Hayden Kho, Katrina Halili, Robin Padilla and the Pet Goldfish (Part II)

Posted on June 24, 2009 by Hector M. de Leon Jr Last weeks post raised the issue of whether the pena ty i!posed by the "nti#$io ence "%ainst &o!en and 'heir (hi dren "ct of 2004 )which is the aw that Hayden *ho a e%ed y +io ated, of -0 years, - day i!prison!ent for a husband who ki ed the wifes pet %o dfish and caused psycho o%ica stress to the pre%nant wife is shockin% to the !ora sense of the co!!unity. .f it does, there is basis for the ar%u!ent )based on the /upre!e (ourts state!ent in the Robin Padilla case and si!i ar cases, that the pena ty i!posed +io ates the (onstitution. .n this re%ard, the test crafted by the /upre!e (ourt on whether too se+ere a pena ty !ay +io ate the constitutiona prohibition a%ainst crue and de%radin% punish!ent has a sub0ecti+e e e!ent to it )as it depends on the 1!ora sense of the co!!unity2,. .f one were to ook for an ob0ecti+e criteria, the cases decided by the 3nited /tates /upre!e (ourt pro+ide so!e %uidance. Like the Phi ippine (onstitution, the 3/ (onstitution )specifica y its 4i%ht "!end!ent, contains a prohibition a%ainst crue punish!ent. .t appears that the first ti!e the 3/ /upre!e (ourt %rapp ed with the proportiona ity princip e under the 4i%ht "!end!ent is in the -9-0 case of Weems v. United States, 2-5 3/ 649 )-9-0,, which interestin% y, in+o +ed an "!erican pub ic officia con+icted in the Phi ippines of the cri!e of fa sification of pub ic docu!ents. " Phi ippine court sentenced &ee!s to cadena temporal )which punish!ent was based on the /panish Pena (ode,7 3nder Phi ippine aw, an "!erican disbursin% officer was con+icted of fa sifyin% officia docu!ents. He was sentenced to a hea+y fine and to fifteen years of hard abor whi e in chains. (onfronted with this %raphic e8a!p e of Phi ippine 0ustice, the (ourt sei9ed on an ar%u!ent first !ade in the defendants brief:that the punish!ent was crue and unusua . ;ea i9in% that any interpretation of the Phi ippine protection a%ainst such punish!ent wou d a so interpret the 4i%hth "!end!ent to the "!erican (onstitution, the !a0ority did not f inch. &hat was crue and unusua , Justice Joseph Mc*enna said, shou d be deter!ined by current sensibi ities and not fi8ed by 1i!potent and ife ess for!u as2 )p. 656,. <ecause the pena ty was disproportionate when co!pared to that e+ied for !ore serious cri!es, the (ourt ordered &ee!s freed because the Phi ippine aw, which prescribed the harsh pena ties, +io ated the ban on crue and unusua punish!ent. Justice 4dward &hite, 0oined by Justice = i+er &ende Ho !es, protested a%ainst 0udicia interference with the e%is ati+e function and a%ainst the e8pansi+e readin% of constitutiona protections.2 )see =8ford >uide to the /upre!e (ourt, 2nd ed., p. -0?0#-0?-,. /i8ty years after Weems, the 3/ /upre!e (ourt 1appeared to ha+e accepted the proposition that the 4i%hth "!end!ent @proscribes %ross y disproportionate punish!ents.2 )see 'he 4i%ht "!end!ent, Proportiona ity and the (han%in% Meanin% of Punish!ents, -22 Har+ard Law ;e+iew 9A0 )2009,,. More than 50 years after Weems, the 3/ /upre!e (ourt dec ared in Solem v. Helm, 4A6 3./. 255 )-9?6,7

'he 4i%hth "!end!ent dec ares7 148cessi+e bai sha not be reBuired, nor e8cessi+e fines i!posed, nor crue and unusua punish!ents inf icted.2 'he fina c ause prohibits not on y barbaric punish!ents, but a so sentences that are disproportionate to the cri!e co!!itted. .n Solem, He ! was con+icted under a /outh Cakota state court of utterin% a 1no account2 check for D-00. 'he !a8i!u! punish!ent for that cri!e wou d ordinari y ha+e been fi+e years i!prison!ent and a DE,000 fine. Howe+er, because of He !s prior fe ony con+ictions, the court sentenced He ! to ife i!prison!ent without possibi ity of paro e under /outh Cakotas recidi+ist statute. 'he 3/ /upre!e (ourt aid an ob0ecti+e criteria for deter!inin% whether the pena ty is proportiona to the offense7 . . . a courts proportiona ity ana ysis under the 4i%hth "!end!ent shou d be %uided by ob0ecti+e criteria, inc udin% )i, the %ra+ity of the offense and the harshness of the pena tyF )ii, the sentences i!posed on other cri!ina s in the sa!e 0urisdictionF and )iii, the sentences i!posed for co!!ission of the sa!e cri!e in other 0urisdictions. "pp yin% the criteria, the 3/ /upre!e (ourt ru ed that He !s sentence of ife i!prison!ent without possibi ity of paro e is si%nificant y disproportionate to his cri!e and is prohibited by the 4i%hth "!end!ent. 'he 3/ /upre!e (ourt noted, a!on% others, that7 )a, the pena ty of ife i!prison!ent without possibi ity of paro e is si%nificant y disproportionate to utterin% a 1no account2 check for 3/D-00F )b, the pena ty i!posed on He !s is the sa!e pena ty i!posed on !urder, and, on a second or third offense, treason, first#de%ree !ans au%hter, first#de%ree arson, and kidnappin%. 'he 3/ /upre!e (ourt obser+ed that there were certain offenses in which ife i!prison!ent was not !andatory, but !ay be i!posed at the discretion of the sentencin% 0ud%e, such as treason, first# de%ree !ans au%hter, first#de%ree arson, and kidnappin%F atte!pted !urder, p acin% an e8p osi+e de+ice on an aircraft, and first#de%ree rape on a second or third offenseF and any fe ony after three prior offenses. "ccordin% to the 3/ /upre!e (ourt, there was a ar%e %roup of +ery serious offenses for which ife i!prison!ent was not authori9ed, inc udin% a third offense of heroin dea in% or a%%ra+ated assau tF )c, it 1appears that He ! was treated !ore se+ere y than he wou d ha+e been in any other /tate.2 Solem was decided by a di+ided 3/ /upre!e (ourt )E#4,. /e+en years ater, the 3/ /upre!e (ourt ree8a!ined the issue in Harmelin vs. Michigan, E0- 3./. 9E5 )-99-,. Justice /ca ia de i+ered the opinion of the court, and he was 0oined by (hief Justice ;ehnBuist in conc udin% that the 4i%ht "!end!ent does not contain any proportiona ity %uarantee. Justice *ennedy, 0oined by Justice =(onnor and Justice /outer, concurred in certain parts of the /ca ia opinionF howe+er, on the proportiona ity issue, the *ennedy concurrin% opinion did not a%ree with the /ca ia opinion and instead conc uded that the 3/ /upre!e (ourts decisions reco%ni9e that the 14i%hth "!end!ents (rue and 3nusua Punish!ents ( ause enco!passes a narrow proportiona ity princip e that app ies to noncapita sentences.2 =n the other hand, Justices &hite, Marsha , /te+ens and < ack!uns dissented fro! the /ca ia opinion. .n su!, whi e the courts

opinion conc uded that the 4i%ht "!end!ent does not contain any proportiona ity princip e, on y two 0ustices )Justice /ca ia, who was the ponente, and (hief Justice ;ehnBuist, be ie+ed in that conc usion whi e se+en 0ustices be ie+ed that the 4i%ht "!end!ent enco!passes a proportiona ity princip e. 'he 3/ debate on what is the scope and app ication of the 4i%ht "!end!ent wi continue. " 2009 artic e pub ished in the Har+ard Law ;e+iew states7 1'he debate o+er the scope and app ication of the 4i%hth "!end!ent has o+er the past few decades focused increasin% y on the historica !eanin% of the words @crue and unusua .2 'he artic e conc udes that 1it is in no way c ear that a ban on disproportionate punish!ents wou d be contrary to the intention of the Gra!ers, as Justice /ca ia su%%ests in Har!e in.2 )see 'he 4i%ht "!end!ent, Proportiona ity and the (han%in% Meanin% of Punish!ents, -22 Har+ard Law ;e+iew 9A0 )2009,,. .f the constitutiona prohibition a%ainst crue and unusua punish!ent inc udes a proportiona ity princip e, how wi the pena ty of prision mayor for a husband who ki s the pet %o dfish and causes psycho o%ica stress to the wife be +iewed under the criteria aid down in SolemH 'he second test in Solem is the easiest to app y as it in+o +es a co!parison of pena ties i!posed on other cri!ina s. <ased on the ;e+ised Pena (ode, the pena ty i!posed on the %o dfish ki erIwife stress#causer )i.e., prision mayor, is the sa!e pena ty i!posed on cri!ina s con+icted of the fo owin% cri!es a%ainst persons and properties7 -. death caused in a tu!u tuous affray if the person who cases serious physica in0uries can be identified )art. 2E-,F 2. 6. 4. E. %i+in% assistance to suicide )art. 2E6,F infanticide co!!itted by a !other for the purpose of concea in% her dishonor )art. 2EE,F abortion )actin% without the consent of the wo!an, )art. 2EA,F certain types of intentiona !uti ation )art. 2A2,F

A. serious physica in0uries, if the in0ured person beco!es b ind, i!potent, insane or i!beci e )art. 2A6,F 5. ?. 9. certain types of robbery with +io ence co!!itted a%ainst persons )art. 294,F theft, if the +a ue of the thin% e8ceeds PhP-2,000 but does not e8ceed Php22,000 )art. 609,F s a+ery )art. 252,F

-0. corruption of !inors )art. 640,F and --. white s a+e trade )art. 64-,.

=n the other hand, cri!ina s con+icted of the fo owin% cri!es a%ainst persons and properties wi be sentenced to prision correcional )i.e., fro! A !onths, - day to A years, dependin% on the specific period pro+ided in the ;e+ised Pena (ode,, which is i%hter than the prision mayor that wi be i!posed on the %o dfish ki erIwife stress#causer7 -. 2. 6. intentiona abortion, if the wo!an consented )art. 2EA,F unintentiona abortion, if the abortion was caused by +io ence )art. 2E5,F abortion practiced by the !other )art. 2E?,F

4. serious physica in0uries if as a resu t7 )a, the in0ured person oses the use of speech, or the power to hear or s!e , or sha ha+e ost an eye, a hand, a foot, an ar!, or a e% or sha ha+e beco!e incapacitated for the work in which he was habitua y en%a%ed, or )b, the person in0ured sha ha+e beco!e defor!ed, or sha ha+e ost any other part of his body, or sha ha+e ost the use thereof, or sha ha+e been i or incapacitated for the perfor!ance of the work in which he as habitua y en%a%ed for a period of !ore than ninety days )art. 2A6,F E. certain types of robbery with +io ence co!!itted a%ainst persons )art. 294,F A. theft, if the +a ue of the thin% is !ore than PhPA,000 but does not e8ceed PhP-2,000 )art. 609,. Coes a pena ty of prision mayor for the %o dfish ki erIwife stress#causer pass the second test in SolemH Perhaps not, un ess it was a fancy %o dfish worth a fortuneJ " person who ki s an ordinary pet %o dfish !ay be he d iab e for !a icious !ischief, which is pena i9ed by the ;e+ised Pena (ode with arresto menor )i.e., - day to 60 days, or arresto mayor )i.e., - !onth, - day to A !onths,, dependin% on the +a ue of the property da!a%ed. &ere it not for the "ct, a husband who ki s the wifes pet %o dfish is e8e!pt fro! cri!ina iabi ity and can be he d ci+i y iab e on y. "rtic e 622 of the ;e+ised Pena (ode pro+ides7 ";'.(L4 662. Persons e8e!pt fro! cri!ina iabi ity. : Ko cri!ina , but on y ci+i iabi ity, sha resu t fro! the co!!ission of the cri!e of theft, swind in% or !a icious !ischief co!!itted or caused !utua y by the fo owin% persons7 -. /pouses, ascendants and descendants, or re ati+es by affinity in the sa!e ine.

2. 'he widowed spouse with respect to the property which be on%ed to the deceased spouse before the sa!e sha ha+e passed into the possession of anotherF and 6. <rothers and sisters and brothers#in# aw and sisters#in# aw, if i+in% to%ether.

'he e8e!ption estab ished by this artic e sha not be app icab e to stran%ers participatin% in the co!!ission of the cri!e.

'he ob0ecti+e of the "nti#$io ence "%ainst &o!en and 'heir (hi dren "ct of 2004 to protect wo!en and chi dren a%ainst +io ence is audab e. Men who co!!it +io ence a%ainst wo!en and chi dren certain y deser+e punish!ent. Howe+er, the ob0ecti+e of the aw !ay not be fu y rea i9ed if the aw %oes too far, thereby !akin% certain pro+isions thereof susceptib e to cha en%e on constitutiona %rounds.