How to avoid the Eighth Amendment when arguing that a sentence is grossly disproportionate

The Texas legislature has given judges and juries broad discretion in assessing punishment, especially for 1st Degree felonies. If you’re convicted of a 1st-degree crime and have no criminal history or enhanceable aspects to the offense, you face anywhere from 5 to 99 years in prison.

This can lead to unfair discrepancies in sentencing for defendants that commit the same kinds of crimes. Sometimes the personality and history of the person on the bench ends up being more important than the facts of the case (e.g. is the judge a “hard nosed” ex-prosecutor, a former civil attorney with sympathies for those with substance abuse problems, or a women’s advocate who absolutely hates family violence cases). And, if you’re going to the jury for punishment, it’s basically a complete wildcard.

Texas repeat offender statutes complicate matters. If you’ve been consecutively convicted of two prior felonies, the prosecutor can indict you as a habitual offender. Upon conviction, your minimum prison sentence is 25 years.

Over the years, defendants have challenged this statutory sentencing framework, usually arguing that exceedingly harsh or long prison sentences under the “habitual offender” statute violate the Eighth Amendment prohibition against cruel and  unusual punishment.

But Texas appellate courts have continually shut down these arguments. Almost without exception, courts have upheld long prison sentences, including life sentences, for nonviolent crimes with enhanced sentence ranges. Even crimes such as shoplifting that are enhanced to a felony-level offense due to prior theft convictions and then, in the ultimate form of bootstrapping, further enhanced to a “habitual” felony by means of  prior felony convictions of one kind or another, are fair game in for life sentences.

The upshot from the appellate courts: the citizens of Texas have decided to give judges and juries the discretion to send people to prison for life based on their cumulative criminal history, and that’s ok. All that matters is that the sentence is inside the range authorized by statute.

In other words, Eighth Amendment arguments don’t work on appeal, so don’t try it.

But there may be another way. I’ve successfully argued in the past for a new trial based on a disproportionate sentence. I didn’t bother with an Eighth Amendment argument (at least not as my main point of error). Instead, I relied on a unique case that appears to “carve out” a non-constitutional basis for a disproportionate sentence – in other words, a legal way to argue that a client’s sentence was way to long to be just, or even legal, and yet avoid the precedent pitfalls of the Eighth Amendment. Here’s an excerpt from my motion:

“[A District] Court has discretionary authority to grant a new trial as to punishment based on serious flaws in the proceedings, even if those flaws do not amount to constitutional error or reversible error as a matter of law. Herndon v. State, 215 S.W.3d 901, 909 (Tex. Crim. App. 2007); State v. Stewart, 282 S.W.3d 729, 736 (Tex. App. – Austin 2009, no pet.) . . . To establish a disproportionate sentence basis for a new trial not grounded in constitutional error, Appellant ‘ha[s] to show that there was a serious flaw or error in the assessment of punishment that adversely affected his substantial right to a fair trial by causing disproportionate punishment to be assessed.’ Stewart, 282 S.W.3d at 736.”

The Stewart decision creates a potentially powerful tool for appellate attorneys looking to undue a grossly disproportionate sentence. What you have to find is some error that amounts to a “serious flaw.” Helpfully, the court is careful to say that the flaw need not rise to the level of constitutional error. What is important is that the flaw led to or caused the implementation of the disproportionate sentence.

In my case, I was able to pinpoint two errors related to the admission of extraneous offense evidence and arguing facts outside the record during closing argument. The Stewart analysis did not require me to prove that these errors “prejudiced” the proceedings (this is the very difficult standard you have to meet if alleging ineffective assistance of counsel). Instead, I had only to argue a causal nexus between the errors and the sentence. This is a good place to be, since the very fact that the client was sentenced to a large pen time number helped established causality (at least in the Judge’s mind).

Would this argument hold up on appeal? I’ll never know, since the State elected not to challenge the trial court’s ruling. But the framework established in Stewart should be kept in mind by other defense attorneys whose habitual clients get what they perceive to be unjustly long sentence.