483 F.2d 136 (4th Cir. 1973), 71-1885, Hart v. Coiner

Docket Nº:71-1885.
Citation:483 F.2d 136
Party Name:Dewey HART, Appellant, v. Ira M. COINER, Warden of the West Virginia State Penitentiary, Appellee.
Case Date:July 13, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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483 F.2d 136 (4th Cir. 1973)

Dewey HART, Appellant,


Ira M. COINER, Warden of the West Virginia State Penitentiary, Appellee.

No. 71-1885.

United States Court of Appeals, Fourth Circuit.

July 13, 1973

Argued April 2, 1973.

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Richard Vanore and Robert Wishart, Third Year Students (Barry Nakell, Chapel Hill, N. C. [Court-appointed counsel] on brief), for appellant.

Richard E. Hardison, Asst. Atty. Gen., of W.Va. (Chauncey H. Browning, Jr., Atty. Gen., of W. Va., and E. Leslie

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Hoffman, III, Asst. Atty. Gen., of W. Va., on brief), for appellee.

Before BOREMAN, Senior Circuit Judge, and CRAVEN and BUTZNER, Circuit Judges.

CRAVEN, Circuit Judge:

Appellant Dewey Hart is presently confined in the West Virginia State Penitentiary under judgment and sentence that he there be imprisoned for the rest of his natural life for having violated West Virginia's recidivist statute. The life sentence, mandatory under West Virginia law, rests upon three prior convictions: (1) writing a check on insufficient funds for $50; (2) transporting across state lines forged checks in the amount of $140; and (3) perjury. Having unavailingly sought relief in the state courts, Hart thereupon prosecuted his petition for writ of habeas corpus in the United States District Court. He appeals the refusal of the district judge to grant relief. We reverse and remand with instructions. Our decision rests upon the conclusion that the West Virginia recidivist statute's mandatory life sentence is so disproportionate to the seriousness of the underlying offenses, and so grossly excessive that it amounts to cruel and unusual punishment forbidden by the eighth amendment.

In 1968 Hart was convicted of perjury in a West Virginia court as a result of testimony he gave at the murder trial of his son. Perjury carries a sentence in West Virginia of not less than one nor more than ten years. W.Va.Code § 61-5-3 (1966). Prior to sentencing on the perjury conviction, however, the state filed an information charging Hart with being an habitual offender. West Virginia's recidivist statute requires a life sentence for anyone who has been convicted three separate times of offenses "punishable by confinement in a penitentiary." W.Va.Code § 61-11-18 (1966).

The recidivist charge against Hart was based upon the perjury conviction and two prior convictions-one in 1949 for writing a check on insufficient funds for $50, 1 and one in 1955 for interstate transportation of forged checks worth $140. Hart presented no evidence to contradict the recidivist information, and, pursuant to a jury finding that he had been convicted of three offenses punishable by imprisonment in a penitentiary, the court imposed the mandatory sentence of life imprisonment. 2

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Initially we note that we are presented with a conviction and sentence obtained pursuant to a state statutory scheme which is valid on its face. Indeed, the Supreme Court has upheld this West Virginia habitual offender statute against due process and equal protection claims. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912). But we do not agree with the state's contention that these decisions foreclose Hart's present eighth amendment challenge. Hart does not attack the statute itself. He does not urge that life imprisonment per se is either cruel or unusual. Nor does he urge that the statutory scheme has been discriminatorily applied. The issue he does raise is whether the recidivist mandatory life sentence in this case is so excessive and disproportionate to the underlying offenses as to constitute cruel and unusual punishment. We are not precluded from deciding this issue, we think, by the fact that the West Virginia recidivist scheme is constitutional as written, for a concededly valid statute may be applied in a particular case in such a way as to violate various constitutional provisions. Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (speech and assembly); Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (equal protection). See Brown v. Louisiana, 383 U.S. 131, 142, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (speech and assembly).

"That the punishment is not severe, 'in the abstract,' is irrelevant; '[e]ven one day in prison would be a cruel and unusual punishment for the "crime" of having a common cold."' Furman v. Georgia, 408 U.S. 238, 273, 92 S.Ct. 2726, 2744, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring).

We think it clear that to view the West Virginia recidivist statute with its mandatory life sentence as facially constitutional is not the end of the inquiry.


The doctrine that an excessive sentence may be invalid solely because of disproportionality is not a new one. Mr. Justice Field suggested in 1892 that the eighth amendment's prohibition 3 is directed

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not only against torture or barbarism, "but [also] against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged." O'Neil v. Vermont, 144 U.S. 323, 339, 12 S.Ct. 693, 699, 36 L.Ed. 450 (1892) (Field, J., dissenting).

In Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910), the Court adopted Mr. Justice Field's view of the eighth amendment when it stated that it is now "a precept of justice that punishment for crime should be graduated and proportioned to offense." In Weems, the Court noticed, with apparent approval, that the highest state court of Massachusetts had previously conceded the possibility that "punishment 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." Weems, supra, at 368, 30 S.Ct. at 549; accord, Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970). 4

In his concurring opinion in Furman, Mr. Justice Douglas finds the idea of disproportionality as old as the Magna Carta: "A free man shall not be amerced for a trivial offence, except in accordance with the degree of the offence; and for a serious offence he shall be amerced according to its gravity . . . ." Furman, supra, 408 U.S. at 243, 92 S.Ct. at 2729.

While it seems settled that punishment must be proportioned to the offense committed, application of this principle to a particular fact situation is not without difficulty. 5 That the proportionality concept is not static, but is a "progressive" 6 one which "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society," enhances the difficulty. Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958).

Although the standard applicable under the eighth amendment is one "not susceptible to precise definition," 7 there are several objective factors which are useful in determining whether the sentence in this case is constitutionally disproportionate. The test to be used is a cumulative one focusing on an analysis of the combined factors. Furman, supra, 408 U.S. at 282, 92 S.Ct. 2726 (Brennan, J., concurring).

The initial element to be analyzed in determining whether the punishment is constitutionally disproportionate is the nature of the offense itself. Furman, supra, at 325, 92 S.Ct. 2726 (Marshall, J., concurring). Hart's first conviction was for writing a bad check in 1949, and the second was for transporting forged checks six years later. His third conviction was more serious-committing perjury during the murder trial of his son. But even there Hart faced a moral dilemma: to choose between his duty to tell the truth and family loyalty.

In assessing the nature and gravity of an offense, courts have repeatedly emphasized the element of violence and danger to the person. E. g., Snider v. Peyton, 356 F.2d 626, 627 (4th Cir. 1966); see Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963) (Goldberg, J., dissenting from a

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denial of certiorari). 8 In Ralph v. Warden, supra, 438 F.2d at 788, Judge Butzner stated that "there are rational gradations of culpability that can be made on the basis of injury to the victim." None of Hart's offenses were against the person. None involved violence or danger of violence toward persons or property. The bad check case was very nearly trivial-one penny less in the face amount of the check and the offense would have been a five-to-sixty-day petty misdemeanor.

Another factor to be examined is the legislative purpose behind the punishment. 9 Furman, supra, 408 U.S. at 280, 300, 92 S.Ct. 2726 (Brennan, J., concurring). The state argues that a punishment may not be cruel and unusual if it serves a valid purpose, and that the life sentence here serves such a legislative purpose-to deter other persons from future violations and to protect society from habitual criminals. 10

Such an argument proves too much. Assuming the validity of the deterrent theory, and there is room for doubt, 11 then if a life sentence is good for the purpose, surely a death sentence would be better. Putting Hart in prison for the remainder of his life for three offenses that rank relatively low in the hierarchy of crimes would presumably prevent him from passing bad checks but would not likely make of him a truthful man. Is it a rational exercise of state police power to put a man away for life -at tremendous expense to the state- because over a 20-year period he passed or transported three bad checks and might do it again? Life imprisonment is the penultimate punishment. Tradition, custom, and common sense reserve it for those violent persons who are dangerous to others. It is not a practical solution to petty crime in America. Aside from the proportionality principle, there aren't enough prisons in America to hold all the Harts that afflict us.

Mr. Justice Brennan has observed: "If there is a significantly less severe punishment to...

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