Opinion
No. 104,667.
2013-02-8
STATE of Kansas, Appellee, v. Vincente BARRERA, Appellant.
Appeal from Dickinson District Court; Benjamin Sexton, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Daryl E. Hawkins, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Dickinson District Court; Benjamin Sexton, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Daryl E. Hawkins, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Vincente Barrera appeals his sentence following his no contest plea to one count each of attempted rape and aggravated burglary. The district court imposed a controlling sentence of 126 months' imprisonment and lifetime postrelease supervision. Barrera asserts that lifetime postrelease supervision violates the provisions against cruel and/or unusual punishment found in the federal and Kansas constitutions. For the following reasons, we reject Barrera's constitutional claims and we affirm his sentence.
On January 10, 2010, at approximately 6 a.m., L.B. heard her front door open and found Barrera, whom she knew, at her bedroom door, taking off his clothes. After grabbing L.B., calling her names, and stating that she killed his mother, Barrera put his hands inside L.B.'s pants, put his finger inside her vagina, and put his mouth on her face and breasts. Barrera also penetrated her vaginally with his penis and inserted his finger into her anus. L.B. convinced Barrera to let her use the bathroom; at that point, she fled from her house. L.B. reported the incident to the police, and when the police interviewed Barrera, he stated that he did not remember the events, but “you[‘re] saying I did it, so I must have did it.”
On January 12, 2010, the State charged Barrera with one count each of aggravated burglary, kidnapping, aggravated criminal sodomy, and rape. Pursuant to a plea agreement, the State filed an amended complaint reducing the charges to one count each of attempted rape and aggravated burglary. On March 24, 2010, Barrera stipulated to the facts and pled no contest.
Prior to sentencing, Barrera filed a motion arguing that lifetime postrelease supervision is unconstitutional and asking the district court to either impose a lesser term of postrelease supervision or decline to impose it altogether. At the sentencing hearing on May 19, 2010, the district court heard oral argument on the motion and made findings as required. The district court imposed a controlling sentence of 126 months' imprisonment and lifetime postrelease supervision. Barrera timely appealed his sentence.
On appeal, Barrera asserts that lifetime postrelease supervision violates the provisions against cruel and/or unusual punishment found in the federal and Kansas constitutions. The Eighth Amendment to the United States Constitution, which the Fourteenth Amendment makes applicable to the States, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Similarly, § 9 of the Kansas Constitution Bill of Rights states: “All persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.”
The Kansas Supreme Court has described two general categories of proportionality challenges to a term-of-years sentence: “The first classification involves challenges that argue the term of years is grossly disproportionate given all the circumstances in a particular case. The second classification comprises cases in which the court implements the proportionality standard by certain categorical restrictions.” State v. Gomez, 290 Kan. 858, Syl. ¶ 4, 235 P .3d 1203 (2010). Barrera first raises a case-specific challenge, arguing that lifetime postrelease supervision is grossly disproportionate under the circumstances of his case and is therefore unconstitutional. Next, Barrera argues that lifetime postrelease supervision is categorically unconstitutional. We will consider these arguments in turn.
Case–Specific Proportionality Challenge
Barrera makes a case-specific proportionality challenge in the context of both the Kansas Constitution and the Eighth Amendment. Barrera raised the argument based upon § 9 of the Kansas Constitution Bill of Rights before the district court, and the district court made factual findings and legal conclusions. Because the district court decided the claim based on the Kansas Constitution, this court may address it. See State v. Mossman, 294 Kan. 901, 906, 281 P.3d 153 (2012).
Appellate review of a determination of whether a sentence is cruel or unusual under the Kansas Constitution Bill of Rights involves reviewing the district court's legal and factual determinations. Our Supreme Court has stated that “the appellate court applies a bifurcated standard of review: All of the evidence is reviewed, but not reweighed, to determine whether it is sufficient to support the district court's factual findings, but the legal conclusions that the district court draws from those facts are reviewed de novo. [Citation omitted.]” State v. Ross, 295 Kan. 424, 426–26, 284 P.3d 309 (2012). Lifetime postrelease supervision for a conviction of attempted rape is mandated by K.S.A. 22–3717(d)(l)(G). Courts presume a statute is constitutional and must interpret a statute as constitutional if there is any reasonable construction that would maintain the legislature's apparent intent. State v. Gaona, 293 Kan. 930, 958, 270 P.3d 1165 (2012).
The Freeman Factors
Our Supreme Court addressed the required proportionality of a sentence under the Kansas Constitution in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), and set out three factors for a court to consider, cautioning that no one factor is necessarily controlling:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.”
First Freeman Factor
The district court found the weight of the first factor “falls in favor of the State, folks, by a landslide.” The district court further stated that it “cannot think of many more crimes that are [of a] more violent, personal nature, than the crime that has been recited by the victim.” The district court also found that Barrera was a danger to society and that the full extent of L.B.'s injuries were as yet unknown. On appeal, Barrera emphasizes that he did not put L.B. into a life-threatening position and, although the crime was violent, there was no evidence that he used a weapon. These facts, however true, do not lessen the serious nature of the crimes Barrera committed. As the district court stated, these were violent crimes with serious repercussions, as evidenced by the facts to which Barrera stipulated. Although the district court did not address the resulting injury in detail, L.B. testified at the sentencing hearing that, due to Barrera's attack, she was unable to be in public without suffering panic attacks, she was seeing mental health professionals on a weekly basis, and she suffered daily anxiety because she still lived in the house in which the events occurred. All of this evidence, taken together, provides support for the district court's conclusion that the first Freeman factor weighs in favor of the State.
In addition, Barrera asserts that the presumed penological purpose of protecting society from Barrera is not served by lifetime postrelease supervision because Barrera had no prior sexual offenses. Regardless of Barrera's criminal history, society has an interest in protecting its citizens from a person who has committed acts such as those for which Barrera was convicted. Although his criminal history does not show a risk to reoffend, the lack of criminal history does not necessarily mean that lifetime postrelease supervision is an unconstitutionally disproportionate sentence. In summary, sufficient evidence supports the district court's factual findings on the first Freeman factor and those factual findings support its legal conclusion that the factor weighs against Barrera.
Second Freeman Factor
In consideration of the second Freeman factor, this court must compare this sentence with sentences for more serious Kansas offenses. The district court did not expressly examine the second factor. However, our Supreme Court recently found that a “district court's failure to expressly consider the second prong [of the Freeman test] implicates the district court's legal conclusion but does not raise a preservation issue. [Citation omitted.]” State v. Britt, 295 Kan. 1018, 287 P.3d 905, 917 (2012). In Britt, the Supreme Court examined the arguments relevant to the second factor despite the lack of explicit consideration by the district court because the appellant raised the arguments below; here, this court will do the same. 287 P.3d at 917.
In his motion concerning postrelease supervision, Barrera listed numerous offenses he considered more serious than his own that have shorter periods of postrelease supervision; the crimes included aggravated kidnapping, electronic solicitation of a child, and second degree murder, all of which carry a 36–month postrelease supervision term. See K.S.A. 21–3421 (stating aggravated kidnapping is a severity level 1 person felony); K.S.A.2010 Supp. 21–3523 (stating electronic solicitation is a severity level 1 or a severity level 3 person felony); K.S.A. 21–3402 (stating second-degree murder is a severity level 1 or severity level 2 person felony); K.S.A. 22–3717(d)(l)(A) (generally requiring 36 months' postrelease supervision for nondrug severity level 1 to 4 crimes).
On appeal, as he did before the district court, Barrera focuses on the length of the postrelease supervision term alone, affording no weight to the fact that these crimes would require longer terms of imprisonment. For example, Barrera had a criminal history score of “E.” Had Barrera been convicted of aggravated kidnapping, he would have received 36 months' postrelease supervision, but it would have followed a presumptive sentence of 221–234–246 months' imprisonment. See K.S.A. 21–3421; K.S.A.2010 Supp. 21–4704. Second-degree murder would result in 36 months' postrelease supervision, but only after presumptive imprisonment of 165–174–184 months or 221–234–246 months. See K.S.A. 21–3402; K.S.A.2010 Supp. 21–4704.
Our Supreme Court has previously considered the legitimacy of an argument such as Barrera's that focuses solely on the length of postrelease supervision, noting that “while [the] overall sentence may be longer than that of someone convicted of second-degree murder, [the offender] has the opportunity to serve most of that time in a less restrictive environment. Hence, a comparison of proportionality cannot be based solely on the length of postrelease supervision. [Citation omitted.]” Mossman, 294 Kan. at 913. The sentences Barrera cites are generally longer terms of imprisonment followed by shorter terms of postrelease supervision, but Barrera makes a valid point that his freedom will be restrained for a longer period of time due to the lifetime postrelease supervision, even if his actual term of imprisonment is shorter. But our Supreme Court has concluded:
“[W]hile a defendant subject to lifetime postrelease supervision is under a longer cumulative sentence than a defendant sentenced for second-degree murder, a ‘sentence to lifetime postrelease supervision [for a sexually violent offense] is not grossly disproportionate in relation to the sentence applicable to second-degree murder in Kansas when we consider the penological purposes, the seriousness of the crime, and the other concerns discussed in relation to the first Freeman factor.’ [Citation omitted.]” State v. Cameron, 294 Kan. 884, 893, 281 P.3d 143 (2012).
Similarly, after consideration of the first Freeman factor, any disparity between Barrera's sentence and those imposed for the crimes he cites as examples of more serious crimes with lesser terms of postrelease supervision is not so significant as to outweigh the first Freeman factor. In any event, because no one factor is necessarily controlling, we will proceed to analyze the third factor. 294 Kan. at 893.
Third Freeman Factor
The third Freeman factor requires this court to compare the sentence at issue with punishments in other jurisdictions for the same offense. Regarding this factor, the district court stated:
“When I compared the punishment to other jurisdictions, on more serious offenses, they may have some. They're all ove[r]—they're all different, in kind to nature, through the 50 states.
“The Court finds [the] legislature had a purpose for this, and it's to track these individuals. And even though there are other states tha[t] have lesser post-release-supervision period, on similar offenses, the fact that wo—the first criteria falls so heavily in favor of the State, that is the State's interest that this person—the whereabouts—he—of this person be known.
“And, finally, compare the punishments of other jurisdictions for the same offense. Again, uh, when I consider all these together, the interest of the—of the Court understand—of the ... public, in understanding where this gentleman is, falls in favor of the State. And the post-release-supervision period shall be lifetime.”
Although the district court's reasoning is less than clear, Barrera raised his arguments on this issue before the district court and does so again on appeal; therefore, this court may address them. See Britt, 287 P.3d at 917. Before the district court, Barrera detailed (1) seven states which do not appear to have lifetime postrelease supervision, (2) three states which have lifetime supervision of sex offenders, and (3) seven states which rely on parole schemes for sex offenders for up to a life term. Barrera argued briefly in district court that mandatory postrelease supervision violates due process of law and the doctrine of separation of powers, but Barrera abandons these arguments on appeal. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011) (stating that a point not briefed by the appellant is deemed waived and abandoned).
Barrera does, however, renew his assertion that there is a national consensus against mandatory lifetime postrelease supervision as a sentence for sex offenses. Barrera attempts to distinguish Kansas still further by asserting that only one other state—Oklahoma—allows for lifetime postrelease supervision as a punishment for sex offenses without providing for any possibility of release or discharge from the supervision. In light of this information, Barrera argues that his sentence is grossly disproportionate.
Our Supreme Court recently summarized the comparison under the third Freeman factor as follows:
“[I]t seems fair to say that less than half of states provide for lifetime postrelease supervision of some or all sex offenders and, because several states have a mechanism for termination of the postrelease supervision under certain conditions, only a handful of states impose punishment as absolute as Kansas' requirement. Nevertheless, Kansas is not alone in imposing mandatory lifetime postrelease supervision for crimes such as Mossman's, and we are not aware of any court that has found lifetime postrelease supervision of a violent sex offender to be cruel and unusual punishment.” Mossman, 294 Kan. at 920.
This characterization of the state of national sentencing relevant to lifetime postrelease supervision of sex offenders is still accurate, and Barrera has not submitted any information regarding any jurisdiction finding such supervision to be cruel or unusual punishment. Thus, the third Freeman factor also weighs in favor of the State. Consideration and evaluation of all three factors leads to the conclusion that, under the facts and circumstances of this case, a sentence of lifetime postrelease supervision was not grossly disproportionate. Accordingly, Barrera's sentence does not violate the protections of § 9 of the Kansas Constitution Bill of Rights.
The Eighth Amendment
Barrera also argues that lifetime postrelease supervision in his case violates the prohibition on cruel and unusual punishment found in the Eighth Amendment to the United States Constitution, which is applicable to the states by operation of the Fourteenth Amendment to the United States Constitution. Barrera concedes that he “mainly presented a disproportionality challenge under the Kansas ... Constitution” to the district court, but now argues, due to the timing of certain events, that this court should either (1) allow Barrera to substantively address the Eighth Amendment case-specific argument for the first time on appeal or (2) remand to the district court to allow him to bring the argument there. To understand Barrera's argument, a brief review of some dates is necessary.
Barrera filed his motion concerning postrelease supervision on May 11, 2010. At that time and since at least 1980, the United States Supreme Court had been seen as “ ‘essentially reject[ing] the proposition that disproportionality analysis is required by the 8th Amendment.’ “ See Gomez, 290 Kan. at 863 (tracing and recognizing the United States Supreme Court's rejection of proportionality claims based on the Eighth Amendment). Thus, when Barrera filed his motion, the Eighth Amendment was generally understood to not support a proportionality claim and Barrera understandably did not develop such a claim based on the Eighth Amendment. Rather, he limited his arguments to the Kansas Constitution.
Six days after Barrera filed his motion concerning postrelease supervision, the United States Supreme Court released its opinion in Graham, which gave legitimacy anew to proportionality claims made under the Eighth Amendment. See Graham v. Florida, 560 U.S. ––––, 130 St. Ct.2011, 2021, 176 L.Ed.2d 825 (2010) (“The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution's ban on cruel and unusual punishments is the ‘precept of justice that punishment for crimes should be graduated and proportioned to [the] offense.’ [Citation omitted.]”). On May 19, 2010, 2 days after Graham was released, the district court held Barrera's sentencing hearing, at which it heard oral arguments regarding lifetime postrelease supervision. Neither Barrera, the State, nor the district court mentioned Graham or any effect it might have on arguments regarding the constitutionality of lifetime postrelease supervision.
Barrera contends that because Graham came out 6 days after he filed his motion and only 2 days before his hearing, this court should allow him to raise the federal constitutional question for the first time on appeal or, in the alternative, remand the case to the district court to allow him to argue the case-specific Eighth Amendment challenge there. The State does not address this argument in its appellate brief. To support his argument, Barrera cites to State v. Berriozabal, 291 Kan. 568, 243 P.3d 352 (2010).
In Berriozabal, a jury convicted Berriozabal of one count of rape, one count of attempted rape, and two counts of aggravated criminal sodomy. On appeal, among other issues, Berriozabal argued that his two consecutive hard 25 sentences were cruel and unusual punishment under both the Kansas and federal constitutions. Berriozabal had presented constitutional arguments to the district court before sentencing, although his motion for sentencing departure did not specifically mention the Eighth Amendment. His appellate brief cited the Eighth Amendment and federal cases but did not address the implications of Graham, which was published approximately 2 weeks after Berriozabal's oral arguments before our Supreme Court. 291 Kan. at 590, 594.
Upon examination of whether Berriozabal had properly preserved an Eighth Amendment argument, our Supreme Court determined that because Berriozabal's motion for sentencing departure referred to the federal constitution and because he “discussed the specifics of an Eighth Amendment analysis” at the appellate level, he had preserved the issue. 291 Kan. at 594. Because Berriozabal's appellate argument did not clarify how he would frame his argument in light of Graham and Kansas Supreme Court cases subsequent to Graham, our Supreme Court remanded to the district court for further proceedings. 291 Kan. at 594.
In light of the remand in Berriozabal, Barrera argues that this court should order a similar remand if it finds that Barrera's Eighth Amendment arguments were not sufficiently developed at the district court level. But remand is unnecessary in Barrera's case. The analysis of a case-specific challenge raised under the Eighth Amendment to the United States Constitution is nearly identical to the analysis utilized in a case-specific challenge raised under § 9 of the Kansas Constitution Bill of Rights. Compare Graham, 130 S.Ct. at 2022 (explaining federal test), with Cameron, 294 Kan. at 890 (explaining Kansas' test). Accordingly, the district court made sufficient findings of fact and conclusions of law on the relevant factors for this court to decide Barrera's Eighth Amendment case-specific proportionality claim. See Mossman, 294 Kan. at 922 (finding that where the district court mentioned the Eighth Amendment and prior federal decisions and, “although in the context of state constitutional issues, made factual findings that coincide with Graham's case-specific proportionality factors,” it could consider an Eighth Amendment case-specific challenge).
When considering whether a term-of-years sentence is grossly disproportionate and therefore violates the Eighth Amendment,
“[a] court must begin by comparing the gravity of the offense and the severity of the sentence. [Citation omitted.] ‘[I]n the rare case in which [this] threshold comparison ... leads to an inference of gross disproportionality[,]’ the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with sentences imposed for the same crime in other jurisdictions. [Citation omitted.] If this comparative analysis Validat[es] an initial judgment that [the] sentence is grossly disproportionate,' the sentence is cruel and unusual. [Citation omitted.]” Graham, 130 S.Ct. at 2022.
Clearly, the threshold consideration of comparing “the gravity of the offense and the severity of the sentence” is similar to the first Freeman factor, and the Kansas Supreme Court has recognized the similarity. See Mossman, 294 Kan. at 924. There is a significant difference, however—if the case does not lead to an inference of gross disproportionality under the first comparison, there is no need to consider the other comparisons. 294 Kan. at 924. Additionally, “it is only the rare case where the Eighth Amendment threshold comparison ... will lead to an inference of gross disproportionality.” 294 Kan. at 923.
For the reasons stated above in the discussion of the first Freeman factor, such as the violent nature of the crime and the lasting injury it caused L.B., Barrera's sentence does not pass the threshold test and further consideration of his case-specific Eighth Amendment claim is unnecessary. In summary, under both the test for constitutionality under § 9 of the Kansas Constitution Bill of Rights and the test for constitutionality under the Eighth Amendment to the United States Constitution, Barrera's sentence of lifetime postrelease supervision is not constitutionally prohibited cruel or unusual punishment.
Categorical Proportionality Challenge
Barrera also raises a categorical challenge to lifetime postrelease supervision, contending that it is cruel and unusual punishment when imposed for the class of crime he committed. The State asserts that lifetime postrelease supervision survives a categorical challenge. Barrera did not raise a categorical challenge before the district court. Generally, constitutional issues cannot be raised for the first time on appeal. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). There are three exceptions to this general rule, allowing consideration where (1) the newly asserted claim involves only a question of law and determines the case, (2) serving the ends of justice or preventing the denial of fundamental rights requires consideration of the claim, or (3) the district court was right for the wrong reason. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010).
In Gomez, the defendant argued for the first time on appeal that his sentence was disproportionate and therefore constituted cruel and/or unusual punishment under both the Eighth Amendment and § 9 of the Kansas Constitution Bill of Rights. 290 Kan. at 862–68. The Kansas Supreme Court ultimately determined that the factors assessed in a categorical proportionality challenge are not case-specific and generally raise questions of law. 290 Kan. at 866. Under the first exception to the general rule that an issue cannot be raised for the first time on appeal, the court determined that a categorical proportionality challenge under the Eighth Amendment may in certain circumstances be raised for the first time on appeal. 290 Kan. at 866. Consistent with the Supreme Court's discussion in Gomez, we conclude that Barrera's categorical proportionality challenge under the Eighth Amendment raises only questions of law that are determinative of the case and thus may be considered for the first time on appeal.
The United States Supreme Court has laid out the analysis of a categorical challenge under the Eighth Amendment as follows:
“The Court first considers “objective indicia of society's standards, as expressed in legislative enactments and state practice” to determine whether there is a national consensus against the sentencing practice at issue. [Citation omitted.] Next, guided by “the standards elaborated by controlling precedents and by the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose,” [citation omitted], the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution. [Citation omitted.]' [Citation omitted.]” 290 Kan. at 865 (quoting Graham, 130 S.Ct. at 2022).
Before beginning the substantive analysis, however, this court must determine the category to which the analysis applies. See Mossman, 294 Kan. at 927–29. In Graham, the United States Supreme Court listed two subsets of categorical challenges—“one considering the nature of the offense, the other considering the characteristics of the offender.” 130 S.Ct. at 2022. Here, Barrera defines the category as “a first offense of an attempted sexual contact.” The Kansas Supreme Court has previously addressed and rejected a categorical challenge to mandatory lifetime postrelease supervision as applied to the category of first-time sex offenders. See Mossman, 294 Kan. at 929–30. Also, in the substance of his argument under the first step of the analysis, Barrera compares the sentence of lifetime postrelease supervision for his crime of conviction—attempted rape—with the availability in other jurisdictions of lifetime postrelease supervision for the broader category of “sexual offenses”; he does not narrow the sentences being compared to include only first-time offenders or those convicted of attempted rape.
Regardless, Ban-era argues that there is a national consensus against mandatory lifetime postrelease supervision, especially as Kansas imposes it—without the possibility for discharge or release. Barrera largely reiterates his argument made under the second Freeman factor: only two states, including Kansas, impose lifetime postrelease supervision with no chance of discharge or release, and 10 states have mandatory lifetime postrelease supervision with the possibility of discharge or release.
Our Supreme Court has adopted the Ninth Circuit Court of Appeals' position in United States v. Williams, 636 F.3d 1229, 1233 (9th Cir.), cert. denied––– U.S. ––––, 132 S.Ct. 188, 181 L.Ed.2d 96 (2011), in which the Ninth Circuit examined a categorical challenge to a sentence of lifetime postrelease supervision for a conviction of receipt of child pornography: “ ‘ “[O]bjective indicia” suggest that society is comfortable with lifetime sentences of supervised release for sex offenders, as such sentences are common.’ “ See Cameron, 294 Kan. at 897;Mossman, 294 Kan. at 929. In both Mossman and Cameron, our Supreme Court quoted this language and applied the Ninth Circuit's reasoning. Cameron, 294 Kan. at 897–98;Mossman, 294 Kan. at 929–30.
Although both the Mossman and Cameron courts specifically identified the category at issue to be identical with the crime of conviction, the application of Williams to both Mossman and Cameron's cases means that our Supreme Court is truly analyzing the category even more broadly—as “sex offenses.” This is the only way in which the three crimes at issue in the three cases—aggravated indecent liberties with a child, aggravated indecent solicitation of a child, and receipt of child pornography—can undergo identical analysis for a categorical proportionality challenge under the Eighth Amendment. Moreover, our Supreme Court considered that “several other states have adopted lifetime postrelease supervision for many, if not all, sexually violent crimes.” Cameron, 294 Kan. at 897;Mossman, 294 Kan. at 930. This statement, identical in both opinions, reinforces the belief that the category of offense actually being considered was “sexually violent crimes” as a whole, not each sex crime individually.
Here, Barrera was convicted of attempted rape, which is also a sexually violent crime. See K.S.A.2011 Supp. 22–3717(d)(2).Therefore, the Williams analysis applies here as it did in Mossman and Cameron. As these three opinions note, objective indicia suggest that there is no national consensus against lifetime postrelease supervision for perpetrators of sexually violent crimes; rather, it seems to be a widespread phenomenon. Objective indicia indicate now, as in Mossman, Cameron, and Williams, that “society is comfortable with lifetime sentences of supervised release for sex offenders.” Williams, 636 F.3d at 1233;Cameron, 294 Kan. at 897;Mossman, 294 Kan. at 929–30.
Next, “guided by ‘the standards elaborated by controlling precedents and by [its] own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose,’ [citation omitted] [this court] must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution. [Citation omitted.]” Graham, 130 S.Ct. at 2022. This determination “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. [Citation omitted.] In this inquiry the Court also considers whether the challenged sentencing practice serves legitimate penological goals. [Citations omitted.]” 130 S.Ct. at 2026.
Regarding the severity of the punishment, lifetime postrelease supervision is a severe penalty, but it is not as severe as capital punishment or life without parole, the two sentencing practices previously found unconstitutional by the United States Supreme Court by way of a categorical challenge to the Eighth Amendment. See Graham, 130 S.Ct. at 2027. Moreover, although in the context of a case-specific Eighth–Amendment challenge, the Kansas Supreme Court has stated: “[W]hile the sentence is lengthy, lifetime postrelease supervision is not as harsh a punishment as imprisonment and is aimed at safely integrating a sex offender into society and protecting the public.” Cameron, 294 Kan. at 896. Unlike a life without parole sentence, lifetime postrelease supervision does not “mean[ ] denial of hope” or that “good behavior and character improvement are immaterial.” Graham, 130 S.Ct. at 2027.
This court must also consider the penological justifications for lifetime postrelease supervision because “[a] sentence lacking any legitimate penological justification is by its nature disproportionate to the offense.” 130 S.Ct. at 2028. As stated in Williams and followed by our Supreme Court in Mossman and Cameron,
“[r]ehabilitation and incapacitation are central purposes of the criminal justice system, and they are particularly critical here given the propensity of sex offenders to strike again. Supervised release can further the end of rehabilitating sex offenders [especially where the offender is required to receive treatment and avoid situations in which the offender might be tempted to offend again].... Relatedly, supervised release helps incapacitate sex offenders by keeping them under the watchful eye of probation officers who may be able to detect problems before they result in irreparable harm....” Williams, 636 F.3d at 1234.
See also Cameron, 294 Kan. at 898;Mossman, 294 Kan. at 930.
Retribution is another recognized penological justification; “[s]ociety is entitled to impose severe sanctions on a ... nonhomicide offender to express its condemnation of the crime and to seek restoration of the moral imbalance caused by the offense.” Graham, 130 S.Ct. at 2028. Although retribution was not proportional in Graham because a juvenile—an offender with comparatively less moral culpability—was receiving the law's second most severe penalty, here retribution is much more proportional. See 130 S.Ct. at 2028 (stating that retribution was disproportional). Finally, the deterrent effect is likely not sufficient alone to justify the punishment; however, a sentence of mandatory lifetime postrelease supervision is sufficiently justified by the combined penological goals of rehabilitation, incapacitation, and retribution. As a result, Barrera's sentence of lifetime postrelease supervision under K.S A. 22–3717(d)(1)(G) for his conviction of attempted rape is not categorically disproportional and, accordingly, is not cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
Affirmed.