Harris v. Wright

• Decision Date: 19 August 1996
• Docket Number: No. 94-35365,94-35365
• Citation: 93 F.3d 581
• Parties: 96 Cal. Daily Op. Serv. 6150, 96 Daily Journal D.A.R. 10,051 Michael E. HARRIS, Petitioner-Appellant, v. Robert WRIGHT, Superintendent, Clallam Bay Correction Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 581

93 F.3d 581

96 Cal. Daily Op. Serv. 6150, 96 Daily Journal

D.A.R. 10,051

Michael E. HARRIS, Petitioner-Appellant, v. Robert WRIGHT, Superintendent, Clallam Bay Correction Center, Respondent-Appellee.

No. 94-35365.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 6, 1995.

Decided Aug. 19, 1996.

Cynthia M. Boersma, William I. Lee, Tacoma, Washington, for petitioner-appellant.

Christine O. Gregoire, Attorney General, Paul D. Weisser, Assistant Attorney General, Olympia, Washington, for respondent-appellee.

Appeal from the United States District Court for the Western District of Washington, Robert J. Bryan, District Judge, Presiding. D.C. No. CV-93-05256-RJB.

Before: PREGERSON, KOZINSKI and LEAVY, Circuit Judges.

KOZINSKI, Circuit Judge.

The principal question presented is whether a fifteen-year-old murderer may be sentenced to mandatory life imprisonment without possibility of parole.

I

One afternoon in 1987, Michael Harris, age 15, and Barry Massey, age 13, went to Paul Wang's store to rob it. ER at 8, 10, 13 (Washington Superior Court Memorandum Decision). Along the way, the two discussed how to use the pistol Harris had brought along. Massey proposed that Harris simply walk in and shoot Wang; instead, Harris gave Massey the gun. Id. at 14. Shortly thereafter, Massey and Harris entered the store and Massey shot and stabbed Wang to death. Id. at 13-15. The two then cleaned out the cash register, took assorted merchandise and left. Id. at 14-15. Harris was arrested later that day. After he was advised of his rights, and without asking to see a lawyer or anyone else, he confessed. Id. at 12-17.

The Washington Juvenile Court declined jurisdiction, id. at 1-6, and Harris was convicted of aggravated first degree murder, id. at 27. The state didn't seek death and Harris received the only other sentence Washington law allows for his crime: life imprisonment without possibility of parole. Id. at 34; see Wash. Rev.Code § 10.95.030. ¹ His conviction was affirmed on direct appeal and petitions for review and certiorari were denied by the Washington Supreme Court and the United States Supreme Court, respectively. See E.R. at 45-46. The Washington Court of Appeals then denied a personal restraint petition, id., and the Washington Supreme Court again denied review, id. at 47-48. Harris followed up with a petition for a federal writ of habeas corpus which the district court denied.

Harris's petition raised the two constitutional challenges that are now before us: He claims that a mandatory sentence of life imprisonment without parole is unconstitutionally cruel and unusual as applied to punish an offense committed when the perpetrator was less than sixteen years of age. Harris's Opening Br. at 7. ² He also challenges the interrogation that led to his confession, arguing that a minor is denied due process when police interrogate him before notifying a parent of his arrest. Id. at 26.

II

We first address Harris's Eighth Amendment challenge. The amendment has two possible applications here. A punishment is unconstitutional if the "evolving standards of decency that mark the progress of a maturing society" soundly reject it. Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (Opinion of Warren, C.J.). The Eighth Amendment also bars, under certain circumstances, punishments that are grossly disproportionate to the crime being punished. See Harmelin v. Michigan, 501 U.S. 957, 997-98, 111 S.Ct. 2680, 2702-03, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring); United States v. Bland, 961 F.2d 123, 128-29 (9th Cir.), cert. denied, 506 U.S. 858, 113 S.Ct. 170, 121 L.Ed.2d 117 (1992) (Justice Kennedy's Harmelin concurrence was holding of the Court).

A

To establish that evolving standards of decency preclude his punishment, Harris bears the "heavy burden," Stanford v. Kentucky, 492 U.S. 361, 373, 109 S.Ct. 2969, 2977, 106 L.Ed.2d 306 (1989), of showing that our culture and laws emphatically and well nigh universally reject it. See id. at 369-71, 109 S.Ct. at 2974-76. ³ The most important indicators of the nation's penal sentiments are the enactments of its elected legislatures. See id. at 370, 109 S.Ct. at 2975.

At very least, then, Harris bears the burden of proving a strong legislative consensus against imposing mandatory life without parole on offenders who commit their crimes before the age of sixteen. Harris manages to cite ⁴ two states whose laws explicitly preclude mandatory adult sentences in general or life without parole in particular for crimes committed below sixteen, ⁵ two state high courts that prohibit mandatory life terms for such crimes, ⁶ and twenty-six states that don't punish any crime with mandatory life without parole. On the other side, Harris admits there are at least twenty-one states that do impose mandatory life without parole on fifteen-year-old offenders. ⁷ Whatever degree of consensus might be necessary before we could overturn the considered judgment of a state legislature, this doesn't come close. See Stanford, 492 U.S. at 370-71, 109 S.Ct. at 2975-76 (no consensus where majority of states imposing punishment allowed it in defendant's circumstances). ⁸

B

An otherwise valid, if severe, punishment may nonetheless be unconstitutional when paired with a sufficiently minor crime. See Harmelin, 501 U.S. at 996-98, 111 S.Ct. at 2702-03 (Kennedy, J., concurring). Disproportion analysis, however, is strictly circumscribed; we conduct a detailed analysis only in the "rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Id. at 1005, 111 S.Ct. at 2707 (Kennedy, J., concurring).

Harris admits, as he must, that his case couldn't have passed the threshold had he committed the crime when he was one year older. Harris was sentenced to a prison term for committing aggravated first-degree murder, the most serious crime under Washington law. The Supreme Court has declared that life imprisonment without possibility of parole for possession of 24 ounces of cocaine raises no inference of gross disproportionality. See id. at 1004-05, 111 S.Ct. at 2706-07 (Kennedy, J., concurring). A fortiori, it would raise none here. See also Solem v. Helm, 463 U.S. 277, 290 n. 15, 103 S.Ct. 3001, 3009 n. 15, 77 L.Ed.2d 637 (1983) ("no sentence of imprisonment would be disproportionate" to felony murder).

Relying on the plurality opinion in Thompson v. Oklahoma, 487 U.S. 815, 833-34, 108 S.Ct. 2687, 2698, 101 L.Ed.2d 702 (1988) (Stevens, J.) (Constitution recognizes "the special mitigating force of youth"), Harris argues that his tender age made him constitutionally less culpable and that his crime is, thus, less weighty than it would be otherwise. In essence, he invites us to decide that his sentence would be grossly disproportionate to a fifteen-year-old's limited culpability for any crime. Justice O'Connor's concurrence in Thompson rejected that notion, refusing to "substitute our inevitably subjective judgment about the best age at which to draw a line ... for the judgments of the Nation's legislatures." See Thompson, 487 U.S. at 853-54, 108 S.Ct. at 2708-09 (O'Connor, J., concurring). Under Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993-94, 51 L.Ed.2d 260 (1977), Justice O'Connor's concurrence is the holding of Thompson, since it was the "position taken by those Members who concurred in the judgment[ ] on the narrowest grounds." Washington's legislature has decided that the appropriate punishment for anyone tried and convicted as an adult for aggravated murder is life in prison. The Constitution gives us no power to reverse its judgment.

Harris argues that, at very least, we must draw an inference of gross disproportionality when society imposes its "penultimate" punishment for a crime committed at fifteen. But, capital punishment aside, there's no constitutional (or rational) basis for classifying punishment in distinct, ordinal categories. As the Supreme Court noted in Harmelin, 501 U.S. at 996, 111 S.Ct. at 2702, if we put mandatory life imprisonment without parole into a unique constitutional category, we'll be hard pressed to distinguish mandatory life with parole; the latter is nearly indistinguishable from a very long, mandatory term of years; and that, in turn, is hard to distinguish from shorter terms. Youth has no obvious bearing on this problem: If we can discern no clear line for adults, neither can we for youths. Accordingly, while capital punishment is unique and must be treated specially, mandatory life imprisonment without parole is, for young and old alike, only an outlying point on the continuum of prison sentences. See id. at 995-96, 111 S.Ct. at 2701-02. Like any other prison sentence, it raises no inference of disproportionality when imposed on a murderer.

C

Harris also argues that the Washington statute under which he was sentenced is unconstitutionally vague because it doesn't specify a minimum age for its imposition. In Thompson, Justice O'Connor refused to presume that Oklahoma's legislature intended to allow the death penalty for murders committed by a fifteen-year-old where its statutes didn't explicitly set any minimum age for capital punishment. See 487 U.S. at 856-59, 108 S.Ct. at 2710-12. She premised her opinion, however, on strong evidence of a national consensus against imposing the death penalty for crimes committed before the age of sixteen, and on the special scrutiny the Constitution accords capital punishment. See id. at 856-58 & n. *, 108 S.Ct. at 2710-11 & n. *. Under the circumstances, "there [was] a considerable risk that the Oklahoma Legislature either did not realize that [allowing fifteen-year-olds to be tried as adults] would have the effect of rendering fifteen-year-old defendants death eligible or did not give the question serious consideration," id. at 857, 108 S.Ct. at 2711, and that risk had constitutional...