Marsh was convicted of three counts of aggravated criminal
sexual abuse, a Class 2 felony punishable by a term of
imprisonment of not less than three and not more than seven
years. 730 Ill.Comp.Stat. 5/5-8-1(a)(5) (West 1992). The trial
court sentenced Marsh to the maximum sentence of seven years for
each offense. In addition, the court determined that consecutive
sentences were necessary to protect the public from Marsh's
criminal conduct, and ordered that the three seven-year sentences
be served consecutively rather than concurrently under 730
In his petition, Marsh asserts the following two claims: 1)
that the state trial court violated his constitutional rights to
due process and equal protection under the law when it imposed
the maximum sentence for each conviction and ordered the
sentences to run consecutively, and 2) that the trial court
imposed an excessive sentence in violation of the Eighth
Amendment to the United States Constitution. In support of those
claims, Marsh argues that the sentences were disproportionate to
his culpability and to sentences imposed in similar cases.
Marsh asserts his first claim under the Due Process and Equal
Protection Clauses of the Fourteenth Amendment. The Seventh
Circuit, however, has rejected similar attempts to challenge
sentences under either of these clauses because the "Eighth
Amendment explicitly addresses the constitutionality of
punishments." Holman v. Page, 95 F.3d 481, 485 (7th Cir. 1996),
cert. denied, 520 U.S. 1254, 117 S.Ct. 2414, 138 L.Ed.2d 179
(1997) (citing Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct.
807, 127 L.Ed.2d 114 (1994)). In Albright, the Supreme Court
held that "[w]here a particular amendment [to the Constitution]
`provides an explicit textual source of constitutional
protection' against a particular sort of government behavior,
`that Amendment, not the more generalized notion of substantive
due process, must be the guide for analyzing these claims.'"
Albright, 510 U.S. at 273, 114 S.Ct. 807 (quoting Graham v.
Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443
(1989)); see also Kernats v. O'Sullivan, 35 F.3d 1171, 1182
(7th Cir. 1994) (holding that "claims alleging substantive due
process violations often are more appropriately analyzed under
the more specific guarantees of the various provisions of the
Bill of Rights"). In light of that precedent, this court declines
to create a new way to challenge sentences under the Due Process
or Equal Protection Clauses.
Moreover, Illinois has an interest in severely punishing adults
who exploit juveniles for sexual gratification, both to deter
others of similar tendencies from committing these crimes and to
prevent repeat offenses. It has materially advanced that interest
by incarcerating Marsh for a substantial period of time. Some
rational connection between the sentence and the offense is all
the Constitution requires under the Due Process and Equal
Protection Clauses, and that requirement is clearly met here.
See Holman, 95 F.3d at 485-86 (citing Chapman v. United
States, 500 U.S. 453, 465, 111 S.Ct. 1919, 114 L.Ed.2d 524
Marsh's next claim is brought under the Eighth Amendment, which
is the proper avenue for such a challenge. Nevertheless, Marsh's
argument that his sentence was excessive and violated his right
to be free from cruel and unusual punishment is unpersuasive.
Federal courts are bound to defer to the prerogative of the state
legislature when reviewing the appropriateness of a petitioner's
sentence. Webster v. DeTella, 965 F. Supp. 1124, 1133 (N.D.Ill.
1997). A federal court normally will not review a state
sentencing determination that falls within the sentencing range
provided by a valid state statute. See Koo v. McBride,
124 F.3d 869, 875 (7th Cir. 1997) (citing Gleason v. Welborn,
42 F.3d 1107, 1112 (7th Cir. 1994), cert. denied, 514 U.S. 1109, 115
S.Ct. 1961, 131 L.Ed.2d 852 (1995)). In fact, federal courts in
habeas proceedings will only review a state sentencing
is "grossly disproportionate" to the crime. Koo, 124 F.3d at
875 (citing Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680,
115 L.Ed.2d 836 (1991)).
In this case, Marsh's sentences fell within the statutory range
for each offense. 730 Ill.Comp.Stat. 5/5-8-1(a)(5). In addition,
the court specifically found that Marsh posed a risk to the
public and to the young people of that community. Based on that
finding, the court was authorized to order the sentences to run
consecutively under Illinois law. 730 Ill. Comp.Stat. 5/5-8-4(b).
A review of the record shows that the court considered all the
relevant factors in aggravation and mitigation. Marsh was
thirty-five years old when he committed a total three counts of
aggravated criminal sexual abuse against two adolescent victims,
aged fifteen and sixteen. Although Marsh was sorry and willing to
seek treatment, he blamed his behavior largely on substance abuse
and depression even though his own witness, Dr. Arnold Miller,
testified that his behavior "fit the pattern . . . of . . .
pedophile orientation." In addition, although Marsh had never
been convicted of a felony, he had an extensive history of
alcohol-related offenses. In fact, while the charges at hand were
pending and during a period of home confinement for one of his
alcohol-related offenses, Marsh allowed one of the victims and
the victim's minor friends to stay at his home. Moreover, Marsh,
who was a social worker, admitted smoking marijuana with some of
the students he counseled. Under these circumstances, this court
cannot find that the state court unreasonably concluded that
Marsh's crimes called for maximum sentences under the statute and
that Marsh posed a threat to the community sufficient to warrant
the imposition of consecutive sentences.
Marsh also takes issue with the sentencing court's
classification of him as a pedophile. Marsh asserts that
"pedophile" refers to adults who are sexually attracted to
children thirteen and younger, whereas his victims were fifteen
and sixteen years old. The correct term, according to Marsh, is
"ephebophile," which refers to an adult who has sex with a child
between the ages of thirteen and eighteen. Marsh may be right
that calling him an ephebophile would have been more accurate
than calling him a pedophile. However, whatever the court labeled
Marsh's problem, it knew the true ages of the victims, which is
what Marsh insists is the important difference between himself
and true pedophiles. What matters is that the court did not
sentence Marsh under the mistaken belief that the victims were
thirteen or younger, even if the label the court used might have
suggested otherwise to someone unfamiliar with the facts of the
Along similar lines, Marsh also complains that his sentence
violates the Eighth Amendment because it is disproportionate to
sentences others have received for the same offense, citing
Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001, 77 L.Ed.2d
637 (1983). The import of Solem, however, was substantially
reduced by the Supreme Court's opinion in Harmelin v. Michigan,
501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). In
Harmelin, the Court held that a mandatory life sentence for
possession of more than 650 grams of cocaine did not violate the
Eighth Amendment's prohibition of cruel and unusual punishment.
Harmelin, 501 U.S. at 994, 111 S.Ct. 2680. In that case, seven
justices favored some constitutional proportionality requirement,
but five justices found that the proportionality guarantee in
Solem went too far. Three justices indicated that the Eighth
Amendment does not require strict proportionality between crime
and sentence, but does forbid sentences that are "grossly
disproportionate" to the crime. Harmelin, 501 U.S. at 1001, 111
S.Ct. 2680. The remaining two justices indicated that the Eighth
Amendment contains no proportionality guarantee at all.
Harmelin, 501 U.S. at 965, 111 S.Ct. 2680.
Although there was no majority opinion in Harmelin, the
Seventh Circuit seems to
have adopted Justice Kennedy's position that the Eighth Amendment
forbids only sentences that are grossly disproportionate. United
States v. Jones, 950 F.2d 1309, 1317 (7th Cir. 1991), cert.
denied, 503 U.S. 996, 112 S.Ct. 1700, 118 L.Ed.2d 410 (1992)
(citing Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680 (Kennedy, J,
concurring)); see also James v. Milwaukee County, 956 F.2d 696,
699 (7th Cir. 1992), cert. denied, 506 U.S. 818, 113 S.Ct. 63,
121 L.Ed.2d 31 (1992) (citing Harmelin, 501 U.S. at 1001, 111
S.Ct. 2680 (Kennedy, J, concurring)). In this case, however,
Marsh has not established that his sentence was disproportionate
to the crimes he committed. Under Illinois law, a trial court has
"wide latitude in determining and weighing factors in mitigation
or aggravation when . . . imposing sentence." People v. Madura,
257 Ill. App.3d 735, 195 Ill.Dec. 916, 629 N.E.2d 224, 228 (1994).
Moreover, as the Seventh Circuit has noted, "Illinois' sentencing
scheme might indeed permit another defendant guilty of the same
crime to receive a lesser sentence. Yet that is no reason for
altering [petitioner's] punishment. . . . Judicial discretion
naturally leads to discrepancies in sentencing." Holman, 95
F.3d at 485. Given the discretion allowed trial judges during
sentencing, the court cannot find that some disparity between
Marsh's sentence and those imposed on others convicted of similar
offenses constitutes a constitutional violation. A twenty-one
year sentence for three counts of criminal sexual abuse not
involving serious physical injury is certainly severe, but it can
hardly be considered so extreme as to violate the limits that the
Constitution places on the severity of prison sentences.
Accordingly, habeas corpus relief will not be granted.
For the foregoing reasons, the court DENIES Marsh's Petition
for Writ of Habeas Corpus [# 1]. The clerk is directed to enter
judgment in favor of Respondent and against Petitioner.
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