State v. Proctor - Kansas Judicial Branch

C. The Principles Applied
Before applying the United States Supreme Court's precepts for measuring the
constitutionality of a term of imprisonment under the Eighth Amendment, we resolve two
threshold matters. First, we apply Justice Kennedy's narrow-proportionality test. We do
so not because we have been persuaded that it is necessarily the better test or truer to the
principles embodied in the Eighth Amendment but because it is the more restrictive test
accepted among those members of the Court recognizing proportionality as a proper
method of analysis. That is, if the lifetime postrelease supervision imposed on Proctor is
unconstitutional under Justice Kennedy's approach, it necessarily must also fail under the
broader standard applied in Solem and since promoted by a plurality of the Court. See
Ewing, 538 U.S. at 35 (Stevens, J., dissenting) ("[T]he Eighth Amendment's prohibition
of 'cruel and unusual punishments' expresses a broad and basic proportionality principle
. . . ."). We use Justice Kennedy's approach for forensic purposes only, much as Justice
Breyer did in his dissent in Ewing, 538 U.S. at 36, to test the constitutionality of the
punishment at issue in that case.
Second, lifetime postrelease supervision is really neither an invariable determinate
sentence set through legislative elimination of judicial discretion of the sort at issue in
Harmelin nor a recidivist statute imposing enhanced punishment for the most recent
crime committed by a repeat offender of the sort at issue in Rummel, Solem, and Ewing.
The distinction would appear to make some difference in that the Harmelin Court upheld
a statutorily mandated sentence of life without parole for possession of more than 650
grams of cocaine, while the Solem Court struck down the same sentence imposed under a
recidivist statute on a repeat felon for knowingly writing a check on a closed account.
On balance, lifetime postrelease supervision operates more in the nature of a
recidivist punishment than a procrustean initial sentence. As this case illustrates, a district
court retains considerable discretion, even without imposing a departure sentence, in
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