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Life Sentence for Failure to Comply with Registration Requirement May Violate Eighth Amendment

By Michael Brodheim

Finding that a "Three strikes" sentence of 28 years to life imprisonment was so grossly disproportionate to an "entirely passive, harmless, and technical violation of the registration law" that it violates the Eighth Amendment ban on cruel and unusual punishment, and that the California Court of Appeal's contrary decision was an unreasonable application of clearly established federal law under 28 U.S.C. § 2254 (d)(1), the Ninth Circuit reversed Cecilio Gonzalez's conviction for failing to update his sex offender registration within five working days of his birthday.

Gonzalez, a convicted sex offender, was charged with two felony violations of California's sex offender registration statute. Count 1 alleged that Gonzalez failed to register a change of address, while Count 2 alleged that he failed to update his registration within five working days of his birthday. Gonzalez was acquitted on Count 1 but convicted on Count 2. The court then found that Gonzalez had been convicted of three prior violent or serious felony offenses under California’s Three Strikes law and sentenced him to an indeterminate term of 28 years to life in prison.

Constrained by AEDPA, the Ninth Circuit canvassed the Supreme Court’s Eighth Amendment jurisprudence and found that the only relevant, clearly established principle is that expressed by Justice Kennedy's opinion in Hannelin v. Michigan, 501 U.S. 957, 1001 (1991), that the Eighth Amendment "forbids only extreme sentences that are 'grossly disproportionate' to the crime." Guided by the framework of that opinion, the Ninth Circuit made a threshold comparison of the gravity of Gonzalez's crime with the sentence imposed and determined that it led to an inference of gross disproportionality. That inference was then confirmed when the Court compared Gonzalez’s sentence with those imposed (1) for other crimes in California and (2) for the same crime in other states.

Critical to the Court's analysis was the distinction, recognized by California courts themselves, between the requirement that offenders update their addresses, on the one hand, and that they register annually, on the other hand. While the former is directly related to the need for police to be able to keep track of offenders, the latter is merely a "backup measure." Violation of the latter requirement alone -- as was the case with Gonzalez -- poses no danger to society. See: Gonzalez v. Duncan (9th Cir.) 2008 WL 5399079 (filed 12/30/08).

Illustrating this distinction (albeit in a slightly different context), the California Court of Appeal held that, after pleading guilty to failure to register following a change of address, a defendant was foreclosed, absent a certificate of probable cause, from challenging his Three Strikes life sentence as cruel and unusual punishment. See: People v. Rushing, 168 Cal.App.4th 354 (2008).

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Related legal case

People v. Rushing