State v. Bartlett

OPINION

Memorandum Decision of the Court of Appeals, Division Two, filed November 10, 1988, vacated

FELDMAN, Chief Justice.

In State v. Bartlett, 164 Ariz. 229, 240, 792 P.2d 692, 703 (1990) (hereinafter Bartlett I), we held that Joseph Bartlett, Jr.’s forty-year sentence constituted cruel and unusual punishment under the eighth amendment to the United States Constitution. The case is back before this court because the United States Supreme Court vacated our opinion and remanded for further consideration in light of its decision in Harmelin v. Michigan, — U.S.-, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). See Arizona v. Bartlett, — U.S. -, 111 S.Ct. 2880, 115 L.Ed.2d 1046 (1991).

FACTS AND PROCEDURAL HISTORY

Joseph Bartlett, Jr. (Defendant) was convicted in 1987 of two counts of sexual conduct with a minor, under A.R.S. § 13-1405. The facts established that the two girls involved were just under fifteen years old and that the sexual acts were entirely consensual. Nevertheless, the state invoked the provisions of A.R.S. §§ 13-604(H) and 13-604.01, requiring the trial court to impose mandatory consecutive sentences on the two counts. As a result, even though he imposed the mitigated minimum terms of fifteen and twenty-five years, the trial judge was required to sentence Defendant to consecutive terms totaling forty years in prison, the sentence to be served as “hard time,” with no possibility of early release or parole.

Acknowledging that A.R.S. § 13-604.01 was constitutional on its face, Defendant challenged the constitutionality of his sentence and claimed that, with regard to his crime, the sentence constituted cruel and unusual punishment. The court of appeals rejected this argument and affirmed Defendant’s sentence in a memorandum decision. State v. Bartlett, No. 2 CA-CR 88-0024 (Ct.App. Nov. 10, 1988). On review, we concluded that Defendant’s sentence constituted cruel and unusual punishment under the eighth amendment to the United States Constitution. Bartlett I, 164 Ariz. at 240, 792 P.2d at 703. Noting that Defendant could not be given a more lenient sentence under the provisions of A.R.S. § 13-604.01, we remanded the case for resentencing, classifying Defendant as a class 2 felon but holding that “the statutory range of sentencing under A.R.S. § 13-604.01 [could not] constitutionally be applied” on resentencing. Id. at 241-42, 792 P.2d at 704-05.

The United States Supreme Court granted the state’s petition for a writ of certiorari, vacated our opinion, and remanded for reconsideration in light of its decision in Harmelin. While Arizona ¶. Bartlett was pending before the United States Supreme Court, Defendant appeared before the trial judge for resentencing pursuant to our order of remand. No longer constrained by A.R.S. §§ 13-604(H) and 13-604.01, the trial judge was vested with considerably more discretion in sentencing Defendant on his two-count conviction. After hearing evidence regarding the offenses, and in the exercise of his discretion, the judge imposed the minimum terms for a class 2 felony, sentencing Defendant to five and one-quarter years on one count and seven years on the other, the sentences to run concurrently. The trial judge could have, but did not, sentence Defendant to aggravated terms that, if imposed consecutively, would have totalled thirty-five years. Under the sentence imposed, Defendant would have become parole-eligible in approximately four years and eight months and could have served no more than seven years. Thus Defendant, who has been incarcerated in the state prison system since his sentencing in 1988, would soon be eligible for parole if not for the United States Supreme Court’s remand for reconsideration.

On remand from the United States Supreme Court, we requested additional briefing from counsel and heard additional oral argument on the question of whether our holding in Bartlett I could stand in light of the Supreme Court’s decision in Harmelin. Accordingly, we begin with a summary of our previous opinion and an analysis of the Supreme Court Justices’ opinions in Harmelin.

DISCUSSION

A. Bartlett I

We granted review in Bartlett I to determine whether Defendant’s sentence constituted cruel and unusual punishment under the federal or state constitution. 164 Ariz. at 230, 792 P.2d at 693. Applying the three-prong test of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), we held:

1. The forty-year sentence with no possibility of early release was grossly out of proportion to the severity of the crimes as shown by the facts of the case. Bartlett I, 164 Ariz. at 234-36, 792 P.2d at 697-99.

2. The sentence was disproportionate to others imposed in Arizona for more serious crimes. Id. at 236-37, 792 P.2d at 699-700.

3. The sentence was disproportionate to those imposed on similarly situated defendants in other jurisdictions. Id. at 237-40, 792 P.2d at 700-03.

We therefore concluded that Defendant’s sentence constituted cruel and unusual punishment under the eighth amendment to the United States Constitution, and consequently did not address the validity of the sentence under the analogous provision in the Arizona Constitution. Id. at 240-41, 792 P.2d at 703-04.

B. Harmelin v. Michigan

Ronald Harmelin was sentenced in state court to a mandatory term of life imprisonment without possibility of parole after being convicted of possessing 672 grams of cocaine. On appeal to the United States Supreme Court, Harmelin claimed his sentence was unconstitutionally cruel and unusual because it was “significantly disproportionate” to his crime, and because the judge was required by statute to impose a fixed sentence without considering the “particularized circumstances of the crime and of the criminal.” Harmelin, — U.S. at-, 111 S.Ct. at 2684.

Justice Scalia announced the Court’s judgment that Harmelin’s sentence did not constitute cruel and unusual punishment. Justice Scalia delivered the Court’s opinion, however, only in rejecting Harmelin’s contention — which Bartlett does not raise in the present case — that “a sentence which is not otherwise cruel and unusual becomes so simply because it is ‘mandatory’ ” and that individualized sentencing is required in noncapital cases. Id. at-, 111 S.Ct. at 2701-02. In contrast, only Chief Justice Rehnquist concurred with Justice Scalia’s conclusion that “Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee,” id. at-, 111 S.Ct. at 2686, which was not the holding of the Court.

Justice Kennedy, joined by Justices O’Connor and Souter, delivered a concurring opinion on the question of proportionality, the issue now before us. Justice Kennedy stated that the eighth amendment “encompasses a narrow proportionality principle.” Id. at-, 111 S.Ct. at 2702. He interpreted Solem as “best understood as holding that comparative analysis within and between jurisdictions is not always relevant to proportionality review.” Id. at -, 111 S.Ct. at 2707 (emphasis added). “[Ijntra- and inter-jurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Id. The important test, therefore, is whether the sentence is grossly disproportionate to the gravity of the offense. The purpose of comparative analysis is to validate an initial inference of gross disproportionality. Id.

Finally, four members of the Court (Justices White, Blackmun, Stevens, and Marshall) would not restrict Solem at all. Id. at-, 111 S.Ct. at 2709-19 (White, .J., dissenting); id. at-, 111 S.Ct. at 2719 (Marshall, J., dissenting); id. at-, 111 S.Ct. at 2719-20 (Stevens, J., dissenting).

Applying the view of the Court is difficult when the Justices’ opinions are so diverse and expressed in five separate opinions. We believe, however, that Solem survives Harmelin. While two Justices conclude that it was wrong, neither a majority nor a plurality was willing to overrule Solem.¹ On the other hand, it seems reasonable to conclude that if Solem’s proportionality analysis is to be applied at all, Justices Scalia and Rehnquist would probably prefer Justice Kennedy’s approach over the dissenters’ strict adherence to Solem’s three-prong analysis.² We therefore reexamine our opinion in Bartlett I under the standard articulated by Justice Kennedy.³

C. Application of the Harmelin Standard

1. Gross Disproportion of Defendant’s Sentence to His Crimes

We begin our inquiry under Harmelin by following Justice Kennedy’s direction to determine whether Defendant’s forty-year total sentence with no possibility of parole is grossly disproportionate to his crimes. In Bartlett I, we held that the “broad application of the statute to encompass [Defendant’s] situation results in a penalty grossly out of proportion to the severity of the crime.” 164 Ariz. at 236, 792 P.2d at 699 (emphasis added). We reached this conclusion after thorough analysis of the facts, which may be summarized as follows: In September 1986, Defendant, age twenty-three, was introduced to Mary,⁴ age fourteen and one-half. A few months later, Mary introduced Defendant to her friend Susan, of approximately the same age. Mary had voluntary sexual intercourse with Defendant in December 1986, when she was fourteen years and ten months of age. Susan also had voluntary sexual intercourse with Defendant in December 1986, when she was fourteen years and six months of age.

In January 1987, Susan’s mother filed a complaint with the police, alleging that Defendant had forcibly sexually assaulted Susan. When Defendant learned from neighbors that the police were inquiring about him, he voluntarily went to the police station. Defendant admitted to the police that he had had consensual sexual intercourse with both Susan and Mary knowing that they were under fifteen years old at the time. Both girls testified at trial that the intercourse with Defendant had been voluntary. Defendant was found guilty of two counts of sexual conduct with a minor under fifteen years old. See A.R.S. § 13-1405.⁵

There are no new facts to be considered in our current analysis. In general, then, this is a case of consensual sexual relations. On the other hand, we bear in mind that the two victims were below the age determined by the legislature to be the age at which consent to sexual relations could validly be given. This means, of course, that Defendant’s conduct was criminal, but does not foreclose the constitutional issue: whether a forty-year sentence without possibility of parole is cruel and unusual when applied to the facts set forth above.

In Solem, the Supreme Court set forth several factors relevant in weighing the gravity of an offense against the severity of a penalty in order to determine gross disproportion. These include “the harm caused or threatened to the victim or society, and the culpability of the offender____ For example, as the criminal laws make clear, nonviolent crimes are less serious than crimes marked by violence or the threat of violence.” 463 U.S. at 292-93, 103 S.Ct. at 3011. The Court explained that

[t]his list is by no means exhaustive. It simply illustrates that there are generally accepted criteria for comparing the severity of different crimes on a broad scale, despite the difficulties courts face in attempting to draw distinctions between similar crimes.

Id. at 294, 103 S.Ct. at 3011. Although Harmelin narrowed Solem’s proportionality review, it did not criticize the factors utilized in Solem to determine whether the sentence is grossly disproportionate to the crime.

Having again reviewed the case, we find now, as we found before, that the original sentence imposed on Defendant is “a penalty grossly out of proportion to the severity of the crime.” Bartlett I, 164 Ariz. at 236, 792 P.2d at 699. We base that conclusion on several factors.

First, the circumstances of this crime, particularly the absence of violence or any threat of violence, minimize its severity. See Harmelin, — U.S. at-, 111 S.Ct. at 2705-06 (comparing nonviolent crime in Solem to violence often accompanying or resulting from drug crimes). As we wrote in Bartlett I:

Although the minor’s consent will not decriminalize the sexual conduct, that consent is relevant to our inquiry into the gravity of the offense. In this case, both minors were close to the maturity line that the legislature has drawn for less serious offenses. According to their testimonies, both were willing participants in defendant’s conduct. Defendant used no violent force or threats against them. Neither girl was physically injured or testified to any emotional trauma. Under these circumstances, we must certainly consider these offenses less grave than the others punishable under the same statutory scheme: second degree murder, sexual assault, taking a child for the purposes of prostitution, child prostitution, involving or using a minor in drug offenses, aggravated assault, molestation of a child, sexual exploitation of a minor, child abuse, or kidnapping. See generally A.R.S. § 13-604.01.

164 Ariz. at 234-35, 792 P.2d at 697-98.

Second, Defendant’s lack of a prior record of any crime, let alone a crime involving children, further reduces the gravity of his offenses, particularly with respect to the increased sentence for his “recidivist” second offense. See Harmelin, — U.S. at-, 111 S.Ct. at 2705 (discussing felonies underlying defendant’s recidivism in Solem). As we stated in our original opinion:

As to defendant’s personal culpability, the record indicates that he was an “immature” young man who associated with a younger peer group because of his emotional insecurities, which included a pending divorce after marriage at a young age. He had no prior felony record and no history of assaulting young children. No evidence was presented that he intended to harm these girls, either physically or emotionally.

Bartlett I, 164 Ariz. at 235, 792 P.2d at 698. These circumstances are relevant here, not because they excuse the conduct but because the question of “gross disproportion” cannot be resolved without considering all of the factors that aggravate or mitigate the crime.⁶ To ignore the facts in determining whether a sentence is cruel and unusual would make the title of the statute — “Dangerous Crimes Against Children” — determine the constitutionality of the sentence imposed. Surely, if this court has a responsibility to review the constitutionality of sentences under the eighth amendment, that duty requires us to apply the standards of the federal constitution to the facts of what occurred, no matter what label the legislature has attached to the criminalizing statute. Legislatures must of necessity paint with a broad brush, leaving it to the courts to measure constitutionality by applying law to facts — the true judicial function.

Third, we cannot in good faith ignore the realities of adolescent life described in Bartlett I: “We must ... recognize that sexual conduct among post-pubescent teenagers is not uncommon.” 164 Ariz. at 235, 792 P.2d at 698.⁷ Indeed, “[according to their testimonies, both [girls] were willing participants in defendant’s conduct.” Id. at 234, 792 P.2d at 697. While this does not make Defendant’s conduct any less “criminal,” it illustrates the relative severity of its harm to society. Cf. Harmelin, — U.S. at-, 111 S.Ct. at 2705-06 (drug crime in a different category than “relatively minor, nonviolent crime at issue in Solem,” given grave threat of violence and harm to society resulting from drug trafficking and use).

We acknowledge the legislature’s prerogative to criminalize behavior and to choose the appropriate punishment. See Harmelin, — U.S. at -, 111 S.Ct. at 2703. Hence, we do not view this crime as minor — witness the seven-year sentence imposed on resentencing. But so long as the eighth amendment contains even a narrow proportionality principle — and Harmelin says that it does, — U.S. at-, 111 S.Ct. at 2702 — it is difficult to believe that it permits the state to imprison for forty years’ hard time everyone eighteen years of age or older who twice has had intercourse with a consenting, willing, post-pubescent teenager. While the dissent views this as a “rational” method of controlling the societal threats posed by teenage sexual activity, dissent at 313, 830 P.2d at 834 (Corcoran, J.), we believe it so drastic an approach to an age-old problem as to indicate that the threshold of constitutional limitations has been reached.

Finally, the evolution of the law and present sentencing standards tell us much about the disproportionality of the sentence. While statutory rape, along with many other felonies, may once have been a capital crime, see Harmelin, — U.S. at -, 111 S.Ct. at 2691, societal standards have changed. Indeed, the modern trend in the law has been to separate the crime of statutory rape from other violent forms of rape, and concomitantly to reduce the severity of the sentence. See generally American Law Institute, Model Penal Code and Commentaries §§ 213.1 comment 6, 213.3 comment 2 (Official Draft and Revised Comments 1980). The “minimum” sentence imposed in this case, however, for consensual sexual intercourse with two willing post-pubescent girls is comparable to the minimum sentence imposable had Defendant been provoked, become violent, killed the girls, and been convicted of second degree murder. See A.R.S. § 13-604.01(1)(a).

As we said before:

Measuring the gravity of the offenses in this context, we must compare the harshness of the penalty. The legislature has imposed mandatory minimum consecutive sentences of 15 and 25 years for the first and second acts of consensual sexual conduct with a minor, with no possibility of early release. The trial court thus had no discretion to reduce the penalty according to the individual circumstances that indicated a less serious offense or a less culpable defendant.⁸ Defendant, with no prior felony history, has received a 40-year penalty for sexual conduct with two consenting post-pubescent teenagers. The broad application of the statute to encompass this situation results in a penalty grossly out of proportion to the severity of the crime. Although such a harsh penalty may be justified in the context of other, more heinous crimes included within the sentencing scheme, it is not justified under the specific circumstances of this case.

Bartlett I, 164 Ariz. at 236, 792 P.2d at 699 (emphasis added; footnote added).

Cases such as State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992), State v. Beaty, 158 Ariz. 232, 762 P.2d 519 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 708 (1989), and State v. Roscoe, 145 Ariz. 212, 700 P.2d 1312, cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 525 (1985), see dissent at 315, 830 P.2d at 836 (Corcoran, J.), illustrate the very point we make. These cases involve violent sexual crimes against young children who were incapable of giving actual, let alone legal, consent and who were later murdered by the perpetrators in question. In our view, the eighth amendment requires that a clear distinction be made between such crimes, the facts of which demand and receive the most severe penalties, and the crime that we consider today. The proportionality principle contained in the eighth amendment requires that this defendant, whose crime involved no violence and whose victims willingly consented, be treated much less severely than those who commit violent sexual crimes against young children.

Nor is this a case in which, as the dissent suggests, our personal views “conclude our judgment.” Dissent at 314, 830 P.2d at 835 (Corcoran, J.). In measuring what is cruel and unusual, the eighth amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion). At one time, the stocks or punishment by flogging might not have been cruel and unusual. One supposes that castration would be an effective and prompt punishment for this crime, and surely a more certain, less expensive and perhaps more “rational” method of controlling sexual promiscuity, see dissent at 313, 830 P.2d at 834 (Corcoran, J.), than forty years’ imprisonment without possibility of parole. Informed by our reading of the standards of present-day civilization, we nevertheless venture that today such punishments are cruel and unusual, even were the legislature to authorize them by statute. The eighth amendment, after all, is either a barrier to legislative action or nothing but empty words. The point we make, which the dissent avoids, is that — as a matter of proportionality standards, not of either intrajurisdictional comparison or comparison between modes of punishment — a sentence of forty years without possibility of parole for consensual sex with post-pubescent teenagers reaches the threshold of gross disproportion, given the fact that the people, through their legislature, have adopted statutes under which the courts impose comparable punishment by imprisonment for crimes such as violent rape, second degree murder, and brutal assault of children. See cases cited, post, note 9.

Here, unlike in Harmelin, which dealt with a defendant convicted of an offense involving drug dealing, it can be fairly said that the regime applied to the offense committed by Defendant is an “ancient one revived in a sudden or surprising way[, not one] calibrated with care, clarity and much deliberation.” Harmelin, — U.S. at-, 111 S.Ct. at 2708 (opinion of Kennedy, J.). We therefore conclude, as we did before, that Defendant’s sentence was grossly disproportionate to his crimes.

2. Intra- and Inter-Jurisdictional Comparative Analysis

We have drawn the threshold inference required by Harmelin that Defendant’s sentence was grossly disproportionate to his crimes. We must next conduct an intra- and inter-jurisdictional comparison to validate that inference. See Harmelin, — U.S. at-, 111 S.Ct. at 2707. First, we compare Defendant’s sentence to the sentences imposed in Arizona for more serious crimes. Because Harmelin did not alter the analysis under the second and third prongs of the Solem test, see id., we will not rehash the comparison we conducted in Bartlett I; however, we set forth the original analysis supporting our conclusion in Part I of the Appendix. We quote from our original conclusion:

We conclude that a comparison of the punishments imposed for other crimes in Arizona reveals the disproportion with which defendant was sentenced under these factual circumstances.

164 Ariz. at 237, 792 P.2d at 700.⁹

Next, we compare Defendant’s sentence to sentences for the same crime in other jurisdictions. In Bartlett I, we concluded that “the mandatory minimum sentence imposed on defendant for his first offense was disproportionate to sentences received by similarly situated defendants in other jurisdictions,” and that “the 25-year mandatory minimum imposed for defendant’s second offense [was] also disproportionate to the sentences imposed on similarly situated defendants in other jurisdictions.” Id. at 239-40, 792 P.2d at 702-03.¹⁰ Again, we see no point in prolonging this opinion by restating that which was thoroughly discussed in Bartlett I. We include the supporting analysis from Bartlett I as Part II of the Appendix.

We have determined that Defendant’s sentence is grossly disproportionate to his crime. Our intra- and inter-jurisdictional comparison confirms our initial inference. We therefore hold that Defendant’s forty-year sentence without possibility of early release violates the eighth amendment prohibition of cruel and unusual punishment.

D. Cruel and Unusual Punishment Under the Arizona Constitution

In Bartlett I, we explained that “[h]aving concluded that the sentences imposed in this case violate the eighth amendment prohibition against cruel and unusual punishment, we do not address whether they violate art. 2, § 15 of the Arizona Constitution.” 164 Ariz. at 241, 792 P.2d at 704. For the same reason, we do not address at this time the issue of whether our precedent applying a proportionality analysis— predating Solem¹¹ — would require a broader proportionality analysis under the Arizona Constitution than is appropriate under the federal constitution as interpreted in Harmelin. Nor do we consider whether other factors suggest a different standard for assessing cruel and unusual punishment under our state constitution.

DISPOSITION

Defendant’s original sentence constituted cruel and unusual punishment under the limited proportionality analysis and principle articulated in Justice Kennedy’s concurring opinion in Harmelin. That sentence is vacated. We need not, therefore, reach »the issues pertaining to the Arizona Constitution.

In Bartlett I, after concluding that Defendant could not constitutionally be sentenced under A.R.S. § 13-604.01, we remanded to the trial court for resentencing with instructions that Defendant be sentenced as a class 2 felon under A.R.S. §§ 13-701 and 13-702. 164 Ariz. at 241, 792 P.2d at 704. Pursuant to our instructions, the trial court has resentenced Defendant to five and one-quarter years on one count and seven years on the other, the sentences to run concurrently. That sentence stands and has not been challenged by Defendant. Because Defendant has already been resentenced, there is no need for another remand. The court of appeals’ memorandum decision is vacated. The sentence presently in effect is affirmed.

JAMES DUKE CAMERON, J. (retired), FRANK X. GORDON, Jr., J. (retired), concur.

1 . While Justice Scalia stated that Solem was wrong, — U.S. at-, 111 S.Ct. at 2686, he did not say — and could not, given only Chief Justice Rehnquist’s concurrence — that it was overruled.

2 . The vast majority of federal and state courts that have assessed the validity of the Solem proportionality analysis in the wake of Harmelin have applied or assumed the validity of at least the gross disproportionality standard advocated by Justice Kennedy. See United States v. 38 Whalers Cove Drive, 954 F.2d 29 (2nd Cir. 1992) (applying Solem analysis); United States v. Gordon, 953 F.2d 1106 (8th Cir.1992) (conducting review based on Justice Kennedy’s opinion in Harmelin); Tart v. Massachusetts, 949 F.2d 490, 503-04 & n. 16 (1st Cir.1991); United States v. Salmon, 944 F.2d 1106, 1130-31 (3rd Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992); United States v. Hopper, 941 F.2d 419, 422 (6th Cir.1991); United States v. Jones, 950 F.2d 1309, 1317 (7th Cir. 1991) ; United States v. Contreras, 937 F.2d 1191, 1195-96 & n. 3 (7th Cir.1991); United States v. Manuel, 944 F.2d 414, 417 (8th Cir.1991); United States v. Johnson, 944 F.2d 396, 408-09 (8th Cir.) (no further analysis undertaken unless sentence grossly disproportionate to crime), cert. denied, — U.S.-, 112 S.Ct. 646, 116 L.Ed.2d 663 (1991); United States v. McLean, 951 F.2d 1300, 1303 (D.C.Cir.1991) (“Eighth Amendment’s proportionality principle applies to noncapital sentences”); United States v. Curtis, 33 M.J. 101, 108 n. 9 (C.M.A.1991), cert. denied, — U.S.-, 112 S.Ct. 1177, 117 L.Ed.2d 421 (1992); People v. Weddle, 1 Cal.App.4th 1190, 2 Cal.Rptr.2d 714, 715-17 & n. 1 (1991) (discussing difficulty in interpreting multiple opinions in Harmelin); People v. Gaskins, 825 P.2d 30, 34 n. 10 (Colo. 1992) ; Isom v. State, 261 Ga. 596, 408 S.E.2d 701, 702-03 (1991); State v. Brown, 825 P.2d 482, 491 (Idaho 1992). See also United States v. Thompson, 944 F.2d 1331 (7th Cir.1991) (would not address whether standard is disproportionality or gross disproportionality since under the circumstances sentence was neither), cert. denied, — U.S.-, 112 S.Ct. 1177, 117 L.Ed.2d 422 (1992); United States v. California Publishers Liquidating Corp., 778 F.Supp. 1377, 1387 (N.D.Texas 1991); State v. Cavanaugh, 1991 WL 170184, at *2 (Conn.Super.) (sentence not inappropriate or disproportionate given nature of offense, character of offender, public interest protected, and deterrent purpose of sentence), cert. denied, 220 Conn. 930, 598 A.2d 1100 (1991).

Indeed, only a handful of courts and judges have expressed the view that Harmelin overruled Solem. See United States v. LaFleur, 952 F.2d 1537, 1547 (9th Cir.1991) (citing Harmelin for proposition that eighth amendment does not require assessment of appropriateness of sentence in noncapital cases); People v. Knott, 224 Ill.App.3d 236, 166 Ill.Dec. 521, 539, 586 N.E.2d 479, 497 (1991) (“Solem v. Helm was expressly overruled in Harmelin"). See also State v. Ortega, 112 N.M. 554, 558, 817 P.2d 1196, 1220 (1991) (Baca, J., concurring in part and dissenting in part) (Harmelin "has cast doubt on the vitality of Solem"). We believe these courts misinterpret Harmelin.

Finally, several cases have either applied Harmelin’s holding that mandatory sentencing is not unconstitutional merely because it is mandatory, or affirmed sentences under Harmelin’s result by comparing sentences to the sentence approved in Harmelin, most commonly in drug cases. See United States v. Lowden, 955 F.2d 128 (1st Cir.1992); United States v. Kramer, 955 F.2d 479, 488 (7th Cir.1992); United States v. Knapp, 955 F.2d 566, 570 (8th Cir.1992) (defendant’s claim that sentence for participation in drug conspiracy was cruel and unusual punishment “simply lacks merit”); United States v. Campusano, 947 F.2d 1, 4 (1st Cir.1991) (mandatory sentencing not cruel and unusual punishment); United States v. Torres, 941 F.2d 124 (2nd Cir.1991); United States v. Pickett, 941 F.2d 411 (6th Cir.1991); United States v. Dunson, 940 F.2d 989 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992); United States v. Harvey, 946 F.2d 1375 (8th Cir. 1991); United States v. Van Winrow, 951 F.2d 1069, 1071 (9th Cir.1991); State v. Smith, 1991 WL 215646, at *3 (Del.Super.) (severe mandatory sentences not cruel and unusual under Harmelin), appeal dismissed, 604 A.2d 419 (Del. 1991); Leftwich v. State, 589 So.2d 385 (Fla.App. 1991) (prisoner smuggling marijuana into prison). See also State v. Hermann, 164 Wis.2d 269, 474 N.W.2d 906, 911 (App.) (citing Harmelin and concluding that sentence for drug conviction was not "shocking to the public sentiment”), review denied, 477 N.W.2d 286 (Wis. 1991).

3 . At the same time, we believe that under the views of four members of the Court (Justices White, Blackmun, Stevens, and Marshall), the Solem analysis we employed in Bartlett I would stand, and that the result we reached would presumably be valid.

It is also worth noting that we expressly considered in Bartlett I many of the principles identified by Justice Kennedy, including the properly legislative function of fixing sentences for specific crimes, Harmelin, — U.S. at-, 111 S.Ct. at 2703, and the rarity of finding disproportion because "we lack clear objective standards to distinguish between sentences for different terms of years." Id. at-, 111 S.Ct. at 2705. Accord Bartlett I, 164 Ariz. at 233, 792 P.2d at 696 (legislature has "broad authority ... in determining the types and limits of punishments for crimes”) (quoting Solem, 463 U.S. at 290, 103 S.Ct. at 3009); id. at 240, 792 P.2d at 703 ("The Supreme Court has said that successful challenges to the proportionality of particular sentences are ‘exceedingly rare.’ Solem, 463 U.S. at 289-90, 103 S.Ct. at 3009. This is such a rare case.”). We adhere to those principles in this opinion.

4 . We use fictitious names for the teenage girls. See Bartlett I, 164 Ariz. at 230 n. 1, 792 P.2d at 693 n. 1.

5 . The current text of § 13-1405(B) makes sexual conduct with a minor under fourteen a class 2 felony punishable pursuant to § 13-604.01. The statute was amended in 1990; at the time Defendant committed his crime, the relevant age was fifteen. See 1990 Ariz.Sess.Laws, ch. 384, § 2.

6 . In examining the facts of the crime and the criminal, we do not, as argued by the dissent, apply Solem instead of Harmelin. Dissent at 311, 830 P.2d at 832 (Corcoran, J.). We do not allude to Bartlett I because it is a “comprehensive and lucid application of Solem," dissent at 311, 830 P.2d at 832 (Corcoran, J.), but, rather, because it contains a "comprehensive” analysis of Defendant’s offenses. That analysis was repeated ante because we read Justice Kennedy’s opinion in Harmelin to mean that it is the circumstances of the crime and the criminal that must be considered in determining gross disproportion. As the dissent concedes, this approach is consistent with the analysis articulated by Justice Kennedy. Dissent at 312, 830 P.2d at 833 (Corcoran, J.).

Nor is that dissent correct in arguing that five justices rejected consideration of the particularized circumstances of the crime and the criminal in determining the question of disproportionality. See dissent at 312, 830 P.2d at 833 (Corcoran, J.) (quoting Harmelin, — U.S. at -, 111 S.Ct. at 2705). The quoted and cited portions of Harmelin are from Justice Scalia’s opinion and relate to the alleged facial invalidity of mandatory sentencing schemes; the Court held that a statute was not unconstitutional on its face merely because the sentencing judge could not consider the facts of the crime. This defendant does not raise that issue. The question here is whether the severity of the punishment, as compared to the facts of the crime, is grossly disproportionate. See Harmelin, — U.S. at-, 111 S.Ct. at 2702.

7 . The dissent misinterprets our use of the word "uncommon." We do not use the word because “we believe" the crime "should not be considered severe.” Dissent at 312, 830 P.2d at 833 (Corcoran, J.). We use it, quoting Justice Corcoran from Bartlett I, because it accurately characterizes the type of behavior under examina- . tion and helps to distinguish it from more serious crimes.

8 . We refer again to the trial judge's lack of discretion, not to suggest that the resulting sentence was cruel and unusual because mandatory, but to explain why the trial court did not take the circumstances we have identified as diminishing the gravity of Defendant’s crimes into account in sentencing. Indeed, a defendant is not constitutionally entitled to individualized sentencing in noncapital cases. Harmelin, — U.S. at-, 111 S.Ct. at 2701-02. This, however, does not alter the requirement that the sentence actually imposed not be cruel and unusual, and the relevant circumstances must obviously be taken into account in making that determination.

9 . For more recent cases — cited here as examples and not as precedent, see Rule 28(c), Ariz.R.Civ. App.P., 17B A.R.S. — see State v. DeCrow, No. 1 CA-CR 90-1231 (Ct.App. Nov. 5, 1991) (twenty-year sentence imposed where defendant “brutally raped his minor stepdaughter, he engaged in sexual conduct with the victim for two years and the victim not only suffered physically but will continue to suffer emotionally as a result of his conduct"); State v. Lyon, Nos. 2 CA-CR 90-0556 and -0557 (consolidated) (Ct.App. Aug. 22, 1991) (twenty-year sentence for sexual conduct with defendant’s twelve year-old stepdaughter, sexual indecency with stepson, and child abuse of second stepdaughter); State v. Flores, 2 CA-CR 90-0035 and 91-0245-PR (consolidated) (Ct. App. Aug. 27, 1991) (twenty-year sentence, to be served “day-for-day,” for violent rape of a fourteen year-old victim and then assisting an accomplice’s rape of the victim).

These cases also illustrate that, contrary to the dissent’s claim, see dissent at 314, 830 P.2d at 835 (Corcoran, J.), our courts have imposed lesser or comparable sentences for more serious crimes.

10 . The state argued in Bartlett I, and argues again now, that Defendant’s sentence is similar to that which he could have received in many jurisdictions, and refers this court to a chart summarizing the sentencing provisions in other jurisdictions. We appreciate the difficulty inherent in comparing sentences when the definition of crimes varies so widely among jurisdictions, and recognize the challenge in summarizing this information succinctly yet accurately; nevertheless, we must be able to rely with confidence on a party’s assessment of the crimes and the accompanying sentencing schemes relevant to our comparison. The state’s chart is of limited utility in this regard. For example, the state’s chart includes Utah as a state in which Defendant could have received a similar sentence under the relevant recidivist statutes. Our research, however, suggests that in Utah under the circumstances of this case Defendant could have been sentenced to at most five years in prison and a $5,000 fine on each of two counts of unlawful sexual intercourse, a third degree felony, and that the habitual sex offender statutes apply only to offenses committed after a defendant has been convicted of a prior sex offense. See Utah Code Ann. §§ 76-3-203(3) (felony sentencing), 76-3-301 (fines), 76-3-407 and 76-3-408 (habitual sex offenders), 76-5-401 (unlawful sexual intercourse not amounting to rape), 76-5-406 (circumstances rendering consent ineffective for purposes of rape) (1990).

11 . See, e.g., State v. Mulalley, 127 Ariz. 92, 96, 618 P.2d 586, 590 (1980).