I am being told that the defense attorney in a case going to trial next week is planning to file a motion stating that the 1st degree punishment range is too vague. Apparently he got the idea from an article that was written about the changes in the federal sentencing guidelines which apparently were criticized for being to specific. I'm just wondering if any of you have heard about this or seen this before.

The case you are thinking of is U.S. v Booker, 125 S.Ct. 738 (U.S. 2005) Jan 12, 2005. The defense lawyer is misunderstanding the case, I believe. The case stands for the proposition that the Federal Sentencing Guidelines violate the VI Amendment right to trial by jury in that they allow Judges to engage in an upward departure from the guidelines in the absence of a jury finding on the fact or facts which support the departure. Vagueness really is not a player in the decision.

On Friday I received a copy of the defense MOTION TO HOLD TEXAS SENTENCING SYSTEM FOR FIRST DEGREE FELONIES UNCONSTITUTIONAL. The defendant is charged with aggravated assault and sexual assault but since he has been to the pen before (for the same thing) then he is enhanced to 1st degree.

The motion says that because there is such a wide punishment range the fact that there are no guidelines for the sentencing authority to consider when deciding on punishment renders the imposition of any sentence arbitrary and capricious and a violation of the 8th amendment.

The legislature could, if it wanted to, impose a mandatory life sentence for a first time non-violent felony. Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680 (1991). He should be happy the Legislature was good to him.

Moreover, a vagueness claim does not seem to make sense in a non-death-penalty case. There are not "elements" that need to be laid out at punishment. Compare Rogers, 991 S.W.2d at 265 ("by and large there are no discreet factual issues at the punishment stage.... Rather, '[d]eciding what punishment to assess is a normative process, not intrinsically factbound' ") with Maynard v. Cartwright, 108 S.Ct. 1853, at 1858(1988) ("Claims of vagueness directed at aggravating circumstances defined in capital punishment statutes are analyzed under the Eighth Amendment and characteristically assert that the challenged provision fails adequately to inform juries what they must find to impose the death penalty and as a result leaves them and appellate courts with the kind of open-ended discretion which was held invalid in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).") and Lockett v. Ohio, 438 U.S. 586, 603, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion) ("legislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases").

The Seventh Circuit has repeatedly held that Eighth Amendment vagueness inquiries are an anomaly of the Supreme Court's death penalty jurisprudence, and are not applicable in noncapital cases. See Holman, 95 F.3d at 487; Barnhill, 42 F.3d at 1079; Peeples, 739 F.2d at 264 - 65 (all life imprisonment cases)

I think your guy needs to wait until he gets a sentence before he has anything to complain about -- he has to show the statute is unconstitutional as applied to him. See Solem v. Helm 103 S.Ct. 3001, 3014 n.26 (1983) ("No one suggests that § 22-7-8 may not be applied constitutionally to fourth-time heroin dealers or other violent criminals. Thus we do not question the legislature's judgment. Unlike in Rummel, a lesser sentence here could have been entirely consistent with both the statute and the Eighth Amendment.").

BTW, have you noticed that about ever other
Law and Order" or The Practice revovles around their states' having very tight sentencing ranges. Every time they have a story about how awful it would be to send someone to prison for "25 to life" for a mercy killing I thank goodness the Texas Legislature was smart enough to give juries more discretion.