[ OUR OPINION ]
Flawed sentence shows
need for law change
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Hawaii law calls for a sentence of life without parole for the slaying of a police officer, classified as first-degree murder. A second-degree murder conviction normally leads to a sentence of life with the possibility of parole. Mark shot Officer Glen Gaspar at a Kapolei ice cream store in March 2003. However, the jury returned a second-degree murder verdict in December, apparently failing to find, beyond a reasonable doubt, that Mark realized plainclothes Officer Gaspar was a policeman.
Sentencing was delayed while Mark was tried again on a charge of first-degree attempted murder, which also carries a sentence of life without parole, for pointing a gun at Gaspar's partner, Officer Calvin Sung. The first jury was locked in disagreement about that charge, and a second jury instead convicted him last week of attempted assault.
Hawaii law allows a life-without-parole sentence of a person convicted of second-degree murder if the killing "was especially heinous, atrocious or cruel, manifesting exceptional depravity." In imposing Mark's sentence, Ahn cited his criminal record, drug abuse and danger to society, calling his behavior "inexcusable."
Even if Ahn's findings -- "sentencing facts" -- met the law's requirements, which is questionable, her stiff sentence of Mark appears to exceed a judge's authority, according to a Supreme Court decision in June. In a 5-4 ruling, the court held that Washington state's sentencing guidelines violated the Sixth Amendment right to a jury trial because they authorized a judge, instead of a jury, to consider factors used to increase the defendant's punishment. It ruled that a jury must decide "any fact which increases the penalty for a crime."
Two weeks ago, the 9th U.S. Circuit Court of Appeals, whose jurisdiction includes Hawaii, overturned the sentencing of a Montana drug defendant. The appeals court, noting that the high court's ruling "worked a sea change in the body of existing law," said the guidelines could be corrected by the submission to the jury of sentencing facts during the trial or separating the jury trial into guilt and sentencing phases. The two-tiered system now is confined to death penalty cases in federal court and in states that have capital punishment.
Dissenting Justice Sandra Day O'Connor accurately asserted that the decision in Blakely vs. Washington "looks like a No. 10 earthquake to me." Indeed, many judges have ruled since the decision that upward judicial latitude in federal sentencing guidelines is unconstitutional. The Supreme Court has scheduled an unusual October hearing to address the status of the federal guidelines, but the court is unlikely to reverse a decision made so recently.
