Defendant’s Looking at Playboy and Girls Gone Wild as Sentencing Factor

In State v. Epling (Utah. Ct. App. July 21, 2011), defendant pleaded no contest to three charges of sexually abusing his stepson, and was sentenced to three consecutive 1-to-15-year prison terms. Here’s one passage that struck me as particularly interesting:

Epling also objects to the trial court’s expressed concern about his involvement with “pornography.” According to Epling, because this conduct was not illegal, i.e., there was no allegation that he was involved with pornography involving children, it was protected by the First Amendment of the United States Constitution. [Footnote: The trial court’s comments seem to be based upon the psychosexual report, which indicates that Epling self-reported viewing Playboy magazines and programs such as Girls Gone Wild.] Therefore, he contends that the trial court could not properly consider it as a factor supporting its decision to impose consecutive sentences. However, there is nothing that prevents a trial court from considering a defendant’s legal activities in making a sentencing determination. See, e.g., State v. Alfatlawi, 2006 UT App 511, ¶ 51, 153 P.3d 804 (upholding a consecutive sentencing decision where the trial court determined that the defendant’s bad attitude, as exhibited by the defendant’s diatribe of threats and obscenities, weighed in favor of consecutive sentences); cf. State v. Montoya, 929 P.2d 356, 360 (Utah Ct.App.1996) (upholding consecutive sentences where the trial court relied on an assessment that the defendant was “pessimistic, apathetic, emotionally inhibited and controlled, maladaptive under stress, assaultive, resentful, hostile, and aggressive”). It was within the trial court’s discretion to consider such evidence.

I wonder whether that’s right. Indeed, a sentencer can often use evidence of a person’s constitutionally protected speech and association during sentencing. But as Dawson v. Delaware (1992) holds, there are limits to that:

“[T]he sentencing authority has always been free to consider a wide range of relevant material.” We have previously upheld the consideration, in a capital sentencing proceeding, of evidence of racial intolerance and subversive advocacy where such evidence was relevant to the issues involved. In Barclay v. Florida, 463 U. S. 939 (1983), for example, we held that a sentencing judge in a capital case might properly take into consideration “the elements of racial hatred” in Barclay’s crime as well as “Barclay’s desire to start a race war.”

One year later, in United States v. Abel, 469 U. S. 45 (1984), we held that the Government could impeach a defense witness by showing that both the defendant and the witness were members of the Aryan Brotherhood, and that members were sworn to lie on behalf of each other. We held the evidence admissible to show bias, even assuming that membership in the organization was among the associational freedoms protected by the First Amendment. Though Abel did not involve a capital sentencing proceeding, its logic is perfectly applicable to such a proceeding. We therefore conclude that the Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment….

[Yet] in this case, the receipt into evidence of the stipulation regarding [Dawson’s] membership in the Aryan Brotherhood was constitutional error. Before the penalty hearing, the prosecution claimed that its expert witness would show that the Aryan Brotherhood is a white racist prison gang that is associated with drugs and violent escape attempts at prisons, and that advocates the murder of fellow inmates. If credible and otherwise admissible evidence to that effect had been presented, we would have a much different case. But, after reaching an agreement with Dawson, the prosecution limited its proof regarding the Aryan Brotherhood to the stipulation. The brief stipulation proved only that an Aryan Brotherhood prison gang originated in California in the 1960’s, that it entertains white racist beliefs, and that a separate gang in the Delaware prison system calls itself the Aryan Brotherhood. We conclude that the narrowness of the stipulation left the Aryan Brotherhood evidence totally without relevance to Dawson’s sentencing proceeding….

Even if the Delaware group to which Dawson allegedly belongs is racist, those beliefs, so far as we can determine, had no relevance to the sentencing proceeding in this case. For example, the Aryan Brotherhood evidence was not tied in any way to the murder of Dawson’s victim. In Barclay, on the contrary, the evidence showed that the defendant’s membership in the Black Liberation Army, and his consequent desire to start a “racial war,” were related to the murder of a white hitchhiker. We concluded that it was most proper for the sentencing judge to “tak[e] into account the elements of racial hatred in this murder.” In the present case, however, the murder victim was white, as is Dawson; elements of racial hatred were therefore not involved in the killing.

Because the prosecution did not prove that the Aryan Brotherhood had committed any unlawful or violent acts, or had even endorsed such acts, the Aryan Brotherhood evidence was also not relevant to help prove any aggravating circumstance. In many cases, for example, associational evidence might serve a legitimate purpose in showing that a defendant represents a future danger to society. A defendant’s membership in an organization that endorses the killing of any identifiable group, for example, might be relevant to a jury’s inquiry into whether the defendant will be dangerous in the future. Other evidence concerning a defendant’s associations might be relevant in proving other aggravating circumstances. But the inference which the jury was invited to draw in this case tended to prove nothing more than the abstract beliefs of the Delaware chapter. Delaware counters that even these abstract beliefs constitute a portion of Dawson’s “character,” and thus are admissible in their own right under Delaware law. Whatever label is given to the evidence presented, however, we conclude that Dawson’s First Amendment rights were violated by the admission of the Aryan Brotherhood evidence in this case, because the evidence proved nothing more than Dawson’s abstract beliefs. Cf. Texas v. Johnson, 491 U. S. 397, 414 (1989) (“[T]he government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”). Delaware might have avoided this problem if it had presented evidence showing more than mere abstract beliefs on Dawson’s part, but on the present record one is left with the feeling that the Aryan Brotherhood evidence was employed simply because the jury would find these beliefs morally reprehensible. Because Delaware failed to do more, we cannot find the evidence was properly admitted as relevant character evidence.

Nor was the Aryan Brotherhood evidence relevant to rebut any mitigating evidence offered by Dawson. We have held that a capital defendant is entitled to introduce any relevant mitigating evidence that he proffers in support of a sentence less than death. But just as the defendant has the right to introduce any sort of relevant mitigating evidence, the State is entitled to rebut that evidence with proof of its own. In this case, Dawson’s mitigating evidence consisted of testimony about his kindness to family members, as well as evidence regarding good time credits he earned in prison for enrolling in various drug and alcohol programs. Delaware argues that because Dawson’s evidence consisted of “good” character evidence, it was entitled to introduce any “bad” character evidence in rebuttal, including that concerning the Aryan Brotherhood. The principle of broad rebuttal asserted by Delaware is correct, but the argument misses the mark because, as stated above, the Aryan Brotherhood evidence presented in this case cannot be viewed as relevant “bad” character evidence in its own right.

Perhaps I’m mistaken, but I likewise see little relevance of defendant’s interest in Playboy or Girls Gone Wild to whether the defendant is likely to reoffend, to the defendant’s moral culpability for his particular offense, to whether the defendant is likely to be rehabilitable, or to other matters that are usually seen as relevant to sentencing. To be sure, the crimes to which he pleaded guilty are heinous, and he deserves to be punished for them. But I don’t see how his consumption of pornography that depicts naked or partly naked women is more than marginally relevant to the degree to which he be punished for serious crimes involving the sexual abuse of a boy, especially given the Court’s reasoning in Dawson v. Delaware. (And though Dawson was a death penalty case, its reasoning is applicable to sentencing more broadly, and has been so applied by lower courts.)