After the district court denied his petition for a writ of habeas corpus, Brach E. Norris appealed to the Ninth Circuit and was granted a certificate of appealability to determine if his life without parole sentence was constitutional. Norris was convicted by a jury of child molestation in the first degree; the two strikes law was applied to him due to a conviction for the same offense ten years earlier.
The incident leading to Norris’ most recent conviction occurred on March 5, 2001 at a McDonald’s restaurant. Norris, in front of the 5-year-old victim’s step-father, reached down with one hand and touched the girl between her legs after she came down a slide in the play area.
The Ninth Circuit noted that first-degree child abuse is defined under Washington State law as a “most serious” and “violent” offense. While the absolute magnitude of touching the five-year-old girl on her “privates” or “genitalia” and over her clothing for at most “a couple of seconds” may be less severe relative to the conduct of some first-degree child molesters, Norris’ offense was indisputably not “one of the most passive crimes a person can commit,” wrote the appellate court.
The fact that Norris entered a playroom at McDonald’s and interacted with a child in the parent’s presence, despite having been previously convicted of child molestation, “exhibits a lack of impulse control and so supports the conclusion that Norris cannot be trusted to refrain from similar behavior in the future.”
All of these factors affected the gravity of the offense, and child molestation has been held to have an “extraordinarily severe” impact on its victims. The Ninth Circuit noted, “this is not a crime against property, but one against another person, and a child at that.” Further, Norris’ history and most recent conviction “demonstrate a tendency towards sex offenses.”
The intent of Washington State’s two strikes law is to protect the public through deterrence and incapacitation. Moreover, Georgia, Montana, New Mexico and South Carolina all have similar two strikes laws for sex offenders.
The Ninth Circuit held that a sentence of life without the possibility of parole is “harsh and forsakes any rehabilitative ideal,” but is not unconstitutional given the gravity of Norris’ offense and criminal history. The district court’s order denying habeas relief was affirmed. Norris petitioned the U.S. Supreme Court for a writ of certiorari, which was denied on Feb. 22, 2011. See: Norris v. Morgan, 622 F.3d 1276 (9th Cir. 2010), cert denied.
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Related legal case
Norris v. Morgan
|622 F.3d 1276 (9th Cir. 2010), cert denied
|Court of Appeals