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Depriest V. Commonwealth of Virginia

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Depriest V. Commonwealth of Virginia In the Court of Appeals _f Virginia Appeals from the Circuit Court of the City of Roanoke RECORDNOS. 1587-99-3, 1595-99-3 THROUGH1601-99-3, 1619-99-3, AND1920-99-3 ELVIS GENE DePRIEST, et al., Appellants, Vl COMMONWEALTH OF VIRGINIA, Appellee. BRIEF OF AMICUS CURIAE THE LIBERTY PROJECT IN SUPPORT OF APPELLANTS Julie M. Carpenter VSB No. 30421 Jared O. Freedman Elena N. Broder-Feldman JENNER & BLOCK 601 Thirteenth Street, N.W. Washington, DC 20005 Telephone: (202) 639-6000 Counsel for The Liberty Project BRIEF OF AMICUS CURIAE THE LIBERTY PROJECT IN SUPPORT OF APPELLANTS TABLE OF CONTENTS Page INTEREST OF AMICUS ....................................................... 1 STATEMENT OF THE CASE ................................................... 2 QUESTIONS PRESENTED ..................................................... 4 SUMMARY OF FACTS ........................................................ 4 INTRODUCTION AND SUMMARY OF ARGUMENT .............................. 4 ARGUMENT ................................................................. 6 I. Section 18.2-361A of the Virginia Code Violates the Fundamental Right to Privacy Implicitly Guaranteed by the Virginia Constitution ................ 6 II. Conviction under Section 18.2-29 of the Virginia Code in This Case Violates the Cruel and Unusual Punishments Clause of the Eighth Amendment of the United States Constitution and of Article I, Section 9 of the Virginia Constitution ....................................... 11 A. The Gravity of the Offense Does Not Justify the Authorized Penalty and the Consequences of Conviction ........................... 12 B. Sentences Imposed in Virginia for Other Crimes Demonstrate That the Punishment for Seeking or Engaging in Conduct Prohibited by Section 18.2-361A of the Virginia Code is Disproportionate to the Offense ..................................... 15 C. The Majority of Other Jurisdictions Impose Less Severe Sentences for the Same Crime ............................................... 17 CONCLUSION .............................................................. 20 -i- TABLE OF AUTHORITIES CASES Arizona v. Evans, 514 U.S. 1 (1995) ................................................................................ 7 Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995) ........................................................... 14 Bowers v. Hardwick, 478 U.S. 186 (1986) .............................................................. passim Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. Ct. App. 1996) ................................. 7, 8 Commonwealth v. Balthazar, 318 N.E.2d 478 (Mass. 1974) ..................................... 9, 18 Commonwealth v. Ricker, CR. Nos. 4960-62, 1986 WL 401746 (Va. Cir. Ct. 1986) .................................................................................................... 14 Doe v. Commonwealth's Attorney, 403 F. Supp. 1199 (E.D. Va. 1975), all'd, 425 U.S. 901 (1976) ........................................................................................ 12 Grvczan v. Montana, 942 P.2d 112 (Mont. 1997) ........................................................ 7, 9 Harmelin v. Michigan, 501 U.S. 957 (1991) ............................................................ 11, 15 Hawkins v. Hargett, 200 F.3d 1279, 1281-1283 (10th Cir. 1999) ................................... I 1 Jones v. Commonwealth, 185 Va. 335, 341-42 (1946), 385 S.E. 2d 444 (Va. 1946) ................................................................................. 14 Kentucky v. Wasson, 842 S.W.2d 487 (Ky. 1992) ....................................................... 7, 8 Louisiana v. Smith, 729 So. 2d 648 (La. Ct. App: 1999), review granted 746 So. 2d 612 (La. 1999) ............................................................ 9, 18 McClannan v. Chaplain, 116 S.E. 495 (Va. 1923) ........................................................... 6 Michi_,an Or_,anization for Human Rights v. Kelley, N. 88-815829 (Mich. Cir. Ct. July 9, 1990) .............................................................. 18 New Jersey v. Ciuffini, 395 A.2d 904 (N.J. Super. Ct. App. Div. 1978) ...................... l0 Pennsylvania v. Bonadio, 415 A.2d 47 (Pa. 1990) ........................................................... 9 Powell v. Georgia, 510 S.E.2d 18 (Ga. 1998) ............................................................... 7, 9 -ii- Reynolds v. Sims, 377 U.S. 533 (1964) I.......................................................................... 13 Santillo v. Commonwealth, 30 Va. App. 470, 481 (1999), 517 S.E. 2d 733 (Va. Ct. App. 1999) ........................................................................ 10 Solem v. Helm, 463 U.S. 277 (1983) ........................................................................ 11, 15 Texas v. Morales, 826 S.W.2d 201 (Tex. Ct. App. 1992), overruled on other grounds, 869 S.W.2d 941 (Tex. 1994) ....................................... 10 United States v. Certain Real Property and Premises Known as 38 Whalers Cove Drive, 954 F.2d 29 (2d Cir. 1992) ................................................................... 11 United States v. Kratsas, 45 F.3d 63 (4th Cir. 1995) ...................................................... 1l Wesberry v. Sanders, 376 U.S. 1 (1964) ......................................................................... 13 Williams v. Maryland, No. 98036031/CC- 1059 (Md. Cir. Ct. Baltimore City Jan. 20, 1999) ................................................................ 7 Young v. Commonwealth, 45 S.E. 327 (Va. 1903) .......................................................... 6 STATUTES AND CODES DC Law 10-257, S 5Ol(b), 42 DCR 53 (1995) .................................................................. 7 1998 R.I. Pub. Laws 98-H 7585 ......................................................................................... 7 Ala. Code § 13A-6-65 ..................................................................................................... 18 Ariz. Rev. Stat. Ann. § 13-1411 ...................................................................................... 18 Ariz. Rev. Stat. Ann. § 13-1412 ....................................................................................... 18 Ark Code Ann. § 5-14-122 ............................................................................................. 18 Fla. Star. Ann. § 800.02 .................................................................................................. 18 Idaho Code § 18-6605 ...................................................................................................... 18 Kan. Stat. Ann. § 21-3505 .............................................................................................. 18 La. Rev. Stat. Ann. § 14:89 ............................................................................................. 18 -iii- Mass. Gen. Laws Ann. oh. 272 § 34 ............................................................................... 18 Mich. Stat. Ann. § 750.158 ............................................................................................. 18 Minn. Stat. Ann. § 609.293 ............................................................................................. 18 Miss. Code Ann. § 97-29-59 ........................................................................................... 18 Mo. Ann. Stat. § 566.090 ................................................................................................ 18 N.C. Gen. Stat. § 14o177 ................................................................................................. 18 Nev. Rev. Star. Ann.§ 201.190 ......................................................................................... 7 Okla. Stat. tit. 21 § 886 .................................................................................................... 18 S.C. Code § 16-15-120 .................................................................................................... 18 Tex. Penal Code Ann. § 21.06 ........................................................................................ 18 Utah Code Ann. § 76-5-403 ............................................................................................ 18 Va. Code § 8.01-338 ....................................................................................................... 13 Va. Code § 18.2-10 ..................................................................................................... 5, 12 Va. Code § 18.2-29 .................................................................................................. passim Va. Code § 18.2-42 ......................................................................................................... 16 Va. Code § 18.2-51 ......................................................................................................... 16 Va. Code § 18.2-53 ......................................................................................................... 16 Va. Code § 18.2-56.1 ...................................................................................................... 16 Va. Code § 18.2-57 ......................................................................................................... 16 Va. Code § 18.2-57.2 ...................................................................................................... 16 Va. Code § 18.2-60.1 ...................................................................................................... 16 Va. Code § 18.2-60.3(C) ................................................................................................. 16 Va.
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