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Washington v. Creekmore11/6/1989
e by abuse without ever receiving a life sentence.
The new law would be noticeable in a case like this if Creekmore's crime were moved to a seriousness level of 14. See RCW 9.94A.320. Then it would be in the same class as aggravated first degree murder. Only then would it be "as serious a crime as we can make it." Senate Journal, supra. The mandatory minimum sentence would be life imprisonment, and a jury could impose death. RCW 9.94A.310. When a person causes the death of a child as part of a pattern or practice of assault or torture, we believe the crime is as serious as aggravated first degree murder.
Cruel and Unusual Punishment
Creekmore's last challenge to his sentence is based on the constitutional ban of cruel and unusual punishment. U.S. Const. amend. 8; Const. art. 1, § 14; see State v. Smith, 93 Wash. 2d 329, 339 n.5, 610 P.2d 869 (provisions given "essentially identical treatment"), cert. denied, 449 U.S. 873 (1980).
Only punishment which is "grossly disproportionate to the gravity of the offense" violates the state and federal constitutional guaranty. State v. Bowen, 51 Wash. App. 42, 47, 751 P.2d 1226 (1988). To be "grossly disproportionate" punishment must be "clearly arbitrary and shocking to the sense of justice." State v. Smith, 93 Wash. 2d at 344-45. For example, in Solem v. Helm, 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983), the Supreme Court reversed a sentence of life imprisonment without possibility of parole for a nonviolent habitual offender convicted of passing a bad check for $100. Referring to Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982), in which the Court held that an accomplice to felony murder could not be sentenced to death without a showing that he killed or intended to kill, the Court in Solem said, "clearly no sentence of imprisonment would be disproportionate for Enmund's crime." 463 U.S. at 290 n.15. By this assessment, any sentence short of death would be constitutionally
acceptable in Creekmore's case. Even death would presumably be acceptable, because Enmund is distinguishable. Enmund was a passenger in a getaway car and had nothing to do with the killing. The killing occurred during the course of a robbery perpetrated by others. Here, Creekmore caused Eli's death: he not only knowingly inflicted grievous bodily harm, but he also ignored obvious signs of suffering, as well as statements by others that Eli needed immediate treatment. Considering the gravity of Creekmore's offense, it would be perverse to declare his sentence "shocking to the sense of justice."
Proportionality analysis under the Eighth Amendment would yield the same result. Before a sentence can be declared cruel and unusual, it must be "significantly disproportionate" in view of three objective criteria:
(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.
Solem v. Helm, 463 U.S. at 292. The first step focuses on the harm caused and the culpability of the offender. Solem, at 292-93. Here, the harm caused was the death of Eli, whose helplessness and suffering, coupled with Creekmore's knowing infliction of grievous bodily harm and indifference to it, establish a high degree of culpability. The second prong of the analysis depends on maximum penalties for the same conduct
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