State v. Cooper
In State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983), the Court reversed a forty-five year sentence for robbery. 172 W. Va. at 274, 304 S.E.2d at 859.
The defendant, age nineteen, and an accomplice had beaten and robbed the victim.
In remanding the case to the trial court for re-sentencing, this Court observed that the defendant had only one prior arrest, which was for public intoxication.
Additionally, no weapon was involved in the crime. Id. at 271, 304 S.E.2d at 855.
The Court articulated the twofold analysis appropriate for the disproportionality challenge, as follows:
The first test is subjective and asks whether the sentence for the particular crime shocks the conscience of the court and society. If a sentence is so offensive that it cannot pass a societal and judicial sense of justice, the inquiry need not proceed further. When it cannot be said that a sentence shocks the conscience, a disproportionality challenge is guided by the objective test we spelled out in Syllabus Point 5 of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981):
In determining whether a given sentence violates the proportionality principle found in Article III, Section 5 of the West Virginia Constitution, consideration is given to the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a comparison with other offenses within the same jurisdiction.
(Id. at 272, 304 S.E.2d at 857.)
The Court established a so-called subjective test for determining whether a sentence violates the constitutional disproportionality principle.
That test questions whether a sentence offends "the conscience and offends the fundamental notions of human dignity."
Specifically, in Syllabus Point 5 of State v. Cooper, id., the Court stated:
Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity, thereby violating West Virginia Constitution, Article III, Section 5 that prohibits a penalty that is not proportionate to the character and degree of an offense.
Further, in State v. Cooper, id. the Court suggested that factors affecting the subjective impact of a sentence include the age of the defendant, statements of the victim, and evaluations and recommendations made in anticipation of sentencing.