State v. Gardner

Citation947 P.2d 630
Decision Date30 September 1997
Docket Number950344,Nos. 950330,s. 950330
Parties, 327 Utah Adv. Rep. 13 STATE of Utah, Plaintiff and Appellee, v. Ronnie Lee GARDNER, Defendant and Appellant. STATE of Utah, Plaintiff and Appellee, v. Gary SIMMONS, Defendant and Appellant. v.
CourtSupreme Court of Utah

Jan Graham, Atty. Gen., Carol Clawson, Solicitor Gen., Christine Soltis, Marian Decker, Asst. Attys. Gen., Salt Lake City, for the State.

Ronald J. Yengich, Hakeem Ishola, Salt Lake City, for Gardner.

Stephen R. McCaughey, G. Fred Metos, Salt Lake City, for Simmons.

Jensie L. Anderson, Salt Lake City, for amicus American Civil Liberties Union.

DURHAM, Justice:

This is a challenge to the constitutionality of section 76-5-103.5(2)(b) of the Utah Code, which permits the death penalty for aggravated assault by a prisoner. Two defendants charged with capital offenses under the statute have appealed from trial court rulings that the statute is constitutional, and we have consolidated their cases for review.

For purposes of clarity, it should be noted that only a portion of this opinion (part III.B.2) reflects the holding of a majority of the court (Justices Durham, Stewart, and Zimmerman). The remainder of the opinion represents my views and those of Justice Stewart. Justices Russon and Howe dissent from the entire opinion and the result.


Defendant Ronnie Lee Gardner was convicted of a capital felony, for which he was sentenced to die, and two first degree felonies, for which he was serving sentences of five years to life at the state prison when he allegedly stabbed a fellow inmate multiple times in the face, neck, abdomen, and chest, causing serious bodily injury. Defendant Gary Simmons was serving a sentence of ten years to life for a first degree felony at the Central Utah Correctional Facility in Gunnison, Utah, when he allegedly attacked a prison guard with his fists, causing the guard serious bodily injury. 1 Gardner and Simmons were both charged with capital felonies under section 76-5-103.5(2)(b) of the Utah Code. That section provides:

(2) Any prisoner serving a sentence for a felony of the first degree who commits aggravated assault is guilty of:

(b) a capital felony if serious bodily injury was intentionally caused.

Utah Code Ann. § 76-5-103.5(2)(b) (1995).

The two prisoners each filed preliminary motions seeking to have the capital felony provision of the statute declared unconstitutional. The prisoners argued that the death penalty for aggravated assault by a prisoner constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. They also argued that the penalty violates the cruel and unusual punishments clause and the unnecessary rigor clause of article I, section 9 of the Utah Constitution.


I begin by addressing defendants' challenge to section 76-5-103.5(2)(b) under the Utah Constitution. Section 9 of Utah's Declaration of Rights provides:

Excessive bail shall not be required; excessive fines shall not be imposed; nor shall cruel and unusual punishments be inflicted. Persons arrested or imprisoned shall not be treated with unnecessary rigor.

Utah Const. art. I, § 9. Defendants argue that we should strike down section 76-5-103.5(2)(b) under the unnecessary rigor clause of section 9, which, as we noted in State v. Bishop, 717 P.2d 261, 267 (Utah 1986), has no counterpart in the federal constitution. I do not reach the unnecessary rigor clause analysis, however, because I would hold that the cruel and unusual punishments clause of section 9 is dispositive. 2

"Because the issue of constitutionality presents a question of law, 'we review the trial court's ruling for correctness and accord it no particular deference.' " Ryan v. Gold Cross Serv., Inc., 903 P.2d 423, 424 (Utah 1995) (quoting Mountain Fuel Supply Co. v. Salt Lake City Corp., 752 P.2d 884, 887 (Utah 1988)). I also note that these cases come before us on interlocutory appeal from the denial of preliminary motions--neither of the prisoners has yet been tried or sentenced under the statute in question. Therefore, I will not consider whether the statute is constitutional as applied to the specific facts of these cases, but only whether the statute is constitutional on its face.

We have set forth "the burden to be met by one who challenges an enactment [as a violation of the Utah Constitution]: The act is presumed valid, and we resolve any reasonable doubts in favor of constitutionality." Society of Separationists, Inc. v. Whitehead, 870 P.2d 916, 920 (Utah 1993); see also State v. Mohi, 901 P.2d 991, 995 (Utah 1995) ("While ruling on the constitutionality of a statute, we will resolve doubts in favor of constitutionality.").

A. Utah's Cruel and Unusual Punishments Clause: Defining

the Principle of Proportionality

Although we have on various occasions treated the identical clause in the Eighth Amendment to the federal constitution, see, e.g., Monson v. Carver, 928 P.2d 1017, 1023 (Utah 1996); State v. Mace, 921 P.2d 1372, 1376-79 (Utah 1996); State v. Andrews, 843 P.2d 1027, 1030-31 (Utah 1992); Zissi v. State Tax Comm'n, 842 P.2d 848, 858-60 (Utah 1992), this court has never fully articulated the meaning of "cruel and unusual punishments" as it appears in article I, section 9 of our own constitution. Bishop, 717 P.2d at 267. We have held that the cruel and unusual punishments clause mandates certain procedural safeguards against discrimination, arbitrariness, caprice, and irrationality in administering capital punishment, State v. Pierre, 572 P.2d 1338, 1356 (Utah 1977); see also State v. Young, 853 P.2d 327, 402 (Utah We have held that the standard for cruel and unusual punishment claims in specific applications is " ' "whether the sentence imposed in proportion to the offense committed is such as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances." ' " Monson, 928 P.2d at 1024 (quoting State v. Russell, 791 P.2d 188, 190 (Utah 1990) (quoting State v. Bastian, 765 P.2d 902, 904 (Utah 1988))); see also Andrews, 843 P.2d at 1030; State v. Hanson, 627 P.2d 53, 56 (Utah 1981); State v. Nance, 20 Utah 2d 372, 438 P.2d 542, 544 (1968). 3 We have also held that a statutory scheme for the imposition of a capital sentence must be "structured to provide reasonably that the unique and irretrievable sanction of death will be mandated by its provisions and processes only in extreme and unusually serious and shocking crimes." Pierre, 572 P.2d at 1356, quoted in Young, 853 P.2d at 402 (Durham, J., dissenting). These statements suggest that proportionality must be part of the analysis of punishments under article I, section 9 of the Utah Constitution.

1993) (Durham, J., dissenting), but we have not set forth the substantive standards for determining what kinds of punishment are per se cruel and unusual. We may, of course, independently articulate the standards established by Utah's cruel and unusual punishments clause, and these cases present an appropriate occasion to do so.

In interpreting the state constitution, we look primarily to the language of the constitution itself but may also look to "historical and textual evidence, sister state law, and policy arguments in the form of economic and sociological materials to assist us in arriving at a proper interpretation of the provision in question." Society of Separationists, 870 P.2d at 921 n. 6. An examination of Utah's cruel and unusual punishments clause in light of these factors confirms that our limited case law on this issue to date has correctly identified the essence of section 9 jurisprudence: that the legislative power to prescribe punishment for criminals must be circumscribed by the principle of proportionality.

1. The Language of Article I, Section 9 and Penal Policy

My own reading of the language of article I, section 9 suggests that a punishment, to avoid being unconstitutionally cruel, may not be excessive or grossly disproportionate to the crime it is designed to punish. Although the words "cruel and unusual punishments" do not lend themselves to ready interpretation, 4 I cannot avoid addressing the actual constitutional language. I begin by attempting to understand what is meant by the word "cruel." While many definitions are possible, Webster's is representative of what is understood by the word in modern usage:

disposed to inflict pain esp[ecially] in a wanton, insensate, or vindictive manner: pleased by hurting others: sadistic: devoid of kindness ...: arising from or indicative of an inclination to enjoy another's pain or misfortune ...: bitterly conducted: devoid of mildness: causing or conducive to injury, grief, or pain ...: stern, rigorous, and grim: unrelieved by leniency or softness ...: severe, distressing: extremely painful: extreme....

Webster's Third New International Dictionary 546 (1961). Such a definition clearly encompasses torture and other barbarous methods of punishment. But to the extent that cruelty is defined as that which is "The traditional justifications for punishment in the criminal law include retribution, incapacitation, deterrence, and rehabilitation." Herrera, 895 P.2d at 388-89 (Durham, J., dissenting); see also Bishop, 717 P.2d at 265. A death penalty obviously does not serve the purpose of rehabilitation, but punishments under the criminal law may serve one or many purposes, and the State is not prohibited from punishing an individual for purposes other than rehabilitation. Bishop, 717 P.2d at 268. An appeal solely to the principle of deterrence should also be foreclosed, however, because while deterrence may be a legitimate objective of the criminal law, it is problematic as a measure of the excessiveness of punishment under the cruel and unusual punishments clause. Deterrence-based arguments are foreclosed because even punishments that are clearly excessive and...

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