Last week’s post raised the issue of whether the penalty imposed by the Anti-Violence Against Women and Their Children Act of 2004 (which is the law that Hayden Kho allegedly violated) of 10 years, 1 day imprisonment for a husband who killed the wife’s pet goldfish and caused psychological stress to the pregnant wife is shocking to the moral sense of the community.
If it does, there is basis for the argument (based on the Supreme Court’s statement in the Robin Padilla case and similar cases) that the penalty imposed violates the Constitution. In this regard, the test crafted by the Supreme Court on whether too severe a penalty may violate the constitutional prohibition against cruel and degrading punishment has a subjective element to it (as it depends on the “moral sense of the community”). If one were to look for an objective criteria, the cases decided by the United States Supreme Court provide some guidance.
Like the Philippine Constitution, the US Constitution (specifically its Eight Amendment) contains a prohibition against cruel punishment. It appears that the first time the US Supreme Court grappled with the proportionality principle under the Eight Amendment is in the 1910 case of Weems v. United States, 217 US 349 (1910), which interestingly, involved an American public official convicted in the Philippines of the crime of falsification of public documents. A Philippine court sentenced Weems to cadena temporal (which punishment was based on the Spanish Penal Code):
Under Philippine law, an American disbursing officer was convicted of falsifying official documents. He was sentenced to a heavy fine and to fifteen years of hard labor while in chains. Confronted with this graphic example of Philippine justice, the Court seized on an argument first made in the defendant’s brief—that the punishment was cruel and unusual. Realizing that any interpretation of the Philippine protection against such punishment would also interpret the Eighth Amendment to the American Constitution, the majority did not flinch. What was cruel and unusual, Justice Joseph McKenna said, should be determined by current sensibilities and not fixed by “impotent and lifeless formulas” (p. 373). Because the penalty was disproportionate when compared to that levied for more serious crimes, the Court ordered Weems freed because the Philippine law, which prescribed the harsh penalties, violated the ban on cruel and unusual punishment. Justice Edward White, joined by Justice Oliver Wendell Holmes, protested against judicial interference with the legislative function and against the expansive reading of constitutional protections.” (see Oxford Guide to the Supreme Court, 2nd ed., p. 1080-1081).
Sixty years after Weems, the US Supreme Court “appeared to have accepted the proposition that the Eighth Amendment ‘proscribes grossly disproportionate’ punishments.” (see The Eight Amendment, Proportionality and the Changing Meaning of Punishments, 122 Harvard Law Review 960 (2009)). More than 70 years after Weems, the US Supreme Court declared in Solem v. Helm, 463 U.S. 277 (1983):
The Eighth Amendment declares: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The final clause prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.
In Solem, Helm was convicted under a South Dakota state court of uttering a “no account” check for $100. The maximum punishment for that crime would ordinarily have been five years’ imprisonment and a $5,000 fine. However, because of Helm’s prior felony convictions, the court sentenced Helm to life imprisonment without possibility of parole under South Dakota’s recidivist statute. The US Supreme Court laid an objective criteria for determining whether the penalty is proportional to the offense:
. . . a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.
Applying the criteria, the US Supreme Court ruled that Helm’s sentence of life imprisonment without possibility of parole is significantly disproportionate to his crime and is prohibited by the Eighth Amendment. The US Supreme Court noted, among others, that:
(a) the penalty of life imprisonment without possibility of parole is significantly disproportionate to uttering a “no account” check for US$100;
(b) the penalty imposed on Helms is the same penalty imposed on murder, and, on a second or third offense, treason, first-degree manslaughter, first-degree arson, and kidnapping. The US Supreme Court observed that there were certain offenses in which life imprisonment was not mandatory, but may be imposed at the discretion of the sentencing judge, such as treason, first-degree manslaughter, first-degree arson, and kidnapping; attempted murder, placing an explosive device on an aircraft, and first-degree rape on a second or third offense; and any felony after three prior offenses. According to the US Supreme Court, there was a large group of very serious offenses for which life imprisonment was not authorized, including a third offense of heroin dealing or aggravated assault;
(c) it “appears that Helm was treated more severely than he would have been in any other State.”
Solem was decided by a divided US Supreme Court (5-4). Seven years later, the US Supreme Court reexamined the issue in Harmelin vs. Michigan, 501 U.S. 957 (1991). Justice Scalia delivered the opinion of the court, and he was joined by Chief Justice Rehnquist in concluding that the Eight Amendment does not contain any proportionality guarantee. Justice Kennedy, joined by Justice O’Connor and Justice Souter, concurred in certain parts of the Scalia opinion; however, on the proportionality issue, the Kennedy concurring opinion did not agree with the Scalia opinion and instead concluded that the US Supreme Court’s decisions recognize that the “Eighth Amendment’s Cruel and Unusual Punishments Clause encompasses a narrow proportionality principle that applies to noncapital sentences.” On the other hand, Justices White, Marshall, Stevens and Blackmuns dissented from the Scalia opinion. In sum, while the court’s opinion concluded that the Eight Amendment does not contain any proportionality principle, only two justices (Justice Scalia, who was the ponente, and Chief Justice Rehnquist) believed in that conclusion while seven justices believed that the Eight Amendment encompasses a proportionality principle.
The US debate on what is the scope and application of the Eight Amendment will continue. A 2009 article published in the Harvard Law Review states: “The debate over the scope and application of the Eighth Amendment has over the past few decades focused increasingly on the historical meaning of the words ‘cruel and unusual.'” The article concludes that “it is in no way clear that a ban on disproportionate punishments would be contrary to the intention of the Framers, as Justice Scalia suggests in Harmelin.” (see The Eight Amendment, Proportionality and the Changing Meaning of Punishments, 122 Harvard Law Review 960 (2009)).
If the constitutional prohibition against cruel and unusual punishment includes a proportionality principle, how will the penalty of prision mayor for a husband who kills the pet goldfish and causes psychological stress to the wife be viewed under the criteria laid down in Solem? The second test in Solem is the easiest to apply as it involves a comparison of penalties imposed on other criminals. Based on the Revised Penal Code, the penalty imposed on the goldfish killer/wife stress-causer (i.e., prision mayor) is the same penalty imposed on criminals convicted of the following crimes against persons and properties:
1. death caused in a tumultuous affray if the person who cases serious physical injuries can be identified (art. 251);
2. giving assistance to suicide (art. 253);
3. infanticide committed by a mother for the purpose of concealing her dishonor (art. 255);
4. abortion (acting without the consent of the woman) (art. 256);
5. certain types of intentional mutilation (art. 262);
6. serious physical injuries, if the injured person becomes blind, impotent, insane or imbecile (art. 263);
7. certain types of robbery with violence committed against persons (art. 294);
8. theft, if the value of the thing exceeds PhP12,000 but does not exceed Php22,000 (art. 309);
9. slavery (art. 272);
10. corruption of minors (art. 340); and
11. white slave trade (art. 341).
On the other hand, criminals convicted of the following crimes against persons and properties will be sentenced to prision correcional (i.e., from 6 months, 1 day to 6 years, depending on the specific period provided in the Revised Penal Code), which is lighter than the prision mayor that will be imposed on the goldfish killer/wife stress-causer:
1. intentional abortion, if the woman consented (art. 256);
2. unintentional abortion, if the abortion was caused by violence (art. 257);
3. abortion practiced by the mother (art. 258);
4. serious physical injuries if as a result: (a) the injured person loses the use of speech, or the power to hear or smell, or shall have lost an eye, a hand, a foot, an arm, or a leg or shall have become incapacitated for the work in which he was habitually engaged, or (b) the person injured shall have become deformed, or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance of the work in which he as habitually engaged for a period of more than ninety days (art. 263);
5. certain types of robbery with violence committed against persons (art. 294);
6. theft, if the value of the thing is more than PhP6,000 but does not exceed PhP12,000 (art. 309).
Does a penalty of prision mayor for the goldfish killer/wife stress-causer pass the second test in Solem? Perhaps not, unless it was a fancy goldfish worth a fortune!
A person who kills an ordinary pet goldfish may be held liable for malicious mischief, which is penalized by the Revised Penal Code with arresto menor (i.e., 1 day to 30 days) or arresto mayor (i.e., 1 month, 1 day to 6 months), depending on the value of the property damaged. Were it not for the Act, a husband who kills the wife’s pet goldfish is exempt from criminal liability and can be held civilly liable only. Article 322 of the Revised Penal Code provides:
ARTICLE 332. Persons exempt from criminal liability. — No criminal, but only civil liability, shall result from the commission of the crime of theft, swindling or malicious mischief committed or caused mutually by the following persons:
1. Spouses, ascendants and descendants, or relatives by affinity in the same line.
2. The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed into the possession of another; and
3. Brothers and sisters and brothers-in-law and sisters-in- law, if living together.
The exemption established by this article shall not be applicable to strangers participating in the commission of the crime.
The objective of the Anti-Violence Against Women and Their Children Act of 2004 to protect women and children against violence is laudable. Men who commit violence against women and children certainly deserve punishment. However, the objective of the law may not be fully realized if the law goes too far, thereby making certain provisions thereof susceptible to challenge on constitutional grounds.