                               TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                     OFFICE OF THE ATTORNEY GENERAL


                                               State of California



                                                 DANIEL E. LUNGREN


                                                   Attorney General



                                   ______________________________________

                       OPINION          :


                                        :          No. 94-1002


                   of                   :


                                        :          July 3, 1995


          DANIEL E. LUNGREN             :


            Attorney General            :


                                        :


          GREGORY L. GONOT              :


         Deputy Attorney General        :


                                        :
______________________________________________________________________________


           THE HONORABLE MICKEY CONROY, MEMBER OF THE CALIFORNIA
STATE ASSEMBLY, has requested an opinion on the following question:

               May the Legislature enact a statute authorizing the courtroom paddling of a minor who
is adjudged a ward of the juvenile court for placing graffiti upon real or personal property?

                                                      CONCLUSION

               The Legislature may enact a statute authorizing the courtroom paddling of a minor who
is adjudged a ward of the juvenile court for placing graffiti upon real or personal property.

                                                         ANALYSIS

                The proliferation of graffiti1 placed upon public and private property, principally by
juveniles, has prompted calls for punishment that might serve as an effective deterrent to such activity.
One proposal would authorize the paddling of any minor who is adjudged a ward of the court for
defacing property with graffiti.2 The paddling would be administered in the courtroom by a parent of

    1
      "Graffiti" is statutorily defined as including "any unauthorized inscription, word, figure, mark, or design that is written,
marked, etched, scratched, drawn, or painted on real or personal property." (Pen. Code, '' 594, 640.5, 640.6.)

    2
        Under the terms of Welfare and Institutions Code section 602, a person below the age of 18 who violates a criminal

                                                               1.                                                      94-1002

the minor unless the court determines that the parent has not administered a satisfactory paddling, in
which event it would be administered by the bailiff.3 We are asked to determine whether the above
described punishment proposal would pass constitutional muster. We conclude that it would.

                 Preliminarily, we note that in City and County of San Francisco v. Workers' Comp.
Appeals Bd. (1978) 22 Cal.3d 103, 113, the Supreme Court summarized the law making authority of
the Legislature in the following terms:

                 ". . . `[t]he Constitution of this State is not to be considered as a grant of power,
         but rather as a restriction upon the powers of the Legislature; and that it is competent
         for the Legislature to exercise all powers not forbidden by the Constitution of the State,
         or delegated to the [federal] government, or prohibited by the Constitution of the
         United States.' [Citations.]

                   "As our court explained nearly a half century ago, `[W]e do not look to the
         Constitution to determine whether the legislature is authorized to do an act, but only to
         see if it is prohibited. In other words, unless restrained by constitutional provision, the
         legislature is vested with the whole of the legislative power of the state.' [Citation.]
         Moreover, the governing authorities' additionally establish that `[i]f there is any doubt
         as to the Legislature's power to act in any given case, the doubt should be resolved in
         favor of the Legislature's action. Such restrictions and limitations are to be construed
         strictly, and are not to be extended to include matters not covered by the language used.'
          [Citation.]"

Our task, then, is to determine whether the federal or state Constitution prohibits the enactment of the
proposed legislation.

                                              United States Constitution

                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."4 The
cruel and unusual punishment clause, where applicable, (1) limits the kinds of punishment that can be
imposed on those convicted of crimes (Estelle v. Gamble (1976) 429 U.S. 94; Trop v. Dulles (1958)
356 U.S. 86), (2) proscribes punishment grossly disproportionate to the severity of the crime (Weems v.
United States (1910) 217 U.S. 349), and (3) imposes substantive limits on what can be made criminal



statute comes within the jurisdiction of the juvenile court and may be adjudged a ward of the court. Placing graffiti on
property violates a criminal statute (Pen. Code, '' 594-594.8, 640.5-640.7).

    3
       Under the proposal, the paddling would consist of ten or fewer strikes with a hardwood paddle of specified dimensions
and be administered on the outside of normal apparel.

    4
     This constitutional provision is made applicable to the states through the due process clause of the Fourteenth
Amendment. (Robinson v. California (1962) 370 U.S. 660, 666.)

                                                            2.                                                   94-1002

and punished as such (Robinson v. California, supra, 370 U.S. 660). We are here concerned primarily
with the first of these restrictions.5

               In Ingraham v. Wright (1977) 430 U.S. 651, the United States Supreme Court
examined the scope of the Eighth Amendment as it related to the paddling of students at a junior high
school. The court described the evidence presented by the students as follows:

                  ". . . The evidence, consisting mainly of the testimony of 16 students, suggests
         that the regime at Drew was exceptionally harsh. The testimony of Ingraham and
         Andrews, in support of their individual claims for damages, is illustrative. Because he
         was slow to respond to his teacher's instructions, Ingraham was subjected to more than
         20 licks with a paddle while being held over a table in the principal's office. The
         paddling was so severe that he suffered a hematoma requiring medical attention and
         keeping him out of school for several days. Andrews was paddled several times for
         minor infractions. On two occasions he was struck on his arms, once depriving him of
         the full use of his arm for a week." (Id., at p. 657, fns. omitted.)

The court rejected the application of the Eighth Amendment to the use of corporal punishment to
discipline the students, primarily by distinguishing the school setting from that of a prison where the
amendment has long been applied to protect inmates:

                  "The prisoner and the schoolchild stand in wholly different circumstances,
         separated by the harsh facts of criminal conviction and incarceration. The prisoner's
         conviction entitles the State to classify him as a `criminal,' and his incarceration
         deprives him of the freedom `to be with family and friends and to form the other
         enduring attachments of normal life.' [Citations.] Prison brutality, as the Court of
         Appeals observed in this case, is `part of the total punishment to which the individual is
         being subjected for his crime and, as such, is a proper subject for Eighth Amendment
         scrutiny.' [Citation.] Even so, the protection afforded by the Eighth Amendment is
         limited. After incarceration, only the `"unnecessary and wanton infliction of pain,"'
         [citations], constitutes cruel and unusual punishment forbidden by the Eighth
         Amendment.

                  "The schoolchild has little need for the protection of the Eighth Amendment.
         Though attendance may not always be voluntary, the public school remains an open
         institution. Except perhaps when very young, the child is not physically restrained
         from leaving school during school hours; and at the end of the school day, the child is
         invariably free to return home. Even while at school, the child brings with him the
         support of family and friends and is rarely apart from teachers and other pupils who
         may witness and protest any instances of mistreatment.

    5
        For purposes of this analysis, we will assume that the prescribed paddling is not disproportionate to the offense. No
serious or lasting injury would be expected from the paddling, while acts of graffiti vandalism have become a costly form of
criminal behavior.


                                                             3.                                                   94-1002

                "The openness of the public school and its supervision by the community afford
       significant safeguards against the kinds of abuses from which the Eighth Amendment
       protects the prisoner. In virtually every community where corporal punishment is
       permitted in the schools, these safeguards are reinforced by the legal constraints of the
       common law. Public school teachers and administrators are privileged at common law
       to inflict only such corporal punishment as is reasonably necessary for the proper
       education and discipline of the child; any punishment going beyond the privilege may
       result in both civil and criminal liability. . . . As long as the schools are open to public
       scrutiny, there is no reason to believe that the common-law constraints will not
       effectively remedy and deter excesses such as those alleged in this case." (Id., at pp.
       669-670; fns. omitted.)

                 In Jackson v. Bishop (8th Cir. 1968) 404 F.2d 571, relied upon in Ingraham, the court
held that the use of a strap to whip inmates in an Arkansas prison violated the Eighth Amendment. It
explained its ruling in part as follows:

                "Our reasons for this conclusion include the following: (1) We are not
       convinced that any rule or regulation as to the use of the strap, however seriously or
       sincerely conceived and drawn, will successfully prevent abuse. The present record
       discloses misinterpretation and obvious overnarrow interpretation even of the newly
       adopted January 1966 rules. (2) Rules in this area seem often to go unobserved.
       Despite the January 1966 requirement that no inmate was to inflict punishment on
       another, the record is replete with instances where this very thing took place. (3)
       Regulations are easily circumvented. Although it was a long-standing requirement that
       a whipping was to be administered only when the prisoner was fully clothed, this record
       discloses instances of whippings upon the bare buttocks, and with consequent injury.
       (4) Corporal punishment is easily subject to abuse in the hands of the sadistic and the
       unscrupulous. (5) Where power to punish is granted to persons in lower levels of
       administrative authority, there is an inherent and natural difficulty in enforcing the
       limitations of that power. . . ." (Id., at p. 579.)

                Based upon factors similar to those found in Jackson, several federal courts have ruled
that the use of corporal punishment in juvenile custodial institutions violates the Eighth Amendment.
(See, e.g., Morales v. Turman (5th Cir. 1977) 562 F.2d 993, 998; Santana v. Collazo (D. Puerto Rico
1982) 533 F.Supp. 966, 977-978.) In Nelson v. Heyne (7th Cir. 1974) 491 F.2d 352, certiorari denied
417 U.S. 476, the court stated:

                ". . . [W]e find in the record before us, to support our holding, general
       consideration similar to those the court in Jackson found relevant: (1) corporal
       punishment is easily subject to abuse in the hands of the sadistic and unscrupulous, and
       control of the punishment is inadequate; (2) formalized School procedures governing
       the infliction of the corporal punishment are at a minimum . . . ." (Id., at p. 356.)6

   6
    Currently in California corporal punishment may not be used on any confined juvenile or adult (Pen. Code, ' 673) and

                                                          4.                                                 94-1002

                 On balance, we believe that a courtroom is more analogous to a school than to a prison
or juvenile custodial institution when considering the application of the Eighth Amendment. The
paddling would be administered under a judge's supervision by or in the presence of the juvenile's
parents. Various other persons would be witnesses. The punishment would be inflicted only on the
single occasion. Arbitrary actions undertaken in a custodial setting would not be possible. Indeed, the
courtroom setting for administration of the paddling would afford certain protections not found even in
a school setting.

                Moreover, in providing for the courtroom paddling of a juvenile, the Legislature would
be making a determination that paddling is an appropriate sanction for the crime committed and that
other forms of punishment have not been effective in curbing graffiti vandalism by minors. Specific
constraints imposed by the Legislature could easily make the punishment not disproportionate to the
crime, given the long history of disciplining juveniles by use of corporal punishment.

                We conclude that the Legislature, without violating the provisions of the United States
Constitution, may enact a statute authorizing the courtroom paddling of a minor who is adjudged a
ward of the juvenile court for placing graffiti upon real or personal property.

                                                  California Constitution

                 We now turn to the question of whether the proposed punishment would be consistent
with the California Constitution. Article I, section 17 of the Constitution states:
"Cruel or unusual punishment may not be inflicted or excessive fines imposed." This provision
basically tracks the cruel and unusual punishment clause of the Eighth Amendment to the United States
Constitution discussed above.7 The primary difference between the two lies in California's use of the
phrase "cruel or unusual" as opposed to "cruel and unusual."8

has been banned in the public schools since 1986 (Ed. Code, '' 49000-49001).

    7
        The United States Supreme Court has applied the terms "cruel" and "unusual" as a unified concept, but has noted the
possibility that the latter term may have an independent meaning:

                     "Whether the word `unusual' has any qualitative meaning different from `cruel' is not clear. On
          the few occasions this Court has had to consider the meaning of the phrase, precise distinctions between
          cruelty and unusualness do not seem to have been drawn. [Citations.] These cases indicate that the
          Court simply examines the particular punishment involved in light of the basic prohibition against
          inhuman treatment, without regard to any subtleties of meaning that might be latent in the word `unusual.'
          . . . If the word `unusual' is to have any meaning apart from the work `cruel,' however, the meaning
          should be the ordinary one, signifying something different from that which is generally done." (Trop v.
          Dulles, supra, 356 U.S. at 100, fn. 32.)

    8
        Article I, section 24 of the California Constitution was amended by an initiative measure to provide that:

                   ". . . the California Constitution shall not be construed by the courts to afford greater rights to
          criminal defendants, including minors, than those afforded by the Constitution of the United States.
          These rights include the right to not suffer the imposition of cruel or unusual punishment."

                                                               5.                                                    94-1002

                 It has been held that the framers of the California Constitution purposefully used the
disjunctive form when adopting the "cruel or unusual" language "in order to establish their intent that
both cruel punishments and unusual punishments be outlawed in this state." (People v. Anderson
(1972) 6 Cal.3d 628, 636-637.) As to the latter type of punishments, it appears that the term "unusual"
has been analyzed if the punishment imposed was arguably excessive or disproportionate, if there was
doubt as to whether the prescribed punishment was "cruel" (id., at p. 654), or if the penalty was found
to be unfairly applied (People v. Schueren (1973) 10 Cal.3d 553, 559-561).

                 As for the concept of cruelty, the framers of the California Constitution "used the term
cruel in its ordinary meaning -- causing physical pain or mental anguish of an inhumane or torturous
nature." (People v. Anderson, supra, 6 Cal.3d at 646.) In determining whether a proscribed
punishment would constitute cruelty, California courts are guided by "evolving standards of decency
that mark the progress of a maturing society" as an appropriate expression of the applicable standard.
(Id., at pp. 647-648; People v. Main (1984) 152 Cal.App.3d 686, 694.)

                Since 1972, California courts examining the cruel or unusual prohibition have focused
primarily on the issue of the proportionality of the punishment to the offense. In In re Lynch (1972) 8
Cal.3d 410, 424, the court held that a punishment may constitute cruel or unusual punishment "if,
although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted
that it shocks the conscience and offends fundamental notions of human dignity." Nonetheless, in
People v. Wingo (1975) 14 Cal.3d 169, the court observed:

                "Of course a cruel or unusual method of punishment will provide a separate
         ground for holding a penalty unconstitutional. (See Weems v. United States, 217 U.S.
         349, 377 (1910).)" (Id., at p. 175, fn. 5.)

               As previously noted, our focus here is directed at the method of punishment proposed,
as we do not find that the courtroom paddling would present a proportionality issue in the
circumstances envisioned. With respect to the Legislature's authority to prescribe different kinds of
punishment, the court stated in People v. Wingo, supra, 14 Cal.3d at 174:

                 "Finally we pause to emphasize the considerable burden a defendant must
         overcome in challenging a penalty as cruel or unusual. The doctrine of separation of
         powers is firmly entrenched in the law of California, and a court should not lightly
         encroach on matters which are uniquely in the domain of the Legislature. Perhaps
         foremost among these are the definition of crime and the determination of punishment.
         [Citations.] While these intrinsically legislative functions are circumscribed by the
         constitutional limits of article I, section 17, the validity of enactments will not be




However, the amendment was struck down by the Supreme Court as being beyond the reach of the initiative process. (Raven
v. Deukmejian (1990) 52 Cal.3d 336.)


                                                          6.                                                 94-1002
        questioned `unless their unconstitutionality clearly, positively, and unmistakably
        appears.' [Citations.]" (Fn. omitted.)

If a decision were to be made by the Legislature that a relatively mild form of corporal punishment is an
appropriate type of punishment for minors who commit acts of graffiti vandalism, we could not find the
enactment's "unconstitutionality clearly, positively and unmistakably appears" either as to cruelty or
unusualness.

                Just as it does in determining the degree of punishment, the Legislature must have some
measure of discretion in determining the method or kind of punishment. "Presented with a rational
basis for the choice, the courts should hesitate to call the penalty cruel or unusual." (In re Maston
(1973) 33 Cal.App.3d 559, 562.) As explained in In re Lynch, supra, 8 Cal.3d at 423-424:

                 “. . . The choice of fitting and proper penalties is not an exact science, but a
        legislative skill involving an appraisal of the evils to be corrected, the weighing of
        practical alternatives, consideration of relevant policy factors, and responsiveness to the
        public will; in appropriate cases, some leeway for experimentation may also be
        permissible . . . .”

                In some instances, increasing the degree of existing penalties is not an effective
response to a growing crime problem. As conditions in modern society change, it may become
necessary to utilize a different type of punishment in response to a particular crime. Article I,
section 17 of the Constitution does not deprive the Legislature of flexibility in fashioning the
appropriate response to criminal behavior.

                We conclude that the Legislature, without violating the provisions of the California
Constitution, may enact a statute authorizing the courtroom paddling of a minor who is adjudged a
ward of the juvenile court for placing graffiti upon real or personal property.

                                                *****




                                                    7.                                            94-1002


