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State v. Jonas4/17/1990
a minor than sale to an adult. Additionally, at least 22 jurisdictions could have sentenced a defendant with 4 prior felony convictions and defendant's background to a maximum term of 25 years or more for the same crime, some of them up to life sentences.
However, this comparison again is made more difficult in our analysis by the fact that A.R.S. § 13-604.01 precludes the possibility of parole during the entire term of the sentence. Thus, as a practical matter, defendant's 25-year sentence is among the harshest in the nation, because he will not be eligible for release until every day of his sentence is served.
We note, however, that this factor alone will not cause a sentence to be considered cruel and unusual under the Solem test. A state's deviation from the punishment chosen by a majority of other states does not necessarily result in a violation of the eighth amendment. Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154, 3164, 82 L.Ed.2d 340 (1984). Providing parole is an act of "executive grace" that is not within the "normal expectation" of those that traffic in narcotics, unlike the defendant in Solem, who may have had a "normal expectation" of parole for passing a bad check. United States v. Klein, 860 F.2d 1489, 1497-98 (9th Cir.1988). The nonexistence of parole provisions in mandatory minimum sentences historically has been upheld as constitutional. See Schick v. Reed, 419 U.S. 256, 267, 95 S.Ct. 379, 385, 42 L.Ed.2d 430 (1974); United States v. Valenzuela, 646 F.2d 352, 354 (9th Cir.1980); Moore v. Cowan, 560 F.2d 1298, 1302-03 (6th Cir.1977); United States v. Bergdoll, 412 F.Supp. 1308, 1319 (D.Del.1976). We therefore do not find defendant's sentence to be cruel and unusual simply because it does not provide the possibility of parole.
The Ninth Circuit recently upheld another Arizona sentencing scheme against an eighth amendment attack, even though it resulted in the harshest penalties for recidivists in the nation:
The fact that one state has the distinction of setting the most stringent prison sentence for a particular crime does not automatically render such punishment "grossly disproportionate" to the offense or to the punishment dictated by other states. Rummel, 445 U.S. at 281 [100 S.Ct. at 1143]. As the Supreme Court has stated, " bsent a constitutionally imposed uniformity inimical to traditional notions of federalism, some state will always bear the distinction of treating particular offenders more severely than
any other state." Id. at 282, 100 S.Ct. at 1143.
Cocio v. Bramlett, 872 F.2d 889, 897 (9th Cir.1989). We similarly find that defendant's 25-year sentence without possibility of early release, for transferring marijuana to minors, although harsh, is not cruel and unusual as violative of the eighth amendment under the third prong of the Solem test.
Conclusion
We hold that defendant's 25-year sentence for the sale of one marijuana cigarette to a 14-year-old, to be served without parole and consecutive to his 21-year sentence for trafficking in stolen property, is not disproportionate to his crime, and thus does not constitute cruel and unusual punishment under the facts of this case. His sentence pursuant to A.R.S. § 13-604.01 does not violate the eighth amendment; it is therefore affirmed as modified.
FELDMAN, Vice Chief Justice, dissenting.
I must dissent because I believe the sentence imposed is so disproportionate to the facts that it violates the eighth amendment. In finding the sentence proportionate, the majority misapprehends Solem's analytical framework.<
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