State v. Pacheco ( 1978 )

GORDON, Justice

(concurring in part, dissenting in part):

Although I concur with the majority’s disposition of the other issues presented in this decision, I must disagree with its treatment of defendant’s Eighth Amendment challenge to his mandatory minimum sentences. In light of a line of United States Supreme Court cases beginning with Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1909), and culminating in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), I believe that an analysis of relevant objective factors is constitutionally mandated whenever a criminal penalty is properly presented for Eighth Amendment scrutiny. See also Trop v. Dullies, 356 U.S. 86, 78 S.Ct. 590, 21 L.Ed.2d 630 (1958); and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

As the Court said in Gregg v. Georgia: “[T]he Eighth Amendment has not been regarded as a static concept. * * * ‘[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ (Citation omitted.) Thus, an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the Eighth Amendment. * * * [T]his assessment does not call for a subjective judgment. It requires, rather, that we look to objective indicia that reflect the public attitude toward a given sanction.” (Emphasis added.) 428 U.S. 153, 172, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859, 874 (1976).

The majority reaches the conclusion that defendant’s penalty does not “shock the moral sense of the community” without discussion of relevant objective indicia of community standards. Such objective information was amply supplied in defendant’s opening brief. Thus, defendant properly provided the tools for undertaking an objective analysis to ascertain community standards, and this Court could and should have accomplished the task. Without such an analysis, the decision is indeed a subjective judgment, reflecting merely what is shocking to the conscience of the Court, rather than to the community.

I do not reach the question whether appellant’s sentences should be deemed violative of the Eighth Amendment if this Court were to perform the required objective analysis.