His Counsel Was
   Ineffective in Deciding not to Call an Expert to Testify About
   YHA‘s Failure to Treat and Supervise Mr. Houston
    ¶ 84 Mr. Houston next argues that his counsel was ineffective
in failing to call an expert to testify that YHA‘s failure to properly
treat and supervise Mr. Houston was the proximate cause of
R.E.‘s murder. Mr. Houston argues that the result of his
sentencing proceeding would have been different had his counsel
called an expert to testify that had ―YHA followed industry
standards, or enforced its own policies, the crime would not have
occurred.‖ Our review of the record indicates that this claim fails
for two reasons.
    ¶ 85 First, like Mr. Houston‘s prior claim, no expert was
needed to present to the jury facts related to YHA‘s deficient
treatment and supervision of Mr. Houston because such facts
were not beyond the common knowledge of the jurors. During
the proceeding, defense counsel successfully elicited this


   158   State v. Clopten, 2009 UT 84, ¶ 32, 223 P.3d 1103.



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information through questioning of the YHA staff members as
well as Mr. Houston‘s case worker.159 For example, the jury heard
evidence that YHA did not realize that Mr. Houston was skipping
school; that Mr. Houston was engaged in sexual activity that may
have resulted in his girlfriend‘s pregnancy; that Mr. Houston‘s
therapist told YHA that she could not contact Mr. Houston for
several months; and that Mr. Houston‘s mother was upset with
the lack of communication from YHA. Thus, the jury was in a
position to consider evidence of YHA‘s lack of supervision and
treatment.
    ¶ 86 Second, given that testimony concerning YHA‘s
treatment and supervision was already introduced at the
proceeding, it is difficult for us to see how Mr. Houston‘s
counsel‘s decision not to present expert testimony on this issue
was unreasonable. Our review of the record demonstrates that
counsel‘s decision not to seek an expert on this issue was the
result of a strategic move consistent with the defense‘s theory that
Mr. Houston deserved mercy in sentencing for having pleaded
guilty and accepting responsibility for his own actions.
Presenting an expert to blame Mr. Houston‘s crime on the YHA
staff would have contradicted this theory.160 We therefore
conclude that Mr. Houston has failed to demonstrate ineffective
assistance of counsel regarding this issue.
3. Mr. Houston Has Failed to Demonstrate that His Counsel Was
   Ineffective in Failing to Call a Different Risk Mitigation Expert
    ¶ 87 Mr. Houston also argues that his counsel should have
called a different expert to address risk mitigation because the
expert that Mr. Houston‘s counsel called was not sufficiently
qualified to address these issues. Mr. Houston argues that had
this testimony been presented to the jury, it would have made a

   159  See State v. Walker, 2010 UT App 157, ¶ 16, 235 P.3d 766
(noting expert testimony is not critical when same information can
be elicited on cross-examination).
   160 See Strickland, 466 U.S. at 689 (noting that to succeed on an
ineffective assistance of counsel claim, ―the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy‖
(internal quotation marks omitted)).



                                39
                        STATE v. HOUSTON
                       Opinion of the Court

difference in the outcome of his case because it would have
rebutted the State‘s ―powerful future dangerousness‖ argument.
Again, we disagree.
    ¶ 88 Our review of the record indicates that the expert
Mr. Houston‘s counsel called was a licensed neuropsychologist
with extensive experience in evaluating criminal defendants. She
has a bachelor‘s degree in psychology and biology, and master‘s
and doctoral degrees and postdoctoral training in neurobiology.
She has evaluated criminal defendants since 1987, and has treated
individuals with obsessive disorders and sexual dysfunctions
since 1979. This experience indicates that the neuropsychologist
was fully qualified to testify as an expert in this case.
Mr. Houston has failed to demonstrate that his counsel‘s decision
to call and rely on her testimony was unreasonable.
    ¶ 89 Mr. Houston has also failed to demonstrate that the
neuropsychologist‘s performance was anything but thorough and
competent. The record indicates that the neuropsychologist
testified extensively about Mr. Houston‘s troubled background
and the impact it had on his mental health. Although she testified
that Mr. Houston was troubled, she also testified that current
medications could treat his disorders and could ―really make a
difference‖ in his mental and behavioral health.                The
neuropsychologist also described in detail how Mr. Houston
could benefit from cognitive behavioral therapy and how this
type of therapy could help him to develop skills to stop his violent
thoughts and reactions.         We thus conclude that the
neuropsychologist adequately addressed the issue of risk
mitigation and Mr. Houston‘s future dangerousness, and it was
not unreasonable for Mr. Houston‘s counsel to rely on her
testimony as sufficient.
    ¶ 90 At its core, we conclude that Mr. Houston‘s expert
testimony claims are merely an assertion that appellate counsel
would have called and retained different experts than those trial
counsel decided to present to the jury. But we ―will not review
counsel‘s tactical decisions simply because another lawyer, e.g.,
appellate counsel, would have taken a different course.‖161


   161Parsons v. Barnes, 871 P.2d 516, 524 (Utah 1994) (internal
quotation marks omitted).



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                          Opinion of the Court

Mr. Houston‘s counsel relied on a common understanding of
youth and an expert‘s opinion of Mr. Houston‘s mental condition
instead of calling an expert to explain general development in
youth. And his counsel properly questioned YHA staff members
to introduce evidence of its inadequate supervision instead of
calling an expert to criticize it. These strategic decisions were not
deficient and did not deprive Mr. Houston of his constitutional
right to counsel. We therefore conclude that Mr. Houston has
failed to prevail on any of his claims that his counsel rendered
ineffective assistance in seeking, retaining, and presenting expert
testimony at the sentencing proceeding.
           C. Mr. Houston Has Failed to Show His Counsel Was
                Ineffective During Voir Dire Questioning
    ¶ 91 Mr. Houston‘s next ineffective assistance of counsel
claim centers on his counsel‘s questioning during the initial juror
interviews. Mr. Houston contends that his ―[c]ounsel displayed a
remarkable ignorance of the law, and rendered extraordinarily
ineffective assistance when, during initial juror interviews,
[counsel] surrendered the presumption favoring [a sentence of]
life with parole.‖ Specifically, Mr. Houston argues that by asking
the jurors if they could ―equally‖ consider imposing a sentence of
life with parole and life without parole, Mr. Houston‘s counsel
abandoned the directive that a juror should sentence a defendant
to life with parole unless the State demonstrates that a sentence of
life in prison without parole is more appropriate given the
defendant‘s particular case. According to Mr. Houston, by failing
to emphasize the favorable sentencing presumption, ―the jurors
were free to vote for life without parole based upon any
inclination, no matter how slight,‖ and ―this certainly undermines
confidence in the result.‖ We disagree.
    ¶ 92 We recognize the importance of voir dire questioning as
―essential to choosing an impartial jury, and an impartial jury is as
essential to a fair trial as is an impartial judge.‖162 Indeed, ―[v]oir
dire is intended to provide a tool for counsel . . . to carefully and
skillfully determine, by inquiry, whether biases and prejudices,
latent as well as acknowledged, will interfere with a fair trial if a



   162   State v. Saunders, 1999 UT 59, ¶ 33, 992 P.2d 951.



                                    41
                            STATE v. HOUSTON
                          Opinion of the Court

particular juror serves in it.‖163 While the jury selection process is
of great importance, there are many ways to effectively question
jurors, and there ―are a multitude of inherently subjective factors
typically constituting the sum and substance of an attorney‘s
judgments about prospective jurors.‖164 Given that ―jury selection
is more art than science,‖165 ―trial counsel should be given
considerable latitude in asking voir dire questions, especially in
view of the fact that only counsel will, at the beginning, have a
clear overview of the entire case and the type of evidence to be
adduced.‖166 Thus, when reviewing an attorney‘s questioning
and decision to keep or remove a particular juror, we must
presume that counsel‘s choices were objectively reasonable, ―the
product of a conscious choice or preference,‖ and ―constitute
effective representation.‖167 Mr. Houston has failed to rebut this
presumption.
    ¶ 93 First, Mr. Houston has failed to show that there was
anything unreasonable about his counsel‘s questioning of the
jurors.     During voir dire, Mr. Houston‘s counsel actively
participated and asked the jurors a series of questions to probe
their ability to serve as impartial jurors. These questions included
whether the individuals could consider the life with parole and
life without parole sentences equally, and whether they thought
one sentence was too severe or one was too lenient. Our review of
the record demonstrates that all of the jurors selected expressed
openness to imposing either sentence presented to them and that
they were committed to hearing all the evidence before making a
decision.168 And the excerpts cited by Mr. Houston in his brief


   163   Id. ¶ 34 (internal quotation marks omitted).
   164   State v. Litherland, 2000 UT 76, ¶ 21, 12 P.3d 92.
   165   Id.
   166Saunders, 1999 UT 59, ¶ 34 (internal quotation marks
omitted).
   167   Litherland, 2000 UT 76, ¶ 20.
   168For example, when Mr. Houston‘s counsel asked one juror
whether life without parole was too severe, or if she felt life with
parole was too light, she responded, ―Depends on what you guys
present in front of us.‖ In response to a similar question, another
                                                               (con‘t.)

                                    42
                        Cite as: 2015 UT 36
                       Opinion of the Court

only bolster this conclusion. We determine that this openness
does not mean the jurors were unable or unwilling to impose the
presumptive sentence of life with parole, it simply indicates their
ability and willingness to serve impartially.
    ¶ 94 Second, we conclude that any confusion that may have
resulted from Mr. Houston‘s counsel‘s questions to the jurors was
cured by the trial court‘s jury instruction to apply a presumption
of life with parole, and by counsel‘s closing argument, which also
emphasized this directive.        Immediately before conducting
individual jury voir dire, the trial court advised the prospective
jurors that the law favored a sentence of life with parole over life
without parole:
      The jury will be presented with evidence for and
      against a penalty of life in prison without parole. It
      is presumed that an indeterminate prison term of
      not less than 20 years and which may be for life will
      be imposed upon the defendant unless the State
      persuades you that a penalty of life in prison
      without parole is the appropriate sentence in this
      case.
   ¶ 95 During closing argument, Mr. Houston‘s counsel
reminded the jury that the presumptive sentence was life with
parole and that the State bore the burden of persuading the jury
that life without parole was the appropriate sentence. Finally, at
the conclusion of the sentencing proceeding, the court instructed
the jury that ―[t]he penalty of life without parole should only be
imposed if the jury determines that such a sentence is
appropriate‖ and that the ―burden rests upon the State to
persuade [the jury] that a sentence of life in prison without parole


juror responded, ―I think you have to learn what the
circumstances are. You know, you really can‘t judge the person
unless you hear all the details.‖ Other jurors explained that they
would consider either sentence appropriate ―depending on the
circumstances,‖ or ―depending on what we hear‖ about the
evidence. Similarly, other jurors noted that they were willing to
consider ―either [sentence] fairly‖ and that before the evidence
was presented they ―couldn‘t say one way or the other right
now.‖



                                43
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                           Opinion of the Court

is the appropriate sentence in this case.‖ We are convinced that
these instructions and reminders from counsel and the court were
sufficient to cure any misperceptions that may have been created
during Mr. Houston‘s counsel‘s voir dire questioning.169 Having
concluded that Mr. Houston‘s counsel did not act unreasonably
during voir dire questioning and that Mr. Houston has failed to
show any prejudice from his performance, we reject this
ineffective assistance of counsel claim.
         D. Mr. Houston Has Failed to Show His Counsel Rendered
         Ineffective Assistance by Failing to Seek a Change of Venue
    ¶ 96 Mr. Houston claims that his attorney rendered
ineffective assistance of counsel by failing to seek a change of
venue, or to ―even conduct a venue analysis‖ in Mr. Houston‘s
case. Specifically, Mr. Houston contends that the negative pretrial
media attention surrounding his case—including reports of
gruesome details about the crime, sympathetic stories about the
victim and her family, and ―community outcry‖ against violent
sex offenders—made it impossible for Mr. Houston to have a fair
proceeding in Davis County. We disagree.
    ¶ 97 Under Utah Rule of Criminal Procedure 29, a defendant
who ―believes that a fair and impartial trial cannot be had in the
jurisdiction where the action is pending‖ may ―ask to have the
trial of the case transferred to another jurisdiction.‖170 Whether
counsel should seek a change of venue is a question that must be
evaluated under the ―totality of the circumstances.‖ 171 Relevant
considerations may include ―(1) the standing of the victim and the
accused in the community; (2) the size of the community; (3) the
nature and gravity of the offense; and (4) the nature and extent of
publicity.‖172 However, recognizing the benefits of hindsight, in
posttrial evaluation ―the determinative question is whether [the]



   169See State v. Menzies, 889 P.2d 393, 401 (Utah 1994) (noting
that an appellate court will ―generally presume that a jury will
follow the instructions given [to] it‖).
   170   UTAH R. CRIM. P. 29(d)(1).
   171   State v. James, 767 P.2d 549, 552 (Utah 1989).
   172   Id.



                                      44
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                       Opinion of the Court

defendant was ultimately tried by a fair and impartial jury.‖173
This is because ―pretrial publicity—even pervasive, adverse
publicity—does not inevitably lead to an unfair trial.‖174 And
when a defendant challenges counsel‘s decision to seek a change
of venue, the defendant must show that the pretrial media
coverage was so prejudicial that it was objectively unreasonable
for his counsel not to seek a change in venue.175 Mr. Houston has
not made this showing.
    ¶ 98 Counsel selected twelve jurors and two alternates. The
record demonstrates that five of the jurors selected had no
knowledge of Mr. Houston and were not exposed to any
information about the crimes committed. Of the nine jurors who
had heard of the crime, seven indicated that they had not formed
an opinion about what Mr. Houston‘s punishment should be, and
two indicated that they had formed opinions.           However,
subsequent explanations from those two jurors revealed that they
had only formed an opinion about Mr. Houston‘s guilt—an issue
that, because of Mr. Houston‘s plea, was not in dispute. Those
jurors thus had not predetermined what Mr. Houston‘s
punishment should be, only that some form of punishment was
appropriate. Both jurors indicated that they could rely on the
evidence to determine the appropriate sentence and would be fair
and impartial in their decision-making.176             Moreover,


   173Lafferty v. State, 2007 UT 73, ¶ 42, 175 P.3d 530 (alteration in
original) (internal quotation marks omitted).
   174Codianna v. Morris, 660 P.2d 1101, 1111 (Utah 1983) (quoting
Neb. Press Ass’n v. Stuart, 427 U.S. 539, 554 (1976)) (internal
quotation marks omitted).
   175 See Archuleta, 2011 UT 73, ¶ 38 (stating that a defendant
must show both objectively deficient performance and prejudice
to prevail on a claim of ineffective assistance of counsel).
   176 During voir dire, one of the two jurors explained that she
did not really understand the question because she did not realize
until later that Mr. Houston had pleaded guilty. She stated that
she did not have any opinion about what his sentence should be
because ―you have to learn what the circumstances are. . . . [Y]ou
can‘t judge the person unless you hear all the details.‖ The other
juror explained that she had not formed an opinion because ―I
                                                               (con‘t.)

                                 45
                         STATE v. HOUSTON
                       Opinion of the Court

Mr. Houston‘s counsel asked detailed questions of all the jurors,
and the jurors‘ voir dire answers demonstrated that they could be
fair and impartial despite their exposure to any pretrial publicity.
    ¶ 99 Although Mr. Houston referenced several graphic and
detailed newspaper articles about his case, he has failed to
identify anything in the record that supports his claim that this
pretrial coverage resulted in a biased juror or jury. While it may
have been prudent for Mr. Houston‘s attorney to seek a change of
venue due to the small community and concentrated media
attention surrounding Mr. Houston‘s case, Mr. Houston‘s claim
that this pretrial publicity affected his sentence is speculative at
best. Because Mr. Houston has not shown that it was objectively
unreasonable not to seek a change of venue or that counsel‘s
decision resulted in an unfair sentencing proceeding, we conclude
that this claim of ineffective assistance of counsel fails.
    E. Mr. Houston Has Failed to Demonstrate that Counsel Was
    Ineffective for not Objecting to Testimony From a Department
      of Corrections Officer that Mr. Houston Could Be Paroled
            Before Serving at Least Twenty Years in Prison
    ¶ 100 Mr. Houston next argues that his counsel was ineffective
when he failed to object, move to strike, or seek a curative
instruction to address the testimony from John Ford, an assistant
director with the Utah Department of Corrections. Mr. Ford
testified that if Mr. Houston was sentenced to life with parole,
there was a chance that Mr. Houston could be released before
serving at least a twenty-year prison term.
    ¶ 101 During the sentencing proceeding, Mr. Houston‘s
counsel called Mr. Ford to testify about Utah‘s sentencing system
and to explain to the jury the different treatment afforded inmates
sentenced to life with parole and life without parole. Mr. Ford
also explained that when an individual is sentenced to life with
the possibility of parole, it is for an indeterminate term, meaning
that after a period of time the Board of Pardons and Parole would
hold a hearing to determine when an individual might be paroled.
The Board of Pardons would also schedule a future hearing to
revisit this determination.


haven‘t heard . . . enough to.‖ She also stated that she could fairly
consider either sentencing option.



                                 46
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                      Opinion of the Court

    ¶ 102 On cross-examination, the prosecutor asked Mr. Ford
whether the Board of Pardons could release Mr. Houston before
he served twenty years in prison if the jury chose to sentence him
to life with parole. Mr. Ford responded, ―I don‘t think [the Board
of Pardons] would ever consider doing that. Unless there‘s a
medical [emergency] or unless [the defendant] is no longer a
threat.‖ After this comment, the prosecutor and Mr. Ford had the
following exchange:
     PROSECUTOR: So generally speaking, you would
                    anticipate the person serve at least 20
                    years?
     MR. FORD:      At least that and most likely it would
                    be much more than that.
     PROSECUTOR: But     it‘s not a guarantee, clearly,
                    because the Board of Pardons has great
                    power?
     MR. FORD:      Yes.
   ¶ 103 To emphasize the unlikelihood of a release from prison
before Mr. Houston served at least twenty years, Mr. Houston‘s
counsel asked on redirect: ―It was asked whether or not I guess in
theory somebody could be released prior to 20 years. In theory
that‘s possible, but not likely?‖ Mr. Ford responded, ―Not likely.‖
Mr. Houston‘s counsel then asked, ―Especially where you need a
three-person majority [of the Board of Pardons] and you indicated
that it‘s most likely that the person will spend much more than
the 20 years in prison?‖ Mr. Ford responded, ―That‘s correct.‖
   ¶ 104 Mr. Houston argues that counsel was ineffective in
responding to Mr. Ford‘s testimony. Specifically, Mr. Houston
argues that counsel should have objected during the prosecutor‘s
cross-examination of Mr. Ford, and that by bringing the issue back
up on redirect, counsel only reinforced to the jury that
Mr. Houston‘s early release was a viable possibility. We find
nothing ineffective or prejudicial about Mr. Houston‘s counsel‘s
response to Mr. Ford‘s testimony.
    ¶ 105 A formal objection and request for a curative instruction
is not the only objectively reasonable response to unexpected or




                                47
                            STATE v. HOUSTON
                          Opinion of the Court

unfavorable testimony.177 As stated before, there are a variety of
ways to competently represent a criminal defendant, and no one
method is required for effective representation.178 Instead of
objecting to the prosecutor‘s line of questioning, Mr. Houston‘s
counsel decided to clarify on redirect and emphasize to the jury
that the likelihood that Mr. Houston would be released early was
extremely limited. When we consider this decision in light of the
presumption of competence, we must conclude that
Mr. Houston‘s counsel was not ineffective and that his decision to
emphasize the limited chance of early release on redirect ―was the
result of conscious trial strategy.‖179
    ¶ 106 We further conclude that Mr. Houston has failed to
demonstrate any prejudice resulting from his attorney‘s response
to Mr. Ford‘s testimony. Before sentencing, the judge instructed
the jury to disregard any testimony about possible early release:
―[Y]ou are not to take into account any actions the Board of
Pardons and Parole might take in the future. Future decisions of
the Board are merely speculative and are irrelevant to a jury‘s
determination of an appropriate sentence.‖ This instruction
assures us that any improper weight that the jury may have
assigned to this line of questioning was properly addressed and
cured by the trial judge.180
  F. Mr. Houston Has Failed to Demonstrate that His Counsel Was
     Ineffective for not Objecting to the Alleged Double Counting
           of an Aggravating Factor in the Jury Instructions
   ¶ 107 Mr. Houston‘s next ineffective assistance of counsel
argument stems from his counsel‘s failure to object to a series of


   177 See State v. Bullock, 791 P.2d 155, 160 (Utah 1989)
(concluding trial counsel‘s decision not to object to unfavorable
testimony did not constitute ineffective assistance of counsel).
   178   See Templin, 805 P.2d at 186.
   179   Bullock, 791 P.2d at 160.
   180 See State v. Mead, 2001 UT 58, ¶ 50, 27 P.3d 1115 (holding
that a jury instruction cured any prejudice that may have resulted
from the admission of improper testimony); see also Menzies, 889
P.2d at 401 (noting that an appellate court presumes that the jury
follows its given instructions).



                                     48
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                       Opinion of the Court

jury instructions. Mr. Houston claims that by not objecting to
these instructions, counsel allowed the jury to engage in an
improper double counting of aggravating factors during
sentencing. We disagree.
   ¶ 108 Jury instruction number 13 states in relevant part:
      During the sentencing proceeding, aggravating and
      mitigating evidence was presented to you with
      respect to the penalty to be imposed. You are
      instructed    that    the     terms    ―aggravating
      circumstances,‖     ―aggravating    factors,‖  and
      ―aggravating evidence,‖ used interchangeably, refer
      to evidence tending to show that the penalty of life
      without parole is appropriate.
Jury instruction number 14 states that ―[t]he fact that
[Mr. Houston] has pled guilty to the crime of Aggravated Murder
is not an aggravating circumstance. . . . However, you may
consider as aggravating circumstances the matters that were
presented as aggravating circumstances in the charge against the
defendant.‖ And finally, jury instruction number 15 lists ―rape‖
and ―aggravated sexual assault‖ as two possible aggravating
circumstances the jury could consider. ―Aggravated sexual
assault‖ is defined as when an individual ―in the course of a
rape . . . , causes bodily injury to the victim or uses or threatens
the victim with the use of a dangerous weapon, such as a knife.‖
Mr. Houston argues that these instructions created overlapping
aggravating factors that skewed the weighing process in the
minds of the jurors.
    ¶ 109 During the sentencing proceeding, the judge told the
jury that it may find an aggravating circumstance if it concluded
that ―[Mr. Houston] intentionally or knowingly caused the death
of [the victim] while . . . engaged in the submission of or an
attempt to commit rape or aggravated sexual assault.‖ The
judge‘s instructions made clear that Mr. Houston was charged
with and pleaded guilty to aggravated murder because he
committed either rape or aggravated sexual assault, but not both.
These aggravating factors were read to the jury in the alternative,
and thus, the jury could find the presence of an aggravating
circumstance if it concluded that either rape or sexual assault
occurred. The instruction did not direct the jury to count these as



                                49
                           STATE v. HOUSTON
                         Opinion of the Court

separate aggravating factors, and thus, Mr. Houston‘s counsel did
not err by not objecting to these instructions.
    ¶ 110 We further conclude that even if there was some
confusion surrounding aggravating circumstances in the jury
instructions, any confusion did not prejudice Mr. Houston
because the jury was instructed to weigh the aggravating and
mitigating circumstances not in terms of numbers, but rather in
terms of ―how compelling or persuasive the evidence is when
deciding an appropriate sentence.‖ To emphasize the directive
that the jury should not merely count up the aggravating and
mitigating circumstances, the trial court stated that ―any
aggravating factor, standing alone, could be more persuasive than
some or all of the mitigating factors in the case. On the other
hand, one mitigating factor, standing alone, could be more
persuasive than some or all of the aggravating factors.‖
Therefore, even if Mr. Houston is correct in his assertion that the
jurors counted the rape and sexual assault as two separate
aggravating factors rather than finding the presence of one or the
other, the jurors‘ ultimate decision was still based on what they
found most compelling or persuasive considering the totality of
the circumstances, not the mere number of aggravating factors
present in the case. And in evaluating Mr. Houston‘s claim of
prejudice, we must proceed ―on the assumption that the decision-
maker is reasonably, conscientiously, and impartially applying
the standards that govern the decision.‖181 We therefore conclude
that Mr. Houston has failed to show that his counsel‘s
performance was deficient or that any deficiency caused him
prejudice.
    G. Mr. Houston Has not Demonstrated Cumulative Error that
           Undermines Our Confidence in His Sentence
   ¶ 111 Finally, Mr. Houston argues that we should reverse his
sentence under the cumulative error doctrine because the
ineffectiveness of counsel alleged above should undermine our
confidence in the sentence. To evaluate a cumulative error claim,
―we consider all the identified errors, as well as any errors we
assume may have occurred.‖182 However, ―[i]f the claims are


   181   Parsons, 871 P.2d at 530 (internal quotation marks omitted).
   182   State v. Maestas, 2012 UT 46, ¶ 363, 299 P.3d 892 (internal
                                                               (con‘t.)

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                        Cite as: 2015 UT 36
                       Opinion of the Court

found on appeal to not constitute error, or the errors are found to
be so minor as to result in no harm, the doctrine will not be
applied.‖183    Because we find that each of Mr. Houston‘s
ineffective assistance of counsel claims fails, our confidence in the
fairness of his sentence is not undermined. Therefore, we find no
cumulative error.
                          CONCLUSION
   ¶ 112 It is beyond contention that Mr. Houston‘s case is tragic.
This is an extremely uncommon case where the jury, considering
the mitigating circumstances inherent to Mr. Houston‘s youth,
nevertheless concluded that life without the possibility of parole
was the appropriate sentence for the crime committed. We hold
that Mr. Houston properly brought constitutional challenges to
his sentence under Utah Rule of Criminal Procedure 22(e);
however, we conclude that each of his claims fails. We also hold
that Mr. Houston has failed to demonstrate that he received
ineffective assistance of counsel. We therefore affirm the jury‘s
sentence of life in prison without the possibility of parole.




quotation marks omitted).
   183 Id. (alteration in original) (internal quotation marks
omitted).



                                 51
                         STATE v. HOUSTON
                       A.C.J. LEE, concurring

    ASSOCIATE CHIEF JUSTICE LEE, concurring in part and
concurring in the judgment:
    ¶ 113 I concur in the opinion of the court in part and concur
in the judgment affirming the conviction entered against
Mr. Houston. I write separately, however, to express my
disagreement with the majority on two principal points: (1) I
would not deem Houston‘s challenge to his sentence to be
properly presented under rule 22(e) of our rules of criminal
procedure (but instead subject only to review for plain error); and
(2) I would reject Houston‘s state constitutional challenge to his
sentence based on an original understanding of the Utah
Constitution, which categorically forecloses the proportionality
challenge advanced in this case.
               I. PRESERVATION AND UTAH RULE OF
                   CRIMINAL PROCEDURE 22(e)
    ¶ 114 Houston failed to raise a constitutional challenge to his
sentence in the proceedings below. Despite that failure, the
majority deems the constitutional claims advanced on appeal to
be properly presented under rule 22(e) of the Utah Rules of
Criminal Procedure. Supra ¶ 26. That provision expressly
authorizes a court to ―correct an illegal sentence, or a sentence
imposed in an illegal manner, at any time.‖ UTAH R. CRIM. P. 22(e).
In recent cases, however, we have adopted limiting constructions
of this rule. Most recently, in State v. Prion, 2012 UT 15, 274 P.3d
919, we noted that ―rule 22(e) is based on an antecedent in the
federal rules,‖ and we limited our state rule to the traditional
application of its federal antecedent. Id. ¶ 22. Specifically, Prion
held that a challenge to an ―illegal sentence‖ under rule 22(e) is
limited to ―instances ‗when the sentence imposed exceeds the
statutorily-authorized limits, violates the Double Jeopardy Clause,
or is ambiguous or internally contradictory.‘‖ Id. (quoting United
States v. Pavlico, 961 F.2d 440, 443 (4th Cir. 1992)).
   ¶ 115 As the Prion opinion explained, this traditional
limitation (imported from federal law) is aimed at striking ―a
careful balance between the goal of correcting illegal sentences on
one hand and . . . encouraging preservation and finality on the
other.‖ Id. Yet the Prion standard is not a subjective balancing test.
Nor does it leave room for the standard embraced by the
majority—of opening the door to unpreserved challenges to
sentences that are ―facial‖ and not ―as-applied.‖ Supra ¶ 26.


                                 52
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                       A.C.J. LEE, concurring

Instead, the standard we articulated in Prion is an objective one
based on past practice under a parallel (but subsequently
amended) federal rule. As stated plainly in Prion, rule 22(e) leaves
room only for challenges to sentences that exceed statutory limits,
that violate double jeopardy, or that are ambiguous or internally
contradictory. Prion, 2012 UT 15, ¶ 22.
    ¶ 116 The majority overrules this standard, replacing it with a
standard allowing a ―facial challenge‖ to the constitutionality of a
sentence but foreclosing ―fact-intensive,‖ ―as-applied‖ challenges.
Supra ¶¶ 18, 23, 26. The court purports to find support for this
standard in Prion and its antecedents. See supra ¶¶ 24–27 (citing
Prion and also State v. Candedo, 2010 UT 32, 232 P.3d 1008; State v.
Telford, 2002 UT 51, 48 P.3d 228; and State v. Brooks, 908 P.2d 856
(Utah 1995)). But none of our prior opinions adopt the
formulation established today.
    ¶ 117 Granted, the Prion opinion explained the rationale
behind this limitation in terms that emphasized the downsides of
opening the door to unlimited challenges to the constitutionality
of a sentence. Our opinion warned, for example, of the abuse and
anomaly that would ensue if our law ―elevate[d] challenges to
sentencing proceedings over parallel challenges to the guilt phase
of a trial.‖ Prion, 2012 UT 15, ¶ 20. And we cautioned specifically
against ―a fact-intensive challenge to the legality of a sentencing
proceeding asserted long after the time for raising it in the initial
trial or direct appeal.‖ Id. But the quoted language was only an
explanation of the policy basis for the standard we clarified in
Prion; it was not the standard itself.
    ¶ 118 The Prion standard, rather, was the traditional
formulation we imported from longstanding cases interpreting
the federal rule incorporated into our rule 22(e)—encompassing
only ―instances ‗when the sentence imposed exceeds the
statutorily-authorized limits, violates the Double Jeopardy Clause,
or is ambiguous or internally contradictory.‘‖ Id. ¶ 22. The
majority is mistaken in its assertion that Prion ―nowhere stated
that we were adopting the federal limitation‖ as the holding of the
court. Supra ¶ 24 n.35. We did so expressly, and repeatedly. See
Prion, 2012 UT 15, ¶ 21 (noting that ―[b]oth grounds‖ asserted by
Prion ―to challenge his revised sentence are consistent with the
traditional, established bases for a rule 22(e) motion,‖ and
indicating that ―we accordingly reject the State‘s procedural
argument notwithstanding our acknowledgement of the need for

                                 53
                         STATE v. HOUSTON
                       A.C.J. LEE, concurring

a narrow construction of the rule‖ (emphasis added)); see also id.
¶ 23 (―[Prion‘s] 22(e) motion . . . is one that comes within the
traditional bounds of the rule, and we accordingly uphold it
against the State‘s procedural attack.‖ (emphasis added)).
    ¶ 119 Our Candedo opinion cannot properly be read to
support the majority‘s new standard. Candedo did not establish a
standard dependent on the ―facial‖ or ―as-applied‖ nature of a
constitutional challenge to a sentence. Instead, the opinion in
Candedo simply reversed the court of appeals‘ determination that
an ―illegal‖ sentence under rule 22(e) was limited to cases ―where
either the sentencing court has no jurisdiction, or . . . the sentence
is beyond the authorized statutory range.‖ 2010 UT 32, ¶ 10
(alteration in original) (internal quotation marks omitted). And in
so doing, Candedo stated generally that ―if an offender‘s sentence
is unconstitutional, the sentence is not authorized by the
‗judgment of conviction,‘ and is therefore illegal.‖ Id. ¶ 13. On that
basis, Candedo held ―that the court of appeals erred in failing to
reach the merits of Candedo‘s‖ constitutional challenge ―because
the definition of illegal sentence under rule 22(e) is sufficiently
broad to include constitutional violations that threaten the
validity of the sentence.‖ Id. ¶ 14. Our holding in Candedo,
moreover, did not rest on a distinction between facial and as-
applied challenges to a sentence.
    ¶ 120 Indeed, our constitutional analysis (upholding
Candedo‘s sentence against a substantive due process attack)
ultimately rejected both facial and as-applied challenges. See id.
¶ 21 (holding ―that Utah‘s probation statute generally, as well as
the term of probation to which Candedo was sentenced, are
rationally related to the state‘s legitimate interest‖); id. ¶ 23
(acknowledging that ―a defendant could successfully challenge a
probation sentence that is truly arbitrary or discriminatory under
the due process clause or prove that the probation statute is cruel
and unusual, but such a case is not before us now‖). And as to the
governing standard, the Candedo opinion effectively punted on the
specific sorts of constitutional claims that could be cognizable
under rule 22(e). While acknowledging the state‘s argument that
rule 22(e) countenances only claims that a sentence is ―‗patently‘
or ‗manifestly‘ illegal,‖ the Candedo court concluded that it was
unnecessary to ―reach‖ that issue if the claims at issue failed on
their merits. Id. ¶ 14 (concluding that there is no need to ―reach



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                       A.C.J. LEE, concurring

the issue of whether the sentence is ‗patently‘ or ‗manifestly‘
illegal‖ if the claim fails on its ―merits‖).
    ¶ 121 Our earlier decision in Telford is to the same effect.
There we acknowledged that Telford challenged his sentence ―on
both per se and as applied grounds,‖ 2002 UT 51, ¶ 2; noted that
rule 22(e) is a narrow exception to the rule of preservation,
allowing only the ―correction of manifestly illegal sentences,‖ id.
¶ 5; and stopped short of defining the limiting standard (of what
is ―manifestly illegal‖) because the claims at issue clearly failed on
their merits, id. ¶ 6 (rejecting claims under the Sixth Amendment
and article I, section 12 of the Utah Constitution on the ground
that these provisions provided ―no articulable basis for attacking
[Telford‘s] sentence‖).184
    ¶ 122 The majority also cites State v. Brooks, 908 P.2d 856 (Utah
1995), in support of its new standard, supra ¶ 27, but the Brooks
opinion is in line with the approach in Telford and Candedo. As the
majority indicates, the Brooks opinion states that ―nothing is to be
gained by remanding the case to the trial court‖ when ―the
pertinent facts are undisputed and a purely legal question with
respect to which the trial court has no discretion remains to be
decided.‖ 980 P.2d at 860. But the Brooks opinion does not adopt
the facial/as-applied distinction embraced by the majority. It
simply holds that rule 22(e) may sometimes ―permit[] the court of
appeals to consider the legality of a sentence even if the issue is
raised for the first time on appeal,‖ while rejecting the
applicability of the rule in the context of a claim that ―[i]n
substance‖ challenges the underlying conviction and not the
sentence. Id. (explaining that Brooks‘s claim, while styled as a
challenge to his sentence, was ultimately a challenge to his
―conviction for a lesser included offense‖).


   184 The point is not to suggest that the court did not decide
whether the claims in Telford and Candedo were properly brought
under rule 22(e). I am simply clarifying that the operative
standard articulated in these cases was relatively unimportant, as
the sentencing challenges at issue failed on their merits in any
event. And, given the patchwork formulations in our cases at the
time we decided Prion, it was essential that our opinion in that
case seek to provide some clarity.



                                 55
                         STATE v. HOUSTON
                       A.C.J. LEE, concurring

    ¶ 123 I acknowledge the plausibility of the alternative
readings of our prior cases advanced by the majority opinion. As
that opinion suggests, the Candedo opinion may plausibly be read
to have endorsed the viability of any ―constitutional violations
that threaten the validity of the sentence.‖ See supra ¶ 24 n.35. As
for Telford and Brooks, those opinions may also be understood to
have interpreted rule 22(e) in a manner endorsing an operative
legal standard—in Telford, the notion that the rule is limited to the
correction of sentences that are ―manifestly illegal,‖ 2002 UT 51,
¶ 5; and in Brooks, the principle that the rule encompasses
challenges to sentences that are ―patently illegal,‖ 908 P.2d at 860.
    ¶ 124 Yet these constructions of rule 22(e) are untenable. The
broad formulation in Candedo would erase our rules of
preservation for challenges to sentences and thereby treat
sentencing proceedings as somehow more significant than trials.
That makes no sense, as even the majority opinion today
recognizes. And the standards in Telford and Brooks are
unworkable. We can assess illegality; but ―patent‖ or ―manifest‖
illegality are concepts inviting arbitrary decision-making.
    ¶ 125 Our Prion opinion filled the gap left by the competing
standards set forth in our caselaw. Facing the untenably broad
formulation in Candedo and the unworkable premises of Telford
and Brooks, Prion was faced with the task of determining
conclusively the scope of the rule 22(e) exception. And because
the claims in Prion could not easily be brushed aside as meritless,
we could not easily sidestep the issue of the appropriate standard
under rule 22(e). In addressing this question, moreover, Prion
clearly and expressly defined an objective standard under rule
22(e)—a standard, as noted above, that tied our state rule to cases
under its federal antecedent, and that limited the challenges
countenanced by the rule to those attacking sentences that exceed
statutory limits, that violate double jeopardy, or that are
ambiguous or internally contradictory.185 Prion, 2012 UT 15, ¶ 22.



   185The majority‘s principal attempt to justify its rejection of the
standard set forth in Prion is its recognition of the federal
antecedent to our state rule 22(e), combined with the assertion
that some federal courts recognized a ―broader‖ principle under
which a sentence ―generally ‗in violation of the Constitution‘‖ or
                                                               (con‘t.)

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                        A.C.J. LEE, concurring

    ¶ 126 This holding was significant. It established an objective,
historically rooted limitation on the broad terms of rule 22(e)—a
limitation that was essential to preserving the policies and domain
of the doctrine of preservation, and of avoiding the absurdity of a
regime that would preference constitutional challenges to
sentences over constitutional challenges to underlying convictions.
See id. ¶ 20 (warning of the prospect of ―abuse‖ of a broad
standard under rule 22(e), which would undermine the policies
behind the law of preservation and would ―elevate challenges to
sentencing proceedings over parallel challenges to the guilt phase
of a trial‖).
   ¶ 127 Our decision in Prion was simple, straightforward, and
unanimous. I would reaffirm it and apply it here. And I would
accordingly deem Houston‘s challenges to his sentence uncovered
by rule 22(e), as none of them involve a claim that his sentence
exceeded statutory limits, violated double jeopardy, or was


―based on ‗misinformation of a constitutional magnitude‘‖ could
have been subject to challenge under the federal rule. Supra ¶ 23.
It is unsurprising that the general federal rule we embraced in
Prion may have been subject to an occasional aberration or
exception in the federal caselaw. That is also beside the point.
Prion embraced a straightforward, objective standard limiting rule
22(e) challenges to those attacking sentences that exceed statutory
limits, that violate double jeopardy, or that are ambiguous or
internally contradictory. Prion, 2012 UT 15, ¶ 22. We rooted that
standard in the majority rule adopted in federal cases as we
understood them. But the standard was clear and unmistakable; it
was in no way a standard subject to expansion or extension if
aberrational federal cases could be cited in the future (as in the
majority opinion here).
   The point in invoking the federal caselaw is not to suggest that
we are bound to follow it. Prion was based on the need to adopt
an objective, limiting standard under rule 22(e). And the federal
standard was the one we chose to fulfill that need.
    It is telling that even the majority does not adopt the standard
set forth in the outlier federal cases that it cites. Instead, it adopts
a new one of its own making, and in so doing it repudiates a
square holding that is entitled to deference.



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ambiguous or internally contradictory. Thus, I would analyze
Houston‘s constitutional challenges to his sentence under a
standard of plain error review, which is the standard that applies
to an unpreserved challenge to a sentence that is not covered by
rule 22(e).
     ¶ 128 I would also observe that the court‘s analysis is itself
unfaithful to the standard it postulates. Some of Houston‘s
challenges to his sentence seem to be ―as-applied‖ challenges. See
supra ¶¶ 30–32 (addressing Houston‘s Apprendi challenge); supra
¶¶ 49–51 (addressing Houston‘s Unnecessary Rigor Clause
challenge). These claims clearly implicate a degree of fact-
intensive analysis. Even ―facial challenges,‖ moreover, may
require fact-intensive analysis, in that such challenges require a
litigant to ―establish that no set of circumstances exists under
which the [statute] would be valid.‖ United States v. Salerno, 481
U.S. 739, 745 (1987).186 If this is the sort of claim the majority
means to preserve under criminal rule 22(e), the court has not
succeeded in adopting a ―limited‖ standard. It has instead opened
the door to a broad range of claims that are quite often fact-
intensive.
   ¶ 129 The back-and-forth between the majority and dissenting
opinions is illustrative. The dissent cites extensive social science
research in support of its conclusion that Houston‘s life-without-
parole sentence is incompatible with the standard of
proportionality that it advances. Infra ¶¶ 258–269 (cataloguing
social science research on the nature of juvenile cognitive


   186 The majority opinion responds with the notion that ―the
court need not delve into the record or make findings of fact‖ on a
―facial constitutional attack.‖ Supra ¶ 27. That strikes me as
overstated. To establish that ―no set of circumstances exists‖ in
which a sentencing provision could be valid, Salerno, 481 U.S. at
745, factual questions could easily be implicated. This case is a
prime example. If we are to gauge social science research in
assessing the question of proportionality in sentencing, surely we
could benefit from the presentation of evidence on the matter. On
this question the competing opinions find it sufficient to rest on
their own evaluations of social science, but that does not make the
inquiry any less fact-intensive.



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functions and its impact on principles of retribution and
rehabilitation). And the majority offers responses similarly
invoking social science material. Supra ¶¶ 58–59 (addressing the
special status of minors based on ―science and social science
research, including longitudinal studies and brain mapping‖).
With this background, it seems apparent that the cruel and
unusual punishment challenge asserted by Houston is a fact-
intensive one. For me, this underscores the untenable nature of
the standard adopted by the court today. In time the court will be
required to reject it, and replace it with a more workable one. I
would avoid that problem by retaining the standard we
articulated in Prion.
    ¶ 130 Finally, I would register a plea that we revisit this issue
immediately through our rulemaking process. Our law as it
stands under rule 22(e) as written is confusing, fuzzy, and
perverse. The confusion is in the terms of the rule. The rule as it
stands is a trap for an unwary litigant. We should not retain a rule
that says one thing and means another. The fuzziness is in the
court‘s standard as articulated today. There is no clear,
established distinction between ―facial‖ and ―as-applied‖
challenges to a sentence.187 So the standard we have adopted is
sure to lead to uncertainty and arbitrary decisionmaking going
forward. Lastly, the perversion is in a legal regime that suspends
the law of preservation for ―facial‖ constitutional challenges to a
sentence while retaining the law of preservation for parallel
challenges to a conviction. That is backwards. If anything, an
unconstitutional conviction ought to be more troubling.




   187 See Am. Fed’n of State, Cnty., & Mun. Emps. Council 79 v.
Scott, 717 F.3d 851, 865 (11th Cir. 2013) (―[T]he line
between facial and as-applied relief is a fluid one, and many
constitutional challenges may occupy an intermediate position on
the spectrum between purely as-applied relief and
complete facial invalidation.‖); Richard H. Fallon, Jr., As-Applied
and Facial Challenges and Third-Party Standing, 113 HARV. L. REV.
1321, 1321 (2000) (―There is no single distinctive category of facial,
as opposed to as-applied, litigation.‖).



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   ¶ 131 The majority‘s standard under rule 22(e) should not
stand. We should amend the rule to address the significant
problems that are highlighted by today‘s opinion.
             II. HOUSTON‘S CONSTITUTIONAL CLAIMS
   ¶ 132 For the above reasons, I would address Houston‘s
constitutional claims under a plain error standard of review. And
I would reject all of them under that standard, as Houston has not
asserted—and cannot conceivably claim—that the sentence
imposed runs afoul of established legal standards. See, e.g., State v.
Nielsen, 2014 UT 10, ¶ 58, 326 P.3d 645 (noting that for an error to
be ―plain‖ it must be legal in nature, and an ―obvious‖ error ―not
reasonably in dispute‖ (internal quotation marks omitted)).
    ¶ 133 That is as far as we need to go to resolve this case.
Because my colleagues see the matter differently, however, and
proceed to address the merits of Houston‘s claims as if they were
covered by rule 22(e), it seems appropriate for me to meet their
analysis on its own terms. In so doing, I would first note that
assuming rule 22(e) to apply to Houston‘s claims, I would concur
in the majority‘s analysis of Houston‘s federal constitutional
claims. See supra ¶¶ 29–63, 69–108.
    ¶ 134 To the extent Houston is asserting a federal
constitutional challenge to his sentence, we are of course bound to
follow the precedents of the United States Supreme Court under
the Eighth Amendment‘s Cruel and Unusual Punishments Clause.
And because those precedents appear to adopt a form of
―proportionality‖ review,188 we must apply that same standard

   188  The U.S. Supreme Court has invoked proportionality
analysis in a number of its opinions. See Miller v. Alabama, 132 S.
Ct. 2455, 2475 (2012) (striking down mandatory life without parole
sentences for juveniles as violating the ―principle of
proportionality‖ embedded in the Eighth Amendment); Graham v.
Florida, 560 U.S. 48, 59 (2010) (holding that Eighth Amendment
proportionality principle prohibits imposition of life without
parole sentence on juvenile who did not commit homicide); Solem
v. Helm, 463 U.S. 277, 284 (1983) (striking down life without parole
sentence for nonviolent felony under recidivism statute, holding
that the Eighth Amendment ―prohibits not only barbaric
punishments, but also sentences that are disproportionate to the
crime committed‖). But the ―precise contours‖ of the
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here in assessing Houston‘s federal constitutional claim. I concur
in the majority opinion‘s analysis as it applies to this federal
claim. I would reject Houston‘s Eighth Amendment argument for
the reasons set forth in the court‘s opinion. See supra ¶¶ 52–63.
   ¶ 135 Houston‘s state constitutional claim is another matter.
To the extent Houston is challenging his sentence under article I,
section 9 of the Utah Constitution, it is our prerogative and
responsibility to articulate the applicable legal standard. And on
that point my grounds for rejecting Houston‘s constitutional
challenge to his sentence extend beyond those set forth in the
majority opinion.
   ¶ 136 Unlike the majority, I would not assume that the Utah
Cruel and Unusual Punishments Clause incorporates a standard
of proportionality authorizing appellate courts to second-guess a
lawfully imposed sentence on grounds of excessiveness. Supra
¶ 64.189 And unlike the dissent, infra ¶¶ 213–251, I would not


proportionality standard are somewhat ―unclear.‖ Harmelin v.
Michigan, 501 U.S. 957, 998 (1991) (Kennedy, J., concurring in part
and concurring in the judgment). In Harmelin, the lead opinion
(authored by Justice Scalia, and joined by Chief Justice Rehnquist)
concluded that Solem was wrongly decided, and that the Eighth
Amendment‘s Cruel and Unusual Punishments Clause did not
incorporate a principle of proportionality or excessiveness. See id.
at 961–94 (1991) (lead opinion of Scalia, J.). In a separate
concurrence, Justice Kennedy (joined by two other members of the
court) indicated an inclination to adopt a limited notion of ―gross‖
proportionality. See id. at 1005 (Kennedy, J., concurring in part and
concurring in the judgment). Thus, the federal caselaw appears to
be ―evolving,‖ as we indicated in State v. Mace, 921 P.2d 1372, 1377
n.4 (Utah 1996) (asserting that ―[o]ur use of the term
‗disproportional‘ . . . is not meant to express any view on the
status of this evolving jurisprudence, nor is the meaning of the
term at issue in the present case‖). Yet we are bound to follow the
court‘s holdings—particularly, of relevance here, the decisions in
Graham and Miller, which consider ―objective indicia of society‘s
standards‖ and a court‘s ―independent judgment‖ in evaluating a
―categorical‖ challenge to the constitutionality of a sentencing
scheme as applied to juveniles. Graham, 560 U.S. at 61.
    I would also stop short of expressing any ―hope . . . that
   189

LWOP sentences for juveniles will be rare.‖ Supra ¶ 67. That
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interpret article I, section 9 to authorize this court to consult our
―humanitarian instincts,‖ infra ¶ 255, or our sense of ―evolving
standards of decency that mark the progress of a maturing
society.‖ Infra ¶ 213.
    ¶ 137 Instead, based on the original meaning of the text of
article I, section 9, I would conclude that the Utah Constitution
forbids only those modes of punishment that were repudiated as
―cruel‖ at the time of the adoption of this provision and that are
―unusual‖ in the sense of being contrary to established practice.
And I would accordingly reject Houston‘s state constitutional
claim on grounds narrower than those embraced by the majority.
    ¶ 138 First, I would repudiate the dicta in this court‘s prior
interpretations of article I, section 9, which articulate an
unworkable standard and accordingly do not merit deference
under the doctrine of stare decisis. Second, I would adopt an
originalist conception of article I, section 9—a standard that leaves
no room for proportionality analysis and prohibits only those
methods of punishment that are so barbaric or cruel that they
were barred by longstanding law or practice. Finally, applying
this standard, I would reject Houston‘s state constitutional claim
because he raises no challenge to the method of his punishment
but only challenges his term of confinement on grounds of
proportionality.
                   A. Utah Supreme Court Precedent
   ¶ 139 In State v. Herrera, 1999 UT 64, ¶ 39, 993 P.2d 854, this
court asserted that the Utah Constitution‘s prohibition of cruel
and unusual punishments encompasses a principle of
proportionality. In the Herrera court‘s words, ―a criminal
punishment is cruel and unusual‖ under article I, section 9 ―if the
punishment is so disproportionate to the offense committed that it
shock[s] the moral sense of all reasonable men as to what is right
and proper under the circumstances.‖ Id. ¶ 33 (alteration in
original) (internal quotation marks omitted).



sounds well and good as a matter of humanitarian empathy. But it
strikes me as beyond our role as judges to express ―hope‖ for any
particular outcome—as to jury verdicts, damages awards, or
criminal sentences—in the proceedings that we review on appeal.



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    ¶ 140 A threshold question for me is whether to afford stare
decisis deference to the standard set forth in Herrera. Such
deference is a presumptive starting point. See Austad v. Austad, 269
P.2d 284, 290 (Utah 1954). And for good reason. ―The doctrine of
stare decisis is ingrained in our law and is entitled to serious
consideration.‖ Id. ―The reason underlying [this doctrine] is that
people should know what their legal rights are as defined by
judicial precedent, and having conducted their affairs in reliance
on such rights, ought not to have them swept away by judicial
fiat.‖ Id.
    ¶ 141 Yet the presumption of stare decisis is rebuttable. And it
is rebutted where its reliance-based justification is not implicated,
as where the precedent in question adopted a standard that is
vague or unworkable. State v. Menzies, 889 P.2d 393, 399 (Utah
1994). I would decline to defer to the Herrera standard on two
principal grounds.
    ¶ 142 First and most fundamentally, no majority opinion of
this court has ever employed a state standard of proportionality
that is distinct from the federal standard. Herrera articulated a
state standard, but it did so in a manner that simply parroted the
governing federal standard. Thus, in applying the above-quoted
standard of proportionality, the Herrera court cited precedent
applying the federal standard and concluded that the federal
standard ―appl[ied] with equal force to our consideration of
Herrera‘s claims under the cruel and unusual punishment[s]
clause of the Utah Constitution.‖ 1999 UT 64, ¶ 38.
    ¶ 143 In support of the standard it employed, the Herrera
court cited State v. Mace, 921 P.2d 1372, 1377–78 (Utah 1996). 1999
UT 64, ¶ 38. And the ―cruel and unusual punishments‖ analysis in
Mace is expressly and exclusively restricted to the Eighth
Amendment. Mace, 921 P.2d at 1376 (―Mace has not separately
briefed his state constitutional claim, and we do not reach it.‖).190



   190 In any event, our opinion in Mace is at best weak support
for a general proportionality standard even as a matter of federal
law. There we did expressly acknowledge a ―proportionality‖
standard in the U.S. Supreme Court‘s opinion in Solem v. Helm,
463 U.S. 277 (1983). But we also acknowledged the feeble
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That likewise holds for the other majority opinion cited in
Herrera—State v. Copeland, 765 P.2d 1266, 1270 (Utah 1988).
Copeland‘s proportionality analysis was also federal in nature, as
was the proportionality analysis in the other majority opinions
from which Copeland‘s standards emanate. See id. (citing State v.
Hanson, 627 P.2d 53, 56 (Utah 1981) (federal Eighth Amendment
claim; citing, in turn, State v. Nance, 438 P.2d 542, 544 (Utah 1968)
(articulating Eighth Amendment proportionality standard under
Weems v. United States, 217 U.S. 349 (1910))).
    ¶ 144 There is one other authority cited in Herrera for the state
standard of proportionality that it adopted. See Herrera, 1999 UT
64 ¶ 33 (citing State v. Gardner, 947 P.2d 630, 633 (Utah 1997)). But
the cited portion of Gardner is to an opinion that was in the
minority on that point—an opinion of Justice Durham, joined only
by Justice Stewart. See Gardner, 947 P.2d at 653. A majority of the
court declined to embrace the Gardner court‘s state constitutional
analysis. See id. (opinion of Zimmerman, A.C.J., expressing the
view that the case could be dealt with on federal grounds, while
declining to ―reach the Utah constitutional issues dealt with by
Justice Durham so sweepingly and at such length‖); id. at 657
(opinion of Russon, J., joined by Howe, J.) (indicating the view
that the sentence in question was constitutional, while asserting
that the state constitutional question was not properly before the
court given that the defendants ―presented their oral arguments
solely under the Eighth Amendment to the United States
Constitution‖).


foundation of the Solem standard as a matter of federal
constitutional law, noting as follows:
       [T]wo sitting justices of the United States Supreme
       Court have articulated the view that the Eighth
       Amendment does not embody a proportionality
       requirement for sentences in noncapital cases, and
       . . . three other justices would forbid only sentences
       that are ―grossly disproportionate‖ to the crime
       committed. Our use of the term ―disproportional‖ in
       the text is not meant to express any view on the
       status of this evolving jurisprudence, nor is the
       meaning of the term at issue in the present case.
Mace, 921 P.2d at 1377 n.4.



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    ¶ 145 Thus, no majority of this court has ever adopted an
independent standard of proportionality under article I, section 9
of the Utah Constitution. For the most part we have simply
conflated the state and federal standards and treated them as
indistinguishable—a determination that gives no independent
significance to the state standard, and thus no basis for stare decisis
reliance. And the sole exception to that rule is Gardner, in which a
majority of the court refused to embrace any independent state
standard. For that reason this is a case where the presumption in
favor of stare decisis deference is rebutted, as no litigant could
properly identify any independent standard under article I,
section 9 that goes beyond a restatement of the binding federal
standard.
   ¶ 146 The second reason for rejecting Herrera is that the
standard it identifies is a hazy and unworkable one. This is
another ground rebutting the presumption of stare decisis.191 An
unpredictable legal standard is simply not one that litigants can
use as a guidepost in organizing their affairs. For that reason
courts have long held that unworkable precedents do not qualify
for stare decisis deference.192 This court‘s precedents on
proportionality in sentencing are an archetype of unworkability.
That fact is reflected in the federal decisions on which our own
cases are based193 and in legal commentary.194


   191See, e.g., Utah Dep’t of Transp. v. Admiral Beverage Corp., 2011
UT 62, ¶¶ 36–42, 275 P.3d 208 (overruling Ivers v. Utah Dep’t of
Transp., 2007 UT 19, 154 P.3d 802, both because it was ―wrongly
decided‖ and because its holding was ―unworkable in practice‖).
   192 Id.; see also Payne v. Tennessee, 501 U.S. 808, 842–43 (1991)
(Souter, J., concurring) (―In prior cases, when this Court has
confronted a wrongly decided, unworkable precedent calling for
some further action by the Court, we have chosen not to
compound the original error, but to overrule the precedent.‖);
Swift & Co. v. Wickham, 382 U.S. 111, 116 (1965) (overruling prior
caselaw and noting that it ―should not be kept on the books in the
name of stare decisis once it is proved to be unworkable in
practice‖).
   193See Graham, 560 U.S. at 102 (Thomas, J. dissenting) (―The
categorical proportionality review the Court employs . . . lacks a
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    ¶ 147 This problem is highlighted by the formulation set forth
in the dissenting opinion in this case. Quoting the Nevada
Supreme Court, the dissent proposes a standard of
proportionality that would turn ―‗largely, if not entirely, upon the
humanitarian instincts of the judiciary‘‖—a standard that openly
acknowledges that ―‗[w]e have nothing to guide us in defining
what is cruel and unusual apart from our consciences,‘‖ or in
other words, the ―‗mosaic of our beliefs, our backgrounds and the
degree of our faith in the dignity of the human personality.‘‖ Infra
¶ 255 (quoting Naovarath v. State, 779 P.2d 944, 947 (Nev. 1989)).
No part of that formulation could sustain any reasonable reliance
interests. No criminal defendant or prosecutor could reliably
divine what the ―consciences‖ or ―beliefs‖ of the judges assessing
a particular sentencing practice might dictate in any anticipated
trial or appeal. The proportionality standard as formulated by the
dissent is the very definition of unworkability. It cannot possibly
sustain any reasonable reliance interests, and thus has no claim to
stare decisis.
              B. An Originalist View of Article I, Section 9
   ¶ 148 For the above reasons, I would not feel bound to follow
our prior pronouncements on the meaning of article I, section 9.
Instead, I would take a fresh look at the important question of the
meaning of the Utah Cruel and Unusual Punishments Clause. In


principled foundation.‖); Harmelin, 501 U.S. at 1001 (Kennedy, J.,
concurring in part and concurring in the judgment) (noting that
the court‘s precedents on proportionality ―lack clear objective
standards to distinguish between sentences for different terms of
years‖); Roper v. Simmons, 543 U.S. 551, 616 n.8 (2005) (Scalia, J.,
dissenting) (―The votes in today‘s case demonstrate that the
offending of selected lawyers‘ moral sentiments is not a
predictable basis for law—much less a democratic one.‖).
   194  See Bradford R. Clark, Constitutional Structure, Judicial
Discretion, and the Eighth Amendment, 81 NOTRE DAME L. REV. 1149,
1159 (2006) (asserting that prevailing proportionality standard is
highly discretionary and impossible to predict, given that it ―rests
on little more than the subjective opinion of five Justices‖ as to
―the moral and penological propriety of the challenged
punishment‖).



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so doing, I would employ an originalist method of interpreting
the Utah Constitution.
    ¶ 149 ―Our state and federal constitutions are not just
supreme; they are organic or constitutive, in that they establish
the fundamental ground rules for lawmaking and fixed bulwarks
against potential tyrannies of the majority.‖ State v. Walker, 2011
UT 53, ¶ 35, 267 P.3d 210 (Lee, J., concurring). The founding
purpose of the U.S. Constitution was to ―form[ ] the fundamental
and paramount law of the nation,‖ by establishing ―certain limits
not to be transcended‖ and ―designed to be permanent.‖ Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 176–77, 178 (1803) (―[T]hat those
limits may not be mistaken, or forgotten, the constitution is
written.‖). And the Utah Constitution serves a similar function. It
establishes the foundations of our state government, and the
fundamental rights of our citizens.
    ¶ 150 This is the premise of originalism in constitutional
interpretation. We implement the principles of the constitution as
originally adopted because that is the very point of having a
written constitution. When judges seize the discretion to amend
and adapt the provisions of the constitution, those principles
cease to be the ―paramount law of the nation.‖ Id. at 177. Or at
least they can no longer be thought of as ―permanent‖ rules that
are ―not to be transcended.‖ Id. at 176. Thus, ―originalism is not
just a wise starting point; it is the beginning and end of the judge‘s
function, and an essential limitation on judicial power.‖ Walker,
2011 UT 53, ¶ 34 (Lee, J., concurring).
    ¶ 151 The originalist understands the value—and even the
inevitability—of adaptation of the law over time. Thus, the case
for originalism is not, as is sometimes assumed, an insistence that
the founding generation had a monopoly on wisdom.195 Instead,
the originalist simply recognizes and respects the means by which
our laws are supposed to adapt under the terms of the


   195 See, e.g., Thurgood Marshall, Reflections on the Bicentennial of
the United States Constitution, 101 HARV. L. REV. 1, 1–2 (1987) (―I do
not believe that the meaning of the Constitution was forever
‗fixed‘ at the Philadelphia Convention. Nor do I find the wisdom,
foresight, and sense of justice exhibited by the framers
particularly profound.‖).



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                      A.C.J. LEE, concurring

constitution. Such means are twofold: (a) amendment of the
constitution through the super-majoritarian procedures set forth
in its provisions196 and (b) the implementation of policies
embraced by the people through their representatives in the
political branches of government—by the adoption of statutes,
regulations, and other laws within the limitations prescribed in
the constitution.
   ¶ 152 These and other forms of legal adaptation refute a
common critique of originalism—that it shackles society to rule by
a ―dead hand.‖197 As these examples illustrate, the originalist does

   196 See U.S. CONST. art. V (―The Congress, whenever two thirds
of both Houses shall deem it necessary, shall propose
Amendments to this Constitution, or, on the Application of the
Legislatures of two thirds of the several States, shall call a
Convention for proposing Amendments, which, in either Case,
shall be valid to all Intents and Purposes, as Part of this
Constitution, when ratified by the Legislatures of three fourths of
the several States, or by Conventions in three fourths thereof, as
the one or the other Mode of Ratification may be proposed by the
Congress . . . .‖); UTAH CONST. art. XXIII, § 1 (―Any amendment or
amendments to this Constitution may be proposed in either house
of the Legislature, and if two-thirds of all the members elected to
each of the two houses, shall vote in favor thereof, such proposed
amendment or amendments shall be entered on their respective
journals with the yeas and nays taken thereon; and the Legislature
shall cause the same to be published in at least one newspaper in
every county of the state, where a newspaper is published, for two
months immediately preceding the next general election, at which
time the said amendment or amendments shall be submitted to
the electors of the state for their approval or rejection, and if a
majority of the electors voting thereon shall approve the same,
such amendment or amendments shall become part of this
Constitution.‖).
   197 Justice William J. Brennan, Jr., Speech to the Text and
Teaching Symposium, Georgetown University, Washington, D.C.,
Oct. 12, 1985, in ORIGINALISM: A QUARTER CENTURY OF DEBATE 55
(Steven G. Calabresi ed., 2005) (―[T]he genius of the Constitution
rests not in any static meaning it might have had in a world that is
dead and gone, but in the adaptability of its great principles to
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not consign our society to a static regime stuck in the founding
era. He simply demands that change be effected in the manner
and by the means prescribed by the constitution.198 And he is
attuned to the perils of unelected judges overriding the terms of a
document whose very purpose was to establish fixed limitations
on our government, by means reserved to the people through the
process of constitutional amendment.199
   ¶ 153 Thus, the words ―cruel and unusual‖ ―must be taken to
mean what they meant to the minds of the voters of the state
when the provision was adopted.‖ Tintic Standard Mining Co. v.
Utah Cnty., 15 P.2d 633, 637 (Utah 1932). This is the approach to


cope with current problems and current needs.‖); Michael S.
Moore, A Natural Law Theory of Interpretation, 58 S. CAL. L. REV.
277, 357 (1985) (―The dead hand of the past ought not to govern,
for example, our treatment of the liberty of free speech, and any
theory of interpretation that demands that it does is a bad
theory.‖).
   198 Am. Bush v. City of South Salt Lake, 2006 UT 40, ¶ 66, 140 P.3d
1235 (Parrish, J., majority opinion) (noting that ―[s]ocial values
and public opinion . . . fluctuate over time,‖ but that the
appropriate response is for the people to address such problems
―through legislative enactments or even to amend our
constitution‖); id. ¶¶ 79, 82 (Durrant, J., concurring) (noting that it
is ―enticing to adopt an interpretive technique whereby we, as
judges, look to our own attitudes and views to discern the
contours of the protective boundary erected by our state
constitution,‖ but explaining that this approach ―is more akin to
dictating than judging‖).
   199 See Walker, 2011 UT 53, ¶ 30 (Lee, J., concurring) (explaining
that the ―barriers to amendment of our laws are by design,‖ and
that ―[m]embers of the public are entitled to rely on and organize
their affairs around the law as positively enacted—unless and
until the law is amended or repealed‖); Am. Bush, 2006 UT 40, ¶ 66
(Parrish, J., majority opinion) (explaining that ―[i]t is not our
place‖ to ―substitut[e] our own value judgment for that of the
people of Utah when they drafted and ratified the constitution,‖
while noting that this does not amount to ―interpreting our
constitution‖).



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constitutional interpretation that this court has embraced—with a
few notable exceptions200—for most of its history.201


   200 Compare Soc’y of Separationists, Inc. v. Whitehead, 870 P.2d
916, 921 n.6 (Utah 1993) (―We have encouraged parties briefing
state constitutional issues to use . . . sister state law . . . and policy
arguments in the form of economic and sociological materials to
assist us in arriving at a proper interpretation of the provision in
question.‖), with Am. Bush, 2006 UT 40, ¶ 12 n.3 (―We have
intentionally excluded the consideration of policy arguments
suggested by Soc’y of Separationists v. Whitehead, 870 P.2d 916, 921
n.6 (Utah 1993). . . . [O]ur duty is not to judge the wisdom of the
people of Utah in granting or withholding constitutional
protections but, rather, is confined to accurately discerning their
intent.‖). See also State v. Tiedemann, 2007 UT 49, ¶¶ 32, 37, 162
P.3d 1106 (citing Soc’y of Separationists‘s standard regarding
―policy arguments in the form of economic and sociological
materials‖ as a proper basis for state constitutional interpretation,
while asserting that ―[h]istorical arguments . . . do not represent a
sine qua non in constitutional analysis‖); State v. Hoffmann, 2013 UT
App 290, ¶ 52 & n.8, 318 P.3d 225 (noting tension between
Tiedemann‘s comment about historical analysis and American
Bush‘s holding on the same point).
   201   See Jeremy M. Christiansen, Some Thoughts on Utah
Originalism: A Response, 2014 UTAH L. REV. ONLAW 1, 5–6 & nn.
26–36, 9–10 & nn.59–64 (citing and discussing this court‘s
approach to constitutional interpretation over time, and
concluding that the prevailing approach has largely been
originalist (citing Richardson v. Treasure Hill Mining Co., 65 P. 74, 81
(Utah 1901) (interpreting article XII, section 18 by examining ―[the
framers‘] discussions upon this subject[] [i]n the official report of
the proceedings of the constitutional convention‖); Ritchie v.
Richards, 47 P. 670, 679 (Utah 1896) (per Batch, J.) (interpreting the
secret ballot provision of article IV, section 8 and choosing the
meaning of ―secret‖ that was ―in harmony with public thought
and expression respecting the ballot systems at the time of and
before the holding of the constitutional convention‖); State v.
Elliott, 44 P. 248, 251 (Utah 1896) (discerning the intent ―of the
framers of our fundamental law‖ in determining the scope of the
―writ of quo warranto‖ in article VIII, section 4)).


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    ¶ 154 We should reinforce the originalist method of
interpretation in this case. We should construe the terms of
article I, section 9 as originally understood when that provision
was adopted in 1896. And we should expressly repudiate the
methodology of the dissent to the extent it rests on a review of
―policy arguments in the form of economic and sociological
materials,‖ see ¶ 219 (citing Soc’y of Separationists, Inc. v. Whitehead,
870 P.2d 916, 921 n.6 (Utah 1991)), or an assertion of the heady
prerogative of making constitutional law by the imposition of our
―humanitarian instincts‖ ―spring[ing] from the mosaic of our
beliefs.‖ Infra ¶ 255.202 That is the antithesis of an originalist
interpretation of the constitutional text.
    ¶ 155 A constitution rooted in ―evolving standards‖ arising
out of a judge‘s ―humanitarian instincts‖ is no constitution at all.
Or at least it is not a ―written‖ constitution capable of ―form[ing]
the fundamental and paramount law of the nation,‖ or of
establishing ―certain limits not to be transcended‖ and ―designed
to be permanent.‖ Marbury, 5 U.S. (1 Cranch) at 176, 177.
    ¶ 156 As judges we take an oath to uphold and defend the
constitution.203 That oath must mean something. It should be
understood to protect the fundamental rights of our citizens. It
means nothing of the sort if its content is dependent on the
―humanitarian instincts‖ or ―beliefs‖ of the judge or panel of
judges a litigant happens to draw in a judicial proceeding. No two
judges are identical. Each of us possesses a different set of
―instincts‖ and ―beliefs.‖ Surely the constitution was not meant to
vary from case to case in accordance with the judge or panel
assigned to a particular case. To make good on the promise of a
written document securing fundamental, permanent rights, the
constitution must mean what it originally meant.204


   202To its credit, the dissent also considers historical materials
in its analysis. Infra ¶¶ 214–17, 227–50. But the dissent‘s
originalism falls short, for reasons discussed below.
   203 UTAH CONST. art. IV, § 10 (prescribing an oath, to be taken
by all ―officers made elective or appointive by this Constitution or
by the laws made in pursuance thereof, to ―support, obey and
defend‖ the United States and Utah Constitutions).
   204   The ―evolving standards‖ approach has one thing going for
                                                                 (con‘t.)

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    ¶ 157 I would accordingly reject the ―evolving‖ anti-
originalist approach endorsed by the dissent. Instead, I would
adopt an interpretation of article I, section 9 rooted in the
understanding of this provision that prevailed in the late
nineteenth century. For reasons explored below, I would conclude
that that understanding does not deputize the courts to second-
guess punishments they deem excessive or lacking in
proportionality, but only to proscribe methods of punishment
historically rejected as barbaric or torturous. I would base that
conclusion on the text and structure of article I, section 9; the
history and understanding of this provision‘s federal and state
counterparts at the time of its adoption in the late nineteenth
century; and the drafting history and post-ratification history of
this provision.
                1. Text and Structure of Article I, Section 9
    ¶ 158 Article I, section 9 provides that ―[e]xcessive bail shall
not be required; excessive fines shall not be imposed; nor shall
cruel and unusual punishments be inflicted.‖ UTAH CONST. art. I,
§ 9. The structure and language of this provision cut against an
interpretation that would authorize the courts to assess the
proportionality of a sentence, and suggest instead an inquiry into
the nature or the method of punishment.
    ¶ 159 The first cue from the terms of this provision is
structural. In its first two clauses, article I, section 9 expressly calls
for proportionality review—by proscribing ―[e]xcessive bail‖ and
―excessive fines.‖ The essence of excessiveness, after all, is




it; it is transparent. But a standard of constitutionality that
expressly depends on the ―humanitarian instincts‖ or ―beliefs‖ of
the judge(s) assigned to a particular case is incoherent. The oath
that we take to uphold the constitution confirms that it is
supposed to mean something concrete and objectively discernible.
We thwart that premise—and replace it with an insistence that the
constitution will mean different things in different courtrooms—
when we repudiate originalism and insist on our right to see that
the constitution evolves as a living document over time.



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comparison.205 So the prohibition of excessive bail or fines is an
express invocation of a principle of proportionality.206
    ¶ 160 Significantly, however, section 9 limits review of a
criminal punishment‘s excessiveness to bail and fines. For
punishments, the Utah Constitution (like the Eighth Amendment)
says nothing of excessiveness; it prohibits only those punishments
that are ―cruel and unusual.‖ That is significant. Where three sets
of parallel clauses use two distinct formulations, the clear
implication is that a difference is intended. The qualifiers ―cruel
and unusual‖ would be ―an exceedingly vague and oblique way‖
of communicating what article I, section 9 communicates directly
in the two preceding clauses—proportionality. See Harmelin v.
Michigan, 501 U.S. 957, 977 (1991) (lead opinion of Scalia, J.)
(offering a parallel conclusion under the U.S. Constitution).207



   205   See infra ¶ 162.
   206 See, e.g., Bullock v. Goodall, 7 Va. (3 Call) 44, 49–50 (1801)
(noting that the ―excessive fines‖ clause of the Virginia
Constitution works to limit the discretion of courts to impose fines
by ensuring that such discretion ―is not . . . exercised arbitrarily,
but justly; so as to impose a fine commensurate to the offence and
injury‖); Earl of Devon’s Case, 11 State Trials 133, 136 (1689)
(condemning a ―fine of thirty thousand pounds‖ as ―excessive
and exorbitant‖).
   207 The noscitur canon of construction, infra ¶ 224, yields no
support for the dissent‘s contrary view. This canon resolves
ambiguities in a term in a statutory list by importing points of
parallelism among other terms in the list. See Thayer v. Wash. Cnty.
Sch. Dist., 2012 UT 31, ¶ 15, 285 P.3d 1143; Beecham v. United States,
511 U.S. 368, 371 (1994). For that reason, however, the canon has
no application where there is no ambiguity to resolve, or where
the provision on its face is lacking in parallelism. Both problems
are present here. The phrase ―cruel and unusual‖ clause is
decidedly distinct from—and unparallel with—the ―excessive
fines‖ and ―excessive bail‖ clause. Thus, I see no basis for the
dissent‘s approach—deeming this canon to extend to two
adjectives (excessive), which are grammatically and structurally
limited to the nouns they modify (bail and fines), to modify a
                                                               (con‘t.)

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    ¶ 161 Clearly ―cruel and unusual‖ is not the same as
―excessive.‖ The relevant (nineteenth century) sense of ―cruel‖ is
―[d]isposed to give pain,‖ ―barbarous.‖ WEBSTER‘S COMMON
SCHOOL DICTIONARY 82 (1892).208 Tellingly, the dissent does not
point out any attested usage of the word ―cruel‖ that reflects the
notion of proportionality. The same goes for ―unusual.‖ In the
relevant time period, that term was understood simply as ―not
usual; uncommon; rare.‖ Id. at 393. Thus, a punishment is ―cruel
and unusual‖ if it is rare or uncommon in its barbarousness or
tendency to cause pain. That has nothing to do with its
proportionality in relation to the underlying offense.
    ¶ 162 ―Excessive[ness],‖ on the other hand, is an
unmistakable reference to the principle of proportionality.
Historically, this term was understood to mean ―[b]eyond any
given degree, measure or limit, or beyond the common measure
or proportion‖ and ―[b]eyond the laws of morality and religion, or
beyond the bounds of justice, fitness, propriety, expedience or
utility.‖ WEBSTER‘S AMERICAN DICTIONARY OF THE ENGLISH
LANGUAGE 314 (3d ed. 1830) (emphasis added); see also WEBSTER‘S
COMMON SCHOOL DICTIONARY 118 (defining ―excess‖ as
―intemperance; the amount by which one thing exceeds another‖).
This underscores the structural point highlighted above. Where
article I, section 9 employs a term encompassing proportionality
review in two of its clauses but not in the third, the message
seems clear: Excessiveness or proportionality review is limited to
judicial consideration of bail and fines, and does not extend more
broadly to punishments.
    ¶ 163 The dissent deems this distinction ―unnatural,‖
―incongruous,‖ and ―‗anomalous.‘‖ Infra ¶ 224 (quoting Solem, 463
U.S. at 289). And, citing cases interpreting the Eighth Amendment
of the U.S. Constitution, the dissent asserts that ―[t]he Supreme


third noun (punishments) already modified by its own adjectives
(cruel and unusual).
   208See also WEBSTER‘S AMERICAN DICTIONARY OF THE ENGLISH
LANGUAGE 210 (3d ed. 1830) (defining ―cruel‖ as ―[d]isposed to
give pain to others, in body or mind; willing or pleased to
torment, vex, or afflict; inhuman; destitute of pity, compassion or
kindness; fierce; ferocious; savage; barbarous; hard-hearted‖).



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Court has long held . . . that . . . the Eighth Amendment prohibits
disproportionate punishments.‖ Infra ¶ 217 (citing Weems v.
United States, 217 U.S. 349, 366 (1910); Solem, 463 U.S. at 290; O’Neil
v. Vermont, 144 U.S. 323, 331–32, 339–40 (1892) (Field, J.,
dissenting)). I disagree on both points. As to precedent, the cases
endorsed by the dissent have been called into question more
recently. See supra ¶ 134 n.5 (describing the impact of the opinions
in Harmelin on the analysis in Solem). The lead opinion in the
court‘s more recent pronouncements under the Eighth
Amendment, moreover, persuasively refutes the supposed
―anomal[y]‖ of limiting the excessiveness inquiry to the terms
with which it is connected (bail and fines):
       The logic of the matter is quite the opposite. If ―cruel
       and       unusual        punishments‖         included
       disproportionate     punishments,      the     separate
       prohibition of disproportionate fines (which are
       certainly punishments) would have been entirely
       superfluous. When two parts of a provision (the
       Eighth Amendment) use different language to
       address the same or similar subject matter, a
       difference in meaning is assumed.
       ....
       But, it might be argued, why would any rational
       person be careful to forbid the disproportionality of
       fines but provide no protection against the
       disproportionality of more severe punishments?
       Does not the one suggest the existence of the other?
       Not at all. There is good reason to be concerned that
       fines, uniquely of all punishments, will be imposed
       in a measure out of accord with the penal goals of
       retribution and deterrence. Imprisonment, corporal
       punishment, and even capital punishment cost a
       State money; fines are a source of revenue. As we
       have recognized in the context of other constitutional
       provisions,    it    makes    sense    to   scrutinize
       governmental action more closely when the State
       stands to benefit.
Harmelin, 501 U.S. at 978 n.9 (lead opinion of Scalia, J.).
   ¶ 164 This is entirely in line with our Utah caselaw, which has
long embraced the canon of independent meaning (or, in other

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words, a presumption against superfluous language). See, e.g.,
Hi-Country Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶ 24, 304 P.3d
851; Vota v. Ohio Copper Co., 129 P. 349, 353 (Utah 1912). Under this
canon, the Cruel and Unusual Punishments Clause should not be
presumed to be superfluous. It should be assumed to have
independent meaning. And in order to give it such meaning, we
must presume that it does more than restate the bar on ―excessive
fines‖ in more general terms.
   ¶ 165 For these reasons, the language and structure of the
Utah Constitution are incompatible with the proportionality
standard embraced by the dissent. Instead, the terms of this
provision appear to be directed at a standard focused on the
question whether a punishment is one that is both ―barbarous‖ or
―disposed to give pain‖ and ―uncommon‖ or ―rare.‖
               B. Original Public Meaning of ―Cruel and
                     Unusual Punishments‖
    ¶ 166 This view is confirmed by evidence of the original
public meaning of the Utah Cruel and Unusual Punishments
Clause and of its federal and English antecedents. Article I,
section 9 traces its roots to a parallel provision in the U.S.
Constitution‘s Eighth Amendment.209 And the federal provision,
in turn, was based on a parallel clause in the English Bill of Rights.
   ¶ 167 This background highlights three additional historical
sources that inform my understanding of the meaning of article I,
section 9: (1) the English origins of the principle of cruel and
unusual punishments, (2) the original understanding of the
federal Cruel and Unusual Punishments Clause, and (3) the
understanding prevailing at the time of the adoption of the Utah
Constitution. All three sources are incompatible with the principle
of proportionality endorsed by the dissent, and point instead



   209 The two clauses are nearly identical. Compare U.S. CONST.
amend. VIII (―Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.‖),
with UTAH CONST. art. I, § 9 (―Excessive bail shall not be required;
excessive fines shall not be imposed; nor shall cruel and unusual
punishments be inflicted. Persons arrested or imprisoned shall not
be treated with unnecessary rigor.‖).


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toward a prohibition of modes of punishment that are
unprecedented in their barbarous nature.
            a. The English origins of protection against
                 ―cruel and unusual punishments‖
    ¶ 168 I do not doubt that the ―maxim that the punishment
must fit the crime‖ is a matter ―foundational‖ to any ―reasoned
system of criminal justice.‖ Infra ¶ 214. But the question presented
does not concern the wisdom or general applicability of this
―venerable principle,‖ infra ¶ 214, as a matter of aspirational
public policy. Instead, the question is whether and to what extent
this principle is incorporated in the terms of the Cruel and
Unusual Punishments Clause. And that question must be
answered by reference to the original meaning of the operative
terms of the constitution.
    ¶ 169 The quest for original meaning is not simply a search
for deeply embedded historical values. Again, the premise of
originalism is not that a dusty tome is more worthy of respect
than a modern one, but that a written constitution is aimed at
cementing established principles in place unless and until they are
repealed or amended. See supra ¶¶ 148–152. So the venerable
historical sources cited in the dissent—see infra ¶¶ 214–15 (quoting
the Code of Hammurabi, Leviticus, Plato, and Cicero)—are
ultimately beside the point. The fact that sages of centuries past
embraced proportionality in sentencing tells us little about the
doctrine embedded in the U.S. Constitution in 1789, or the Utah
Constitution in 1896. (And, in any event, the quoted provisions
speak only to general aspirational policy of proportionality in
criminal punishment; we undoubtedly have long embraced that
general policy in the United States, but that doesn‘t mean that our
constitutional law requires our judges to enforce such a principle
as against legislatively endorsed punishments.)
    ¶ 170 To derive an original understanding of the constitution,
we must consider its text and legal underpinnings. The Cruel and
Unusual Punishments Clause borrows terms and concepts from
the English Bill of Rights. Compare An Act Declaring the Rights
and Liberties of the Subject and Settling the Succession of the
Crown, 1 W. & M., 2d sess., ch. 2 (Dec. 16, 1689) (―That excessive
bail ought not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.‖), with U.S. CONST. amend.
VIII (―Excessive bail shall not be required, nor excessive fines


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imposed, nor cruel and unusual punishments inflicted.‖). So the
starting point for any historical study of the Eighth Amendment is
an inquiry into the understanding of that provision that prevailed
historically.
   ¶ 171 In its initial invocations of the principle of
proportionality, the United States Supreme Court proceeded in
open disdain for the original meaning of the Eighth Amendment.
In Weems v. United States, for example, the Court openly
acknowledged that it was embracing a ―progressive‖ legal
standard that was ―not fastened to the obsolete.‖ 217 U.S. at 378.
Thus, far from attempting to connect up its view with original
meaning, the Weems Court endorsed a principle that could
―acquire meaning as public opinion becomes enlightened by a
humane justice.‖ Id. Trop v. Dulles, 356 U.S. 86 (1958), is to the
same effect. There the Court formulated the principle endorsed by
the dissent in this case—a proportionality inquiry rooted in
―evolving standards of decency that mark the progress of a
maturing society.‖ Infra ¶ 213 (quoting Trop, 356 U.S. at 101).
     ¶ 172 More recent decisions give at least a nod to history. In
Solem v. Helm, a majority of the Supreme Court purported to base
its standard of proportionality on an original understanding of the
Eighth Amendment. 463 U.S. at 284; see infra ¶ 218 (citing Solem
for the proposition that ―the Eighth Amendment‘s explicit
prohibitions of ‗[e]xcessive bail‘ and ‗excessive fines‘ must extend
to bar excessive terms of imprisonment‖). But the Solem court‘s
textual and historical analysis was sparse. While invoking the
English Bill of Rights, the Solem court gave no consideration to
that provision‘s differential treatment of ―bail‖ and ―fines,‖ on
one hand, and ―punishments inflicted,‖ on the other. Nor did it
examine historical practice in England under this provision in
pursuit of any serious assessment of the question whether the
standard of excessiveness (as applied to bail and fines) had been
extended more broadly to ―punishments.‖ Instead, the Solem court
simply cited historical precedent of the English courts in
condemning ―a ‗fine of thirty thousand pounds‘‖ as ―‘excessive
and exorbitant.‘‖ 463 U.S. at 285 (emphasis added) (quoting Earl of
Devon’s Case, 11 State Trials 133, 136 (1689)). And, from there, the
Solem court blithely asserted that the Eighth Amendment must
have ―adopted the English principle of proportionality,‖ which it
presumed would extend to punishments in the form of prison
sentences. Id. at 285–86.

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    ¶ 173 The Solem majority, like the dissent in this case, infra
¶ 215, also cited Blackstone in support of its conclusion that the
Eighth Amendment incorporated a principle of proportionality.
Id. at 285. Yet although it is true that Blackstone favored a
principle under which the designated ―‗punishment ought always
to be proportioned to the particular purpose it is meant to serve,‘‖
infra ¶ 215 (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES ON
THE LAWS OF ENGLAND *12 (facsimile ed. 1979) (1765–69)), the
quoted provisions simply articulated aspirational legislative policy.
See 4 BLACKSTONE, supra at *11 (indicating Blackstone‘s intent
simply ―to suggest a few hints for the consideration of such as are,
or may hereafter become, legislators‖). They do not purport to
limit the discretion of the legislature or to indicate that the
legislature might lack the power to impose a sentence that a court
might later deem to be excessive or disproportionate. To the
contrary, Blackstone went out of his way to emphasize the ―right
of the legislature in any country to [e]nforce it[]s own laws by the
death of the transgressor.‖ Id. And he even highlighted a key
element of the case against judicial enforcement of a constitutional
principle of proportionality—asserting that ―the quantity of
punishment can never be absolutely determined by any standing
invariable rule; but it must be left to the arbitration of the
legislature to inflict such penalties as are warranted by the laws of
nature and society, and such as appear to be the best calculated to
answer the end of precaution against future offences.‖ Id. at *12.
   ¶ 174 These and other shortcomings of the originalist case for
an Eighth Amendment principle of proportionality were
highlighted in the lead opinion in Harmelin v. Michigan. In
Harmelin, the lead opinion chides the Solem majority for
―assum[ing], with no analysis‖ that the English Declaration of
Rights‘ prohibition on ―excessive‖ bail and fines extended also to
―punishments.‖ 501 U.S. at 967. And, citing the ―historical context
and contemporaneous understanding of the English guarantee,‖
the Harmelin opinion concludes that the excessiveness limitation
was historically understood to be limited to bail and fines, and
that the restriction on ―punishments‖ was defined by what was
―cruel and unusual‖ in the sense of a form of punishment aimed
at inflicting pain (―cruel‖) and also contrary to precedent
(―unusual‖).
   ¶ 175 The Harmelin opinion‘s basis for this conclusion was the
1685 case of Titus Oates, which was decided the year after the

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adoption of the English Bill of Rights. Oates was a ―Protestant
cleric whose false accusations had caused the execution of 15
prominent Catholics for allegedly organizing a ‗Popish Plot‘ to
overthrow King Charles II in 1679.‖ Id. at 969. Oates was ―tried
and convicted before the King‘s Bench for perjury.‖ Id. His crime,
of ―bearing false witness against another, with an express
premeditated design to take away his life, so as the innocent
person be condemned and executed,‘ had, at one time, been
treated as a species of murder, and punished with death.‖ Id. at
969–70. Yet
       [a]t sentencing, [Lord Chief Justice] Jeffreys
       complained that death was no longer available as a
       penalty and lamented that ―a proportionable
       punishment of that crime can scarce by our law, as it
       now stands, be inflicted upon him.‖ Second Trial of
       Titus Oates, 10 How. St. Tr. 1227, 1314 (K.B. 1685).
       The law would not stand in the way, however. The
       judges met, and, according to Jeffreys, were in
       unanimous agreement that ―crimes of this nature are
       left to be punished according to the discretion of this
       court, so far as that the judgment extend not to life or
       member.‖ Ibid. Another justice taunted Oates that ―we
       have taken special care of you,‖ id., at 1316. The court
       then decreed that he should pay a fine of ―1000 marks
       upon each Indictment,‖ that he should be ―stript of
       [his] Canonical Habits,‖ that he should stand in the
       pillory annually at certain specified times and places,
       that on May 20 he should be whipped by ―the
       common hangman‖ ―from Aldgate to Newgate,‖ that
       he should be similarly whipped on May 22 ―from
       Newgate to Tyburn,‖ and that he should be
       imprisoned for life. Ibid.
Harmelin, 501 U.S. at 970 (third alteration in original).
    ¶ 176 Oates challenged his sentence in the House of Lords,
and the Lords‘ opinions form the basis of the Harmelin opinion‘s
sense of the content of the English Bill of Rights‘ protection
against ―cruell and unusuall Punishments.‖ Id. ―‗Not a single peer
ventured to affirm that the judgment was legal: but much was
said about the odious character of the appellant,‘ and the Lords
affirmed the judgment.‖ Id. ―A minority of the Lords dissented,
however, and their statement sheds light on the meaning of the

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‗cruell and unusual Punishments‘ clause.‖ Id. Specifically, as the
lead opinion in Harmelin indicated, the dissenting Lords asserted
that the King‘s Bench, ―‗being a Temporal Court,‘‖ had no
authority to divest Oates ―‗of his canonical and priestly Habit‘‖;
that there was ―‗no Precedent to warrant the Punishments of
whipping and committing to Prison for Life, for the Crime of
Perjury‘‖; and that ―‗said Judgments were contrary to Law and
ancient Practice,‘‖ and thus ―contrary to the Declaration . . . that
excessive Bail ought not to be required, nor excessive Fines
imposed, nor cruel nor unusual Punishments afflicted.‘‖ Id. at 971.
     ¶ 177 In further support of this understanding of the English
Bill of Rights proscription on cruel and unusual punishments, the
Harmelin opinion also quoted from the discussion in connection
with a bill passed by the House of Commons, which would have
annulled Oates‘s sentence. Id. That discussion again ―confirm[ed]
that the ‗cruell and unusuall Punishments‘ clause was directed at
the Oates case (among others) in particular, and at illegality,
rather than disproportionality, of punishment in general.‖ Id. ―In
all these contemporaneous discussions,‖ the Harmelin opinion
noted that ―a punishment [was] not considered objectionable
because it [was] disproportionate, but because it [was] ‗out of the
[Judges‘] Power,‘ contrary to Law and ancient practice,‘ without
‗Precedents‘ or ‗express Law to warrant,‘ ‗unusual,‘ ‗illegal,‘ or
imposed by ‗Pretence to a discretionary Power.‘‖ Id. ―Moreover,‖
the opinion noted that ―the phrase ‗cruell and unusuall‘ [was]
treated as interchangeable with ‗cruel and illegal,‘‖ such that ―the
‗illegal and cruell Punishments‘ of the Declaration‘s prologue . . .
are the same thing as the ‗cruell and unusual Punishments‘ of its
body.‖ Id. at 973 (fourth alteration in original).
    ¶ 178 The dissent takes issue with this description of the
history of Oates‘s trial, highlighting statements in the House of
Lords that all thought ―such an extravagant Judgment ought not
to have been given, or a Punishment so exorbitant inflicted on an
English Subject,‖ or in the House of Commons that members
described the sentence as ―excessive‖ and ―extravagant.‖ Infra
¶ 234. It also cites the work of one legal scholar who has
concluded, in part based upon his reading of the Oates materials,
that the ―English Cruell and Unusuall Punishments Clause was
originally understood to prohibit new punishments that were
excessive in light of prior practice.‖ Infra ¶ 233 (quoting John F.
Stinneford, Rethinking Proportionality Under the Cruel and Unusual

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Punishments Clause, 97 VA. L. REV. 899, 937 (2011)). There are
several problems with the dissent‘s take on the Oates case.
     ¶ 179 First, it is not true that Oates‘s punishment was
―unprecedented in its severity,‖ as the dissent puts it. Infra ¶ 234.
It is simply not the case that parts of Oates‘s sentence (like the
flogging that would probably have resulted in death) would have
been seen as disproportionate to his crime—perjury with the
intent (and the result) of having fifteen innocent people executed.
See Harmelin, 501 U.S. at 973 n.4 (Scalia, J.); see also Anthony F.
Granucci, ―Nor Cruel and Unusual Punishments Inflicted:‖ The
Original Meaning, 57 CALIF. L. REV. 839, 859 n.97 (1969) (citing 4
THE DIARY OF JOHN EVELYN 445 (E. DeBeer ed. 1955) (noting
contemporary opinion that Oates‘s ―punishment was but what he
well deserved‖)); 3 THOMAS BABINGTON MACAULAY, THE HISTORY
OF ENGLAND FROM THE ACCESSION OF JAMES II 304 (1898) (noting
that Oates‘s ―sufferings, great as they might seem, had been
trifling when compared with his crimes‖). Indeed, the reason
Lord Chief Justice Jeffreys complained that ―a proportionable
punishment of that crime can scarce by our law, as it now stands,
be inflicted upon [Oates],‖ Second Trial of Titus Oates, 10 How. St.
Tr. 1227, 1314 (K.B. 1685), is that the crime of which Oates was
convicted used to be punishable by death. See 4 BLACKSTONE, supra at
*196 (noting that under ―the antient [sic] common law‖ it was ―a
species of killing held to be murder‖ to ―bear[] false witness
against another, with an express premeditated design to take
away his life, so as the innocent person be condemned and
executed‖). But such punishment was discontinued and had no
statutory authorization. Thus, the problem with Oates‘s sentence,
in the view of the dissenting Lords and the House of Commons,
was its unusualness or illegality.
   ¶ 180 Second, the Lords‘ and Commons‘ references to
―excessive[ness]‖ may well have referred to the 2,000 marks Oates
was fined, an amount that ―may have been excessive‖ for the time
period, Granucci, supra at 859, and which was undoubtedly
subject to the Excessive Fines Clause of the English Bill of Rights.
See Earl of Devon’s Case, 11 State Trials 133, 136 (1689)
(condemning a ―fine of thirty thousand pounds‖ as ―excessive
and exorbitant.‖).




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   ¶ 181 Finally, scholars and courts have overwhelmingly
acknowledged that historical ―English practice‖ was generally
incompatible with a principle of proportionality.210 After all, ―in
1791, England punished over 200 crimes with death,‖ and even in
1830 the ―class of offenses punishable by death‖ encompassed
―murder; attempts to murder by poisoning, stubbing, shooting



   210  Harmelin, 501 U.S. at 974 (citing Anthony F. Granucci, ―Nor
Cruel and Unusual Punishments Inflicted:‖ The Original Meaning, 57
CALIF. L. REV. 839, 847 (1969)); Weems, 217 U.S. at 391–93 (White, J.,
dissenting, joined by Holmes, J.) (―That in England it was
nowhere deemed that any theory of proportional punishment was
suggested by the Bill of Rights, or that a protest was thereby
intended against the severity of punishments, speaking generally,
is demonstrated by the practice which prevailed in England as to
punishing crime from the time of the Bill of Rights to the time of
the American Revolution.‖); In re Bayard, 63 How. Pr. 73, 77 (N.Y.
Gen. Term. 1881) (recognizing that the English Bill of Rights
―clearly did not then refer to the degree of punishment, for the
criminal law of England was at that time disgraced by the
infliction of the very gravest punishment for the slight offenses,
even petit larceny being then punishable with death‖).
    A principal source for the dissent‘s view of originalism is the
research of Professor Stinneford. See infra ¶ 233 (citing John F.
Stinneford, Rethinking Proportionality Under the Cruel and Unusual
Punishments Clause, 97 VA. L. REV. 899 (2011)). I find Stinneford‘s
historical analysis helpful on some points, but deem his thesis
unsupported by the history that he cites. In any event, it should be
noted that Stinneford does not endorse the freewheeling approach
to proportionality endorsed by the dissent. See Stinneford, supra at
917 (criticizing the U.S. Supreme Court‘s ―proportionality
jurisprudence‖ as arbitrary and noting ―the lack of a workable
method for measuring the excessiveness of punishment‖); id. at
968 (―The evolving standards of decency test has proven itself an
unreliable and ineffective measure of cruelty. [And] [s]ole reliance
on the Court‘s ‗independent judgment,‘ on the other hand, would
be standardless and potentially antidemocratic.‖ (footnote
omitted)); id. at 969 (arguing for proportionality as determined by
―the bounds‖ of the common law and prior practice).



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etc.; administering poison to procure abortion; sodomy; rape;
statutory rape, and certain classes of forgery.‖211
   ¶ 182 Thus, the more careful analysis of the English origins of
the Eighth Amendment indicates an understanding in line with
the terms and structure of article I, section 9—that it did not
impose a principle of proportionality, but only a limitation on
―cruel‖ forms of punishment that were ―unusual‖ in the sense of
being unauthorized by past precedent.
         b. Original understanding of the Eighth Amendment
    ¶ 183 This conclusion is also confirmed by the practice and
debate that prevailed in the United States at or around the time of
the federal framing. In state conventions leading to the ratification
of the United States Constitution, for example, an objection was
raised that the Constitution (then without a Bill of Rights)
―nowhere restrained‖ Congress ―from inventing the most cruel
and unheard-of punishments, and annexing them to crimes.‖
2 JONATHAN ELLIOT, DEBATES OF THE FEDERAL CONSTITUTION 111
(2d ed. 1854). And, in context, the reference to such ―cruel and
unheard-of punishments‖ was not about proportionality, but
about form—a concern that without such a ―constitutional check,‖
Congress might be inclined to turn to cruel punishments such as
―racks and gibbets,‖ which ―may be amongst the most mild
instruments‖ imaginable. Id.212


   211Harmelin, 501 U.S. at 975 (citing 1 JAMES FITZJAMES STEPHEN,
A HISTORY OF THE CRIMINAL LAW OF ENGLAND 490 (1883), and
noting that ―during his discussion of English capital punishment
reform, Stephen does not once mention the Cruell and Unusuall
Punishments Clause, though he was certainly aware of it,‖ and
also that ―in his discussion of the suitability of punishments,
Blackstone [likewise] does not mention the Declaration‖).
   212 See also 3 ELLIOT, supra at 447 (Patrick Henry, in the Virginia
Convention, speaking of the concern that without a prohibition
against ―cruel and unusual punishments,‖ like that set forth in the
Virginia Bill of Rights, Congress could ―loose the restriction of not
. . . inflicting cruel and unusual punishments,‖ by allowing
―tortures, or cruel and barbarous punishment‖); Harmelin, 501
U.S. at 979–80 (citing and discussing these sources).



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    ¶ 184 ―The actions of the First Congress, which are of course
persuasive evidence of what the Constitution means, belie any
doctrine of proportionality.‖ Harmelin, 501 U.S. at 980 (opinion of
Scalia, J.) (citation omitted). After all, ―[s]hortly after proposing
the Bill of Rights, the First Congress‖ extended the punishment of
―death by hanging‖ on a range of crimes, including ―forgery of
United States securities, ‗run[ning] away with [a] ship or vessel, or
any goods or merchandise to the value of fifty dollars,‘ treason,
and murder on the high seas.‖ Id. at 980–81 (second and third
alterations in original) (quoting 1 Stat. 114). Significantly, ―[t]he
law books of the time are devoid of indication that anyone
considered these newly enacted penalties unconstitutional by
virtue of their disproportionality.‖ Id. at 981.
    ¶ 185 Early American legal commentary is along the same
lines. One commentator spoke of ―[t]he prohibition of cruel and
unusual punishments‖ as ―mark[ing] the improved spirit of the
age, which would not tolerate the use of the rack or stake, or any
of those horrid modes of torture, devised by human ingenuity for
the gratification of fiendish passion.‖ JAMES BAYARD, A BRIEF
EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES 154 (2d ed.
1840). Another spoke of the Eighth Amendment‘s Cruel and
Unusual Punishments Clause as prohibiting ―[t]he various
barbarous and cruel punishments inflicted under the laws of some
other countries,‖ such as ―[b]reaking on the wheel, flaying alive,
rendering asunder with horses, [and] various species of horrible
tortures inflicted in the inquisition,‖ such as ―maiming, mutilating
and scourging to death.‖ BENJAMIN L. OLIVER, THE RIGHTS OF AN
AMERICAN CITIZEN 186 (1832).213


   213   See   also   3
                      JOSEPH STORY, COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES § 1896 (1833) (asserting that
the Eighth Amendment was ―adopted as an admonition to all
departments of the national government, to warn them against
such violent proceedings, as had taken place in England in the
arbitrary reigns of some of the Stuarts‖ (emphasis added));
Harmelin, 501 U.S. at 981–82 (discussing these and other
commentaries, and concluding that they ―contain[] no reference to
disproportionate or excessive sentences‖ and indicate that the
Cruel and Unusual Punishments Clause was understood as
―designed to outlaw particular modes of punishment‖).


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   ¶ 186 This commentary confirms what is indicated by the
other historical sources cited above: The federal Cruel and
Unusual Punishments Clause was widely understood not to
prescribe an assessment of proportionality, but simply to prohibit
modes of punishment that were ―cruel‖ in the sense of being
barbaric and ―unusual‖ in the sense of being unprecedented.
         c. The public understanding at the time of the Utah framing
    ¶ 187 This same understanding of ―cruel and unusual
punishments‖ prevailed at the time of the framing of the Utah
Constitution. Thus, even if there were doubt about the original
meaning of the federal Cruel and Unusual Punishments Clause,
the question presented here would yield a straightforward
answer: Article I, section 9, as originally adopted in 1896, is not a
license for judicial assessment of the proportionality of criminal
punishment; it is merely a prohibition of modes of punishment
that are unprecedented in their barbarousness or tendency to
inflict pain.
    ¶ 188 State and federal courts consistently conceived of the
constitutional prohibition of cruel and unusual punishments in
this way,214 often expressly rejecting the type of proportionality


   214 State v. Williams, 77 Mo. 310, 312–13 (1883) (holding that
cruel and unusual does not refer to prison sentences as a mode of
punishment but only to ―such punishments as amount to torture‖
such as ―drawing and quartering‖ or ―burning him at the stake‖);
People ex rel. Kemmler v. Durston, 7 N.Y.S. 813, 815 (Sup. Ct. Gen.
Term 1889) (holding that the provision bans modes of punishment
that ―involve torture and a lingering death‖); In re Kemmler,
7 N.Y.S. 145, 149–50 (Co. Ct. 1889) (―[I]t is clearly not against
[death as a mode of punishment] that the constitution is directed‖
rather it extends to punishments such as ―crucifixion, boiling in
water, oil, or lead, blowing from cannon‘s mouth, burning,
breaking on the wheel, dismemberment, [and] burying alive.‖);
James v. Commonwealth, 12 Serg. & Rawle 220, 235 (Pa. 1825)
(holding that ―the ducking-stool‖ was an illegal punishment
under ―the humane provisions of the constitutions of the United
Sates and of [Pennsylvania], as to cruel and unusual
punishments‖); Ligan v. State, 50 Tenn. 159, 164 (1871) (upholding
KKK member‘s conviction and sentence ―for feloniously prowling
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analysis advocated by the dissent.215 Throughout the nineteenth
century, the courts generally understood the prohibition of ―cruel


and travelling in disguise‖ and holding that ―imprisonment in the
penitentiary for a longer period, ten to twenty year . . . is neither
cruel nor unusual, in the sense of the Constitution‖ (internal
quotation marks omitted)).
   215 See, e.g., Whitten v. State, 47 Ga. 297, 300–01 (1872) (rejecting
defendant‘s       argument       that    sentence     was      ―entirely
disproportionate to the nature and character of the offense‖ and
holding that ―[s]o long as [legislators] do not provide cruel and
unusual punishments, such as disgraced the civilization of former
ages, and make one shudder with horror to read of them, as
drawing, quartering, burning, etc., the Constitution does not put
any limit upon legislative discretion‖); State v. White, 25 P. 33, 35
(Kan. 1890) (concluding that despite the extreme severity of a
statutory rape punishment, the court could not ―say that the
statute is void for that reason‖ and that ―[i]mprisonment in the
penitentiary at hard labor is not of itself a cruel or unusual
punishment,‖ but that the Kansas Cruel and Unusual Punishments
Clause ―relates to the kind of punishment to be inflicted, and not to its
duration‖ (emphases added)); Foote v. State, 59 Md. 264, 266–68
(1883) (upholding defendant‘s sentence jail and lashing because
―the people who made [the Maryland] Constitution, and who
must be presumed to understand the meaning of the terms they
use, have, from the time these words were first incorporated, in
1776 down to 1882,‖ never considered ―the punishment of
whipping‖ to be ―a ‗cruel or unusual punishment‘‖ and that the
court was ―not dealing with the expediency, justice, or efficacy of
this punishment, but only with the true interpretation of the terms
of the Constitution‖); Cummins v. People, 3 N.W. 305, 305 (Mich.
1879) (rejecting the argument that a sentence was ―unusually
severe, and that, in the light of all the facts, it was in violation of
[the Cruel and Unusual Punishments Clause,]‖ and holding ―[t]he
sentence was not in excess of that permitted by statute, and when
within the statute this court has no supervising control over the
punishment that shall be inflicted.‖ (emphasis added)); State v.
Borgstrom, 72 N.W. 799, 803–04 (Minn. 1897) (rejecting claim that a
prison sentence ―was altogether disproportionate to the offense
charged‖ and therefore ―cruel [and] unusual‖ under the state
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and unusual punishments‖ as a limitation on barbaric methods of
punishment, while emphasizing that the length of a prison term
was a matter for legislative discretion.216 In the words of the


constitution and holding that the punishments ―prohibited by our
constitution‖ are the ―cruel‖ and ―inhuman‖ punishments such as
―loading him with weights,‖ ―drown[ing], disembowel[ment],‖ or
being ―sewed up in a leather sack with a live dog, a cock, a viper,
and an ape, and cast into the sea‖); Territory v. Ketchum, 10 N.M.
718, 718 (1901) (expressing ―great doubt,‖ based on the then-state
of constitutional law that ―the courts, in any case, have the power
to review legislative discretion in determining the severity of
punishment for crime, so long as all forms of torture have been
avoided‖); Garcia v. Territory, 1 N.M. 415, 417–19 (1869)
(upholding sentence of lashing for stealing a mule on the grounds
that cruel and unusual punishment has reference only to ―the
process of torture‖ and that it was otherwise ―never designed to
abridge or limit the selection by the law-making power of such
kind of punishment as was deemed most effective in the
punishment and suppression of crime‖); People ex rel. Kemmler v.
Durston, 24 N.E. 6, 8 (N.Y. 1890) (―We entertain no doubt in regard
to the power of the legislature to change the manner of inflicting
the penalty of death. The general power of the legislature over
crimes, and its power to define and punish the crime of murder, is
not and cannot be disputed.‖); State v. Hogan, 63 Ohio St. 202, 218
(1900) (―Imprisonment at hard labor is neither cruel nor unusual.
It may be severe, in the given instance, but that is a question for
the lawmaking power.‖); State v. Woodward, 69 S.E. 385, 388–89
(W. Va. 1910) (holding that ―cruel and unusual punishment‖ does
―not affect legislation providing imprisonment for life or years‖
and that it only applies to ―inhuman, barbarous inflictions‖ but
nonetheless engaging in proportionality review under the state‘s
Proportional Punishments Clause).
   216  See Commonwealth v. Hitchings, 71 Mass. 482, 486 (1855)
(affirming sentence involving a fine and imprisonment for
unlawful sale of intoxicating liquor and explaining that the length
of imprisonment is a matter ―for the legislature to determine‖);
Barker v. People, 20 Johns. 457, 459 (N.Y. 1823) (affirming
punishment of disenfranchisement on conviction of dueling,
rejecting challenge on cruel and unusual punishments grounds
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Supreme Judicial Court of Massachusetts, ―[t]he question whether
the punishment is too severe, and disproportionate to the offense,
is for the legislature to determine.‖217
    ¶ 189 This view prevailed throughout the nineteenth century,
including in the decade in which our Utah Constitution was
adopted. An exemplary decision was Hobbs v. State, 32 N.E. 1019
(Ind. 1893). In that case, the Indiana Supreme Court explained that
―[t]he word ‗cruel,‘ when considered in relation to the time when
it found place in the bill of rights, meant, not a fine or
imprisonment, or both, but such as that inflicted at the whipping
post, in the pillory, burning at the stake, breaking on the wheel,
etc.‖ Id. at 1021. And, importantly, the Hobbs court went on to
conclude that the prohibition of ―cruel and unusual punishments‖
―does not affect legislation providing imprisonment for life or for
years.‖ Id.218


while explaining that ―[t]he disfranchisement of a citizen is not an
unusual punishment; it was the consequence of treason, and of
infamous crimes, and it was altogether discretionary in the
legislature to extend that punishment to other offences‖); Aldridge
v. Commonwealth, 4 Va. (2 Va. Cas.) 447, 449–50 (Va. Gen. Ct. 1824)
(upholding sentence on conviction of larceny; rejecting challenge
under the Cruel and Unusual Punishments Clause of Virginia
Declaration of Rights, and explaining that the clause ―was never
designed to control the Legislative right to determine ad libitum
upon the adequacy of punishment, but is merely applicable to the
modes of punishment‖); see also Pervear v. Massachusetts, 72 U.S.
475, 480 (1866) (upholding sentence involving fine of $50 and
imprisonment at hard labor for three months on charge of
maintaining a ―tenement for the illegal sale and illegal keeping of
intoxicating liquors‖; holding that Eighth Amendment did not
―apply to State but to National legislation,‖ while also opining, in
dicta, that there was ―nothing excessive, or cruel, or unusual‖ in
this punishment given that the matter was ―wholly within the
discretion of State legislatures‖).
   217   Hitchings, 71 Mass. at 486.
   218 See also People v. Smith, 54 N.W. 487, 487, 488 (Mich. 1893)
(affirming sentence of five-year term of imprisonment for crime of
receiving stolen property ―of the value of one dollar‖; rejecting
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    ¶ 190 This same approach was reflected in legal commentary
in the era. ―Punishments‖ were understood as ―cruel when they
involve[d] torture or a lingering death.‖ 3 BOUVIER‘S LAW
DICTIONARY 2771 (8th ed. 1914). On the question of ―[w]hat
punishment is suited to a specified offence,‖ moreover, the
prevailing view was that that matter ―must in general be
determined by the legislature.‖ Id. Thus, a ―[s]entence for a term
not exceeding that prescribed by statute‖ was not ―regarded as a
cruel or unusual punishment.‖ Id.
    ¶ 191 It may be a bit of an overstatement to say that the
nineteenth-century view of the courts on this point was
―universal.‖ See Harmelin, 501 U.S. at 984 (opinion of Scalia, J.)
(articulating this view); Weems, 217 U.S. at 402 (White, J.,
dissenting) (same). At or around the time the Utah Constitution
was adopted, some courts had endorsed the view that the
constitutional prohibition of cruel and unusual punishments
encompassed a standard of review for proportionality of prison
terms.219 And at least a couple of legal treatises had begun to


challenge to sentence on the ground that it was ―cruel and
unusual‖ punishment, particularly in light of the fact that the thief
himself could only have been sentenced to imprisonment for one
year; explaining that ―[u]pon the legislature alone is conferred the
power to fix the minimum and maximum of the punishment for
all crimes,‖ and that a ―law which provides a greater maximum
penalty for receiving stolen property than for the larceny of it
cannot be held to authorize cruel and unusual punishment‖);
Jackson v. United States, 102 F. 473, 487 (9th Cir. 1900) (―The general
rule is well settled that the sentence and punishment imposed
upon a defendant for any violation of the provisions of the statute,
which is within the punishment provided for by the statute,
cannot be regarded as excessive, cruel, or unusual.‖).
   219 See O’Neil v. Vermont, 144 U.S. 323, 339–40 (1892) (Field, J.,
dissenting) (asserting that the Eighth Amendment is ―directed,
not only against punishments‖ of a barbarous or unduly painful
nature, but also ―against all punishments which by their excessive
length or severity are greatly disproportioned to the offenses
charged‖); McDonald v. Commonwealth, 53 N.E. 874, 875 (Mass.
1899) (―[I]t is possible that imprisonment in the state prison for a
long term of years might be so disproportionate to the offense as
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embrace this view.220 But in light of the extensive authority cited
above, this approach would surely have been seen by our Utah
framers as aberrational.
    ¶ 192 The        dissent    disagrees,  asserting    that     ―the
preponderance‖ of courts in the nineteenth century adopted the
approach it takes today. Infra ¶ 244. But in so concluding, the
dissent ignores—or at least fails to refute or distinguish—a
significant segment of the body of cases cited above. See supra
¶¶ 188–89 & nn.31–35. And in any event the authority it cites does
not support this conclusion. Before the dissenting opinion in
O’Neil (1892) and then the majority in Weems (1910), the United
States Supreme Court had never endorsed proportionality review
under the Eighth Amendment. Weems and subsequent Supreme
Court caselaw recognize as much. Weems, 217 U.S. at 378 (basing
its holding on a ―progressive‖ legal standard ―not fastened to the
obsolete‖ but ―acquir[ing] meaning as public opinion becomes
enlightened by a humane justice‖); Furman v. Georgia, 408 U.S. 238,
at 265–66 (1972) (Brennan, J., concurring) (―Had this historical
interpretation of the Cruel and Unusual Punishments Clause
prevailed, the Clause would have been effectively read out of the
Bill of Rights. . . . But this Court in Weems decisively repudiated
the historical interpretation of the Clause‖ (internal quotation
marks omitted)); id. at 322–25 (Marshall, J., concurring)
(concluding that ―the history of the clause clearly establishes that it
was intended to prohibit cruel punishments,‖ and then noting the


to constitute a cruel and unusual punishment.‖); State v. Becker, 51
N.W. 1018, 1022 (S.D. 1892) (―[I]t is certain that it devolves upon
the legislature to fix the punishment for crime, and that in the
exercise of their judgment great latitude must be allowed; and the
courts can reasonably interfere only when the punishment is so
excessive or so cruel as to meet the disapproval and
condemnation of the conscience and reason of men generally.‖).
   220 See 3 BOUVIER‘S LAW DICTIONARY 2771 (8th ed. 1914) (―[T]he
case must be very extraordinary in which [the legislature‘s]
judgment could be brought in question.‖); OLIVER, supra ¶ 185, at
186 (asserting that ―imprisonment for an unreasonable length of
time[] is . . . contrary to the spirit of the constitution . . . [and] must
be contrary to the intention of the framers of the constitution‖).



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tide-change in Eighth Amendment law instigated by the O’Neil
dissent and the Weems majority (emphasis added)). The dissent‘s
reading of relevant caselaw prior to Weems is, in my view, in error.
    ¶ 193 The dissent derides my reading of Pervear as ―unduly
strained‖ and somehow meant to sustain the proposition that the
Supreme Court ―was proclaiming the punishments imposed by
statute to be immune from constitutional review.‖ Supra ¶ 239.
First, I am not claiming that a legislative enactment can never be
cruel and unusual. And no court ever held any such thing.221
Instead, my point is simply that the prohibition on ―cruel and
unusual punishments‖ goes to the barbarousness or torturousness
of the punishment, and not to the length of the term of
confinement. Second, my reading of Pervear is hardly ―strained‖;
the Court in that case did hold that ―[t]he mode adopted‖ to
punish a crime ―is wholly within the discretion of State
legislatures.‖ Pervear, 72 U.S. at 480. Third, it is the dissent that
stretches the scope of Pervear beyond what it bears by concluding
that the Court ―implicitly recognized its understanding that
excessive punishments may be cruel and unusual punishments.‖
Infra ¶ 238. There is little question why the Court indicated that it
―perceive[d] nothing excessive, or cruel, or unusual‖ in Pervear‘s
sentence. Pervear, 72 U.S. at 480. Pervear had argued that the ―fines
and penalties imposed and inflicted by the State law‖ were
―excessive, cruel, and unusual.‖ Id. at 479 (emphasis added). And

   221 For this reason, the dissent‘s critique of cases like Jackson v.
United States, infra ¶ 246 n.2 also misses its mark. Neither my
opinion nor any case upon which it relies ever claimed to
―support the extreme proposition that a statute could never
prescribe a cruel and unusual punishment.‖ Infra ¶ 246 n.2. See,
e.g., Whitten, 47 Ga. at 301 (―So long as [legislators] do not provide
cruel and unusual punishments, such as disgraced the civilization
of former ages, and make one shudder with horror to read of
them, as drawing, quartering, burning, etc., the Constitution does
not put any limit upon legislative discretion.‖); Ketchum, 10 N.M.
at 718 (―It would, indeed, seem to be a matter of great doubt, in
view of the foregoing expressions of opinion on this subject,
whether the courts, in any case, have the power to review
legislative discretion in determining the severity of punishment
for crime, so long as all forms of torture have been avoided.‖).



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because the Eighth Amendment expressly prohibits ―excessive
fines,‖ the quoted language in Pervear is simply a nod to the
distinction between bail and fines on the one hand and
punishments on the other.222
    ¶ 194 Of the various cases cited by the dissent purportedly
establishing the authority of the judiciary to overturn a
disproportionate sentence, only two of them actually overturned a
prisoner‘s sentence. See State ex rel. Garvey v. Whitaker, 19 So. 457
(La. 1896); State v. Driver, 78 N.C. 423 (1878). Of the others,
moreover, none are of any material aid to its thesis. At least one of
the cited cases appears to be applying proportionality analysis to
a fine,223 which is expressly subject to the Excessive Fines Clause.
And in other cases, the courts ultimately upheld the sentence
under review and alluded to proportionality only as a matter of
arguendo dicta. In McDonald v. Commonwealth, for example, the
Supreme Judicial Court of Massachusetts merely allowed that ―it
is possible that imprisonment in the state prison for a long term of
years might be so disproportionate to the offense as to constitute a
cruel and unusual punishment,‖ while ultimately upholding the
sentence in question. 53 N.E. 874, 875 (Mass. 1899) (emphasis
added).224 The Vermont Supreme Court‘s approach in State v. Four


   222  See State v. Sheppard, 32 S.E. 146, 148 (S.C. 1899) (―[W]e
certainly cannot say that such a fine was ‗excessive,‘ or that the
punishment inflicted was either ‗cruel or unusual.‘‖); Ex parte
Keeler, 23 S.E. 865, 868 (S.C. 1896) (―[T]he fine imposed on the
defendant was not excessive, nor the punishment inflicted cruel
and unusual.‖).
   223 In re MacDonald, 33 P. 18, 21 (Wyo. 1893) (explaining that
the phrase cruel and unusual punishments was aimed ―to prevent
the imposition of obsolete, painful, and degrading punishments,‖
and then holding that ―[w]e do not think that the fine imposed upon
the petitioner by the trial court was excessive, nor the punishment
growing out of the failure to pay, or secured to be paid, that fine,
is cruel or unusual‖ (emphasis added)).
   224Even this dictum, moreover, represented a clear departure
from prior practice. See Sturtevant v. Commonwealth, 33 N.E. 648,
649 (Mass. 1893) (holding that the ―cruel or unusual‖
punishments clause applied to ―courts, not to the legislature‖);
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Jugs of Intoxicating Liquor is along similar lines. 2 A. 586 (Vt. 1886).
There the court simply acknowledged that ―[i]f the penalty were
unreasonably severe for a single offense, the constitutional
question might be urged,‖ again while upholding the sentence in
question. Id. at 593 (second emphasis added).
    ¶ 195 And finally, other cases cited by the dissent cut sharply
against its position—notwithstanding the dissent‘s attempts to
discredit them. People v. Smith, 54 N.W. 487 (Mich. 1893),
unequivocally stated that ―the legislature alone‖ had ―the power
to fix the minimum and maximum of the punishment for all
crimes.‖ Id. at 488. The dissent views this decision as undermined
by a case handed down ―just two years later‖—People v. Whitney,
63 N.W. 765, 766 (Mich. 1895). Infra ¶ 246. But the Whitney court‘s
reference to ―cases‖ that ―might arise when the punishment
imposed by an act is so cruel and unusual that the courts would
interfere and protect the rights of the party,‖ id., is entirely
consistent with the original meaning of the principle of cruel and
unusual punishments as I understand it. The referenced ―cases,‖
after all, could easily be aimed at encompassing the imposition of
barbarous modes of punishment.
    ¶ 196 Aldridge v. Commonwealth, 4 Va. (2 Va. Cas.) 447, 449
(Va. Gen. Ct. 1824), also undermines the dissent‘s view. And the
case cannot properly be dismissed on the ―racial animus‖ grounds
charged by the dissent. Infra ¶¶ 248–49. Granted, an element of
the Aldridge court‘s analysis was based on the notion that the Bill
of Rights did not apply to African Americans. Aldridge, 4 Va. at
449. But the court also articulated an alternative—and
legitimate—ground: It expressly held that the Cruel and Unusual
Punishments Clause ―[had no] bearing on th[e] case‖ because the
provision did not ―control the right to determine . . . the adequacy
of the punishment, but [wa]s merely applicable to the modes of
punishment.‖ Id. at 450. And, in the subsequent case of
Commonwealth v. Wyatt, 27 Va. (6 Rand.) 694 (Gen. Ct. 1828), it is
simply not true—as the dissent charges—that the court held that
―sentencing judges were constitutionally restrained from


Hitchings, 71 Mass. at 486 (―The question whether the punishment
is too severe, and disproportionate to the offence, is for the
legislature to determine.‖).



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sentencing an individual to an excessive number of stripes.‖ Infra
¶ 249. Instead, the court concluded that ―[t]he punishment of
offences by stripes is certainly odious, but cannot be said to be
unusual.‖ Wyatt, 27 Va. at 701. Thus, as far as the discretion of the
lower court went, it was restrained by ―the discretion always
exercised by Common Law Courts to inflict fine and
imprisonment.‖ Id. Accordingly, in the same way that Titus
Oates‘s sentence of flogging multiple times (such that he was
effectively sentenced to death for a noncapital crime) was illegal
(unauthorized by statute or common law), so too would a Virginia
judge be constrained in sentencing someone who operated an
illegal card game from being lashed so many times that he was
effectively sentenced to ―death produced by the most cruel
torture.‖ Id. at 700. This analysis is entirely consistent with the
approach outlined in this opinion. The court confirmed that the
constitutional restraint was on the mode and legality of the
punishment and sentence, not a subjective assessment of
proportionality.
    ¶ 197 Further support for this view can be found in the most
prominent cruel and unusual punishment case out of Utah in the
late nineteenth century, People v. Wilkinson, 2 Utah 158 (Utah Terr.
1877), aff’d sub nom Wilkerson v. Utah, 99 U.S. 130, 136 (1878). This
case arose out of a conviction of first-degree murder and a
sentence of death. The issue on appeal concerned the legality of
the sentence of death—specifically, the proviso imposed by the
trial judge that Wilkinson be executed by being ―publicly shot.‖
2 Utah at 159. In challenging that sentence, Wilkinson asserted
that the judge‘s determination of the ―mode‖ of execution was a
violation of Utah territorial statutes, the common law, and the
Eighth Amendment of the U.S. Constitution. On that latter point,
the Territorial Supreme Court affirmed, in terms in line with the
approach set forth above:
       The question . . . presents itself: ―Is the manner
       designated in the case before us, that of death by
       shooting, a cruel and unusual punishment?‖ We do
       not think the appellant so considers it, nor do we
       think he could. It is the mode adopted for the army
       in enforcing discipline; it is a mode recognized and
       practised in other civilized countries to enforce
       criminal laws; and, as we have seen, it was approved
       by express statute of this Territory for nearly a

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       quarter of a century, and as history tells us, it is the
       manner of death of which criminals in this Territory
       made choice in preference to other modes, such as
       hanging and beheading. That manner cannot be
       cruel which criminals prefer, and that cannot be
       unusual which is often adopted.
Id. at 164.
    ¶ 198 The Wilkinson court‘s approach is entirely in line with
the historically accepted view outlined above. Instead of assessing
the proportionality or excessiveness of the punishment, the
Wilkinson court‘s analysis deems the element of ―cruel[ty]‖ to go
to the ―manner‖ of punishment, and that of ―unusual[ness]‖ to be
addressed to the extent to which a punishment is ―adopted‖ by
law and common practice.
    ¶ 199 The United States Supreme Court‘s decision affirming
the Territorial Supreme Court is even clearer. Far from assessing
proportionality or excessiveness, the Supreme Court directed its
consideration of ―cruelty‖ to methods of punishment involving
―torture,‖ or in other words ―terror, pain, or disgrace.‖ Wilkerson,
99 U.S. at 135. Thus, in affirming the sentence of death by firing
squad, the Supreme Court made reference to modes of barbarous
punishment such as ―where the prisoner was drawn or dragged to
the place of execution,‖ or ―where he was embowelled alive,
beheaded, and quartered.‖ Id. And in conceptualizing ―the extent
of the constitutional provision which provides that cruel and
unusual punishments shall not be inflicted,‖ the Supreme Court
held ―that punishments of torture . . . and all others in the same
line of unnecessary cruelty, are forbidden by that emendment [sic]
to the Constitution.‖ Id. at 136. Because ―[n]othing of the kind‖
was involved in this case, the Supreme Court affirmed, rejecting
―the theory . . . that the court possessed no authority to prescribe
the mode of execution‖ while holding that ―death by shooting‖
was by no means cruel and unusual punishment. Id. at 136–37.
    ¶ 200 I suppose it‘s true that the Wilkerson decision did not
―define with exactness the [full] extent‖ of the Eighth
Amendment, but held only that ―punishments of torture . . . are
forbidden‖ by it. Infra ¶ 242 (quoting Wilkerson, 99 U.S. at 136).
But the quoted statements are the sum and substance of the
court‘s analysis of the Eighth Amendment, and they make no
reference to proportionality. And in any event, any doubts about


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Wilkerson were resolved in In re Kemmler, 136 U.S. 436 (1890),
which unequivocally held that ―[p]unishments are cruel when they
involve torture or a lingering death; but the punishment of death is not
cruel within the meaning of that word as used in the constitution.
It implies something inhuman and barbarous,—something more
than the mere extinguishment of life.‖ Id. at 447 (emphasis added).
   ¶ 201 This was the prevailing public understanding of ―cruel
and unusual punishments‖ at the time of the framing of the Utah
Constitution. As the author of the dissenting opinion today
opined previously, ―[l]egal scholars and jurists continued to
accept this understanding of the phrase [‗cruel and unusual‘]
throughout the nineteenth century despite occasional attempts to
expand the cruel and unusual punishments clause to prohibit
punishments deemed disproportionate to the crime.‖ State v.
Gardner, 947 P.2d 630, 636 (Utah 1997) (Durham, J., plurality
opinion) (citing Granucci, supra at 842). At that time a few isolated
judges and commentators had alluded to a theory of
constitutional review for proportionality, but the overwhelming
majority view was to the contrary—foreclosing only those
barbarous methods of punishment rejected by law and common
practice. And the majority approach had been endorsed by our
Territorial Supreme Court in an opinion affirmed by the U.S.
Supreme Court.
                     3. History of Article I, Section 9
     ¶ 202 The history of article I, section 9 supports this same
construction. As the dissent indicates, proposed constitutions for
the State of Deseret (a series of them, from 1849 to 1872) broadly
provided that ―[a]ll penalties and punishments shall be in
proportion to the offence.‖ DESERET CONST. art. VII, § 8; infra
¶ 216. But this general proviso never became law. By the time we
became a state, the people of Utah had abandoned the broad
principle of proportionality in the proposed Deseret constitutions.
They adopted instead a provision that limits the excessiveness
inquiry to the imposition of bail and fines. See UTAH CONST. art. I,
§ 9.
    ¶ 203 The dissent interprets this drafting history to preserve a
broad principle of proportionality. See infra ¶¶ 216–17 & n.1. I see
no basis for that conclusion. In light of the plain language of
article I, section 9, I see no way to conclude that our constitution
embraced a broad principle of proportionality for ―all penalties


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                         A.C.J. LEE, concurring

and punishments.‖ Instead, I would interpret this provision as
repudiating the general principle and replacing it with a more
limited standard (restricting review for excessiveness to bail and
fines).
    ¶ 204 Other state constitutions—including many in place at
the time of the founding of this state—embrace the formulation in
the proposed Deseret provision.225 Many of those provisions
expressly require proportionality in punishment in addition to
prohibiting the ―cruel and unusual.‖ And courts interpreted them
in accordance with their terms. In State v. Woodward, 69 S.E. 385
(W. Va. 1910), for example, the West Virginia Supreme Court
concluded that its Cruel and Unusual Punishments Clause did
―not affect legislation providing imprisonment for life or years,‖
but applied only to ―inhuman, barbarous inflictions.‖ Id. at 388–
89. Yet the court then went on to examine the propriety of a six
month to one year prison sentence for violations of ―Sunday‖
laws, noting the West Virginia Constitution commanded that
―[p]enalties shall be proportioned to the character and degree of

   225    See, e.g., GA. CONST. art. I, §§ 16, 21 (1868) (―[N]or shall cruel
and unusual punishments be inflicted.‖; ―All penalties shall be
proportioned to the nature of the offence.‖); ILL. CONST. art. II, § 11
(1870) (―All penalties shall be proportioned to the nature of the
offense. . . .‖); IND. CONST. art. I, § 16 (1851) (―Excessive bail shall
not be required. Excessive fines shall not be imposed. Cruel and
unusual punishments shall not be inflicted. All penalties shall be
proportioned to the nature of the offense.‖); ME. CONST. art. I, § 9
(1820) (―Sanguinary laws shall not be passed: all penalties and
punishments shall be proportioned to the offence: excessive bail
shall not be required, nor excessive fines imposed, nor cruel nor
unusual punishments inflicted.‖); NEB. CONST. art. I, § 15 (1875)
(―All penalties shall be proportioned to the nature of the offense
. . . .‖); OHIO CONST. art. VIII, §§ 13, 14 (1803) (―Excessive bail shall
not be required; excessive fines shall not be imposed, nor cruel
and unusual punishment inflicted. . . . All penalties shall be
proportioned to the nature of the offense.‖); W. VA. CONST. art. III,
§ 5 (1872) (―Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.
Penalties shall be proportioned to the character and degree of the
offence.‖).



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the offense.‖ Id. at 389. Significantly, the court emphasized that
this provision did not ―refer to the mode of punishment, but to
the degree, extent, and quality.‖ Id.226 With that background, the
terms of article I, section 9 as adopted are telling.
    ¶ 205 The formulation in other state constitutions—separately
requiring that ―[a]ll penalties . . . be proportioned to the nature of
the offense‖ and prohibiting ―cruel and unusual punishments‖—
presupposes that the two provisions have independent meaning.
See, e.g., Hi-Country Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶ 24,
304 P.3d 851 (interpreting statute ―under the presumption of
independent meaning (and/or its converse, the presumption
against surplusage)‖); Vota v. Ohio Copper Co., 129 P. 349, 353
(Utah 1912) (―It is our duty to give effect to every word or phrase
contained in [a] statute. . . .‖). That alone suggests that the
prohibition of ―cruel and unusual punishments‖ is something
other than a requirement of proportionality. It also indicates, by
implication, that the framers of the Utah Constitution rejected a
principle of proportionality when they declined to include the
proportionality provision in article I, section 9.
    ¶ 206 I suppose it is conceivable that the framers of the Utah
Constitution were aware of the outlier cases identified above—
cases embracing proportionality review as an element of the
constitutional prohibition of cruel and unusual punishments. See
supra ¶ 194 & n.40. But the text our framers adopted strikes me as
a highly unlikely mode of embracing this aberrational theory.
And if they had intended to buck the prevailing view in other
jurisdictions operating under parallel clauses, it seems likely they
would have addressed the matter openly in debate—as they did
on other such points of dispute.227 Yet the record of the


   226 The court acknowledged that the words ―cruel and
unusual‖ had been held to ban imprisonment that was ―too long a
time,‖ but the only authority the court cited was Weems. State v.
Woodward, 69 S.E. at 389.
   227 See 1 OFFICIAL REPORT OF THE PROCEEDINGS AND DEBATES OF
THE CONVENTION 429–92 (1895) (debates over women‘s suffrage);
id. at 326–38 (debates over the phrase ―or damaged‖ into the
Takings Clause); id. at 294–97 (debates over permitting a jury of
less than twelve to have less-than-unanimous verdicts in civil
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constitutional convention is silent on article I, section 9. That is
significant. It suggests, all other things being equal, that our
framers were endorsing the prevailing approach to ―cruel and
unusual punishments,‖ and were not embracing a burgeoning
theory of proportionality.
    ¶ 207 That conclusion is confirmed by the post-ratification
history of this provision in the wake of the U.S. Supreme Court‘s
decision in Weems. The Weems decision was the U.S. Supreme
Court‘s first articulation of a principle of proportionality under
the Eighth Amendment of the U.S. Constitution. 217 U.S. at 380–
81. As the popular reaction to Weems indicates, however, that
decision was hardly viewed as confirming an established view of
―cruel and unusual punishments.‖ Instead, Weems was seen as
working an innovation in constitutional law. And the reaction in
Utah and elsewhere thoroughly undermines the view that the
concept of ―cruel and unusual punishments‖ was historically
understood to encompass a principle of proportionality.
   ¶ 208 Local newspaper reports of the Weems decision in Utah
noted ―agitat[ion] over the action of the supreme court of the
United States in inaugurating what is designated as a new era in the
punishment of criminals—that of requiring punishment to be
proportionate to the offense.‖ New Era in Criminal Penology
Commences, SALT LAKE HERALD, at 1 (May 9, 1910) (emphasis
added).228 That account is impossible to square with the notion of


cases). Yet virtually nothing about article I, section 9 was said
during the debates over our constitution. See id. at 257 (noting the
reading of article I, section 9, one objection to the Unnecessary
Rigor Clause, some response to that objection, and the striking of
that clause).
   228 See also New Era in Criminal Penology Commences, SALT LAKE
HERALD, at 1 (May 9, 1910) (―The court has determined that the
eighth amendment is not applicable to the states, and hence the
states will not be compelled to follow the new principles.‖
(emphasis added)); Supreme Court Arouses Lawyers, OGDEN
STANDARD, at 7 (May 9, 1910) (―It was admitted that the
constitution makers have used this phrase only to prohibit the
resort to inhuman methods for causing bodily torture. It had been
used to prevent a return . . . to the English custom of
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―cruel and unusual punishments‖ incorporating a longstanding
principle of proportionality. If the generation that witnessed the
framing of the Utah Constitution viewed the Weems decision as
―inaugurating a new era . . . in the punishment of criminals,‖ they
certainly would not have viewed article I, section 9 as embracing
that principle.229
   ¶ 209 At least one other data point cements this conclusion in
the specific context of a claim like Houston‘s (challenging the
imposition of a sentence of life without parole on a juvenile): At
the time of the framing of the Utah Constitution and for many




disemboweling traitors and burning alive women who committed
treason. The court decided to regard these precedents as
milestones in the advance of civilization and not as limitation on
the phrase.‖); Criminals and Their Punishment, DESERET EVENING
NEWS, at 7 (May 9, 1910) (―Much speculation exists as to the effect
of the decision. . . . Most of the states . . . have provisions in their
constitutions similar to the eighth amendment and it is believed
the decision will have a powerful influence in the future
interpretation of these.‖ (emphasis added)); Penalty Must Fit the
Crime, SALT LAKE TRIBUNE, at 1–2 (May 9, 1910); Holds Punishment
Cruel: Supreme Court Orders Release of Convicted Philippine Official,
N.Y. TIMES, at 4 (May 9, 1910) (noting that the Supreme Court had
―[f]or the first time in its history‖ overturned a sentence on cruel
and unusual punishment grounds and that ―the musty precedents
of the past‖ only used the words ―cruel and unusual‖ to ―prohibit
a resort to inhuman methods for causing bodily torture‖).
   229 I have no doubt that the founding generation in Utah would
have bristled at the notion of the death sentence ―for a minor
infraction such as public intoxication.‖ Infra ¶ 226. And it would
not be surprising to hear that some of them may have thought of
such a sentence, colloquially, as ―cruel.‖ Infra ¶ 226. Presumably
that‘s why they didn‘t adopt such a disproportionate sentence.
But that ultimately tells us nothing about the original
understanding of the constitutional construct of ―cruel and
unusual punishments.‖ That question, instead, requires an
examination of the founding generation‘s understanding of this
legal term of art.



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years thereafter, a juvenile convicted of murder230 would have
been subject to either the death penalty or to life in prison without
the possibility of parole.231 This well-established, widely
applicable sentencing scheme renders Houston‘s claim of
unconstitutionality highly questionable. Because our founding-era
justice system clearly and expressly required a juvenile convicted
of murder to be sentenced to a life-without-parole sentence or
worse, I find it difficult to believe that such sentence would have
been viewed as ―cruel and unusual‖ at the time of our
founding.232



   230 From the time of the founding of the Utah Constitution
until 1907, Utah had no separate system for adjudicating crimes
committed by minors. See 1907 Laws of Utah 207–14 (establishing
the juvenile court system). And even after 1907, a minor who
committed a felony was tried in the district courts, not the
juvenile system. See, e.g., 1907 Laws of Utah 208, § 2 (―[Juvenile]
Court[s] shall have no jurisdiction in cases involving the
commission of a felony.‖). Thus, a minor like Houston would
have been ―liable to be punished under the laws of this state.‖
UTAH COMP. LAWS 1907, § 4072.
   231 See UTAH COMP. LAWS 1907, § 4071 (―All persons are capable
of committing crimes except . . . . [c]hildren under the age of seven
years; [c]hildren between the ages of seven years and fourteen
years, in the absence of clear proof that at the time of committing
the act charged against them they knew its wrongfulness.‖); id.
§ 4162 (―Every person guilty of murder in the first degree shall
suffer death, or, upon the recommendation of the jury, may be
imprisoned at hard labor in the state prison for life, in the
discretion of the court.‖); see also State v. Thorne, 117 P. 58, 62 (Utah
1911) (same); In re De Camp, 49 P. 823, 823 (Utah 1897) (same);
UTAH COMP. LAWS 1907, § 1686X13 (―The board of pardons is
hereby authorized to extend to each convict sentenced for any period
less than life . . . a reduction of the period of sentence, as
hereinafter provided‖ (emphasis added)); Connors v. Pratt, 112 P.
399, 400 (Utah 1910) (noting that board of pardons was without
power to reduce a life sentence).
   232 Cf. Harmelin, 501 U.S. at 980 (opinion of Scalia, J.) (―[T]he
actions of the First Congress . . . are persuasive evidence of what
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                 c. Houston‘s Article I, Section 9 Claim
    ¶ 210 For all of the above reasons, the Cruel and Unusual
Punishments Clause of the Utah Constitution bars only those
methods of punishment that are ―cruel‖ in the sense of being
barbaric or torturous and ―unusual‖ in the sense of being contrary
to law and longstanding practice. Houston‘s state constitutional
claim fails under this standard.
    ¶ 211 Houston does not—and cannot—complain about any
torturous or barbarous form of punishment. His claim, instead,
goes to the alleged excessiveness of his prison term. He alleges,
specifically, that his ―immaturity, vulnerability, impetuosity, and
underdeveloped character render him less culpable than an adult
with fully developed brain and value systems,‖ and as a result his
sentence constitutes ―disproportionate punishment.‖
    ¶ 212 This is not a cognizable constitutional claim under
article I, section 9. Because Houston challenges only the
excessiveness of his prison term, he has not asserted a claim under
the Utah Constitution as originally understood. I would reject that
claim on that basis.




the Constitution means. . . .‖); M’Culloch v. Maryland, 17 U.S.
(4 Wheat) 316, 401–02 (1819) (relying on the fact that the power to
establish a national bank ―was exercised by the first congress‖ and
that ―[a]n exposition of the constitution, deliberately established
by legislative acts . . . ought not to be lightly disregarded‖).


                                103
                         STATE v. HOUSTON
                       J. DURHAM, dissenting

   JUSTICE DURHAM, dissenting:
   ¶ 213 I disagree with the majority‘s conclusion that
sentencing juveniles to life without the possibility of parole
(LWOP) is not cruel and unusual under article I, section 9 of the
Utah Constitution. In my view, the diminished culpability of
juveniles, combined with the exceeding harshness and irreversible
nature of LWOP, makes this sentence unconstitutionally
disproportionate and inconsistent with the ―evolving standards of
decency that mark the progress of a maturing society.‖ Trop v.
Dulles, 356 U.S. 86, 101 (1958).
      I. UTAH‘S CRUEL AND UNUSUAL PUNISHMENTS
         CLAUSE AND PROPORTIONAL SENTENCING
                  A. The Principle of Proportionality
      ¶ 214 Perhaps no theory of punishment is more foundational
to a reasoned system of criminal justice than the maxim that the
punishment must fit the crime. This venerable principle can be
traced back to the Code of Hammurabi and the Mosaic codes
found in the Old Testament. CODE OF HAMMURABI § 196 (c. 1770
B.C.E.) (―If a man destroy the eye of another man, one shall
destroy his eye.‖); Leviticus 24:20 (―Breach for breach, eye for eye,
tooth for tooth: as he hath caused a blemish in a man, so shall it be
done to him again.‖); see MORRIS RAPHAEL COHEN, REASON AND
LAW 53 (1950) (―But if . . . an eye for an eye or a tooth for a tooth[]
sounds too barbaric today, may we not . . . put it thus: Everyone is
to be punished alike in proportion to the gravity of his offense
. . . ?‖). The ancient Greeks and Romans also acknowledged
punishments in a just society must be proportional to the crime.
PLATO, LAWS bk. XI, at 934, in 5 THE DIALOGUES OF PLATO 323 (B.
Jowett trans., New York, MacMillan & Co. 3d ed. 1892) (c. 350
B.C.E.) (―[T]he law, like a good archer, should aim at the right
measure of punishment, and in all cases at the deserved
punishment.‖); CICERO, DE OFFICIIS bk. I, ch. XXV, at 91 (Walter
Miller trans., Harvard Univ. Press 1997) (44 B.C.E.) (―We should
take care also that the punishment shall not be out of proportion
to the offense . . . .‖).
    ¶ 215 Consequently, ―[t]he principle that a punishment
should be proportionate to the crime is deeply rooted and
frequently repeated in common-law jurisprudence.‖ Solem v.
Helm, 463 U.S. 277, 284 (1983). Indeed, the Magna Carta of 1215
guaranteed rights to proportional punishment: ―A free man shall

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not be [fined] for a trivial offence, except in accordance with the
degree of the offence; and for a serious offence he shall be [fined]
according to its gravity . . . .‖ J.C. HOLT, MAGNA CARTA 457 (2d ed.
1992). Blackstone later elaborated that ―[t]he method . . . of
inflicting punishment ought always to be proportioned to the
particular purpose it is meant to serve, and by no means to exceed
it.‖ 4 WILLIAM BLACKSTONE, COMMENTARIES *12; see also Thomas A.
Balmer, Some Thoughts on Proportionality, 87 OR. L. REV. 783, 787–
88 (2008). Thus, Blackstone reasoned that the application of a
disproportionately severe punishment is a form of malpractice
performed by the state:
       It is a kind of quackery in government, and argues a
       want of solid skill, to apply the same universal
       remedy, the ultimum supplicium [the death penalty],
       to every case of difficulty. It is, it must be owned,
       much easier to extirpate than to amend mankind: yet
       that magistrate must be esteemed both a weak and a
       cruel surgeon, who cuts off every limb, which
       through ignorance or indolence he will not attempt
       to cure. It has been therefore ingeniously proposed,
       that in every state a scale of crimes should be
       formed, with a corresponding scale of punishments,
       descending from the greatest to the least . . . .
4 WILLIAM      BLACKSTONE,     COMMENTARIES       *17–*18   (footnote
omitted).
   ¶ 216 The early settlers of the Utah Territory intended that the
―deeply rooted‖ common law principle of proportional
punishment be constitutionally protected. In 1849, residents of
what would become the Utah Territory prepared a proposed state
constitution guaranteeing that ―[a]ll penalties and punishments
shall be in proportion to the offence.‖ CONSTITUTION OF THE STATE
OF DESERET 10 (Kanesville, Orson Hyde 1849). Constitutional
conventions held in 1856 and 1862 produced proposed state
constitutions containing identical guarantees of proportional
punishment. Constitution of the State of Deseret, DESERET NEWS,
April 2, 1856, at 30; SEN. MISC. DOC. No. 35–240, at 2, 4 (1858); H.R.
MISC. DOC. NO. 37–78, at 5 (1862).
   ¶ 217 The fundamental principle of proportional punishment
was carried forward into Utah‘s cruel and unusual punishments
clause. The draft constitutions of 1872 and 1882 and the state


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constitution adopted in 1895 replaced the more explicit guarantee
of proportional punishment found in prior draft constitutions
with language drawn from the Eighth Amendment of the U.S.
Constitution:1 ―Excessive bail shall not be required; excessive fines
shall not be imposed; nor shall cruel and unusual punishments be
inflicted.‖ UTAH CONST. art. I, § 9; accord H.R. MISC. DOC. NO. 42–
165, at 5 (1872); CONSTITUTION OF THE STATE OF UTAH 20 (Salt Lake
City, DESERET NEWS CO. 1882). The Supreme Court has long held
that identical language found in the Eighth Amendment prohibits
disproportionate punishments. Solem, 463 U.S. at 290 (―[A]
criminal sentence must be proportionate to the crime for which
the defendant has been convicted.‖); Weems v. United States, 217
U.S. 349, 367 (1910) (―[I]t is a precept of justice that punishment
for crime should be graduated and proportioned to offense.‖);
O’Neil v. Vermont, 144 U.S. 323, 331–32, 339–40 (1892) (Field, J.,
dissenting) (although the majority declined to address the issue of
proportionality under the Eighth Amendment because it was not
briefed and because the amendment had not yet been extended to
the states, the dissent reasoned that the Eighth Amendment


   1  The 1872 draft constitution was modeled after the recently
approved Nevada Constitution as part of the Utah Territory‘s
ongoing efforts to obtain statehood despite national opposition to
the practice of polygamy. Soc’y of Separationists, Inc. v. Whitehead,
870 P.2d 916, 928 n.31 (Utah 1993) (―In 1872 the constitutional
convention borrowed the constitution of Nevada as the basis for
its proposed constitution.‖ (internal quotation marks omitted)); see
H.R. MISC. DOC. NO. 42–165, 42d at 4 (1872) (―The constitution of
the proposed State, which is presented [to Congress] herewith,
looks to the development of those improvements of political
science which elsewhere excite public attention; for it will be
observed that it provides for minority representation, impartial
suffrage, and equal public educational facilities, without
distinction of race, color, religion, or citizenship.‖) The cruel and
unusual punishments clause contained in the 1872 draft is
identical to the corresponding clause found in the Nevada
Constitution. Compare H.R. MISC. DOC. NO. 42–165, at 5 (1872),
with NEV. CONST. art. I, § 6. The language found in the Nevada
Constitution was taken from the Eighth Amendment of the U.S.
Constitution.



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proscribes ―all punishments which by their excessive length or
severity are greatly disproportioned to the offenses charged‖).
    ¶ 218 Courts have cited two principal reasons for interpreting
the text of the Eighth Amendment to guarantee proportional
punishment. Some courts have held that the Eighth Amendment‘s
explicit prohibitions of ―[e]xcessive bail‖ and ―excessive fines‖
must extend to bar excessive terms of imprisonment as ―cruel and
unusual.‖ Solem, 463 U.S. at 289. Other courts have held that
disproportionately harsh sentences are both ―cruel‖ and
―unusual‖ within the meaning of those terms. Weems, 217 U.S. at
364, 377 (A sentence of twelve years of ―hard and painful labor‖
for making false entries in an official document was ―cruel in its
excess of imprisonment and that which accompanies and follows
imprisonment. It is unusual in its character. Its punishments come
under the condemnation of the Bill of Rights, both on account of
their degree and kind.‖).
   ¶ 219 Other states that have similar cruel and unusual
punishments clauses in their constitutions have interpreted this
clause to protect against disproportionate sentences. See, e.g.,
McDonald v. Commonwealth, 53 N.E. 874, 875 (Mass. 1899); In re
Lynch, 503 P.2d 921, 930 (Cal. 1972). Although the interpretation
given to similar or even identical language found in the federal
Constitution or the constitutions of our sister states is not binding,
we may look to these interpretations when construing Utah‘s
Constitution. Soc’y of Separationists, Inc. v. Whitehead, 870 P.2d 916,
921 n.6 (Utah 1993).
     ¶ 220 This court has also recognized that the cruel and
unusual punishments clause of the Utah Constitution provides
protections against disproportionate punishments similar to the
safeguards provided by the Eighth Amendment. Thus, ―[a]
criminal punishment is cruel and unusual under article I, section 9
if it is so disproportionate to the offense committed that it shock[s]
the moral sense of all reasonable men as to what is right and
proper under the circumstances.‖ State v. Lafferty, 2001 UT 19,
¶ 73, 20 P.3d 342 (second alteration in original) (internal quotation
marks omitted). Given the deference we afford sentencing judges
and the right of the legislature to mandate the maximum sentence
for a given offense—so long as it does not stray beyond
constitutional      bounds—this         type   of      individualized
proportionality review is justifiably limited.


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          B. Utah’s Cruel and Unusual Punishments Clause
              Prohibits Disproportionate Punishments
    ¶ 221 In his concurring opinion, Justice Lee argues that we
should abandon our caselaw affirming that the cruel and unusual
punishments clause of the Utah Constitution forbids
disproportionate sentences. The concurrence asserts that both the
text of this clause and the historical understanding of the
language adopted in the Utah Constitution point to a more
limited understanding of ―cruel and unusual punishments.‖
Under this interpretation, the Utah Constitution bans methods of
punishment that are barbaric, but does not prohibit an excessive
application of an otherwise permissible mode of punishment.
    ¶ 222 I, along with a majority of this court, disagree. The text
of the cruel and unusual punishments clause demonstrates that
disproportionate punishments—not just barbaric methods of
punishment—are        prohibited.    Moreover,      the    historical
understanding of the term ―cruel and unusual punishments‖ at
the time Utah adopted its constitution affirms, rather than detracts
from, this reading of the text.
1. Text of Utah‘s Cruel and Unusual Punishments Clause
   ¶ 223 Article I, section 9 of the Utah Constitution provides:
―Excessive bail shall not be required; excessive fines shall not be
imposed; nor shall cruel and unusual punishments be inflicted.‖
This section contains three parallel clauses. The first two clauses
prohibit ―[e]xcessive bail‖ and ―excessive fines‖ and expressly
incorporate the principle of proportionality. They require the
amount of money a defendant may be required to deposit in
security to remain free, as well as the amount in fines that a
convicted individual may be required to pay, to be commensurate
with the crime. The third prohibition against ―cruel and unusual
punishments‖ does not contain an explicit reference to
proportionality.
   ¶ 224 Invoking the canon of independent meaning, the
concurrence asserts that this structure indicates that the framers of
the Utah Constitution intended to protect citizens from
disproportionate fines, but not excessive prison sentences or the
disproportionate application of the death penalty (both accepted
methods of punishment in Utah). Supra ¶¶ 158–65. This structural
reading of article I, section 9, however, produces an unnatural and
incongruous result. A more appropriate canon of construction to

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apply to a parallel list of items is that of noscitur a sociis, or ―it is
known from its associates,‖ which ―requires that the meaning of
doubtful words or phrases be determined in the light of and take
their character from associated words or phrases.‖ Heathman v.
Giles, 374 P.2d 839, 840 (Utah 1962) (internal quotation marks
omitted). This concept of drawing meaning from the context of
associated terms has been adopted by the United States Supreme
Court in interpreting the nearly identical Eighth Amendment:
       We have recognized that the Eighth Amendment
       imposes ―parallel limitations‖ on bail, fines, and
       other punishments, and the text is explicit that bail
       and fines may not be excessive. It would be
       anomalous indeed if the lesser punishment of a fine
       and the greater punishment of death were both
       subject to proportionality analysis, but the
       intermediate punishment of imprisonment were not.
Solem, 463 U.S. at 289 (citation omitted).
   ¶ 225 The noscitur a sociis canon is also more appropriate
because of its long-standing application to this constitutional
language. It was first used in Justice Field‘s influential 1892
dissent in O’Neil v. Vermont, where he reasoned: ―The whole
inhibition is against that which is excessive either in the bail
required, or fine imposed, or punishment inflicted.‖ 144 U.S. at
340 (quoted in Weems, 217 U.S. at 371). Because this canon was
applied before Utah adopted article I, section 9, it is more
appropriate to apply the noscitur a sociis canon to this
constitutional provision.
    ¶ 226 The plain meaning of ―cruel and unusual punishments‖
reinforces this structural interpretation. The concurrence looks to
several nineteenth century definitions of the word ―cruel‖ and
argues that because none of these dictionary definitions do not
expressly incorporate the concept of proportionality, Utah citizens
would have understood ―cruel‖ to exclude this notion. Supra
¶ 161. Under this logic, Utahns in 1895 would not have
understood a death sentence imposed for a minor infraction such
as public intoxication as a ―cruel‖ punishment because the death
penalty was not deemed to be an inherently barbarous penalty.
This cannot be the case. The definition of ―cruel‖ is broad enough
to include grossly disproportionate punishments. Such
punishments can be said to be ―inhuman;‖ ―destitute of pity,


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compassion or kindness;‖ or ―hard-hearted.‖ WEBSTER‘S
AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 210 (3d ed.
1830) (defining ―cruel‖). As noted by the California Supreme
Court:
           A contrary view leads to the astounding result
       that it is impossible to impose a cruel and unusual
       punishment so long as none of the old and discarded
       modes of punishment are used; and that there is no
       restriction upon the power of the legislative
       department, for example, to prescribe the death
       penalty by hanging for a misdemeanor, and that the
       courts would be compelled to impose the penalty.
       Yet such a punishment for such a crime would be
       considered extremely cruel and unusual by all right-
       mined people.
Cox v. State, 181 N.E. 469, 471 (Ind. 1932) (internal quotation marks
omitted).
2. Historical Understanding           of   ―Cruel   and     Unusual
   Punishments‖
    ¶ 227 The concurrence also argues that the framers of the
Utah Constitution would not have understood article I, section 9‘s
prohibition of ―cruel and unusual punishments‖ to forbid
disproportionate punishments. Supra ¶¶ 166–67. Most of the
historical evidence cited by the concurrence, however, merely
supports the conclusion that this phrase was traditionally
understood to include barbaric modes of punishment. This
evidence does not advance the theory advocated by the
concurrence: that the term ―cruel and unusual punishments‖
traditionally excluded cruelly disproportionate applications of
otherwise acceptable modes of punishment. A proper historical
understanding of ―cruel and unusual punishments‖ includes both
the method and the severity of punishment imposed.
   a. The English Bill of Rights
    ¶ 228 As noted by the concurrence, supra ¶ 170, the language
for Utah‘s cruel and unusual punishments clause originated in the
English Bill of Rights of 1689, which provides ―[t]hat excessive
Baile ought not to be required nor excessive Fines imposed nor
cruell and unusuall Punishments inflicted,‖ An Act Declareing the
Rights and Liberties of the Subject and Setleing the Succession of


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the Crowne, in 6 STATUTES OF THE REALM 143 (1819). The
concurrence also correctly notes that we may glean some
understanding of the original meaning of ―cruel and unusual
punishments‖ from the Titus Oates case.
    ¶ 229 When King James II ascended to the throne, he had
Oates tried for perjury for falsely accusing prominent English
Catholics of organizing a ―Popish Plot‖ to overthrow his brother,
King Charles II. Harmelin v. Michigan, 501 U.S. 957, 969 (1991)
(opinion of Scalia, J.). These accusations resulted in the execution
of fifteen individuals. Id. Oates was found guilty, and the court
sentenced him to life imprisonment and to annually stand in
pillory and be whipped through the streets of London. Id. at 970.
Shortly after James II was deposed in the Glorious Revolution of
1688 and the English Bill of Rights was passed, Oates petitioned
the House of Lords to overturn his sentence. Id. Even though the
Lords considered the judgment of sentence to be ―erroneous‖ and
―exorbitant,‖ a majority of the House of Lords declined to
overturn the sentence. 10 H.C. Jour. 249 (1689). Instead, the Lords
deemed it sufficient to introduce a bill to ―prevent . . . like
Judgments for the future.‖ Id. Members of the House of Commons
took up Oates‘s cause, however, and passed a bill urging the
House of Lords to reconsider. Id. at 251.
    ¶ 230 The record of the proceedings before the House of
Lords and the House of Commons reveals that the debate over
Oates‘s fate was largely driven by the sectarian politics and
prejudices of the time. Members of the House of Commons
argued that Oates‘s conviction should be set aside as corrupt
because the trial was called for by the recently deposed ―Papist‖
King James II after ―partial, corrupt, and unqualified Persons
were returned, and served on Juries.‖ Id. at 248. House Members
also asserted that the Jesuit novices who gave testimony against
Oates could not be trusted to honor their oaths as witnesses
because their superiors would have instructed them to lie in order
―to discredit the Evidence of the Popish Plot; and disparage those
Parliaments who had prosecuted it with so much Vigour.‖ Id. The
House of Commons further urged the House of Lords to consider
whether denying Oates‘s petition would be ―interpreted a great
Step towards disavowing the Popish Plot,‖ as it had already been
understood by rival powers ―beyond Sea,‖ and to contemplate
whether this tacit admission would ―be so much for the Honour
of our Nation, or our Religion.‖ Id. at 247. Members of the House

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of Lords, on the other hand, seemed to view Oates and his
improbable conspiracy theories (including committing perjury ―in
other Matters‖ such as accusing the former Queen of conspiring to
kill the King, ―which nobody could believe of her‖) as something
of an international embarrassment to be swept under the rug. Id.
at 249. Although the Lords conceded that Oates‘s sentence was
improper, they declined to reverse it, explaining that the Oates
case ―was a Matter of great Expectation: That the Eyes of all
Europe were upon it: And that it would be the Occasion of great
Censures, if he should be set up for a Witness again, without a full
Examination of the whole Affair.‖ Id.
   ¶ 231 As noted by the concurrence, both members of the
House of Commons and the dissenting Lords also proffered a
legal argument for overturning Oates‘s sentence based upon the
recently passed English Bill of Rights. Supra ¶¶ 176–77. Given the
extent to which national and religious politics pervaded this
debate, however, it is somewhat difficult to discern the degree to
which these political concerns colored the legal reasoning found
in the record. But the comments preserved in the legislative
record undoubtably provide some insight into the original
meaning of the prohibition against ―cruel and unusual
punishments‖ contained in the English Bill of Rights.
   ¶ 232 The dissenting Lords argued that the sentence imposed
upon Oates should be overturned under the cruel and unusual
punishments clause of the English Bill of Rights because there
were ―no Precedents to warrant the Punishments of whipping and
committing to Prison for Life, for the Crime of Perjury.‖ 14 H.L.
Jour. 228 (1689). Thus, they asserted that the judgment against
Oates was ―contrary to Law and ancient Practice, and therefore
erroneous, and ought to be reversed.‖ Id. Members of the House
of Commons likewise decried the unprecedented nature of
punishment, calling the sentence ―illegal‖ and ―against Law.‖ 10
H.C. Jour. 247 (1689).
    ¶ 233 The lesson that the concurrence takes from these
statements is that certain members of Parliament objected only to
the illegal and unprecedented nature of Oates‘s sentence, and not
the disproportionality of the punishment. Supra ¶ 177. But this is a
false distinction. The punishments prescribed were unsupported
by ―Precedents‖ and were ―contrary to Law and ancient Practice‖
because they exceeded the punishments previously meted out for
similar crimes. As one legal commentator put it: ―Titus Oates’ Case

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demonstrates that the English Cruell and Unusuall Punishments
Clause was originally understood to prohibit new punishments
that were excessive in light of prior practice.‖ John F. Stinneford,
Rethinking Proportionality Under the Cruel and Unusual Punishments
Clause, 97 VA. L. REV. 899, 937 (2011).
    ¶ 234 This concern that Oates‘s sentence was cruel and
unusual because it was unprecedented in its severity is reflected
in the Parliamentary record. The dissenting Lords, who argued
that Oates‘s sentence should have been overturned, asserted that
the sentence was ―barbarous, inhuman, and unchristian‖ because
―there is no Precedents to warrant the Punishments of whipping
and committing to Prison for Life, for the Crime of Perjury.‖ 14
H.L. Jour. 228 (1689). Even the Lords in the majority, who
affirmed Oates‘s sentence in order to prevent ―so ill a Man‖ from
serving as witness in the future, conceded that ―there was not one
Lord, but thought the Judgments erroneous, and was fully
satisfied, That such an extravagant Judgment ought not to have
been given, or a Punishment so exorbitant inflicted upon an English
Subject.‖ 10 H.C. Jour. 249 (1689) (first and second emphases
added). Members of the House of Commons likewise described
the sentence as ―cruel and ignominious,‖ ―excessive,‖ ―severe and
extraordinary,‖ and ―an extravagant Judgment‖—all descriptions
of the disproportionate nature of the sentence. Id. at 247, 248.
   ¶ 235 Thus the Parliamentary debates over the sentence of
Titus Oates, which were conducted in the context of the recently
passed English Bill of Rights, demonstrate an original
understanding of ―cruel and unusual punishments‖ that includes
the concept of proportionality.
   b. The understanding of the cruel and unusual punishments
      clause contemporaneous to the adoption of the Utah
      Constitution
   ¶ 236 Of course, the meaning assigned to ―cruel and unusual
punishments‖ in the English Bill of Rights does not control the
question of what this phrase means in the context of the Utah
Constitution. The relevant issue is what these words meant when
our Constitution was drafted and ratified in 1895. The
contemporaneous precedents of (1) the U.S. Supreme Court in
examining the Eighth Amendment, which is nearly identical to
the relevant language of article I, section 9 and (2) state supreme
courts that examined similar constitutional clauses reveal that the


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phrase ―cruel and unusual punishments‖ was generally
interpreted in line with its plain meaning: that disproportionately
harsh punishments were cruel and unusual punishments.
       (i)   Contemporaneous U.S. Supreme Court precedent
   ¶ 237 Although the majority of the U.S. Supreme Court did
not squarely address the question of whether the Eighth
Amendment prohibited disproportionately harsh punishments
prior to the adoption of the Utah Constitution, Supreme Court
precedent indicates that the Court had assumed that a
disproportionately harsh sentence was a cruel and unusual
sentence.
    ¶ 238 The Court first addressed a proportional punishments
argument under the Eighth Amendment in Pervear v.
Massachusetts, 72 U.S. (5 Wall.) 475 (1866). The defendant in that
case argued that his sentence of a fifty dollar fine and three
months imprisonment at hard labor for the illegal sale of
intoxicating liquors was ―excessive, cruel, and unusual‖ under the
Eighth Amendment. Id. at 479–80. The Court declined to resolve
this claim because it held that the Eighth Amendment did not
apply to state legislation. Id. The Court went on to opine,
however, that even if the defendant could invoke the Eighth
Amendment, the defendant‘s argument would fail on its merits
because the sentence was not excessive: ―We perceive nothing
excessive, or cruel, or unusual in [the defendant‘s sentence].‖ Id. at
480. Thus, the Court implicitly recognized that excessive
punishments may be cruel and unusual punishments.
    ¶ 239 The concurrence, however, draws a different conclusion
from this opinion. The concurrence focuses on the Court‘s
subsequent observation that the objective of liquor licencing laws
is ―to protect the community against the manifold evils of
intemperance‖ and that ―[t]he mode adopted, of prohibiting
under penalties the sale and keeping for sale of intoxicating
liquors, without license, is the usual mode adopted in many,
perhaps, all of the States. It is wholly within the discretion of State
legislatures.‖ Id. The concurrence interprets this language to mean
that the ―mode‖ of enforcing liquor licensing laws is completely
within the discretion of the state legislature and could never be
deemed cruel and unusual so long as the legislature does not
employ inherently cruel methods of punishment. Supra ¶ 188 n.33.
This reading is unduly strained. There is no indication that when


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the Court stated that liquor licensing laws were ―wholly within
the discretion of State legislatures‖ that it was proclaiming the
punishments imposed by a statute to be immune from
constitutional review. Moreover, there is no textual justification
for drawing a distinction between inherently cruel methods of
punishment and disproportionately cruel sentences such that the
former is constitutionally prohibited while the latter is not.
    ¶ 240 In 1892, just three years before the Utah Constitution
was ratified, the Supreme Court again addressed a challenge to
the proportionality of a sentence under the Eighth Amendment.
The defendant in O’Neil challenged a sentence amounting to fifty-
four years of imprisonment at hard labor for the unauthorized
sale of intoxicating liquor as unconstitutionally excessive. 144 U.S.
at 327, 339. Once again, the majority of the court declined to
address a claim under the Eighth Amendment because it
concluded that this amendment did not apply to punishments
applied by the states. Id. at 331–32. Justice Field, however,
authored a lengthy dissent in which he squarely addressed the
issue, stating that the Cruel and Unusual Punishments Clause
       is directed, not only against punishments of the
       character mentioned [the rack, thumb-screws, iron
       boots, and stretching of limbs], but against all
       punishments which by their excessive length or
       severity are greatly disproportioned to the offenses
       charged. The whole inhibition is against that which
       is excessive either in the bail required, or fine
       imposed, or punishment inflicted.
Id. at 339–40. A separate dissenting opinion authored by Justice
Harlan and joined by Justice Brewer expressed a similar view,
declaring that a sentence of fifty-four years ―inflicts punishment
which, in view of the character of the offenses committed, must be
deemed cruel and unusual.‖ Id. at 371.
    ¶ 241 For the purpose of the inquiry at issue here—the
prevailing understanding of the phrase ―cruel and unusual
punishments‖ when the Utah Constitution was drafted and
ratified in 1895—it is of little importance that the opinions of
Justices Field, Harlan, and Brewer are not binding precedent. The
unchallenged opinion of three Supreme Court justices that a
disproportionate sentence is also a cruel and unusual sentence just
three years before Utah adopted its constitution is convincing


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evidence of how contemporaries would have understood this
phrase.
    ¶ 242 The U.S. Supreme Court case that the concurrence relies
upon, Wilkerson v. Utah, 99 U.S. 130 (1878), does not contradict this
understanding of ―cruel and unusual punishments.‖ See supra
¶¶ 197–99. The defendant in that case challenged the manner in
which he was sentenced to be executed for first-degree murder in
the Supreme Court of the Territory of Utah, arguing that the
statutes in force at the time did not permit him to be executed by
firing squad. People v. Wilkinson, 2 Utah 158, 160 (Utah Terr. 1877).
The territorial supreme court considered sua sponte whether the
manner of carrying out the execution, ―death by shooting,‖ was
cruel and unusual. Id. at 164. The court concluded that death by
firing squad was not cruel and unusual because it was not an
unusual method and it was not any less humane than other
accepted forms of execution. Id. The U.S. Supreme Court granted
certiorari and considered the same constitutional question.
Wilkerson, 99 U.S. at 130. The Court conceded that ―[d]ifficulty
would attend the effort to define with exactness the extent of the
constitutional provision which provides that cruel and unusual
punishments shall not be inflicted.‖ Id. at 135–36. It nonetheless
concluded that, at minimum, ―it is safe to affirm that punishments
of torture . . . are forbidden by‖ the Eighth Amendment. Id at 136.
The Court, therefore, determined that the method of execution—
firing squad—was constitutional because it was not in the vein of
barbarous methods of execution sometimes used in the past, such
as disembowelment or being burned alive. Id. at 135–36.
    ¶ 243 While Wilkerson and the preceding territorial opinion
certainly affirm the principle that inherently cruel methods of
punishment are proscribed by the Eighth Amendment, these
opinions do not provide that this is the outer limit of the
protections afforded by this amendment. The Court did not
consider whether execution was a disproportionately harsh
punishment for first-degree murder for the simple reason that this
claim was never raised. Indeed, such an argument certainly
would have been deemed frivolous in 1878.
       (ii)   Contemporaneous state supreme court precedent
   ¶ 244 The preponderance of state courts that addressed the
proportional punishments question under identical state
constitutional provisions agreed with the reading of ―cruel and


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unusual punishments‖ expressed by Justices Field, Harlan, and
Brewer in O’Neil v. Vermont. State courts that rendered opinions
on this subject either prior to or soon after the Utah Constitution
was drafted and ratified in 1895 indicated that disproportionate
punishments may be unconstitutionally cruel and unusual.
McDonald v. Commonwealth, 53 N.E. 874, 875 (Mass. 1899) (―[I]t is
possible that imprisonment in the state prison for a long term of
years might be so disproportionate to the offense as to constitute a
cruel and unusual punishment [under the Massachusetts
Constitution].‖); State ex rel. Garvey v. Whitaker, 19 So. 457, 457, 459
(La. 1896) (citing Justice Field‘s dissent in O’Neil v. Vermont and
overturning a near six-year sentence for trespassing in a public
park under Louisiana‘s cruel and unusual punishments clause
because of the severity of the punishment); People v. Whitney, 63
N.W. 765, 766 (Mich. 1895) (noting that although ―[u]pon the
legislature alone is conferred the power to fix the minimum and
maximum of the punishment for all crimes,‖ nevertheless ―[i]t is
true that cases might arise when the punishment imposed by an
act is so cruel and unusual that the courts would interfere and
protect the rights of the party‖); In re MacDonald, 33 P. 18, 20–21
(Wyo. 1893) (noting that a punishment is not ―cruel or unusual‖
under the Wyoming constitution unless ―the punishment
provided by the law is so disproportionate to the offense as to
shock the moral sense of the people‖ (internal quotation marks
omitted)); State v. Becker, 51 N.W. 1018, 1022 (S.D. 1892) (noting
that a punishment may be set aside as unconstitutional ―in very
extreme cases, where the punishment proposed is so severe and
out of proportion to the offense as to shock public sentiment and
violate the judgment of reasonable people‖); State v. Four Jugs of
Intoxicating Liquor, 2 A. 586, 593 (Vt. 1886) (rejecting a claim that
the aggregate prison sentence for numerous separate offenses
constituted a cruel and unusual punishment, but conceding that
―[i]f the penalty were unreasonably severe for a single offense, the
constitutional question might be urged‖); State v. Driver, 78 N.C.
423, 426, 430 (1878) (overturning a sentence of imprisonment of
five years and payment of a $500 security for assault and battery
as unconstitutionally ―‗excessive, cruel and unusual‘‖ because the
sentence was ―greater than [had] ever been prescribed or known
or inflicted‖ for the same or similar offense).
   ¶ 245 The state cases cited by the concurrence do not
significantly undermine these contemporaneous pronouncements


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                      J. DURHAM, dissenting

that a disproportionate sentence may be a cruel and unusual
sentence. The concurring opinion cites several older state opinions
that state the general proposition that the severity of a sentence is
left to the legislature. See Commonwealth v. Hitchings, 71 Mass.
(5 Gray) 482, 486 (1855) (―The question whether the punishment is
too severe, and disproportionate to the offence, is for the
legislature to determine.‖); Barker v. People, 20 Johns. 457, 459
(N.Y. Sup. Ct. 1823) (―[I]t was altogether discretionary in the
legislature to extend [the punishment of disenfranchisement] to
other offences.‖). These broad pronouncements that the
legislature has the discretion to determine the severity of
sentences do not directly lead to the conclusion that a sentence
authorized by statute could never be unconstitutionally
disproportionate. Indeed, courts in both Massachusetts and New
York later announced that a disproportionately severe sentence
could be set aside as cruel and unusual. McDonald v.
Commonwealth, 53 N.E. at 875; In re Bayard, 63 How. Pr. 73, 77
(N.Y. Gen. Term 1881) (holding that ―cruel and unusual
punishments‖ may include ―punishments so disproportioned to
the offense as to shock the sense of the community‖).
    ¶ 246 In a terse opinion, the Michigan Supreme Court also
rejected a claim that a sentence was cruel and unusual by stating
that ―[u]pon the legislature alone is conferred the power to fix the
minimum and maximum of the punishment for all crimes.‖ People
v. Smith, 54 N.W. 487, 488 (Mich. 1893). But just two years later the
court clarified that the state legislature‘s power was not absolute.
While acknowledging the legislature‘s authority to ―fix the
minimum and maximum of the punishment for all crimes,‖ the
court concluded that the legislative prerogative of determining
the appropriate amount of punishment for a particular crime was
limited by the cruel and unusual punishments clause of the
Michigan Constitution: ―It is true that cases might arise when the
punishment imposed by an act is so cruel and unusual that the
courts would interfere and protect the rights of the party . . . .‖
Whitney, 63 N.W. at 766.2


   2 The concurrence also cites a federal Ninth Circuit case, which
states that ―[t]he general rule is well settled that the sentence and
punishment imposed upon a defendant for any violation of the
provisions of the statute, which is within the punishment
                                                              (con‘t.)

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   ¶ 247 The concurrence cites several cases decided before Utah
adopted its constitution that directly support the proposition that
the phrase ―cruel and unusual punishments‖ refers exclusively to
the mode and not the degree of punishment. Supra ¶¶ 188–89. But
these cases are of limited utility in determining the commonly
understood meaning of this constitutional term, and they do not
outweigh the Supreme Court and state precedent supporting
proportionality review.
    ¶ 248 In Aldridge v. Commonwealth, 4 Va. (2 Va. Cas.) 447, 447–
48 (Va. Gen. Ct. 1824), a defendant challenged the
constitutionality of a Virginia statute authorizing his punishment
as a ―‗free man of color‘‖ convicted of larceny to be whipped with
thirty-nine lashes, sold into slavery, and transported beyond the


provided for by the statute, cannot be regarded as excessive, cruel,
or unusual.‖ Jackson v. United States, 102 F. 473, 487 (9th Cir. 1900).
But none of the cases cited by the Jackson court support the
extreme proposition that a statute could never prescribe a cruel
and unusual punishment. In Ligan v. State, 50 Tenn. (3 Heisk.) 159,
164 (1871), the court simply determined that the punishment was
not cruel and unusual given the ―character of acts‖ committed by
the defendant and stated that it would ―feel no hesitancy in
enforcing sternly the penalties provided by the statute.‖ Likewise,
in Jones v. Territory, 43 P. 1072, 1074 (Okla. Terr. 1896), the court
noted that because there was nothing in the record from which
the court could determine the defendant‘s age, ―previous
character,‖ or ―the circumstances under which the crime was
committed,‖ it could not ―say, as a matter of law, that a sentence
of 50 years in the territorial prison for the crime of manslaughter
in the first degree is per se cruel and inhuman.‖ Finally, as noted
above, the remaining cases cited by the Jackson court—Pervear, 72
U.S. (5 Wall.) at 480; Becker, 51 N.W. at 1022; and Whitney, 63 N.W.
at 766—actually support the proposition that courts may reverse a
disproportionately cruel and unusual sentence authorized by
statute. Supra ¶¶ 238, 244. Moreover, the claim made in Jackson
that a sentence imposed pursuant to a statute can never be cruel
or unusual is plainly wrong. Even under the interpretation of the
cruel and unusual punishments clause advocated by the
concurrence, a statute providing for a barbaric mode of
punishment would be unconstitutional.



                                 119
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borders of the United States. The court denied the defendant‘s
constitutional challenge, arguing that the Eighth Amendment was
never intended to extend to slaves or ―free blacks and mulattoes.‖
Id. at 449. The court went on to opine in dicta, however, that the
constitutional prohibition against cruel and unusual punishments
―was never designed to control the Legislative right to determine
ad libitum upon the adequacy of punishment, but is merely
applicable to the modes of punishment.‖ Id. at 449–50.
    ¶ 249 The reasoning of Aldridge, however, does not reflect the
common understanding of ―cruel and unusual punishments‖ and
may best be explained by racial animus. Indeed, just four years
later a Virginia court contradicted Aldridge. In Commonwealth v.
Wyatt, 27 Va. (6 Rand.) 694, 698 (Va. Gen. Ct. 1828), the court
examined a statute permitting a judge to sentence a person guilty
of operating an illegal card game to be whipped any number of
times, so long as only thirty-nine stripes were inflicted at a time.
Addressing an argument that the statute permitted cruel and
unusual punishments, the court concluded that the statute was
not unconstitutional on its face, but suggested that sentencing
judges were constitutionally restrained from sentencing an
individual to an excessive number of stripes. Id. at 700–701.
    ¶ 250 Hobbs v. State, 32 N.E. 1019 (Ind. 1893) is likewise of
limited usefulness in determining the generally accepted meaning
of ―cruel and unusual punishments.‖ In addressing a challenge to
a prison sentence under the Indiana Constitution, that state‘s
supreme court stated that it had not previously analyzed the cruel
and unusual punishments clause in any depth. Id. at 1020. The
court therefore cited Joseph Story‘s treatise for the proposition
that the Cruel and Unusual Punishments Clause of the U.S.
Constitution prohibits the violent methods of punishment that
―had taken place in England in the arbitrary reigns of the Stuarts.‖
Id. at 1021 (internal quotation marks omitted). The Indiana
Supreme Court then took this thesis one step further and
independently concluded that ―cruel and unusual punishments‖
should be read to exclusively prohibit barbaric methods of
punishment and that this language ―does not affect legislation
providing imprisonment for life or for years.‖ Id. This holding,
however, does not represent a common understanding of this
constitutional language because the court did not cite any caselaw
supporting this proposition. The Indiana Supreme Court came to
this conclusion on its own. Indeed, the court seemed to be entirely

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unaware of the numerous cases holding that a disproportionate
prison sentence could be an unconstitutionally cruel sentence.
Supra ¶ 244.
3. Conclusion
    ¶ 251 Under its plain meaning, ―cruel and unusual
punishments‖ includes disproportionately harsh punishments.
And an examination of how this phase was understood in 1895
does not reveal an interpretation that diverges from this plain
meaning. At minimum, however, this court should adhere to
prior precedents where we have recognized that article I, section 9
of the Utah Constitution prohibits disproportionate sentences. See
Lafferty, 2001 UT 19, ¶ 75; State v. Herrera, 1999 UT 64, ¶ 37, 993
P.2d 854. An identical interpretation has long been applied by
federal courts to the Eighth Amendment. Weems, 217 U.S. at 377.
In light of this long-standing interpretation given to identical
language, we should not depart from our prior holdings because
it is not ―clearly convinc[ing] that the rule was originally
erroneous or is no longer sound because of changing conditions.‖
State v. Menzies, 889 P.2d 393, 399 (Utah 1994) (internal quotation
marks omitted).
          II. PROPORTIONALITY OF JUVENILE LWOP
              A. Proportionality in Relation to Juveniles
                          as a Defined Class
    ¶ 252 Because Utah has recognized that article I, section 9 of
the Utah Constitution protects against disproportionately cruel
and unusual punishments, I now examine whether sentencing a
juvenile to LWOP violates this constitutional protection. As we
have previously recognized in State v. Lafferty that ―[a] criminal
punishment is cruel and unusual under article I, section 9 if it is so
disproportionate to the offense committed that it shock[s] the
moral sense of all reasonable men as to what is right and proper
under the circumstances.‖ 2001 UT 19, ¶ 73, 20 P.3d 342 (second
alteration in original) (internal quotation marks omitted). But an
individualized proportionality review under the Lafferty standard
is not the only kind of constitutional proportionality analysis.
Article I, section 9 also requires courts to consider whether a
particular punishment is unconstitutionally disproportionate
when applied to a less culpable class of individuals—in this case,
juveniles.



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    ¶ 253 The Supreme Court has recognized that the Eighth
Amendment embodies two distinct types of proportionality
review. First, courts may determine that a sentence is
unconstitutionally disproportionate, given all of the particular
circumstances of an individual case. Graham v. Florida, 560 U.S. 48,
59–60 (2010). This kind of review is similar to Utah‘s ―shocks the
conscience‖ standard. Second, the Court has recognized that
certain sentences are categorically disproportionate when applied
to a particular class of individuals. Id. at 60–61; see also Roper v.
Simmons, 543 U.S. 551, 575 (2005) (prohibiting the death penalty
for juveniles); Atkins v. Virginia, 536 U.S. 304, 321 (2002)
(prohibiting the death penalty for persons with mental
disabilities). This second type of proportionality review does not
evaluate a particular sentencing decision, but assesses whether a
specific sentence may be applied to a group of individuals with a
defining characteristic that makes members of that group less
culpable than the general population. Graham, 560 U.S. at 61–62.
    ¶ 254 A categorical proportionality analysis is likewise
warranted under article I, section 9 of the Utah Constitution. 3 At
least one other state has engaged in a similar class-based
examination under its state constitution. Workman v.
Commonwealth, 429 S.W.2d 374, 377–78 (Ky. 1968) (holding that an
LWOP sentence for rape categorically violated the Kentucky
Constitution‘s ban on ―cruel punishment‖ when applied to
juveniles). And, as already noted, because Utah‘s cruel and
unusual punishments clause is rooted in the Eighth Amendment,
it is highly persuasive that the federal language has been
interpreted to include such a categorical analysis.
   ¶ 255 In conducting a categorical proportionality analysis,
courts have addressed two questions: (1) whether ―community
consensus‖ favors or disfavors the application of a given penalty


   3 In State v. Gardner, a plurality of this court reasoned that
Utah‘s cruel and unusual punishments clause categorically
prohibited the death penalty for the crime of aggravated assault
while in prison. 947 P.2d 630, 645 (Utah 1997) (plurality opinion).
A majority of the court, however, based its holding that the
sentence was unconstitutionally disproportionate on the Eighth
Amendment. Id. at 653 (Zimmerman, A.C.J., concurring).



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to a particular group and (2) whether that penalty is
disproportionate based on a court‘s independent assessment.
First, courts have asked whether statutory enactments or
sentencing practices disfavor a particular punishment, indicating
a consensus that the penalty is disproportionate when applied to a
particular class. Graham, 560 U.S. at 66–67 (finding a consensus
against juvenile LWOP for nonhomicide offenses); Roper, 543 U.S.
at 567 (consensus against the death penalty for juveniles); Atkins,
536 U.S. at 316 (consensus against the execution of persons with
mental disabilities). Indicia of society‘s disapproval of a
punishment suggest the penalty is disproportionate and
―unusual‖     under    the    Eighth    Amendment.      However,
―[c]ommunity consensus, while entitled to great weight, is not
itself determinative of whether a punishment is cruel and
unusual.‖ Graham, 560 U.S. at 67 (internal quotation marks
omitted). The ultimate responsibility for determining whether a
punishment violates constitutional protections remains the
province of the courts, which must exercise ―independent
judgment.‖ Id. As the Nevada Supreme Court has noted:
       More than any other provision in the Constitution
       the prohibition of cruel and unusual punishment
       depends largely, if not entirely, upon the
       humanitarian instincts of the judiciary. We have
       nothing to guide us in defining what is cruel and
       unusual apart from our consciences. . . . Our decision
       must necessarily spring from the mosaic of our
       beliefs, our backgrounds and the degree of our faith
       in the dignity of the human personality.
Naovarath v. State, 779 P.2d 944, 947 (Nev. 1989) (internal quotation
marks omitted). ―The judicial exercise of independent judgment
requires consideration of the culpability of the offenders at issue
in light of their crimes and characteristics, along with the severity
of the punishment in question.‖ Graham, 560 U.S. at 67.
           B. Independent Assessment of the Proportionality
                          of Juvenile LWOP
    ¶ 256 ―To be constitutionally proportionate, punishment must
be tailored to a defendant‘s personal responsibility and moral
guilt.‖ Harmelin v. Michigan, 501 U.S. 957, 1023 (1991) (White, J.,
dissenting); accord Williams v. New York, 337 U.S. 241, 247 (1949)
(―[T]he punishment should fit the offender and not merely the


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crime.‖); United States v. Barker, 771 F.2d 1362, 1365 (9th Cir. 1985)
(―In each case, a criminal sentence must reflect an individualized
assessment of a particular defendant‘s culpability rather than a
mechanistic application of a given sentence to a given category of
crime.‖). The Supreme Court has recognized that certain
categories of individuals, such as persons with mental disabilities
and juveniles, must be treated differently when evaluating the
constitutionality of a sentence because members of these classes
are less culpable than other individuals.4 Atkins, 536 U.S. at 311,
317, 321 (prohibiting the death penalty for persons with mental
disabilities because of the reduced ―relative culpability of
mentally retarded offenders‖); Roper, 543 U.S. at 571, 578
(prohibiting the death penalty for juveniles because of their
―diminished culpability‖). In the context of offenders under the
age of eighteen, ―imposition of a State‘s most severe penalties on
juvenile offenders cannot proceed as though they were not
children.‖ Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455, 2466
(2012).
   ¶ 257 In several recent cases, the Supreme Court has
recognized that sentences appropriate for adult offenders may not
be applied to juveniles. In Roper v. Simmons, the Court held that
juveniles may not be subjected to the death penalty because it is
―disproportionate punishment for offenders under 18.‖ 543 U.S. at
575. The Court subsequently held in Graham v. Florida that a
juvenile could not be sentenced to LWOP for a nonhomicide
crime. 560 U.S. at 82. Finally, in Miller v. Alabama, the Court held
that LWOP may not be imposed on a minor under a mandatory
sentencing statute. __ U.S. at __, 132 S. Ct. at 2469. The Miller

   4  The law has also, for example, long recognized serious
mental illness as a source of diminished capacity and tailored both
concepts of culpability and sentencing accordingly. See, e.g., UTAH
CODE § 76-2-305(1)(b) (―Mental illness . . . may be evidence in
mitigation of the penalty in a capital felony . . . and may be
evidence of special mitigation reducing the level of a criminal
homicide or attempted criminal homicide offense . . . .‖); Archuleta
v. Galetka, 2011 UT 73, ¶ 95, 267 P.3d 232 (―[E]vidence of physical
and sexual abuse and diminished mental capacities compose the
kind of troubled history that may diminish moral culpability.‖
(internal quotation marks omitted)).



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Court explicitly declined to consider, however, whether the
Eighth Amendment categorically bars an LWOP sentence for
juveniles, leaving that question open under the federal
constitution. Id.
    ¶ 258 Roper, Graham, and Miller are founded upon the special
circumstances of childhood that make juveniles less culpable and
constitutionally different from adults. Miller, __ U.S. at __, 132
S. Ct. at 2464 (―[C]hildren are constitutionally different from
adults for purposes of sentencing. Because juveniles have
diminished culpability and greater prospects for reform . . . they
are less deserving of the most severe punishments.‖ (internal
quotation marks omitted)); see also Thompson v. Oklahoma, 487 U.S.
815, 835 (1988) (plurality opinion) (―[L]ess culpability should
attach to a crime committed by a juvenile than to a comparable
crime committed by an adult.‖). These cases rely upon three
fundamental characteristics of juveniles that separate them from
adults: (1) a lack of maturity, (2) a greater vulnerability to negative
influences, and (3) the fact that a juvenile‘s character is less fixed
than an adult. Miller, __ U.S. at __, 132 S. Ct. at 2464. The
mitigating characteristics of youth must also inform a
proportionality analysis under the Utah Constitution.
    ¶ 259 First, juveniles are less culpable because they exhibit ―a
lack of maturity and an underdeveloped sense of responsibility.‖
Id. (internal quotation marks omitted). The underdeveloped
nature of a juvenile‘s moral compass is not merely a matter of
common-sense that ―any parent knows‖—it is rooted in the
science of brain development. Id. (internal quotation marks
omitted). Due to a lack of maturity, ―‗adolescents are
overrepresented statistically in virtually every category of reckless
behavior.‘‖ Roper, 543 U.S. at 569 (quoting Jeffrey Arnett, Reckless
Behavior in Adolescence: A Developmental Perspective, 12
DEVELOPMENTAL REV. 339, 339 (1992)).5 An adolescent‘s
propensity for reckless and criminal activity is attributable, at


   5 See also Jeffrey Arnett, Reckless Behavior in Adolescence: A
Developmental Perspective, 12 DEVELOPMENTAL REV. 339, 343 (―Even
when factors such as education, occupation, family size, and
quality of home life are taken into account, the association of age
with criminal behavior is preeminent . . . .‖).



                                 125
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                       J. DURHAM, dissenting

least in part, to an underdeveloped brain: ―[D]evelopments in
psychology and brain science continue to show fundamental
differences between juvenile and adult minds. For example, parts
of the brain involved in behavior control continue to mature
through late adolescence.‖ Graham, 560 U.S. at 68. ―Scientists have
found clear evidence that the brain continues to mature through
adolescence and into the early twenties, with large scale structural
change taking place during this period in the frontal lobes, most
importantly within the prefrontal cortex, . . . . [which] is central to
. . . advanced thinking processes that are employed in planning
ahead and controlling impulses, and in weighing the costs and
benefits of decisions before acting.‖ ELIZABETH S. SCOTT &
LAURENCE STEINBERG, RETHINKING JUVENILE JUSTICE 44 (2008); see
also id. at 45 (―Recent studies show substantial changes during
[adolescence and early adulthood] in brain regions and systems
associated with impulse control, the calibration of risk and
reward, and the regulation of emotions.‖).
    ¶ 260 ―In recognition of the comparative immaturity and
irresponsibility of juveniles, almost every State prohibits those
under 18 years of age from voting, serving on juries, or marrying
without parental consent.‖ Roper, 543 U.S. at 569; accord Thompson,
487 U.S. at 823 (plurality opinion) (―Examples of this distinction
[between juveniles and adults] abound in our law: in contracts, in
torts, in criminal law and procedure, in criminal sanctions and
rehabilitation, and in the right to vote and to hold office.‖ (internal
quotation marks omitted)). The same markers of immaturity
underlying the denial of certain rights to juveniles that are
enjoyed by adults support the conclusion that juveniles are
comparatively less blameworthy for crimes they may commit.
Thompson, 487 U.S. at 835 (plurality opinion).
    ¶ 261 Second, juveniles are more vulnerable to negative
influences and are generally unable to extricate themselves from
crime-ridden environments. Roper, 543 U.S. at 569. ―[Y]outh is
more than a chronological fact. It is a time and condition of life
when a person may be most susceptible to influence and to
psychological damage.‖ Eddings v. Oklahoma, 455 U.S. 104, 115
(1982). This susceptibility to negative influences is almost
invariably coupled with a juvenile‘s inability to change his or her
environment. Juveniles are dependent upon their parents or
guardians for support and are unable to choose the neighborhood
in which they live or, to great extent, the peers with whom they

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associate. ELIZABETH S. SCOTT & LAURENCE STEINBERG, RETHINKING
JUVENILE JUSTICE 135 (2008). Nor do juveniles choose abusive,
neglectful, or chaotic family lives that are all too often associated
with criminal behavior in minors. Given their increased
susceptibility to influences they cannot control, ―juveniles have a
greater claim than adults to be forgiven for failing to escape
negative influences in their whole environment.‖ Roper, 543 U.S.
at 570.
    ¶ 262 Third, a juvenile‘s character is less fixed than an adult
and is less likely to be mired in irretrievable depravity and
psychological damage. Id. Studies have shown that a majority of
juvenile offenders ―age out‖ of criminal behavior as they mature
into adulthood. Laurence Steinberg & Elizabeth S. Scott, Less
Guilty by Reason of Adolescence: Developmental Immaturity,
Diminished Responsibility, and the Juvenile Death Penalty, 58 AM.
PSYCHOLOGIST 1009, 1014 (2003) (―For most teens, [antisocial]
behaviors are fleeting; they cease with maturity as individual
identity becomes settled. Only a relatively small proportion of
adolescents who experiment in risky or illegal activities develop
entrenched patterns of problem behavior that persist into
adulthood . . . .‖); Terrie E. Moffitt, Adolescence-Limited and Life-
Course-Persistent Antisocial Behavior: A Developmental Taxonomy,
100 PSYCHOL. REV. 674, 675 (1993) (―The majority of criminal
offenders are teenagers; by the early 20s, the number of active
offenders decreases by over 50%, and by age 28, almost 85% of
former delinquents desist from offending . . . .‖). Given the often
fleeting nature of juvenile criminal tendencies, ―[i]t is difficult
even for expert psychologists to differentiate between the juvenile
offender whose crime reflects unfortunate yet transient
immaturity, and the rare juvenile offender whose crime reflects
irreparable corruption.‖ Roper, 543 U.S. at 573. Because the adult
who serves a life sentence will likely not be the same person who
committed even a heinous crime while in their youth, juveniles
are less deserving of the harsh sentence of LWOP.
    ¶ 263 The characteristics of youth that make juveniles less
culpable than adults undermine the penological justifications for
an LWOP sentence. ―A sentence lacking any legitimate
penological justification is by its nature disproportionate to the
offense.‖ Graham, 560 U.S. at 71; accord Atkins, 536 U.S. at 318–20
(the death penalty for persons with mental disabilities is excessive
because it does not further legitimate penological goals). Thus, a


                                127
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                      J. DURHAM, dissenting

penalty that does not adequately serve at least one of the
legitimate     social    goals     of  punishment—rehabilitation,
incapacitation, deterrence, and retribution—is nothing more than
the ―unnecessary and wanton infliction of pain‖ and violates
Utah‘s cruel and unusual punishments clause. State v. Gardner, 947
P.2d 630, 634 (Utah 1997) (plurality opinion) (internal quotation
marks omitted). Juvenile LWOP does not adequately further these
traditional justifications for punishment.
    ¶ 264 LWOP serves no rehabilitative purpose, because the
defendant will never be allowed to participate in society. Miller,
__ U.S. at __, 132 S. Ct. at 2465 (―Life without parole forswears
altogether the rehabilitative ideal.‖ (internal quotation marks
omitted)). Indeed, individuals serving LWOP are often denied
access to rehabilitation programs in prison for the simple reason
they will never be released. Ashley Nellis, The Lives of Juvenile
Lifers: Findings from a National Survey, THE SENTENCING PROJECT
23–24 (Mar. 2012), http://sentencingproject.org/doc/publications
/jj_The_Lives_of_Juvenile_Lifers.pdf.
    ¶ 265 On the other hand, an LWOP sentence does serve the
penological goal of incapacitating the individual from committing
future crimes—at least outside of prison. The incapacitation
rationale, however, is only valid if the confined individual would
commit additional crimes but for his or her incarceration. ―To
justify life without parole [under an incapacitation theory] on the
assumption that the juvenile offender forever will be a danger to
society requires the sentencer to make a judgment that the
juvenile is incorrigible.‖ Graham, 560 U.S. at 72. As noted above,
however, making a determination that an individual will always
be a danger to society based on crimes committed while a juvenile
is very difficult given the often transient nature of juvenile
criminal tendencies. Supra ¶ 262. Absent reliable indicators that a
juvenile will forever be dangerous, the goal of incapacitation is
severely undermined.
    ¶ 266 Juvenile LWOP likewise does not adequately serve the
penological goal of deterrence. ―Because juveniles‘ lack of
maturity and underdeveloped sense of responsibility . . . often
result in impetuous and ill-considered actions and decisions, they
are less likely to take a possible punishment into consideration
when making decisions.‖ Graham, 560 U.S. at 72 (alteration in
original) (citation omitted) (internal quotation marks omitted); see
also Atkins, 536 U.S. at 319–20 (the death penalty for persons with

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                       J. DURHAM, dissenting

mental disabilities does not further the goal of deterrence because
they often have a diminished ability to control their conduct based
upon potential legal penalties). Thus, potential juvenile offenders
are not likely to be deterred by the possibility of an LWOP
sentence.
     ¶ 267 The goal of retribution also does not justify juvenile
LWOP. ―The heart of the retribution rationale is that a criminal
sentence must be directly related to the personal culpability of the
criminal offender.‖ Tison v. Arizona, 481 U.S. 137, 149 (1987).
Because juveniles are inherently less culpable than adults, ―the
case for retribution is not as strong with a minor as with an
adult.‖ Miller, __ U.S. at __, 132 S. Ct. at 2465 (internal quotation
marks omitted). Juveniles are less blameworthy because of their
immaturity, susceptibility to negative influences they cannot
control, and increased capacity to reform. Supra ¶¶ 259–62. This
greatly weakens society‘s claim to retribution—especially where
the punishment involves permanent incarceration. Thus,
retribution is a weak justification for juvenile LWOP. Absent
sufficient justification within any of the traditional rationales for
punishment, juvenile LWOP constitutes the ―unnecessary and
wanton infliction of pain.‖ See Gardner, 947 P.2d at 634 (Durham,
J., plurality) (internal quotation marks omitted).
    ¶ 268 Finally,      when       conducting      a    constitutional
proportionality analysis, courts must weigh the culpability of a
particular class of individuals against the severity of the penalty.
In this case, juveniles are not only less culpable than adults; an
LWOP sentence is disproportionate because it is a harsher penalty
for juveniles than it is for adults. LWOP sentences ―share some
characteristics with death sentences that are shared by no other
sentence[]‖ because ―[i]mprisoning an offender until he dies alters
the remainder of his life by a forfeiture that is irrevocable.‖ Miller,
__ U.S. at __, 132 S. Ct. at 2466 (internal quotation marks omitted).
An LWOP sentence for juveniles ―means denial of hope; it means
that good behavior and character improvement are immaterial; it
means that whatever the future might hold in store for the mind
and spirit of [the convict], he will remain in prison for the rest of
his days.‖ Graham, 560 U.S. at 70 (alteration in original) (internal
quotation marks omitted). ―Under this sentence a juvenile
offender will on average serve more years and a greater
percentage of his life in prison than an adult offender.‖ Id. An



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                       J. DURHAM, dissenting

adult and a juvenile sentenced to LWOP ―receive the same
punishment in name only.‖ Id.
   ¶ 269 Thus, in weighing the reduced culpability of juveniles
against the severity of juvenile LWOP, I conclude such a sentence
is unconstitutionally disproportionate under Utah‘s cruel and
unusual punishments clause.
                      C. Community Consensus
    ¶ 270 Although       community       consensus     regarding      a
punishment is not determinative, it is relevant to an analysis of
the constitutionality of juvenile LWOP. In gauging community
consensus, the Supreme Court has looked to whether ―objective
indicia of society‘s standards, as expressed in legislative
enactments and state practice, show a national consensus against
a sentence for a particular class of offenders.‖ Miller, __ U.S. at __,
132 S. Ct. at 2470 (internal quotation marks omitted).
    ¶ 271 The first indication of society‘s standards—legislation
regarding juvenile LWOP—is inconclusive. In a vast majority of
states and in the federal criminal system, sentencing laws permit
juvenile LWOP.6 Graham, 560 U.S. at 62 (―Six jurisdictions do not
allow life without parole sentences for any juvenile offenders [as
of 2010].‖); State-By-State Legal Resource Guide, UNIV. OF S.F.
PROJECT TO END JUVENILE LIFE WITHOUT PAROLE (Nov. 28, 2012),

   6   Unlike interpretations of the United States Constitution,
which affect laws promulgated by the state legislatures of all fifty
states, when we address a Utah constitutional question, only Utah
laws are implicated. When analyzing legislative enactments to
gauge community consensus regarding a particular punishment,
however, it is still appropriate to analyze laws from other states to
gauge national consensus. Gardner, 947 P.2d at 640 (plurality
opinion) (in evaluating the constitutionality of a punishment
under a state constitutional provision, courts should compare ―the
challenged penalty with the punishments prescribed for the same
offense in other jurisdictions‖ (internal quotation marks omitted)).
Indeed, if we confined our analysis to Utah legislative enactments,
this measure of community consensus would be circular and
always favor the State because in order for a convict to challenge
the constitutionality of a sentence, the Utah Legislature must have
first authorized the punishment.



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                       J. DURHAM, dissenting

https://www.usfca.edu/law/jlwop/resource_guide/ (juvenile
LWOP prohibited in eight states and the District of Columbia as
of November 2012). Simply tallying the jurisdictions that permit
or prohibit this penalty, however, ―present[s] a distorted view.‖
Miller, __ U.S. at __, 132 S. Ct. at 2472. Most state legislation
permitting juvenile LWOP does so only indirectly. Statutes
typically authorize certain juveniles to be tried as adults and
receive an adult sentence, but transfer statutes typically do not
address whether a particular sentence is appropriate when
applied to a juvenile.7 Id. at __, 132 S. Ct. at 2472–73. Statutes that
determine the conditions under which a juvenile may be
transferred to the adult criminal system tells us that the states
considered the juvenile ―to be old enough to be tried in criminal
court for serious crimes (or too old to be dealt with effectively in
juvenile court), but tells us nothing about the judgment these States
have made regarding the appropriate punishment for such youthful
offenders.‖ Thompson, 487 U.S. at 826 n.24 (plurality opinion). Thus,
―the statutory eligibility of a juvenile offender for life without
parole does not indicate that the penalty has been endorsed
through deliberate, express, and full legislative consideration.‖
Graham, 560 U.S. at 67.
   ¶ 272 In this case, the second consideration when measuring
community consensus—actual sentencing practices—provides a
more definite indication of consensus. ―Actual sentencing
practices are an important part of [an] inquiry into consensus.‖ Id.
at 62. Thus, even in jurisdictions where legislative enactments
permit a particular penalty, infrequent imposition of the
punishment may nonetheless indicate popular disapproval of the
punishment. Id. (infrequent imposition of juvenile LWOP for
nonhomicide crimes in jurisdictions where the penalty ―is
permitted by statute discloses a consensus against its use‖); Roper,
543 U.S. at 567 (infrequent imposition of the death penalty on

   7 Until recently, Utah was among the states that only permitted
juvenile LWOP through its transfer statutes. See UTAH CODE
§§ 78A-6-602(3), 78A-6-702. In 2013, however, the legislature
amended the aggravated murder statute to specify that juvenile
defendants are not subject to the death penalty, but may be
sentenced to either twenty-five years to life or LWOP. 2013 Utah
Laws 317.



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                          STATE v. HOUSTON
                       J. DURHAM, dissenting

juvenile offenders contributed to the Court‘s conclusion that
society disapproved of the practice); Atkins, 536 U.S. at 316
(infrequent imposition of the death penalty on persons with
mental disabilities indicated community disapproval). A rarely
imposed sentence may also indicate the punishment is ―unusual‖
within the meaning of the constitutional ban on cruel and unusual
punishments.8 Atkins, 536 U.S. at 316.
    ¶ 273 Thus, the extreme infrequency of a juvenile LWOP
sentence in Utah indicates societal disapproval of the punishment
and that the sentence is ―unusual‖ within the meaning of Utah‘s
cruel and unusual punishments clause. Indeed, prior to
Mr. Houston receiving an LWOP sentence for a crime he
committed while he was a juvenile, the punishment was more
hypothetical than real. Mr. Houston is the only person serving a
juvenile LWOP sentence in Utah. Juvenile Life Without Parole
(JLWOP), NAT‘L CONFERENCE OF STATE LEGISLATURES 14 (Feb.
2010), http://www.ncsl.org/documents/cj/jlwopchart.pdf; State
Distribution of Estimated 2,589 Juvenile Offenders Serving Juvenile Life
Without       Parol,     HUMAN        RIGHTS       WATCH        (2004),
http://www.hrw.org/sites/default/files/related_material/upda
tedJLWOP10.09.pdf. And there is every indication that despite the
fact that juvenile LWOP, as well as the death penalty before the
Supreme Court declared it unconstitutional, has long been
available through the juvenile transfer statute, Mr. Houston is the
only juvenile offender to ever receive such a harsh sentence in
Utah. Jesse Fruhwirth, To Die in Prison, STANDARD-EXAMINER,
May 6, 2007, at 1A. A sentence so rarely imposed despite its
availability through legislative enactment demonstrates this
punishment has never garnered wide-spread approval in Utah.
  ¶ 274 Finally, the international consensus against juvenile
LWOP confirms my conclusion that this sentence is cruel and


   8 The deterrent effect of an infrequently imposed sentence is
also greatly reduced, undermining this justification for imposing
the penalty in the first instance. See Furman v. Georgia, 408 U.S.
238, 311 (1972) (White, J., concurring) (―[T]he death penalty could
so seldom be imposed that it would cease to be a credible
deterrent or measurably to contribute to any other end of
punishment in the criminal justice system.‖).



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                       J. DURHAM, dissenting

unusual. International consensus regarding a particular penalty
may be relevant in determining whether the punishment is cruel
and unusual. Roper, 543 U.S. at 575 (―[A]t least from the time of
the Court‘s decision in Trop, the Court has referred to the laws of
other countries and to international authorities as instructive for
its interpretation of the Eighth Amendment‘s prohibition of ‗cruel
and unusual punishments.‘‖); Thompson, 487 U.S. at 830 n.31
(plurality opinion) (―We have previously recognized the relevance
of the views of the international community in determining
whether a punishment is cruel and unusual.‖).
    ¶ 275 In the case of juvenile LWOP, the international
consensus against the penalty is all but unanimous. The United
States is the only country in the world that currently sentences
juveniles to a life imprisonment with no chance of release. Connie
de la Vega & Michelle Leighton, Sentencing Our Children to Die in
Prison: Global Law and Practice, 42 U.S.F. L. REV. 983, 989 (2008).
Only ten other counties have laws allowing a juvenile LWOP
sentence: Antigua and Barbuda, Argentina, Australia, Belize,
Brunei, Cuba, Dominica, Saint Vincent and the Grenadines, the
Solomon Islands, and Sri Lanka. Id. at 990. But researchers have
been unable to identify any juveniles serving an LWOP sentence
in these countries, indicating that, in practice, the United States is
the only nation to actually impose irreversible life-long
imprisonment on minors. Id. at 990, 1004–07.
    ¶ 276 International treaties confirm the international
community‘s condemnation of juvenile LWOP. The U.N.
Convention on Rights of the Child (CRC), adopted by almost
every nation in the world, provides that ―[n]either capital
punishment nor life imprisonment without possibility of release
shall be imposed for offences committed by persons below
eighteen years of age.‖ GA Res. 44/25, Annex, U.N. GAOR, 44th
Sess., Supp. No. 49 at 167, U.N. Doc. A/44/49, at art. 37(a) (Nov.
20, 1989). The United States and Somalia are the only countries
that have not ratified the CRC. Connie de la Vega & Michelle
Leighton, Sentencing Our Children to Die in Prison: Global Law and
Practice, 42 U.S.F. L. REV. 983, 1009 (2008); Lisa S. Yun, The United
States Stands Alone: An International Consensus Against Juvenile Life
Without Parole Sentences, 20 S. CAL. INTERDISC. L.J. 727, 732 (2011);
Jelani Jefferson & John W. Head, In Whose ―Best Interests‖?—An
International and Comparative Assessment of US Rules on Sentencing
of Juveniles, 1 HUM. RTS. & GLOBALIZATION L. REV. 89, 103 (2008).


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                         STATE v. HOUSTON
                      J. DURHAM, dissenting

                           D. Conclusion
   ¶ 277 I agree with the majority‘s holding that Utah Rule of
Criminal Procedure 22(e) requires this court to review
Mr. Houston‘s unpreserved constitutional challenges to his
sentence. I also agree with the majority that the cruel and unusual
punishments clause of the Utah Constitution forbids
disproportionate punishments—not just methods of punishment
that are barbaric. Both this court‘s prior caselaw and an analysis of
the text and history of this clause confirm that a disproportionate
sentence may be both cruel and unusual.
    ¶ 278 I disagree, however, with the majority‘s conclusion that
juvenile LWOP is not unconstitutionally disproportionate. Both
the extreme infrequency of a juvenile LWOP sentence in Utah and
global rejection of permanent incarceration for crimes committed
before adulthood confirm my independent assessment that
juvenile LWOP is cruel and unusual under the Utah Constitution.
I would remand with instructions to administer the only other
sentence available at the time of Mr. Houston‘s conviction: twenty
years to life in prison. See UTAH CODE § 76-5-202(2) (2005); id.
§ 76-3-207(5)(a)–(c) (2005). Mr. Houston may well prove to be an
irretrievably depraved individual, and a parole board may never
deem him fit to rejoin society. Under this scenario, Mr. Houston
would justifiably spend the rest of his days behind bars. I find it
cruel and unusual, however, to make an irreversible
determination that he should die in prison based upon even a
heinous crime committed while he was a minor.9 The special
circumstances of youth, which make juveniles less blameworthy
and more capable of reform than adults, require the justice system
to treat children differently.




   9  I note that the record is replete with evidence that
Mr. Houston suffers from mental illness and the psychological
damage created by a history of abuse and neglect. With the option
of eventual release, his access to treatment and services would be
enhanced, and perhaps, therefore, his ability and motivation to
transform his life.



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