State v. Proctor - Kansas Judicial Branch

circumstances should be reflected in the constitutional assessment of life without parole
as a punishment, particularly under recidivist statutes.
There is, of course, an incontrovertible difference separating the death penalty
from any punishment by incarceration: The death penalty, having been administered, is
irrevocable. For an inmate serving life without parole there is some possibility, slim
though it may be, for executive clemency or a change in the law. Graham, 130 S. Ct. at
2021 ("To determine whether a punishment is cruel and unusual, courts must look
beyond historical conceptions to '"the evolving standards of decency that mark the
progress of a maturing society."'") (quoting Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct.
285, 50 L. Ed. 2d 251 [1976]); 130 S. Ct. at 2036 (Stevens, J., concurring) ("Punishments
that did not seem cruel and unusual at one time may, in the light of reason and
experience, be found cruel and unusual at a later time."). But those possibilities are too
remote and uncertain to "mitigate" the punishment for Eighth Amendment purposes.
Graham, 130 S. Ct. at 2027 (executive clemency); Solem, 463 U.S. at 303 (clemency).
In considering the current state of Eighth Amendment jurisprudence, the Kansas
Supreme Court has acknowledged the viability of proportionality analysis for terms of
incarceration. State v. Gomez, 290 Kan. 858, 863, 235 P.3d 1203 (2010). And the Gomez
decision suggests, without formally deciding, that Justice Kennedy's narrow test may be
the appropriate application of proportionality review. 290 Kan. at 863-64. The narrow
proportionality test draws on the same factors outlined in State v. Freeman, 223 Kan.
362, 367, 574 P.2d 950 (1978), but it applies them differently. If application of that test
were to render a punishment cruel and unusual, that result would be, at the very least,
compatible with how the Kansas Supreme Court views the federal constitutional
protection.
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