Court of Appeal Divides Over Cruel Or Unusual Punishment Case

Do judges matter? Or, to put it more precisely, do the backgrounds, predilections and perhaps the gender of judges matter? Of course they do. Just look, for example, at the decision in People v. Em (here). In that case the defendant, who was less than 16 at the time of the offense, was a somewhat passive participant in a robbery, and the other robber shot and killed the victim. Found guilty of murder under the felony murder doctrine, the defendant was sentenced to fifty years to life, with two twenty-five year to life sentences running consecutively. The majority opinion focuses on the particulars of the crime, which were pretty bad. The dissent focuses on the defendant's background, and provides numerous facts that don't appear in the majority opinion. And the tone of the two opinions is quite different as well.

I don't know enough about the cases construing the California Constitution's "cruel or unusual punishment" clause to know which of the two opinions is right. But it is troubling that the majority opinion doesn't acknowledge the facts discussed in the dissent. Conversely, it's troubling that the dissent doesn't come to grips with People v. Gonzales, the principal case relied on by the majority, in which an identical sentence was upheld under somewhat similar circumstances. Perhaps the California Supreme Court will intervene to bring some clarity and more objective standards to this area of the law.