State v. Fain

WASH. CONST. art. I, § 14 (“nor cruel punishment inflicted”)

Under Washington’s “habitual offender” sentencing law, Jimmy Fain received life in prison for writing and/or forging bad checks worth a total of about $460. He appealed his sentence as unconstitutionally excessive under both the 8th Amendment and Washington’s ban on “cruel” punishments.

“Under these circumstances, we believe Fain’s sentence to be entirely disproportionate to the seriousness of his crimes. Accordingly, we hold it is cruel punishment in violation of Const. art. 1, s 14. Since the applicable portion of the habitual criminal statute provides for nothing less than a life sentence, that portion of the judgment and sentence must be vacated.”

The Court recognized that Fain’s case was indistinguishable from Rummell v. Estelle, decided the same year, in which the U.S. Supreme Court upheld a life prison term for stealing about $230 via bad checks and credit card fraud. Fain’s 8th Amendment claim thus failed.

But the court explained that Washington’s constitution goes further, based both on the textual differences and history: “Especially where the language of our constitution is different from the analogous federal provision, we are not bound to assume the framers intended an identical interpretation. The historical evidence reveals that the framers of Const. art. 1, s 14 were of the view that the word ‘cruel’ sufficiently expressed their intent, and refused to adopt an amendment inserting the word ‘unusual.'”

Here, the court applied what became known as the “Fain proportionality test” — a much stronger version of proportionality review under the 8th Amendment. The Fain factors are: (1) the nature of the offense; (2) the legislative purpose behind the habitual criminal statute; (3) the punishment defendant would have received in other jurisdictions for the same offense; and (4) the punishment meted out for other offenses in the same jurisdiction.

Applied “in this case,” the court said, “the accused committed three wholly nonviolent crimes involving small amounts of property; indeed, two of the three would likely be charged as gross misdemeanors at the present time. RCW 9A.56.050(2); RCW 9A.56.010(12) (c). As a result, he was sentenced to life in prison, a penalty required at most by only two other American jurisdictions for three such ‘felonies.'” Further, “Fain’s sentence greatly exceeds the penalties which the Criminal Code imposes for all felonies except murder in the first degree. His three fraudulent acts cause him to face a punishment which the legislature declines to impose on those who commit murder in the second degree, arson, rape, robbery, assault, and other dangerous felonies.” In sum, the court found “Fain’s sentence to be entirely disproportionate to the seriousness of his crimes.”