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SUPREME COURT OF THE UNITED STATES
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No. 89-7272
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1991.SCT.43664 <http://www.versuslaw.com>; 501 U.S. 957, 111 S.
Ct. 2680, 115 L. Ed. 2d 836, 59 U.S.L.W. 4839
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decided: June 27, 1991.
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RONALD ALLEN HARMELIN,
PETITIONER
v.
MICHIGAN
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ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
MICHIGAN.
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Scalia, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Part V, in which Rehnquist, C. J.,
and O'connor, Kennedy, and Souter, JJ., joined, and an opinion with
respect to Parts I, II, III, and IV, in which Rehnquist, C. J., joined.
Kennedy, J., filed an opinion concurring in part and concurring in the
judgment, in which O'connor and Souter, JJ., joined. White, J., filed a
dissenting opinion, in which Blackmun, and Stevens, JJ., joined. Marshall,
J., filed a dissenting opinion. Stevens, J., filed a dissenting opinion,
in which Blackmun, J., joined.
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Author: Scalia
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JUSTICE SCALIA announced the judgment of the Court and delivered the
opinion of the Court with respect to Part V, and an opinion with respect
to Parts I, II, III, and IV, in which THE CHIEF JUSTICE
joins.
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Petitioner was convicted of possessing 672 grams of cocaine and
sentenced to a mandatory term of life in prison without possibility of
parole.*fn1 The Michigan Court of Appeals initially
reversed his conviction because evidence supporting it had been obtained
in violation of the Michigan Constitution. 176 Mich. App. 524, 440 N. W.
2d 75 (1989). On petition for rehearing, the Court of Appeals vacated its
prior decision and affirmed petitioner's sentence, rejecting his argument
that the sentence was "cruel and unusual" within the meaning of the Eighth
Amendment. Id., at 535, 440 N. W. 2d, at 80. The Michigan Supreme Court
denied leave to appeal, 434 Mich. 863 (1990), and we granted certiorari.
495 U.S. (1990).
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Petitioner claims that his sentence is unconstitutionally "cruel and
unusual" for two reasons. First, because it is "significantly
disproportionate" to the crime he committed. Second, because the
sentencing judge was statutorily required to impose it, without taking
into account the particularized circumstances of the crime and of the
criminal.
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I
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A
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The Eighth Amendment, which applies against the States by virtue of
the Fourteenth Amendment, see Robinson v. California, 370 U.S.
660 (1962), provides: "Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted."
In Rummel v. Estelle, 445 U.S. 263 (1980), we held
that it did not constitute "cruel and unusual punishment" to impose a life
sentence, under a recidivist statute, upon a defendant who had been
convicted, successively, of fraudulent use of a credit card to obtain $80
worth of goods or services, passing a forged check in the amount of
$28.36, and obtaining $120.75 by false pretenses. We said that "one could
argue without fear of contradiction by any decision of this Court that for
crimes concededly classified and classifiable as felonies, that is, as
punishable by significant terms of imprisonment in a state penitentiary,
the length of the sentence actually imposed is purely a matter of
legislative prerogative." Id., at 274. We specifically rejected the
proposition asserted by the dissent, id., at 295 (Powell, J.), that
unconstitutional disproportionality could be established by weighing three
factors: (1) gravity of the offense compared to severity of the penalty,
(2) penalties imposed within the same jurisdiction for similar crimes, and
(3) penalties imposed in other jurisdictions for the same offense. Id., at
281-282, and n. 27. A footnote in the opinion, however, said: "This is not
to say that a proportionality principle would not come into play in the
extreme example mentioned by the dissent, . . . if a legislature made
overtime parking a felony punishable by life imprisonment." Id., at 274,
n. 11.
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Two years later, in Hutto v. Davis, 454 U.S. 370
(1982), we similarly rejected an Eighth Amendment challenge to a prison
term of 40 years and fine of $20,000 for possession and distribution of
approximately nine ounces of marijuana. We thought that result so clear in
light of Rummel that our per curiam opinion said the Fourth Circuit, in
sustaining the constitutional challenge, "could be viewed as having
ignored, consciously or unconsciously, the hierarchy of the federal court
system," which could not be tolerated "unless we wish anarchy to prevail,"
454 U. S ., at 374-375. And we again explicitly rejected application of
the three factors discussed in the Rummel dissent.*fn2 See 454 U.S., at 373-374, and n. 2. However, whereas in Rummel we had said that
successful proportionality challenges outside the context of capital
punishment "have been exceedingly rare," 445 U.S., at 272 (discussing as the solitary example Weems v. United States,
217 U.S. 349 (1910), which we explained as involving
punishment of a "unique nature," 445 U.S., at 274),
in Davis we misdescribed Rummel as having said that "'successful
challenges . . .' should be 'exceedingly rare,'" 454 U.S., at
374 (emphasis added), and at that point inserted a reference to
and description of the Rummel "overtime parking" footnote, 454
U.S., at 374, n. 3. The content of that footnote was
imperceptibly (but, in the event, ominously) expanded: Rummel 's "not
[saying] that a proportionality principle would not come into play" in the
fanciful parking example, 445 U.S., at 274, n. 11,
became "noting . . . that there could be situations in which the
proportionality principle would come into play, such as" the fanciful
parking example, Davis, supra, at 374, n. 3 (emphasis added). This
combination of expanded text plus expanded footnote permitted the
inference that gross disproportionality was an example of the "exceedingly
rare" situations in which Eighth Amendment challenges "should be"
successful. Indeed, one might say that it positively invited that
inference, were that not incompatible with the sharp per curiam reversal
of the Fourth Circuit's finding that 40 years for possession and
distribution of nine ounces of marijuana was grossly disproportionate and
therefore unconstitutional.
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A year and a half after Davis we uttered what has been our last word
on this subject to date. Solem v. Helm, 463 U.S. 277
(1983), set aside under the Eighth Amendment, because it was
disproportionate, a sentence of life imprisonment without possibility of
parole, imposed under a South Dakota recividist statute for successive
offenses that included three convictions of third-degree burglary, one of
obtaining money by false pretenses, one of grand larceny, one of
third-offense driving while intoxicated, and one of writing a "no account"
check with intent to defraud. In the Solem account, Weems no longer
involved punishment of a "unique nature," Rummel, supra, at 274, but was
the "leading case," Solem, 463 U.S., at 287,
exemplifying the "general principle of proportionality," id., at 288,
which was "deeply rooted and frequently repeated in common-law
jurisprudence," id., at 284, had been embodied in the English Bill of
Rights "in language that was later adopted in the Eighth Amendment," id.,
at 285, and had been "recognized explicitly in this Court for almost a
century," id., at 286. The most recent of those "recognitions" were the
"overtime parking" footnotes in Rummel and Davis, 463 U.S., at
288. As for the statement in Rummel that "one could argue
without fear of contradiction by any decision of this Court that for
crimes concededly classified and classifiable as felonies . . . the length
of the sentence actually imposed is purely a matter of legislative
prerogative," Rummel, supra, at 274: according to Solem, the really
important words in that passage were "' one could argue,'" 463
U.S., at 288, n. 14 (emphasis added by Solem). "The Court [in
Rummel ] . . . merely recognized that the argument was possible. To the
extent that the State . . . makes the argument here, we find it
meritless." Id., at 289, n. 14. (Of course Rummel had not said merely "one
could argue," but "one could argue without fear of contradiction by any
decision of this Court.") Having decreed that a general principle of
disproportionality exists, the Court used as the criterion for its
application the three-factor test that had been explicitly rejected in
both Rummel and Davis. 463 U. S ., at 291-292. Those cases, the Court
said, merely "indicated [that] no one factor will be dispositive in a
given case," id., at 291, n. 17 -- though Davis had expressly,
approvingly, and quite correctly, described Rummel as having "disapproved
each of [the] objective factors," 454 U.S., at 373
(emphasis added). See Rummel, 445 U.S., at 281-282,
and n. 27.
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It should be apparent from the above discussion that our 5-to-4
decision eight years ago in Solem was scarcely the expression of clear and
well accepted constitutional law. We have long recognized, of course, that
the doctrine of stare decisis is less rigid in its application to
constitutional precedents, see Payne v. Tennessee, ante, at , (slip op.,
at 19); Smith v. Allwright, 321 U.S. 649, 665, and n.
10 (1944); Mitchell v. W. T. Grant Co., 416 U.S. 600,
627-628 (1974) (Powell, J., concurring); Burnet v. Coronado Oil & Gas
Co., 285 U.S. 393, 406-408 (1932) (Brandeis, J.,
dissenting), and we think that to be especially true of a constitutional
precedent that is both recent and in apparent tension with other
decisions. Accordingly, we have addressed anew, and in greater detail, the
question whether the Eighth Amendment contains a proportionality guarantee
-- with particular attention to the background of the Eighth Amendment
(which Solem discussed in only two pages, see 463 U.S., at
284-286) and to the understanding of the Eighth Amendment
before the end of the 19th century (which Solem discussed not at all). We
conclude from this examination that Solem was simply wrong; the Eighth
Amendment contains no proportionality guarantee.
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B
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Solem based its conclusion principally upon the proposition that a
right to be free from disproportionate punishments was embodied within the
"cruell and unusuall Punishments" provision of the English Declaration of
Rights of 1689, and was incorporated, with that language, in the Eighth
Amendment. There is no doubt that the Declaration of Rights is the
antecedent of our constitutional text. (This document was promulgated in
February 1689 and was enacted into law as the Bill of Rights, 1 Wm. &
Mary, Sess. 2, ch. 2, in December 1689. See Sources of Our Liberties
222-223 (R. Perry & J. Cooper eds. 1959); L. Schwoerer, Declaration of
Rights, 1689 279, 295-298 (1981).) In 1791, five State Constitutions
prohibited "cruel or unusual punishments," see Del. Declaration of Rights,
§ 16 (1776); Md. Declaration of Rights, § XXII (1776); Mass. Declaration
of Rights, Art. XXVI (1780); N. C. Declaration of Rights § X (1776); N. H.
Bill of Rights, § XXXIII (1784), and two prohibited "cruel" punishments,
Pa. Const., Art. IX, § 13 (1790); S. C. Const., Art. IX, § 4 (1790). The
new Federal Bill of Rights, however, tracked Virginia's prohibition of
"cruel and unusual punishments," see Va. Declaration of Rights § 9 (1776),
which most closely followed the English provision. In fact, the entire
text of the Eighth Amendment is taken almost verbatim from the English
Declaration of Rights, which provided "that excessive Baile ought not to
be required nor excessive Fines imposed nor cruell and unusuall
Punishments inflicted."
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Perhaps the Americans of 1791 understood the Declaration's language
precisely as the Englishmen of 1689 did -- though as we shall discuss
later, that seems unlikely. Or perhaps the colonists meant to incorporate
the content of that antecedent by reference, whatever the content might
have been. Solem suggested something like this, arguing that since
Americans claimed "all the rights of English subjects," "their use of the
language of the English Bill of Rights is convincing proof that they
intended to provide at least the same protection," 463 U.S., at
286. Thus, not only is the original meaning of the 1689
Declaration of Rights relevant, but also the circumstances of its
enactment, insofar as they display the particular "rights of English
subjects" it was designed to vindicate.
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As Solem observed, id., at 284-285, the principle of proportionality
was familiar to English law at the time the Declaration of Rights was
drafted. The Magna Carta provided that "[a] free man shall not be fined
for a small offence, except in proportion to the measure of the offense;
and for a great offence he shall be fined in proportion to the magnitude
of the offence, saving his freehold . . . ." Art. 20 (translated in
Sources of our Liberties, supra, at 15). When imprisonment supplemented
fines as a method of punishment, courts apparently applied the
proportionality principle while sentencing. Hodges v. Humkin, 2 Bulst.
139, 140, 80 Eng. Rep. 1015, 1016 (K. B. 1615) (Croke, J.) ("Imprisonment
ought always to be according to the quality of the offence"). Despite this
familiarity, the drafters of the Declaration of Rights did not explicitly
prohibit "disproportionate" or "excessive" punishments. Instead, they
prohibited punishments that were "cruell and unusuall." The Solem court
simply assumed, with no analysis, that the one included the other. 463 U.S., at 285. As a textual matter, of course, it
does not: a disproportionate punishment can perhaps always be considered
"cruel," but it will not always be (as the text also requires) "unusual."
The error of Solem 's assumption is confirmed by the historical context
and contemporaneous understanding of the English guarantee.
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Most historians agree that the "cruell and unusuall Punishments"
provision of the English Declaration of Rights was prompted by the abuses
attributed to the infamous Lord Chief Justice Jeffreys of the King's Bench
during the Stuart reign of James II. See, e. g., Schwoerer, supra, at 93;
4 W. Blackstone, Commentaries *372. They do not agree, however, on which
abuses. See Ingraham v. Wright, 430 U.S. 651, 664-665
(1977); Furman v. Georgia, 408 U.S. 238, 317-319
(1972) (MARSHALL, J. concurring). Jeffreys is best known for presiding
over the "Bloody Assizes" following the Duke of Monmouth's abortive
rebellion in 1685; a special Commission led by Jeffreys tried, convicted,
and executed hundreds of suspected insurgents. Some have attributed the
Declaration of Rights provision to popular outrage against those
proceedings. E. g., Sources of Our Liberties, supra, at 236, n. 103; Note,
What Is Cruel and Unusual Punishment, 24 Harv. L. Rev. 54, 55, n. 2
(1910); see also 3 J. Story, Commentaries on the Constitution of the
United States § 1896 (1833).*fn3
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But the vicious punishments for treason decreed in the Bloody Assizes
(drawing and quartering, burning of women felons, beheading, disembowling,
etc.) were common in that period -- indeed, they were specifically
authorized by law and remained so for many years afterwards. See Granucci,
"Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57
Calif. L. Rev. 839, 855-856 (1969); 4 Blackstone, supra, at *369-370.
Thus, recently historians have argued, and the best historical evidence
suggests, that it was not Jeffreys' management of the Bloody Assizes that
led to the Declaration of Rights provision, but rather the arbitrary
sentencing power he had exercised in administering justice from the King's
Bench, particularly when punishing a notorious perjurer. See Granucci,
supra, at 855-860; Schwoerer, supra, at 92-93. Accord, 1 J. Stephen, A
History of the Criminal Law of England 490 (1883); 1 J. Chitty, Criminal
Law 712 (5th Am. ed. 1847). Jeffreys was widely accused of "inventing"
special penalties for the King's enemies, penalties that were not
authorized by common-law precedent or statute. Letter to a Gentleman at
Brussels, giving an account of the people's revolt (Windsor Dec. 2, 1688),
cited in L. Schwoerer, The Declaration of Rights, 1689, p. 93 n. 207
(1981).
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The preamble to the Declaration of Rights, a sort of indictment of
James II that calls to mind the preface to our own Declaration of
Independence, specifically referred to illegal sentences and King's Bench
proceedings.
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Whereas the late King James the Second, by the Assistance of diverse
Evill Counselors Judges and Ministers imployed by him did endeavour to
subvert and extirpate the Protestant Religion, and the Lawes and Liberties
of this Kingdome.
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"By Prosecutions in the Court of King's Bench for Matters and Causes
cognizable only in Parlyament and by diverse other Arbitrary and Illegall
Courses.
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"Excessive Baile hath beene required of Persons committed in Criminall
Cases to elude the Benefit of the Lawes made for the Liberty of the
Subjects.
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"And excessive Fines have been imposed.
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"And illegall and cruell Punishments have been
inflicted.
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"All which are utterly and directly contrary to the knowne Lawes and
Statutes and Freedome of this Realme." 1 Wm. & Mary, Sess. 2, ch. 2
(1689).
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The only recorded contemporaneous interpretation of the "cruell and
unusuall Punishments" clause confirms the focus upon Jeffreys' King's
Bench activities, and upon the illegality rather than the
disproportionality of his sentences. In 1685 Titus Oates, a Protestant
cleric whose false accusations had caused the execution of 15 prominent
Catholics for allegedly organizing a "Popish Plot" to overthrow King
Charles II in 1679, was tried and convicted before the King's Bench for
perjury. Oates' crime, "bearing false witness against another, with an
express premeditated design to take away his life, so as the innocent
person be condemned and executed" had, at one time, been treated as a
species of murder, and punished with death. 4 Blackstone, supra, at *196.
At sentencing, Jeffreys complained that death was no longer available as a
penalty and lamented that "a proportionable punishment of that crime can
scarce by our law, as it now stands, be inflicted upon him." Second Trial
of Titus Oates, 10 How. St. Tr. 1227, 1314 (K. B. 1685). The law would not
stand in the way, however. The judges met, and, according to Jeffreys,
were in unanimous agreement that "crimes of this nature are left to be
punished according to the discretion of this court, so far as that the
judgment extend not to life or member." Ibid. Another Justice taunted
Oates that "we have taken special care of you," see id., at 1316. The
court then decreed that he should pay a fine of "1000 marks upon each
Indictment," that he should be "stript of [his] Canonical Habits," that he
should stand in the pillory annually at certain specified times and
places, that on May 20 he should be whipped by "the common hangman" "from
Aldgate to Newgate," that he should be similarly whipped on May 22 "from
Newgate to Tyburn," and that he should be imprisoned for life.
Ibid.
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"The judges, as they believed, sentenced Oates to be scourged to
death." 2 T. Macaulay, History of England 204 (1899) (hereinafter
Macaulay). Accord, D. Ogg, England In The Reigns of James II and William
III 154-155 (1984). Oates would not die, however. Four years later, and
several months after the Declaration of Rights, he petitioned the House of
Lords to set aside his sentence as illegal. 6 T. Macaulay 138-141. "Not a
single peer ventured to affirm that the judgment was legal; but much was
said about the odious character of the appellant" and the Lords affirmed
the judgment. 6 id., at 140-141. A minority of the Lords dissented,
however, and their statement sheds light on the meaning of the "cruell and
unusuall Punishments" clause:
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"1st, The King's Bench, being a Temporal Court, made it a Part of the
Judgment, That Titus Oates, being a Clerk, should, for his said Perjuries,
be divested of his canonical and priestly Habit . . . ; which is a Matter
wholly out of their Power, belonging to the Ecclesiastical Courts
only.
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"2dly, Said Judgments are barbarous, inhuman, and unchristian; and
there is no Precedent to warrant the Punishments of whipping and
committing to Prison for Life, for the Crime of Perjury; which yet were
but Part of the Punishments inflicted upon him.
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"4thly, This will be an Encouragement and Allowance for giving the
like cruel, barbarous and illegal Judgments hereafter, unless this
Judgment be reversed.
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"5thly, . . . That the said Judgments were contrary to Law and ancient
Practice, and therefore erroneous, and ought to be reversed.
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"6thly, Because it is contrary to the Declaration on the Twelfth of
February last . . . that excessive Bail ought not to be required, nor
excessive Fines imposed, nor cruel nor unusual Punishments afflicted." 1
Journals of the House of Lords 367 (May 31, 1689), quoted in Second Trial
of Titus Oates, supra, at 1325.
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Oates' cause then aroused support in the House of Commons, whose
members proceeded to pass a bill to annul the sentence. A "free
conference" was ultimately convened in which representatives of the House
of Commons attempted to persuade the Lords to reverse their position. See
6 Macaulay 143-145. Though this attempt was not successful, the Commons'
report of the conference confirms that the "cruell and unusuall
Punishments" clause was directed at the Oates case (among others) in
particular, and at illegality rather than disproportionality of punishment
in general.
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"The Commons had hoped, That, after the Declaration [of Rights]
presented to their Majesties upon their accepting the Crown (wherein their
Lordships had joined with the Commons in complaining of the cruel and
illegal Punishments of the last Reign; and in asserting it to be the
ancient Right of the People of England that they should not be subjected
to cruel and unusual Punishments ; and that no Judgments to the Prejudice
of the People in that kind ought in any wise to be drawn into Consequence,
or Example); and after this Declaration had been so lately renewed in that
Part of the Bill of Rights which the Lords have agreed to; they should not
have seen Judgments of this Nature affirmed, and been put under a
Necessity of sending up a Bill for reversing them; since those
Declarations will not only be useless, but of pernicious Consequence to
the People, if, so soon after, such Judgments as these stand affirmed, and
be not taken as cruel and illegal within the Meaning of those
Declarations.
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" That the Commons had a particular Regard to these Judgments, amongst
others, when that Declaration was first made; and must insist upon it,
That they are erroneous, cruel, illegal, and of ill Example to future Ages
. . . .
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"That it seemed no less plain, That the Judgments were cruel, and of
ill Example to future Ages.
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"That it was surely of ill Example for a Temporal Court to give
Judgment, 'That a Clerk be divested of his Canonical Habits; and continue
so divested during his Life.'
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"That it was of ill example, and illegal, That a Judgment of perpetual
Imprisonment should be given in a Case, where there is no express Law to
warrant it.
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"It was of ill Example, and unusual, That an Englishman should be
exposed upon a Pillory, so many times a Year, during his
Life.
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"That it was illegal, cruel, and of dangerous Example, That a Freeman
should be whipped in such a barbarous manner, as, in Probability, would
determine in Death.
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"That this was avowed, when these Judgments were given by the then
Lord Chief Justice of the King's Bench; who declared; 'That all the Judges
had met; and unanimously agreed, That where the Subject was prosecuted at
Common Law for a Misdemeanor, it was in the Discretion of the Court, to
inflict what Punishment they pleased, not extending to Life, or
Member.'
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"That as soon as they had set up this Pretence to a discretionary
Power, it was observable how they put it in Practice, not only in this,
but in other Cases, and for other Offences, by inflicting such cruel and
ignominious Punishments, as will be agreed to be far worse than Death
itself to any Man who has a sense of Honour or Shame . . . ." 10 Journal
of the House of Commons 247 (Aug. 2, 1689) (emphasis added).
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In all these contemporaneous discussions, as in the prologue of the
Declaration, a punishment is not considered objectionable because it is
disproportionate,*fn4 but because it is "out of [the Judges']
Power," "contrary to Law and ancient practice," without "Precedents" or
"express Law to warrant," "unusual," "illegal," or imposed by "Pretence to
a discretionary Power." Accord, 2 Macaulay 204 (observing that Oates'
punishment, while deserved, was unjustified by law). Moreover, the phrase
"cruell and unusuall" is treated as interchangeable with "cruel and
illegal." In other words, the "illegall and cruell Punishments" of the
Declaration's prologue, see supra, at 9, are the same thing as the "cruell
and unusuall Punishments" of its body. (JUSTICE MARSHALL's concurrence in
Furman v. Georgia, 408 U.S., at 318, observes that an
earlier draft of the body prohibited "illegal" punishments, and that the
change "appears to be inadvertent." See also 1 J. Chitty, Criminal Law 712
(5th Am. ed. 1847) (describing Declaration of Rights as prohibiting "cruel
and illegal" punishments).) In the legal world of the time, and in the
context of restricting punishment determined by the Crown (or the Crown's
judges), "illegall" and "unusuall" were identical for practical purposes.
Not all punishments were specified by statute; many were determined by the
common law. Departures from the common law were lawful only if authorized
by statute. See J. Stephen, A History of the Criminal Law of England
489-490 (1883); 1 J. Chitty, Criminal Law 710 (5th Am. ed. 1847). A
requirement that punishment not be "unusuall" -- that is, not contrary to
"usage" (Lat. "usus") or "precedent" -- was primarily a requirement that
judges pronouncing sentence remain within the bounds of common-law
tradition. 1 id., at 710-712; Ingraham v. Wright, 430 U.S., at
665 (English provision aimed at "judges acting beyond their
lawful authority"); Granucci, 57 Calif. L. Rev., at 859; Cf. 4 W.
Blackstone, Commentaries, *371-*373.
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In sum, we think it most unlikely that the English Cruel and Unusual
Punishments Clause was meant to forbid "disproportionate" punishments.
There is even less likelihood that proportionality of punishment was one
of the traditional "rights and privileges of Englishmen" apart from the
Declaration of Rights, which happened to be included in the Eighth
Amendment. Indeed, even those scholars who believe the principle to have
been included within the Declaration of Rights do not contend that such a
prohibition was reflected in English practice -- nor could they. See
Granucci, supra, at 847.*fn5 For, as we observed in Woodson v. North
Carolina, 428 U.S. 280, 289 (1976), in 1791, England
punished over 200 crimes with death. See also 1 Stephen, supra, at 458,
471-472 (until 1826, all felonies, except mayhem and petty larceny, were
punishable by death). By 1830 the class of offenses punishable by death
was narrowed to include "only" murder, attempts to murder by poisoning,
stabbing, shooting etc.; administering poison to procure abortion, sodomy,
rape, statutory rape, and certain classes of forgery. See 1 Stephen,
supra, at 473-474. It is notable that, during his discussion of English
capital punishment reform, Stephen does not once mention the Cruell and
Unusuall Punishments Clause, though he was certainly aware of it. See 1
Stephen, supra, at 489-490. Likewise, in his discussion of the suitability
of punishments, Blackstone does not mention the Declaration. See 4
Blackstone, supra, at *9-*19.
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C
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Unless one accepts the notion of a blind incorporation, however, the
ultimate question is not what "cruell and unusuall punishments" meant in
the Declaration of Rights, but what its meaning was to the Americans who
adopted the Eighth Amendment. Even if one assumes that the Founders knew
the precise meaning of that English antecedent, but see Granucci, supra,
at 860-865, a direct transplant of the English meaning to the soil of
American constitutionalism would in any case have been impossible. There
were no common-law punishments in the federal system, see United States v.
Hudson and Goodwin, 7 Cranch 32 (1812), so that the
provision must have been meant as a check not upon judges but upon the
Legislature. See, e. g., In re Kemmler, 136 U.S. 436,
446-447 (1890).
|
| [52] |
Wrenched out of its common-law context, and applied to the actions of
a legislature, the word "unusual" could hardly mean "contrary to law." But
it continued to mean (as it continues to mean today) "such as [does not]
occur in ordinary practice," Webster's 1828 edition, "such as is [not] in
common use," Webster's 2d International. According to its terms, then, by
forbidding "cruel and unusual punishments," see Stanford v. Kentucky, 492 U.S. 361, 378 (1989) (plurality opinion); In re
Kemmler, supra, at 446-447, the Clause disables the Legislature from
authorizing particular forms or "modes" of punishment -- specifically,
cruel methods of punishment that are not regularly or customarily
employed. E. g., Louisiana ex rel. Francis v. Resweber, 329 U.S.
459, 464 (1947) (plurality opinion); In re Kemmler, supra, at
446-447. See also United States v. Collins, 25 F. Cas. (No. 14,836) 545
(CC R. I. 1854) (Curtis, J.).
|
| [53] |
The language bears the construction, however -- and here we come to
the point crucial to resolution of the present case -- that "cruelty and
unusualness" are to be determined not solely with reference to the
punishment at issue ("Is life imprisonment a cruel and unusual
punishment?") but with reference to the crime for which it is imposed as
well ("Is life imprisonment cruel and unusual punishment for possession of
unlawful drugs?"). The latter interpretation would make the provision a
form of proportionality guarantee.*fn6 The arguments against it, however, seem to
us conclusive.
|
| [54] |
First of all, to use the phrase "cruel and unusual punishment" to
describe a requirement of proportionality would have been an exceedingly
vague and oblique way of saying what Americans were well accustomed to
saying more directly. The notion of "proportionality" was not a novelty
(though then as now there was little agreement over what it entailed). In
1778, for example, the Virginia Legislature narrowly rejected a
comprehensive "Bill for Proportioning Punishments" introduced by Thomas
Jefferson. See 4 W. Blackstone, Commentaries 18 (H. Tucker ed. 1803)
(discussing efforts at reform); 1 Writings of Thomas Jefferson 218-239 (A.
Lipscomb 1903). Proportionality provisions had been included in several
state constitutions. See, e. g., Pa. Const., § 38 (1776) (punishments
should be "in general more proportionate to the crimes"); S. C. Const.,
Art. XL (1778) (same); N. H. Bill of Rights, Art. I, § XVIII (1784) ("all
penalties ought to be proportioned to the nature of the offence"). There
is little doubt that those who framed, proposed, and ratified the Bill of
Rights were aware of such provisions,*fn7 yet chose not to replicate them. Both the
New Hampshire Constitution, adopted 8 years before ratification of the
Eighth Amendment, and the Ohio Constitution, adopted 12 years after,
contain, in separate provisions, a prohibition of "cruel and unusual
punishments" ("cruel or unusual," in New Hampshire's case) and a
requirement that "all penalties ought to be proportioned to the nature of
the offence." N. H. Bill of Rights, §§ XVIII, XXXIII (1784). Ohio Const.,
Art. VIII, §§ 13, 14 (1802).*fn8
|
| [55] |
Secondly, it would seem quite peculiar to refer to cruelty and
unusualness for the offense in question, in a provision having application
only to a new government that had never before defined offenses, and that
would be defining new and peculiarly national ones. Finally and most
conclusively, as we proceed to discuss, the fact that what was "cruel and
unusual" under the Eighth Amendment was to be determined without reference
to the particular offense is confirmed by all available evidence of
contemporary understanding.*fn9
|
| [56] |
The Eighth Amendment received little attention during the proposal and
adoption of the Federal Bill of Rights. However, what evidence exists from
debates at the state ratifying conventions that prompted the Bill of
Rights as well as the Floor debates in the First Congress which proposed
it "confirms the view that the cruel and unusual punishments clause was
directed at prohibiting certain methods of punishment." Granucci, 57
Calif. L. Rev., at 842 (emphasis added). See Schwartz, Eighth Amendment
Proportionality Analysis and the Compelling Case of William Rummell, 71 J.
Crim. L. & Criminology 378, 378-382 (1980); Welling & Hipfner,
Cruel and Unusual?: Capital Punishment in Canada, 26 U. Toronto L. J. 55,
61 (1976).
|
| [57] |
In the January 1788 Massachusetts Convention, for example, the
objection was raised that Congress was
|
| [58] |
"nowhere restrained from inventing the most cruel and unheard-of
punishments, and annexing them to crimes; and there is no constitutional
check on [it], but that racks and gibbets may be amongst the most mild
instruments of [its] discipline." 2 J. Elliot, Debates on the Federal
Constitution 111 (2d ed. 1854) (emphasis added).
|
| [59] |
In the Virginia Convention, Patrick Henry decried the absence of a
bill of rights, stating:
|
| [60] |
"What says our [Virginia] Bill of Rights? -- 'that excessive bail
ought not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.' . . .
|
| [61] |
"In this business of legislation, your members of Congress will loose
the restriction of not imposing excessive fines, demanding excessive bail,
and inflicting cruel and unusual punishments. These are prohibited by your
declaration of rights. What has distinguished our ancestors? -- That they
would not admit of tortures, or cruel and barbarous punishment." 3 id., at
447.
|
| [62] |
The actions of the First Congress, which are of course persuasive
evidence of what the Constitution means, Marsh v. Chambers, 463
U.S. 783, 788-790 (1983); Carroll v. United States,
267 U.S. 132, 150-152 (1925); cf. McCulloch v.
Maryland, 4 Wheat. 316, 401-402 (1819), belie any
doctrine of proportionality. Shortly after this Congress proposed the Bill
of Rights, it promulgated the Nation's first Penal Code. See 1 Stat.
112-119 (1790). As the then-extant New Hampshire Constitution's
proportionality provision didactically observed, "no wise legislature" --
that is, no legislature attuned to the principle of proportionality --
"will afix the same punishment to the crimes of theft, forgery and the
like, which they do to those of murder and treason," N. H. Const., Art. I,
XVIII (1784). Jefferson's Bill For Proportioning Crimes and Punishments
punished murder and treason by death; counterfeiting of public securities
by forfeiture of property plus six years at hard labor, and "running away
with any sea-vessel or goods laden on board thereof" by treble damages to
the victim and five years at hard labor. See 1 Writings of Thomas
Jefferson 220-222, 229-231 (A. Lipscomb ed. 1903) (footnote omitted).
Shortly after proposing the Bill of Rights, the First Congress ignored
these teachings. It punished forgery of United States securities, "running
away with [a] ship or vessel, or any goods or merchandise to the value of
fifty dollars," treason, and murder on the high seas with the same
penalty: death by hanging. 1 Stat. 114. The law books of the time are
devoid of indication that anyone considered these newly enacted penalties
unconstitutional by virtue of their disproportionality. Cf. United States
v. Tully, 28 F. Cas. (No. 16, 545) 226 (CC Mass. 1812) (Story and Davis,
JJ.) (Force or threat thereof not an element of "running away with [a]
ship or vessel").
|
| [63] |
The early commentary on the Clause contains no reference to
disproportionate or excessive sentences, and again indicates that it was
designed to outlaw particular modes of punishment. One commentator
wrote:
|
| [64] |
"The prohibition of cruel and unusual punishments, marks the improved
spirit of the age, which would not tolerate the use of the rack or the
stake, or any of those horrid modes of torture, devised by human ingenuity
for the gratification of fiendish passion." J. Bayard, A Brief Exposition
of the Constitution of the United States 154 (2d ed. 1840).
|
| [65] |
Another commentator, after explaining (in somewhat convoluted fashion)
that the "spirit" of the Excessive Bail and Excessive Fines Clauses
forbade excessive imprisonments, went on to add:
|
| [66] |
"Under the [Eighth] amendment the infliction of cruel and unusual
punishments, is also prohibited. The various barbarous and cruel
punishments inflicted under the laws of some other countries, and which
profess not to be behind the most enlightened nations on earth in
civilization and refinement, furnish sufficient reasons for this express
prohibition. Breaking on the wheel, flaying alive, rending assunder with
horses, various species of horrible tortures inflicted in the inquisition,
maiming, mutilating and scourging to death, are wholly alien to the spirit
of our humane general constitution." B. Oliver, The Rights of An American
Citizen 186 (1832).
|
| [67] |
Chancellor Kent, in a paragraph of his Commentaries arguing that
capital punishment "ought to be confined to the few cases of the most
atrocious character," does not suggest that the "cruel and unusual
punishments" Clauses of State or Federal Constitutions require such
proportionality -- even though the very paragraph in question begins with
the statement that "cruel and unusual punishments are universally
condemned." 2 J. Kent, Commentaries on American Law 10-11 (1827). And
Justice Story had this to say:
|
| [68] |
"The provision [the Eighth Amendment] would seem wholly unnecessary in
a free government, since it is scarcely possible, that any department of
such a government should authorize, or justify such atrocious conduct. It
was, however, adopted as an admonition to all departments of the national
government, to warn them against such violent proceedings, as had taken
place in England in the arbitrary reigns of some of the Stuarts." 3 J.
Story, Commentaries on the Constitution of the United States § 1896
(1833).
|
| [69] |
Many other Americans apparently agreed that the clause only outlawed
certain modes of punishment: during the 19th century several States
ratified constitutions that prohibited "cruel and unusual," "cruel or
unusual," or simply "cruel" punishments and required all punishments to be
proportioned to the offense. Ohio Const., Art. VIII, §§ 13, 14 (1802);
Ind. Const., Art. I, §§ 15-16 (1816); Me. Const., Art. I, § 9 (1819); R.
I. Const., Art. I, § 8 (1842); W. Va. Const., Art. II, § 2 (1861); Ga.
Const., Art. I, §§ 16, 21 (1868).
|
| [70] |
Perhaps the most persuasive evidence of what "cruel and unusual"
meant, however, is found in early judicial constructions of the Eighth
Amendment and its state counterparts. An early (perhaps the earliest)
judicial construction of the Federal provision is illustrative. In Barker
v. People, 20 Johns. *457 (N. Y. Sup. Ct. 1823), aff'd, 3 Cow. 686 (N. Y.
1824) the defendant, upon conviction of challenging another to a duel, had
been disenfranchised. Chief Justice Spencer assumed that the Eighth
Amendment applied to the States, and in finding that it had not been
violated considered the proportionality of the punishment irrelevant. "The
disenfranchisement of a citizen," he said, "is not an unusual punishment;
it was the consequence of treason, and of infamous crimes, and it was
altogether discretionary in the legislature to extend that punishment to
other offences." Barker v. People, supra, at *459.
|
| [71] |
Throughout the 19th century, state courts interpreting state
constitutional provisions with identical or more expansive wording (i. e.,
"cruel or unusual") concluded that these provisions did not proscribe
disproportionality but only certain modes of punishment. For example, in
Aldridge v. Commonwealth, 4 Va. 447 (1824), the General Court of Virginia
had occasion to interpret the cruel and unusual punishments clause that
was the direct ancestor of our federal provision, see supra, at 6. In
rejecting the defendant's claim that a sentence of so many as 39 stripes
violated the Virginia Constitution, the court said:
|
| [72] |
"As to the ninth section of the Bill of Rights, denouncing cruel and
unusual punishments, we have no notion that it has any bearing on this
case. That provision was never designed to control the Legislative right
to determine ad libitum upon the adequacy of punishment, but is merely
applicable to the modes of punishment. . . . The best heads and hearts of
the land of our ancestors, had long and loudly declaimed against the
wanton cruelty of many of the punishments practiced in other countries;
and this section in the Bill of Rights was framed effectually to exclude
these, so that no future Legislature, in a moment perhaps of great and
general excitement, should be tempted to disgrace our Code by the
introduction of any of those odious modes of punishment." 4 Va., at
449-450 (emphasis in original).
|
| [73] |
Accord Commonwealth v. Hitshings, 71 Mass. 482, 486 (1855); Garcia v.
Territory, 1 N. M. 415, 417-419 (1869); Whitten v. Georgia, 47 Ga. 297,
301 (1872); Cummins v. People, 42 Mich. 142, 143-144, 3 N. W. 305 (1879);
State v. Williams, 77 Mo. 310, 312-313 (1883); State v. White, 44 Kan.
514, 520-521, 25 P. 33, 34-35 (1890); People v. Morris, 80 Mich. 634, 638,
45 N. W. 591, 592 (1890); Hobbs v. State, 133 Ind. 404, 408-410, 32 N. E.
1019, 1020-1021 (1893); State v. Hogan, 63 Ohio St. 202, 218, 58 N. E.
572, 575 (1900); see also, In re Bayard, 32 N. Y. 546, 549-550 (1881). In
the 19th century, judicial agreement that a "cruel and unusual" (or "cruel
or unusual") provision did not constitute a proportionality requirement
appears to have been universal.*fn10 One case, late in the century, suggested
in dictum, not a full-fledged proportionality principle, but at least the
power of the courts to intervene "in very extreme cases, where the
punishment proposed is so severe and out of proportion to the offense as
to shock public sentiment and violate the judgment of reasonable people."
State v. Becker, 3 S. D. 29, 41, 51 N. W. 1018, 1022 (1892). That case,
however, involved a constitutional provision proscribing all punishments
that were merely "cruel," S. D. Const., Art. VI, § 23 (1889). A few
decisions early in the present century cited it (again in dictum) for the
proposition that a sentence "so out of proportion to the offense . . . as
to 'shock public sentiment and violate the judgment of reasonable people'"
would be "cruel and unusual." Jackson v. United States, 102 F.
473, 488 (CA9 1900); Territory v. Ketchum, 10 N. M. 718, 723,
65 P. 169, 171 (1901).
|
| [74] |
III
|
| [75] |
We think it enough that those who framed and approved the Federal
Constitution chose, for whatever reason, not to include within it the
guarantee against disproportionate sentences that some State Constitutions
contained. It is worth noting, however, that there was good reason for
that choice -- a reason that reinforces the necessity of overruling Solem.
While there are relatively clear historical guidelines and accepted
practices that enable judges to determine which modes of punishment are
"cruel and unusual," proportionality does not lend itself to such
analysis. Neither Congress nor any state legislature has ever set out with
the objective of crafting a penalty that is "disproportionate," yet as
some of the examples mentioned above indicate, many enacted dispositions
seem to be so -- because they were made for other times or other places,
with different social attitudes, different criminal epidemics, different
public fears, and different prevailing theories of penology. This is not
to say that there are no absolutes; one can imagine extreme examples that
no rational person, in no time or place, could accept. But for the same
reason these examples are easy to decide, they are certain never to
occur.*fn11 The real function of a constitutional
proportionality principle, if it exists, is to enable judges to evaluate a
penalty that some assemblage of men and women has considered proportionate
-- and to say that it is not. For that real-world enterprise, the
standards seem so inadequate that the proportionality principle becomes an
invitation to imposition of subjective values.
|
| [76] |
This becomes clear, we think, from a consideration of the three
factors that Solem found relevant to the proportionality determination:
(1) the inherent gravity of the offense, (2) the sentences imposed for
similarly grave offenses in the same jurisdiction, and (3) sentences
imposed for the same crime in other jurisdictions. 463 U.S., at
290-291. As to the first factor: Of course some offenses,
involving violent harm to human beings, will always and everywhere be
regarded as serious, but that is only half the equation. The issue is what
else should be regarded to be as serious as these offenses, or even to be
more serious than some of them. On that point, judging by the statutes
that Americans have enacted, there is enormous variation -- even within a
given age, not to mention across the many generations ruled by the Bill of
Rights. The State of Massachusetts punishes sodomy more severely than
assault and battery, compare Mass. Gen. Laws § 272:34 (1988) ("not more
than twenty years" in prison for sodomy) with § 265:13A ("not more than
two and one half years" in prison for assault and battery); whereas in
several States, sodomy is not unlawful at all. In Louisiana, one who
assaults another with a dangerous weapon faces the same maximum prison
term as one who removes a shopping basket "from the parking area or
grounds of any store . . . without authorization." La. Rev. Stat. Ann. §§
14:37; 14:68.1 (West 1986). A battery that results in "protracted and
obvious disfigurement" merits imprisonment "for not more than five years,"
§ 14:34.1, one half the maximum penalty for theft of livestock or an
oilfield seismograph, §§ 14:67.1, 14:67.8. We may think that the First
Congress punished with clear disproportionality when it provided up to
seven years in prison and up to $1,000 in fine for "cutting off the ear or
ears, . . . cutting out or disabling the tongue, . . . putting out an eye,
. . . cutting off . . . any limb or member of any person with intention .
. . to maim or disfigure," but provided the death penalty for "running
away with [a] ship or vessel, or any goods or merchandise to the value of
fifty dollars." Act of Apr. 30, 1790, ch. 9, §§ 8, 13, 1 Stat. 113-115.
But then perhaps the citizens of 1791 would think that today's Congress
punishes with clear disproportionality when it sanctions "assault by . . .
wounding" with up to six months in prison, 18 U.S.C. § 113(d),
unauthorized reproduction of the "Smokey Bear" character or name with the
same penalty, 18 U.S.C. § 711, offering to barter a migratory bird with up
to two years in prison, 16 U.S.C. § 707(b), and purloining a "key suited
to any lock adopted by the Post Office Department" with a prison term of
up to 10 years, 18 U.S.C. § 1704. Perhaps both we and they would be right,
but the point is that there are no textual or historical standards for
saying so.
|
| [77] |
The difficulty of assessing gravity is demonstrated in the very
context of the present case: Petitioner acknowledges that a mandatory life
sentence might not be "grossly excessive" for possession of cocaine with
intent to distribute, see Hutto v. Davis, 454 U.S. 370 (1982). But surely whether it is a "grave" offense merely
to possess a significant quantity of drugs -- thereby facilitating
distribution, subjecting the holder to the temptation of distribution, and
raising the possibility of theft by others who might distribute -- depends
entirely upon how odious and socially threatening one believes drug use to
be. Would it be "grossly excessive" to provide life imprisonment for "mere
possession" of a certain quantity of heavy weaponry? If not, then the only
issue is whether the possible dissemination of drugs can be as "grave" as
the possible dissemination of heavy weapons. Who are we to say no? The
Members of the Michigan Legislature, and not we, know the situation on the
streets of Detroit.
|
| [78] |
The second factor suggested in Solem fails for the same reason. One
cannot compare the sentences imposed by the jurisdiction for "similarly
grave" offenses if there is no objective standard of gravity. Judges will
be comparing what they consider comparable. Or, to put the same point
differently: when it happens that two offenses judicially determined to be
"similarly grave" receive significantly dis similar penalties, what
follows is not that the harsher penalty is unconstitutional, but merely
that the legislature does not share the judges' view that the offenses are
similarly grave. Moreover, even if "similarly grave" crimes could be
identified, the penalties for them would not necessarily be comparable,
since there are many other justifications for a difference. For example,
since deterrent effect depends not only upon the amount of the penalty but
upon its certainty, crimes that are less grave but significantly more
difficult to detect may warrant substantially higher penalties. Grave
crimes of the sort that will not be deterred by penalty may warrant
substantially lower penalties, as may grave crimes of the sort that are
normally committed once-in-a-lifetime by otherwise law-abiding citizens
who will not profit from rehabilitation. Whether these differences will
occur, and to what extent, depends, of course, upon the weight the society
accords to deterrence and rehabilitation, rather than retribution, as the
objective of criminal punishment (which is an eminently legislative
judgment). In fact, it becomes difficult even to speak intelligently of
"proportionality," once deterrence and rehabilitation are given
significant weight. Proportionality is inherently a retributive concept,
and perfect proportionality is the talionic law. Cf. Bill For
Proportioning Punishments, 1 Writings of Thomas Jefferson 218, 228-229 (A.
Lipscomb 1903) ("Whoever . . . shall maim another, or shall disfigure him
. . . shall be maimed or disfigured in like sort").
|
| [79] |
As for the third factor mentioned by Solem -- the character of the
sentences imposed by other States for the same crime -- it must be
acknowledged that that can be applied with clarity and ease. The only
difficulty is that it has no conceivable relevance to the Eighth
Amendment. That a State is entitled to treat with stern disapproval an act
that other States punish with the mildest of sanctions follows a fortiori
from the undoubted fact that a State may criminalize an act that other
States do not criminalize at all. Indeed, a State may criminalize an act
that other States choose to reward -- punishing, for example, the killing
of endangered wild animals for which other States are offering a bounty.
What greater disproportion could there be than that? "Absent a
constitutionally imposed uniformity inimical to traditional notions of
federalism, some State will always bear the distinction of treating
particular offenders more severely than any other State." Rummel, 445 U.S., at 282. Diversity not only in policy, but
in the means of implementing policy, is the very raison d'etre of our
federal system. Though the different needs and concerns of other States
may induce them to treat simple possession of 672 grams of cocaine as a
relatively minor offense, see Wyo. Stat. § 35-7-1031(c) (1988) (6 months);
W. Va. Code § 60A-4-401(c) (1989) (6 months), nothing in the Constitution
requires Michigan to follow suit. The Eighth Amendment is not a ratchet,
whereby a temporary consensus on leniency for a particular crime fixes a
permanent constitutional maximum, disabling the States from giving effect
to altered beliefs and responding to changed social
conditions.
|
| [80] |
IV
|
| [81] |
Our 20th-century jurisprudence has not remained entirely in accord
with the proposition that there is no proportionality requirement in the
Eighth Amendment, but neither has it departed to the extent that Solem
suggests. In Weems v. United States, 217 U.S. 349
(1910), a government disbursing officer convicted of making false entries
of small sums in his account book was sentenced by Philippine courts to 15
years of cadena temporal. That punishment, based upon the Spanish Penal
Code, called for incarceration at "'hard and painful labor'" with chains
fastened to the wrists and ankles at all times. Several "accessories" were
superadded, including permanent disqualification from holding any position
of public trust, subjection to "[government] surveillance" for life, and
"civil interdiction," which consisted of deprivation of " the rights of
parental authority, guardianship of person or property, participation in
the family council [, etc.]'" Weems, supra, at 364.
|
| [82] |
Justice McKenna, writing for himself and three others, held that the
imposition of cadena temporal was "Cruel and Unusual Punishment." (Justice
White, joined by Justice Holmes, dissented.) That holding, and some of the
reasoning upon which it was based, was not at all out of accord with the
traditional understanding of the provision we have described above. The
punishment was both (1) severe and (2) unknown to Anglo-American
tradition. As to the former, Justice McKenna wrote:
|
| [83] |
"No circumstance of degradation is omitted. It may be that even the
cruelty of pain is not omitted. He must bear a chain night and day. He is
condemned to painful as well as hard labor. What painful labor may mean we
have no exact measure. It must be something more than hard labor. It may
be hard labor pressed to the point of pain." Id., at
366-367.
|
| [84] |
As to the latter:
|
| [85] |
It has no fellow in American legislation. Let us remember that it has
come to us from a government of a different form and genius from ours. It
is cruel in its excess of imprisonment and that which accompanies and
follows imprisonment. It is unusual in its character." Id., at
377.
|
| [86] |
Other portions of the opinion, however, suggest that mere
disproportionality, by itself, might make a punishment cruel and
unusual:
|
| [87] |
"Such penalties for such offenses amaze those who . . . believe that
it is a precept of justice that punishment for crime should be graduated
and proportioned to offense." Id., at 366-367.
|
| [88] |
"The inhibition [of the Cruel and Unusual Punishments Clause] was
directed, not only against punishments which inflict torture, 'but against
all punishments which by their excessive length or severity are greatly
disproportioned to the offenses charged.'" Id., at 371, quoting O'Neil v.
Vermont, 144 U.S. 323, 339-340 (1892) (Field, J.,
dissenting).
|
| [89] |
Since it contains language that will support either theory, our later
opinions have used Weems, as the occasion required, to represent either
the principle that "the Eighth Amendment bars not only those punishments
that are 'barbaric' but also those that are 'excessive' in relation to the
crime committed," Coker v. Georgia, 433 U.S. 584, 592
(1977), or the principle that only a "unique . . . punishment," a form of
imprisonment different from the "more traditional forms . . . imposed
under the Anglo-Saxon system," can violate the Eighth Amendment, Rummel, 445 U.S., at 274-275. If the proof of the pudding is
in the eating, however, it is hard to view Weems as announcing a
constitutional requirement of proportionality, given that it did not
produce a decision implementing such a requirement, either here or in the
lower federal courts, for six decades. In Graham v. West Virginia, 224 U.S. 616 (1912), for instance, we evaluated (and
rejected) a claim that life imprisonment for a third offense of horse
theft was "cruel and unusual." We made no mention of Weems, although the
petitioner had relied upon that case.*fn12 See also Badders v. United States, 240 U.S. 391 (1916). Opinions
in the federal courts of appeals were equally devoid of evidence that this
Court had announced a general proportionality principle. Some evaluated
"cruel and unusual punishment" claims without reference to Weems. See, e.
g., Bailey v. United States, 284 F. 126 (CA7 1922);
Tincher v. United States, 11 F.2d 18, 21 (CA4 1926).
Others continued to echo (in dictum) variants of the dictum in State v.
Becker, 3 S. D. 29, 51 N. W. 1018 (1892), to the effect that courts will
not interfere with punishment unless it is "manifestly cruel and unusual,"
and cited Weems for the propostion that sentences imposed within the
limits of a statute "ordinarily will not be regarded as cruel and
unusual." See, e. g., Sansone v. Zerbst, 73 F.2d 670,
672 (CA10 1934); Bailey v. United States, 74 F.2d 451, 453 (CA10 1934).*fn13 Not until more than half a century after
Weems did the Circuit Courts begin performing proportionality analysis. E.
g., Hart v. Coiner, 483 F.2d 136 (CA4 1973). Even
then, some continued to state that "[a] sentence within the statutory
limits is not cruel and unusual punishment." Page v. United States , 462
U.S. 932, 935 (CA3 1972). Accord, Rener v. Beto, 447 F.2d 20, 23 (CA5 1971); Anthony v. United States, 331 F.2d
687, 693 (CA9 1964).
|
| [90] |
The first holding of this Court unqualifiedly applying a requirement
of proportionality to criminal penalties was issued 185 years after the
Eighth Amendment was adopted.*fn14 In Coker v. Georgia, supra, the Court
held that, because of the disproportionality, it was a violation of the
Cruel and Unusual Punishments Clause to impose capital punishment for rape
of an adult woman. Four years later, in Enmund v. Florida, 458
U.S. 782 (1982), we held that it violates the Eighth Amendment,
because of disproportionality, to impose the death penalty upon a
participant in a felony that results in murder, without any inquiry into
the participant's intent to kill. Rummel, supra, treated this line of
authority as an aspect of our death penalty jurisprudence, rather than a
generalizable aspect of Eighth Amendment law. We think that is an accurate
explanation, and we reassert it. Proportionality review is one of several
respects in which we have held that "death is different," and have imposed
protections that the Constitution nowhere else provides. See, e. g.,
Turner v. Murray, 476 U.S. 28, 36-37 (1986); Eddings
v. Oklahoma, 455 U.S. 104 (1982); id. , at 117
(O'CONNOR, J., concurring); Beck v. Alabama, 447 U.S. 625 (1980). We would leave it there, but will not extend it
further.
|
| [91] |
V
|
| [92] |
Petitioner claims that his sentence violates the Eighth Amendment for
a reason in addition to its alleged disproportionality. He argues that it
is "cruel and unusual" to impose a mandatory sentence of such severity,
without any consideration of so-called mitigating factors such as, in his
case, the fact that he had no prior felony convictions. He apparently
contends that the Eighth Amendment requires Michigan to create a
sentencing scheme whereby life in prison without possibility of parole is
simply the most severe of a range of available penalties that the
sentencer may impose after hearing evidence in mitigation and
aggravation.
|
| [93] |
As our earlier discussion should make clear, this claim has no support
in the text and history of the Eighth Amendment. Severe, mandatory
penalties may be cruel, but they are not unusual in the constitutional
sense, having been employed in various forms throughout our Nation's
history. As noted earlier, mandatory death sentences abounded in our first
Penal Code. They were also common in the several States -- both at the
time of the founding and throughout the 19th century. See Woodson v. North
Carolina, 428 U.S., at 289-290. There can be no
serious contention, then, that a sentence which is not otherwise cruel and
unusual becomes so simply because it is "mandatory." See Chapman v. United
States, 500 U.S. , - (1991) (slip op., at 12-13).
|
| [94] |
Petitioner's "required mitigation" claim, like his proportionality
claim, does find support in our death-penalty jurisprudence. We have held
that a capital sentence is cruel and unusual under the Eighth Amendment if
it is imposed without an individualized determination that that punishment
is "appropriate" -- whether or not the sentence is "grossly
disproportionate." See Woodson v. North Carolina, supra; Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, supra;
Hitchcock v. Dugger, 481 U.S. 393 (1987). Petitioner
asks us to extend this so-called "individualized capital-sentencing
doctrine," Sumner v. Shuman, 483 U.S. 66, 73 (1987),
to an "individualized mandatory life in prison without parole sentencing
doctrine." We refuse to do so.
|
| [95] |
Our cases creating and clarifying the "individualized capital
sentencing doctrine" have repeatedly suggested that there is no comparable
requirement outside the capital context, because of the qualitative
difference between death and all other penalties. See Eddings v. Oklahoma,
supra, at 110-112; id., at 117-118 (O'CONNOR, J. concurring); Lockett v.
Ohio, supra, at 602-605; Woodson v. North Carolina, supra, at 303-305;
Rummel v. Estelle, 445 U.S., at 272.
|
| [96] |
"The penalty of death differs from all other forms of criminal
punishment, not in degree but in kind. It is unique in its total
irrevocability. It is unique in its rejection of rehabilitation of the
convict as a basic purpose of criminal justice. And it is unique, finally,
in its absolute renunciation of all that is embodied in our concept of
humanity." Furman v. Georgia, 408 U.S., at 306
(Stewart, J., concurring).
|
| [97] |
It is true that petitioner's sentence is unique in that it is the
second most severe known to the law; but life imprisonment with
possibility of parole is also unique in that it is the third most severe.
And if petitioner's sentence forecloses some "flexible techniques" for
later reducing his sentence, see Lockett, supra, at 605 (Burger, C. J.)
(plurality opinion), it does not foreclose all of them, since there remain
the possibilities of retroactive legislative reduction and executive
clemency. In some cases, moreover, there will be negligible difference
between life without parole and other sentences of imprisonment -- for
example, a life sentence with eligibility for parole after 20 years, or
even a lengthy term sentence without eligibility for parole, given to a
65-year-old man. But even where the difference is the greatest, it cannot
be compared with death. We have drawn the line of required individualized
sentencing at capital cases, and see no basis for extending it
further.
|
| [98] |
The judgment of the Michigan Court of Appeals is
|
| [99] |
Affirmed.
|
| [100] |
Disposition
|
| [101] |
176 Mich. App. 524, 440 N. W. 2d 75, affirmed.
|
| [102] |
JUSTICE KENNEDY, with whom JUSTICE O'CONNOR and JUSTICE SOUTER join,
concurring in part and concurring in the judgment.
|
| [103] |
I concur in Part V of the Court's opinion and in the judgment. I write
this separate opinion because my approach to the Eighth Amendment
proportionality analysis differs from JUSTICE SCALIA's. Regardless of
whether JUSTICE SCALIA or the dissent has the best of the historical
argument, compare ante, at 6-25, with post, at 1-3 , and n. 1, stare
decisis counsels our adherence to the narrow proportionality principle
that has existed in our Eighth Amendment jurisprudence for 80 years.
Although our proportionality decisions have not been clear or consistent
in all respects, they can be reconciled, and they require us to uphold
petitioner's sentence.
|
| [104] |
I
|
| [105] |
A
|
| [106] |
Our decisions recognize that the Cruel and Unusual Punishments Clause
encompasses a narrow proportionality principle. We first interpreted the
Eighth Amendment to prohibit "'greatly disproportioned'" sentences in
Weems v. United States, 217 U.S. 349, 371 (1910),
quoting O'Neil v. Vermont, 144 U.S. 323, 340 (1892)
(Field, J., dissenting). Since Weems, we have applied the principle in
different Eighth Amendment contexts. Its most extensive application has
been in death penalty cases. In Coker v. Georgia, 433 U.S. 584, 592 (1977), we held that "a sentence of death is grossly
disproportionate and excessive punishment for the crime of rape and is
therefore forbidden by the Eighth Amendment as cruel and unusual
punishment." We applied like reasoning in Enmund v. Florida, 458
U.S. 782 (1982), to strike down a capital sentence imposed for
a felony murder conviction in which the defendant had not committed the
actual murder and lacked intent to kill. Cf. Tison v. Arizona,
481 U.S. 137 (1987).
|
| [107] |
The Eighth Amendment proportionality principle also applies to
non-capital sentences. In Rummel v. Estelle, 445 U.S. 263 (1980), we acknowledged the existence of the
proportionality rule for both capital and non-capital cases, id., at
271-274, and n. 11, but we refused to strike down a sentence of life
imprisonment, with possibility of parole, for recidivism based on three
underlying felonies. In Hutto v. Davis, 454 U.S. 370,
374, and n. 3 (1982), we recognized the possibility of proportionality
review but held it inapplicable to a 40-year prison sentence for
possession with intent to distribute nine ounces of marijuana. Our most
recent decision discussing the subject is Solem v. Helm, 463
U.S. 277 (1983). There we held that a sentence of life
imprisonment without possibility of parole violated the Eighth Amendment
because it was "grossly disproportionate" to the crime of recidivism based
on seven underlying nonviolent felonies. The dissent in Solem disagreed
with the Court's application of the proportionality principle but observed
that in extreme cases it could apply to invalidate a punishment for a term
of years. Id., at 280, n. 3. See also Hutto v. Finney, 437 U.S.
678, 685 (1978) (dicta); Ingraham v. Wright, 430 U.S.
651, 667 (1977) (dicta).
|
| [108] |
B
|
| [109] |
Though our decisions recognize a proportionality principle, its
precise contours are unclear. This is so in part because we have applied
the rule in few cases and even then to sentences of different types. Our
most recent pronouncement on the subject in Solem, furthermore, appeared
to apply a different analysis than in Rummel and Davis. Solem twice
stated, however, that its decision was consistent with Rummel and thus did
not overrule it. Solem, supra, at 288, n. 13, 303, n. 32. Despite these
tensions, close analysis of our decisions yields some common principles
that give content to the uses and limits of proportionality
review.
|
| [110] |
The first of these principles is that the fixing of prison terms for
specific crimes involves a substantive penological judgment that, as a
general matter, is "properly within the province of legislatures, not
courts." Rummel, supra, at 275-276. Determinations about the nature and
purposes of punishment for criminal acts implicate difficult and enduring
questions respecting the sanctity of the individual, the nature of law,
and the relation between law and the social order. "As a moral or
political issue [the punishment of offenders] provokes intemperate
emotions, deeply conflicting interests, and intractable disagreements." D.
Garland, Punishment and Modern Society 1 (1990). The efficacy of any
sentencing system cannot be assessed absent agreement on the purposes and
objectives of the penal system. And the responsibility for making these
fundamental choices and implementing them lies with the legislature. See
Gore v. United States, 357 U.S. 386, 393 (1958)
("Whatever views may be entertained regarding severity of punishment,
whether one believes in its efficacy or its futility, . . . these are
peculiarly questions of legislative policy"). Thus, "reviewing courts . .
. should grant substantial deference to the broad authority that
legislatures necessarily possess in determining the types and limits of
punishments for crimes." Solem, supra, at 290. See also Rummel, supra, at
274 (acknowledging "reluctance to review legislatively mandated terms of
imprisonment"); Weems, supra, at 379 ("The function of the legislature is
primary, its exercises fortified by presumptions of right and legality,
and is not to be interfered with lightly, nor by any judicial conception
of their wisdom or propriety").
|
| [111] |
The second principle is that the Eighth Amendment does not mandate
adoption of any one penological theory. "The principles which have guided
criminal sentencing . . . have varied with the times." Payne v. Tennessee,
ante, at (slip op., at 9). The federal and state criminal systems have
accorded different weights at different times to the penological goals of
retribution, deterrence, incapacitation, and rehabilitation. Compare
Mistretta v. United States, 488 U.S. 361, 363-366
(1989), with Williams v. New York, 337 U.S. 241, 248
(1949). And competing theories of mandatory and discretionary sentencing
have been in varying degrees of ascendancy or decline since the beginning
of the Republic. See United States v. Grayson, 438 U.S. 41, 45-47 (1978).
|
| [112] |
Third, marked divergences both in underlying theories of sentencing
and in the length of prescribed prison terms are the inevitable, often
beneficial, result of the federal structure. See Solem, supra, at 291, n.
17, ("the inherent nature of our federal system" may result in "a wide
range of constitutional sentences"). "Our federal system recognizes the
independent power of a State to articulate societal norms through criminal
law." McCleskey v. Zant , 499 U.S. , (1991) (slip op., at 22). State
sentencing schemes may embody different penological assumptions, making
interstate comparison of sentences a difficult and imperfect enterprise.
See Rummel, supra, at 281. See also Solem, 463 U.S., at 294-295 (comparison of different terms of years for
imprisonment "troubling" but not "unique to this area"). And even assuming
identical philosophies, differing attitudes and perceptions of local
conditions may yield different, yet rational, conclusions regarding the
appropriate length of prison terms for particular crimes. Thus, the
circumstance that a State has the most severe punishment for a particular
crime does not by itself render the punishment grossly disproportionate.
Rummel, 445 U.S., at 281. "Our Constitution 'is made
for people of fundamentally differing views.' . . . Absent a
constitutionally imposed uniformity inimical to traditional notions of
federalism, some State will always bear the distinction of treating
particular offenders more severely than any other State." Id., at 282,
quoting Lochner v. New York, 198 U.S. 45, 76 (1905)
(Holmes, J., dissenting). See also Graham v. West Virginia, 224
U.S. 616 (1912).
|
| [113] |
The fourth principle at work in our cases is that proportionality
review by 'federal courts should be informed by "'objective factors to the
maximum possible extent.'" Rummel, supra, at 274-275, quoting Coker, 433 U.S., at 592 (plurality opinion). See also Solem,
supra, at 290. The most prominent objective factor is the type of
punishment imposed. In Weems, "the Court could differentiate in an
objective fashion between the highly unusual cadena temporal and more
traditional forms of imprisonment imposed under the Anglo-Saxon system."
Rummel, 445 U.S., at 275. In a similar fashion,
because "'the penalty of death differs from all other forms of criminal
punishment,'" id., at 272, quoting Furman v. Georgia, 408 U.S.
238, 306 (1972) (opinion of Stewart, J.), the objective line
between capital punishment and imprisonment for a term of years finds
frequent mention in our Eighth Amendment jurisprudence. See Solem, supra,
at 294 ("The easiest comparison [of different sentences] is between
capital punishment and non-capital punishment"). By contrast, our
decisions recognize that we lack clear objective standards to distinguish
between sentences for different terms of years. Rummel, supra, at 275. See
also Solem, 463 U.S., at 294 ("It is clear that a
25-year sentence generally is more severe than a 15-year sentence, but in
most cases it would be difficult to decide that the former violates the
Eighth Amendment while the latter does not") (footnote omitted). Although
"no penalty is per se constitutional," id., at 290, the relative lack of
objective standards concerning terms of imprisonment has meant that
"'outside the context of capital punishment, successful challenges to the
proportionality of particular sentences [are] exceedingly rare.'" Id., at
289-290, quoting Rummel, supra, at 272.
|
| [114] |
All of these principles -- the primacy of the legislature, the variety
of legitimate penological schemes, the nature of our federal system, and
the requirement that proportionality review be guided by objective factors
-- inform the final one: the Eighth Amendment does not require strict
proportionality between crime and sentence. Rather, it forbids only
extreme sentences that are "grossly disproportionate" to the crime. Solem,
supra, at 288, 303. See also Weems, 217 U.S., at 371
(Eighth Amendment prohibits "greatly disproportioned" sentences); Coker,
supra, at 592 (Eighth Amendment prohibits "grossly disproportionate"
sentences); Rummel, supra, at 271 (same).
|
| [115] |
II
|
| [116] |
With these considerations stated, it is necessary to examine the
challenged aspects of petitioner's sentence: its severe length and its
mandatory operation.
|
| [117] |
A
|
| [118] |
Petitioner's life sentence without parole is the second most severe
penalty permitted by law. It is the same sentence received by the
petitioner in Solem. Petitioner's crime, however, was far more grave than
the crime at issue in Solem.
|
| [119] |
The crime of uttering a no account check at issue in Solem was "'one
of the most passive felonies a person could commit.'" Solem, 463
U.S., at 296 (citation omitted). It "involved neither violence
nor threat of violence to any person," and was "viewed by society as among
the less serious offenses." Ibid. The felonies underlying the defendant's
recidivism conviction, moreover, were "all relatively minor." Id., at
296-297. The Solem Court contrasted these "minor" offenses with "very
serious offenses" such as "a third offense of heroin dealing," and stated
that "no one suggests that [a statute providing for life imprisonment
without parole] may not be applied constitutionally to fourth-time heroin
dealers or other violent criminals." Id., at 299, and n. 26.
|
| [120] |
Petitioner was convicted of possession of more than 650 grams (over
1.5 pounds) of cocaine. This amount of pure cocaine has a potential yield
of between 32,500 and 65,000 doses. A. Washton, Cocaine Addiction:
Treatment, Recovery, and Relapse Prevention 18 (1989). From any
standpoint, this crime falls in a different category from the relatively
minor, nonviolent crime at issue in Solem. Possession, use, and
distribution of illegal drugs represents "one of the greatest problems
affecting the health and welfare of our population." Treasury Employees v.
Von Raab, 489 U.S. 656, 668 (1989). Petitioner's
suggestion that his crime was nonviolent and victimless, echoed by the
dissent, see post, at 14-15, is false to the point of absurdity. To the
contrary, petitioner's crime threatened to cause grave harm to
society.
|
| [121] |
Quite apart from the pernicious effects on the individual who consumes
illegal drugs, such drugs relate to crime in at least three ways: (1) A
drug user may commit crime because of drug-induced changes in
physiological functions, cognitive ability, and mood; (2) A drug user may
commit crime in order to obtain money to buy drugs; and (3) A violent
crime may occur as part of the drug business or culture. See Goldstein,
Drugs and Violent Crime, in Pathways to Criminal Violence 16, 24-36 (N.
Weiner, M. Wolfgang eds., 1989). Studies bear out these possibilities, and
demonstrate a direct nexus between illegal drugs and crimes of violence.
See generally id., at 16-48. To mention but a few examples, 57 percent of
a national sample of males arrested in 1989 for homicide tested positive
for illegal drugs. National Institute of Justice, 1989 Drug Use
Forecasting Annual Report 9 (June 1990). The comparable statistics for
assault, robbery, and weapons arrests were 55, 73 and 63 percent,
respectively. Ibid. In Detroit, Michigan in 1988, 68 percent of a sample
of male arrestees and 81 percent of a sample of female arrestees tested
positive for illegal drugs. National Institute of Justice, 1988 Drug Use
Forecasting Annual Report 4 (Mar. 1990). Fifty-one percent of males and
seventy-one percent of females tested positive for cocaine. Id., at 7. And
last year an estimated 60 percent of the homicides in Detroit were
drug-related, primarily cocaine-related. U.S. Department of Health and
Human Services, Epidemiologic Trends in Drug Abuse 107 (Dec.
1990).
|
| [122] |
These and other facts and reports detailing the pernicious effects of
the drug epidemic in this country do not establish that Michigan's penalty
scheme is correct or the most just in any abstract sense. But they do
demonstrate that the Michigan Legislature could with reason conclude that
the threat posed to the individual and society by possession of this large
an amount of cocaine -- in terms of violence, crime, and social
displacement -- is momentous enough to warrant the deterrence and
retribution of a life sentence without parole. See United States v.
Mendenhall, 446 U.S. 544, 561 (1980) (Powell, J.,
concurring in part and concurring in judgment) ("Few problems affecting
the health and welfare of our population, particularly our young, cause
greater concern than the escalating use of controlled substances");
Florida v. Royer, 460 U.S. 491, 513 (1983) (BLACKMUN,
J., dissenting) (same). See also Terrebonne v. Butler, 848 F.2d
500, 504 (CA5 1988) (en banc).
|
| [123] |
The severity of petitioner's crime brings his sentence within the
constitutional boundaries established by our prior decisions. In Hutto v.
Davis, 454 U.S., 370 (1982), we upheld against
proportionality attack a sentence of 40 years' imprisonment for possession
with intent to distribute nine ounces of marijuana. Here, Michigan could
with good reason conclude that petitioner's crime is more serious than the
crime in Davis. Similarly, a rational basis exists for Michigan to
conclude that petitioner's crime is as serious and violent as the crime of
felony murder without specific intent to kill, a crime for which "no
sentence of imprisonment would be disproportionate," Solem, 463
U.S., at 290, n. 15. Cf. Rummel, 445 U.S., at 296, n. 12 (Powell, J., dissenting) ("A professional seller of
addictive drugs may inflict greater bodily harm upon members of society
than the person who commits a single assault").
|
| [124] |
Petitioner and amici contend that our proportionality decisions
require a comparative analysis between petitioner's sentence and sentences
imposed for other crimes in Michigan and sentences imposed for the same
crime in other jurisdictions. Given the serious nature of petitioner's
crime, no such comparative analysis is necessary. Although Solem
considered these comparative factors after analyzing "the gravity of the
offense and the harshness of the penalty," 463 U.S., at 290-291, it did not announce a rigid three-part test. In fact,
Solem stated that in determining unconstitutional disproportionality, "no
one factor will be dispositive in a given case." Id., at 291, n. 17. See
also ibid. ("No single criterion can identify when a sentence is so
grossly disproportionate that it violates the Eighth
Amendment").
|
| [125] |
On the other hand, one factor may be sufficient to determine the
constitutionality of a particular sentence. Consistent with its admonition
that "a reviewing court rarely will be required to engage in extended
analysis to determine that a sentence is not constitutionally
disproportionate," id., at 290, n. 16, Solem is best understood as holding
that comparative analysis within and between jurisdictions is not always
relevant to proportionality review. The Court stated that "it may be
helpful to compare sentences imposed on other criminals in the same
jurisdiction," and that "courts may find it useful to compare the
sentences imposed for commission of the same crime in other
jurisdictions." Id., at 291-92 (emphasis added). It did not mandate such
inquiries.
|
| [126] |
A better reading of our cases leads to the conclusion that intra- and
inter-jurisdictional analyses are appropriate only in the rare case in
which a threshold comparison of the crime committed and the sentence
imposed leads to an inference of gross disproportionality. In Solem and
Weems, decisions in which the Court invalidated sentences as
disproportionate, we performed a comparative analysis of sentences after
determining that the sentence imposed was grossly excessive punishment for
the crime committed. Solem, supra, at 298-300; Weems, 217 U.S.,
at 377-381. By contrast, Rummel and Davis, decisions in which
the Court upheld sentences against proportionality attacks, did not credit
such comparative analyses. In rejecting this form of argument, Rummel
noted that "even were we to assume that the statute employed against
Rummel was the most stringent found in the 50 States, that severity hardly
would render Rummel's punishment 'grossly disproportionate' to his
offenses." Rummel, supra, at 281.
|
| [127] |
The proper role for comparative analysis of sentences, then, is to
validate an initial judgment that a sentence is grossly disproportionate
to a crime. This conclusion neither "eviscerates" Solem, nor "abandons"
its second and third factors, as the dissent charges, post, at 10, 12, and
it takes full account of Rummel and Davis, cases ignored by the dissent.
In light of the gravity of petitioner's offense, a comparison of his crime
with his sentence does not give rise to an inference of gross
disproportionality, and comparative analysis of his sentence with others
in Michigan and across the Nation need not be performed.
|
| [128] |
B
|
| [129] |
Petitioner also attacks his sentence because of its mandatory nature.
Petitioner would have us hold that any severe penalty scheme requires
individualized sentencing so that a judicial official may consider
mitigating circumstances. Our precedents do not support this proposition,
and petitioner presents no convincing reason to fashion an exception or
adopt a new rule in the case before us. The Court demonstrates that our
Eighth Amendment capital decisions reject any requirement of
individualized sentencing in non-capital cases. Ante, at
34-36.
|
| [130] |
The mandatory nature of this sentence comports with our non-capital
proportionality decisions as well. The statute at issue in Solem made the
offender liable to a maximum, not a mandatory, sentence of life
imprisonment without parole. Solem, 463 U.S. at 281-282, n. 6. Because a "lesser sentence . . . could have been
entirely consistent with both the statute and the Eighth Amendment," the
Court's decision "did not question the legislature's judgment," but rather
challenged the sentencing court's selection of a penalty at the top of the
authorized sentencing range. Id., at 299, n. 26. Here, by contrast, the
Michigan Legislature has mandated the penalty and has given the state
judge no discretion in implementing it. It is beyond question that the
legislature "has the power to define criminal punishments without giving
the courts any sentencing discretion," Chapman v. United States, 500 U.S.
, (1991) (slip. op., at 13). Since the beginning of the Republic, Congress
and the States have enacted mandatory sentencing schemes. See Mistretta v.
United States, 488 U.S., at 363; United States v.
Grayson, 438 U.S., at 45-46; Ex Parte United States, 242 U.S. 27 (1916). To set aside petitioner's
mandatory sentence would require rejection not of the judgment of a single
jurist, as in Solem, but rather the collective wisdom of the Michigan
Legislature and, as a consequence, the Michigan citizenry. We have never
invalidated a penalty mandated by a legislature based only on the length
of sentence, and, especially with a crime as severe as this one, we should
do so only in the most extreme circumstance. Cf. Rummel, 445
U.S., at 274.
|
| [131] |
In asserting the constitutionality of this mandatory sentence, I offer
no judgment on its wisdom. Mandatory sentencing schemes can be criticized
for depriving judges of the power to exercise individual discretion when
remorse and acknowledgment of guilt, or other extenuating facts, present
what might seem a compelling case for departure from the maximum. On the
other hand, broad and unreviewed discretion exercised by sentencing judges
leads to the perception that no clear standards are being applied, and
that the rule of law is imperiled by sentences imposed for no discernible
reason other than the subjective reactions of the sentencing judge. The
debate illustrates that, as noted at the outset, arguments for and against
particular sentencing schemes are for legislatures to
resolve.
|
| [132] |
Michigan's sentencing scheme establishes graduated punishment for
offenses involving varying amounts of mixtures containing controlled
substances. Possession of controlled substances in schedule 1 or 2 in an
amount less than 50 grams results in a sentence of up to 20 years
imprisonment; possession of more than 50 but less than 225 grams results
in a mandatory minimum prison sentence of 10 years with a maximum sentence
of 20 years; possession of more than 225 but less than 650 grams results
in a mandatory minimum prison sentence of 20 years with a maximum sentence
of 30 years; and possession of 650 grams or more results in a mandatory
life sentence. Mich. Comp. Laws Ann. § 333.7401 (Supp. 1990-1991).
Sentencing courts may depart from the minimum terms specified for all
amounts, except those exceeding 650 grams, "if the court finds on the
record that there are substantial and compelling reasons to do so." §
333.7401(4); § 333.7403(3). This system is not an ancient one revived in a
sudden or surprising way; it is, rather, a recent enactment calibrated
with care, clarity, and much deliberation to address a most serious
contemporary social problem. The scheme provides clear notice of the
severe consequences that attach to possession of drugs in wholesale
amounts, thereby giving force to one of the first purposes of criminal law
-- deterrence. In this sense, the Michigan scheme may be as fair, if not
more so, than other sentencing systems in which the sentencer's discretion
or the complexity of the scheme obscures the possible sanction for a
crime, resulting in a shock to the offender who learns the severity of his
sentence only after he commits the crime.
|
| [133] |
The Michigan scheme does possess mechanisms for consideration of
individual circumstances. Prosecutorial discretion before sentence and
executive or legislative clemency afterwards provide means for the State
to avert or correct unjust sentences. Here the prosecutor may have chosen
to seek the maximum penalty because petitioner possessed 672.5 grams of
undiluted cocaine and several other trappings of a drug trafficker,
including marijuana cigarettes, four brass cocaine straws, a cocaine
spoon, 12 percodan tablets, 25 tablets of Phendimetrazine Tartrate, a
Motorola beeper, plastic bags containing cocaine, a coded address book,
and $3500 in cash.
|
| [134] |
A penalty as severe and unforgiving as the one imposed here would make
this a most difficult and troubling case for any judicial officer.
Reasonable minds may differ about the efficacy of Michigan's sentencing
scheme, and it is far from certain that Michigan's bold experiment will
succeed. The accounts of pickpockets at Tyburn hangings are a reminder of
the limits of the law's deterrent force, but we cannot say the law before
us has no chance of success and is on that account so disproportionate as
to be cruel and unusual punishment. The dangers flowing from drug offenses
and the circumstances of the crime committed here demonstrate that the
Michigan penalty scheme does not surpass constitutional bounds. Michigan
may use its criminal law to address the issue of drug possession in
wholesale amounts in the manner that it has in this sentencing scheme. See
New State Ice Co. v. Liebmann, 285 U.S. 262, 311
(1932) (Brandeis, J., dissenting). For the foregoing reasons, I conclude
that petitioner's sentence of life imprisonment without parole for his
crime of possession of more than 650 grams of cocaine does not violate the
Eighth Amendment.
|
| [135] |
JUSTICE WHITE, with whom JUSTICE BLACKMUN and JUSTICE STEVENS join,
dissenting.
|
| [136] |
The Eighth Amendment provides that "excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted." JUSTICE SCALIA concludes that "the Eighth Amendment contains
no proportionality guarantee." Ante, at 6. Accordingly, he says Solem v.
Helm, 463 U.S. 277 (1983), "was simply wrong" in
holding otherwise, as would be the Court's other cases interpreting the
Amendment to contain a proportionality principle. JUSTICE KENNEDY, on the
other hand, asserts that the Eighth Amendment's proportionality principle
is so "narrow," ante, at 1, that Solem's analysis should be reduced from
three factors to one. With all due respect, I dissent.
|
| [137] |
The language of the Amendment does not refer to proportionality in so
many words, but it does forbid "excessive" fines, a restraint that
suggests that a determination of excessiveness should be based at least in
part on whether the fine imposed is disproportionate to the crime
committed. Nor would it be unreasonable to conclude that it would be both
cruel and unusual to punish overtime parking by life imprisonment, see
Rummel v. Estelle, 445 U.S. 263, 274, n. 11 (1980),
or, more generally, to impose any punishment that is grossly
disproportionate to the offense for which the defendant has been
convicted. Thus, Benjamin Oliver, cited by JUSTICE SCALIA ante, at 21,
observed with respect to the Eighth Amendment:
|
| [138] |
"No express restriction is laid in the constitution, upon the power of
imprisoning for crimes. But, as it is forbidden to demand unreasonable
bail, which merely exposes the individual concerned, to imprisonment in
case he cannot procure it; as it is forbidden to impose unreasonable
fines, on account of the difficulty the person fined would have of paying
them, the default of which would be punished by imprisonment only, it
would seem, that imprisonment for an unreasonable length of time, is also
contrary to the spirit of the constitution. Thus in cases where the courts
have a discretionary power to fine and imprison, shall it be supposed,
that the power to fine is restrained, but the power to imprison is wholly
unrestricted by it? In the absence of all express regulations on the
subject, it would surely be absurd to imprison an individual for a term of
years, for some in considerable offence, and consequently it would seem,
that a law imposing so severe a punishment must be contrary to the
intention of the framers of the constitution." B. Oliver, The Rights of an
American Citizen 185-186 (1832).
|
| [139] |
JUSTICE SCALIA concedes that the language of the Amendment bears such
a construction. See ante, at 16. His reasons for claiming that it should
not be so construed are weak. First, he asserts that if proportionality
was an aspect of the restraint, it could have been said more clearly -- as
plain-talking Americans would have expressed themselves (as for instance,
I suppose, in the Fifth Amendment's Due Process Clause or the Fourth
Amendment's prohibition against unreasonable searches and
seizures).
|
| [140] |
Second, JUSTICE SCALIA claims that it would be difficult or impossible
to label as "unusual" any punishment imposed by the Federal Government,
which had just come into existence and had no track record with respect to
criminal law. But the people of the new Nation had been living under the
criminal law regimes of the States, and there would have been no lack of
benchmarks for determining unusualness. Furthermore, this argument would
deprive this part of the Amendment of any meaning at all.
|
| [141] |
Third, JUSTICE SCALIA argues that all of the available evidence of the
day indicated that those who drafted and approved the Amendment "chose . .
. not to include within it the guarantee against disproportionate
sentences that some State Constitutions contained." Ante, at 25. Even if
one were to accept the argument that the First Congress did not have in
mind the proportionality issue, the evidence would hardly be strong enough
to come close to proving an affirmative decision against the
proportionality component. Had there been an intention to exclude it from
the reach of the words that otherwise could reasonably be construed to
include it, perhaps as plain-speaking Americans, the Members of the First
Congress would have said so. And who can say with confidence what the
members of the state ratifying conventions had in mind when they voted in
favor of the Amendment? Surely, subsequent state court decisions do not
answer that question.*fn1
|
| [142] |
In any event, the Amendment as ratified contained the words "cruel and
unusual," and there can be no doubt that prior decisions of this Court
have construed these words to include a proportionality principle. In
1910, in the course of holding unconstitutional a sentence imposed by the
Philippine courts, the Court stated:
|
| [143] |
"Such penalties for such offenses amaze those who . . . believe that
it is a precept of justice that punishment for crime should be graduated
and proportioned to [the] offense.
|
| [144] |
The inhibition [of the cruel and unusual punishments clause] was
directed, not only against punishments which inflict torture, 'but against
all punishments which by their excessive length or severity are greatly
disproportioned to the offenses charged.'" Weems v. United States, 217 U.S. 349, 366-367, 371 (1910), quoting O'Neil v.
Vermont, 144 U.S. 323, 339-340 (1892) (Field, J.,
dissenting.)
|
| [145] |
That the punishment imposed in Weems was also unknown to
Anglo-American tradition -- "It has no fellow in American legislation," 217 U.S., at 377 -- was just another reason to set
aside the sentence and did not in the least detract from the holding with
respect to proportionality, which, as Gregg v. Georgia, 428 U.S.
153, 171-172 (1976), observed, was the focus of the Court's
holding.
|
| [146] |
Robinson v. California, 370 U.S. 660 (1962), held
for the first time that the Eighth Amendment was applicable to punishment
imposed by state courts; it also held it to be cruel and unusual to impose
even one day of imprisonment for the status of drug addiction, id., at
667. The plurality opinion in Gregg, supra, at 173, observed that the
Eighth Amendment's proscription of cruel and unusual punishment is an
evolving concept and announced that punishment would violate the Amendment
if it "involved the unnecessary and wanton infliction of pain" or if it
was "grossly out of proportion to the severity of the crime." Under this
test, the death penalty was not cruel and unusual in all cases. Following
Gregg, Coker v. Georgia, 433 U.S. 584, 592 (1977),
held that the Amendment bars not only a barbaric punishment but also a
punishment that is excessive, i. e., a punishment that "(1) makes no
measurable contribution to acceptable goals of punishment and hence is
nothing more than the purposeless and needless imposition of pain and
suffering; or (2) is grossly out of proportion to the severity of the
crime." We went on to hold that the punishment of death for the crime of
rape was unconstitutional for lack of proportionality. Ibid. Similarly, in
Enmund v. Florida, 458 U.S. 782 (1982), we
invalidated a death sentence for felony murder, on disproportionality
grounds, where there had been no proof of an intent to murder. Finally,
Solem v. Helm, 463 U.S. 277 (1983), invalidated a
prison sentence on the ground that it was too severe in relation to the
crime that had been committed.
|
| [147] |
Not only is it undeniable that our cases have construed the Eighth
Amendment to embody a proportionality component, but it is also evident
that none of the Court's cases suggest that such a construction is
impermissible. Indeed, Rummel v. Estelle, 445 U.S. 263 (1980), the holding of which JUSTICE SCALIA does not
question, itself recognized that the Eighth Amendment contains a
proportionality requirement, for it did not question Coker and indicated
that the proportionality principle would come into play in some extreme,
nonfelony cases. Id., at 272, 274, and n. 11.
|
| [148] |
If JUSTICE SCALIA really means what he says -- "the Eighth Amendment
contains no proportionality guarantee," ante, at 6, it is difficult to see
how any of the above holdings and declarations about the proportionality
requirement of the Amendment could survive. Later in his opinion, however,
ante, at 34, JUSTICE SCALIA backtracks and appears to accept that the
Amendment does indeed insist on proportional punishments in a particular
class of cases, those that involve sentences of death. His fallback
position is that outside the capital cases, proportionality review is not
required by the Amendment. With the exception of capital cases, the
severity of the sentence for any crime is a matter that the Amendment
leaves to the discretion of legislators. Any prison sentence, however
severe, for any crime, however petty, will be beyond review under the
Eighth Amendment. This position restricts the reach of the Eighth
Amendment far more than did Rummel. It also ignores the generality of the
Court's several pronouncements about the Eighth Amendment's
proportionality component. And it fails to explain why the words "cruel
and unusual" include a proportionality requirement in some cases but not
in others. Surely, it is no explanation to say only that such a
requirement in death penalty cases is part of our capital punishment
jurisprudence. That is true but the decisions requiring proportionality do
so because of the Eighth Amendment's prohibition against cruel and unusual
punishments. The Court's capital punishment cases requiring
proportionality reject JUSTICE SCALIA's notion that the Amendment bars
only cruel and unusual modes or methods of punishment. Under that view,
capital punishment -- a mode of punishment -- would either be completely
barred or left to the discretion of the legislature. Yet neither is true.
The death penalty is appropriate in some cases and not in others. The same
should be true of punishment by imprisonment.
|
| [149] |
What is more, the Court's jurisprudence concerning the scope of the
prohibition against cruel and unusual punishments has long understood the
limitations of a purely historical analysis. See Trop v. Dulles, 356 U.S. 86, 100-101 (1958) (plurality opinion);
Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 264, n. 4 (1989). Thus, "this Court has
'not confined the prohibition embodied in the Eighth Amendment to
"barbarous" methods that were generally outlawed in the 18th century,' but
instead has interpreted the Amendment in a flexible and dynamic manner.'"
Stanford v. Kentucky, 492 U.S. 361, 369 (1989),
quoting Gregg v. Georgia, 428 U.S., at 171 (opinion
of Stewart, Powell, and STEVENS, JJ.). In so doing, the Court has borne in
mind Justice McKenna's admonition in Weems v. United States, 217
U.S., at 373, that "time works changes, brings into existence
new conditions and purposes. Therefore a principle to be vital must be
capable of wider application than the mischief which gave it birth. This
is peculiarly true of constitutions." See also Browning-Ferris, supra, at
273 (quoting Weems).
|
| [150] |
The Court therefore has recognized that a punishment may violate the
Eighth Amendment if it is contrary to the "evolving standards of decency
that mark the progress of a maturing society." Trop, supra, at 101. See
Stanford, supra, at 369, quoting Trop. In evaluating a punishment under
this test, "we have looked not to our own conceptions of decency, but to
those of modern American society as a whole" in determining what standards
have "evolved," Stanford, supra, at 369, and thus have focused not on "the
subjective views of individual Justices," but on "objective factors to the
maximum possible extent," Coker, supra, at 592 (plurality opinion). It is
this type of objective factor which forms the basis for the tripartite
proportionality analysis set forth in Solem.
|
| [151] |
Contrary to JUSTICE SCALIA's suggestion, ante, at 25-26, the Solem
analysis has worked well in practice. Courts appear to have had little
difficulty applying the analysis to a given sentence, and application of
the test by numerous state and federal appellate courts has resulted in a
mere handful of sentences being declared unconstitutional.*fn2 Thus, it is clear that reviewing courts
have not baldly substituted their own subjective moral values for those of
the legislature. Instead, courts have demonstrated that they are "capable
of applying the Eighth Amendment to disproportionate non-capital sentences
with a high degree of sensitivity to principles of federalism and state
autonomy."*fn3 Rummel, 445 U.S., at 306 (Powell, J., dissenting). Solem is wholly consistent with
this approach, and when properly applied, its analysis affords
"substantial deference to the broad authority that legislatures
necessarily possess in determining the types and limits of punishments for
crimes, as well as to the discretion that trial courts possess in
sentencing convicted criminals," 463 U.S., at 290
(footnote omitted), and will only rarely result in a sentence failing
constitutional muster. The fact that this is one of those rare instances
is no reason to abandon the analysis.
|
| [152] |
Nor does the fact that this case involves judicial review of a
legislatively mandated sentence, rather than a sentence imposed in the
exercise of judicial discretion, warrant abandonment of Solem. First, the
quote from Solem in the preceding paragraph makes clear that the analysis
is intended to apply to both types of sentences. Second, contrary to
JUSTICE SCALIA's suggestion, ante, at 16, the fact that a punishment has
been legislatively mandated does not automatically render it "legal" or
"usual" in the constitutional sense. Indeed, as noted above, if this were
the case, then the prohibition against cruel and unusual punishments would
be devoid of any meaning. He asserts that when "wrenched out of its
common-law context, and applied to the actions of a legislature, the word
'unusual' could hardly mean 'contrary to law,'" because "there were no
common-law punishments in the federal system." Id., at 15-16. But if this
is so, then neither could the term "unusual" mean "contrary to custom,"
for until Congress passed the first penal law, there were no "customary"
federal punishments either. Moreover, the suggestion that a legislatively
mandated punishment is necessarily "legal" is the antithesis of the
principles established in Marbury v. Madison, 1 Cranch 137 (1803), for "it is emphatically the province and duty of
the judicial department to say what the law is," id., at 177, and to
determine whether a legislative enactment is consistent with the
Constitution. This Court's decision in Robinson v. California,
370 U.S. 660 (1962), in which the prohibition against
cruel and unusual punishments was made applicable to the States through
the Fourteenth Amendment, removed any doubt that it is as much our duty to
assess the constitutionality of punishments enacted by state legislative
bodies as it is our obligation to review congressional enactments. Indeed,
the Court's prior decisions have recognized that legislatively mandated
sentences may violate the Eighth Amendment. See Rummel, supra, at 274, n.
11; Hutto v. Davis, 454 U.S. 370, 374, n. 3 (1982).
This Court has long scrutinized legislative enactments concerning
punishment without fear that it was unduly invading the legislative
prerogative of the States. See, e. g., Coker v. Georgia, 433
U.S. 584 (1977); Enmund v. Florida, 458 U.S. 782 (1982). That such scrutiny requires sensitivity to
federalism concerns and involves analysis that may at times be difficult
affords no justification for this Court's abrogation of its responsibility
to uphold constitutional principles.
|
| [153] |
Two dangers lurk in JUSTICE SCALIA's analysis. First, he provides no
mechanism for addressing a situation such as that proposed in Rummel, in
which a legislature makes overtime parking a felony punishable by life
imprisonment. He concedes that "one can imagine extreme examples" --
perhaps such as the one described in Rummel -- "that no rational person,
in no time or place, could accept," but attempts to offer reassurance by
claiming that "for the same reason these examples are easy to decide, they
are certain never to occur." Ante, at 25-26. This is cold comfort indeed,
for absent a proportionality guarantee, there would be no basis for
deciding such cases should they arise.
|
| [154] |
Second, as I have indicated, JUSTICE SCALIA's position that the Eighth
Amendment addresses only modes or methods of punishment is quite
inconsistent with our capital punishment cases, which do not outlaw death
as a mode or method of punishment, but instead put limits on its
application. If the concept of proportionality is downgraded in the Eighth
Amendment calculus, much of this Court's capital penalty jurisprudence
will rest on quicksand.
|
| [155] |
While JUSTICE SCALIA seeks to deliver a swift death sentence to Solem,
JUSTICE KENNEDY prefers to eviscerate it, leaving only an empty shell. The
analysis JUSTICE KENNEDY proffers is contradicted by the language of Solem
itself and by our other cases interpreting the Eighth
Amendment.
|
| [156] |
In Solem, the Court identified three major factors to consider in
assessing whether a punishment violates the Eighth Amendment: "the gravity
of the offense and the harshness of the penalty," 463 U.S., at
290-291; "the sentences imposed on other criminals in the same
jurisdiction," id., at 291; and "the sentences imposed for commission of
the same crime in other jurisdictions," id., at 291-292. JUSTICE KENNEDY,
however, maintains that "one factor may be sufficient to determine the
constitutionality of a particular sentence," and that there is no need to
consider the second and third factors unless "a threshold comparison of
the crime committed and the sentence imposed leads to an inference of
gross disproportionality." Ante, at 9. Solem is directly to the contrary,
for there the Court made clear that "no one factor will be dispositive in
a given case," and "no single criterion can identify when a sentence is so
grossly disproportionate that it violates the Eighth Amendment," "but a
combination of objective factors can make such analysis possible." 463 U.S., at 291, n. 17.
|
| [157] |
Moreover, as JUSTICE KENNEDY concedes, see ante, at 9-10, the use of
an intra- and inter-jurisdictional comparison of punishments and crimes
has long been an integral part of our Eighth Amendment jurisprudence.
Numerous cases have recognized that a proper proportionality analysis must
include the consideration of such objective factors as "the historical
development of the punishment at issue, legislative judgments,
international opinion, and the sentencing decisions juries have made."
Enmund, supra, at 788. See also Stanford, 492 U.S., at 369-371; McCleskey v. Kemp, 481 U.S. 279,
300 (1987).
|
| [158] |
Thus, in Weems, 217 U.S., at 380-381, the Court
noted the great disparity between the crime at issue and those within the
same jurisdiction for which less severe punishments were imposed. In Trop,
356 U.S., at 102-103, the Court surveyed
international law before determining that forfeiture of citizenship as a
punishment for wartime desertion violated the Eighth Amendment. In Coker
v. Georgia, 433 U.S. 584 (1977), we sought "guidance
in history and from the objective evidence of the country's present
judgment concerning the acceptability of death as a penalty for rape of an
adult woman," id., at 593, and surveyed the laws of the States before
concluding that "the current judgment with respect to the death penalty
for rape," though "not wholly unanimous among state legislatures, . . .
weighed very heavily on the side of rejecting capital punishment as a
suitable penalty," id., at 596. And in Enmund, we again reviewed the laws
of the States before concluding that the death penalty is unconstitutional
when inflicted upon one who merely participates in a felony during which a
murder occurs. 458 U.S., at 797. That in some of
these cases the comparisons were made after the Court had considered the
severity of the crime in no way suggests that this part of the analysis
was any less essential to an assessment of a given punishment's
proportionality.
|
| [159] |
JUSTICE KENNEDY's abandonment of the second and third factors set
forth in Solem makes any attempt at an objective proportionality analysis
futile. The first prong of Solem requires a court to consider two discrete
factors -- the gravity of the offense and the severity of the punishment.
A court is not expected to consider the interaction of these two elements
and determine whether "the sentence imposed was grossly excessive
punishment for the crime committed." See ante, at 10. Were a court to
attempt such an assessment, it would have no basis for its determination
that a sentence was -- or was not -- disproportionate, other than the
"subjective views of individual [judges]," Coker, supra, at 592 (plurality
opinion), which is the very sort of analysis our Eighth Amendment
jurisprudence has shunned. JUSTICE KENNEDY asserts that "our decisions
recognize that we lack clear objective standards to distinguish between
sentences for different terms of years," citing Rummel and Solem as
support. Ante, at 5. But Solem recognized that
|
| [160] |
"for sentences of imprisonment, the problem is not so much one of
ordering, but one of line-drawing. It is clear that a 25-year sentence
generally is more severe than a 15-year sentence, but in most cases it
would be difficult to decide that the former violates the Eighth Amendment
while the latter does not. Decisions of this kind, although troubling, are
not unique to this area. The courts are constantly called upon to draw
similar lines in a variety of contexts." 463 U.S., at 294 (footnote omitted).
|
| [161] |
The Court compared line-drawing in the Eighth Amendment context to
that regarding the Sixth Amendment right to a speedy trial and right to a
jury before concluding that "courts properly may look to the practices in
other jurisdictions in deciding where lines between sentences should be
drawn." Id., at 295. Indeed, only when a comparison is made with penalties
for other crimes and in other jurisdictions can a court begin to make an
objective assessment about a given sentence's constitutional
proportionality, giving due deference to "public attitudes concerning a
particular sentence." Coker, supra, at 592.
|
| [162] |
Because there is no justification for overruling or limiting Solem, it
remains to apply that case's proportionality analysis to the sentence
imposed on petitioner. Application of the Solem factors to the statutorily
mandated punishment at issue here reveals that the punishment fails muster
under Solem and, consequently, under the Eighth Amendment to the
Constitution.
|
| [163] |
Petitioner, a first-time offender, was convicted of possession of 672
grams of cocaine. The statute under which he was convicted, Mich. Comp.
Laws § 333.7403(2)(a)(i) (1980), provides that a person who knowingly or
intentionally possesses any of various narcotics, including cocaine,
"which is in an amount of 650 grams or more of any mixture containing that
substance is guilty of a felony and shall be imprisoned for life." No
particular degree of drug purity is required for a conviction. Other
statutes make clear that an individual convicted of possessing this
quantity of drugs is not eligible for parole. See §§ 791.233b[1](b),
791.234(4). A related statute, § 333.7401(2)(a)(i), which was enacted at
the same time as the statute under which petitioner was convicted,
mandates the same penalty of life imprisonment without possibility of
parole for someone who "manufactures, delivers, or possesses with intent
to manufacture or deliver," 650 grams or more of a narcotic mixture.*fn4 There is no room for judicial discretion
in the imposition of the life sentence upon conviction. The asserted
purpose of the legislative enactment of these statutes was to "'stem drug
traffic'" and reach "'drug dealers.'" See Brief for Respondent 7, quoting
House Legislative Analysis of Mich. House Bill 4190 of 1977 (May 17,
1978).
|
| [164] |
The first Solem factor requires a reviewing court to assess the
gravity of the offense and the harshness of the penalty. 463
U.S., at 292. The mandatory sentence of life imprisonment
without possibility of parole "is the most severe punishment that the
State could have imposed on any criminal for any crime," id., at 297, for
Michigan has no death penalty.
|
| [165] |
Although these factors are "by no means exhaustive," id., at 294, in
evaluating the gravity of the offense, it is appropriate to consider "the
harm caused or threatened to the victim or society," based on such things
as the degree of violence involved in the crime and "the absolute
magnitude of the crime," and "the culpability of the offender," including
the degree of requisite intent and the offender's motive in committing the
crime, id., at 292-293.
|
| [166] |
Drugs are without doubt a serious societal problem. To justify such a
harsh mandatory penalty as that imposed here, however, the offense should
be one which will always warrant that punishment. Mere possession of drugs
-- even in such a large quantity -- is not so serious an offense that it
will always warrant, much less mandate, life imprisonment without
possibility of parole. Unlike crimes directed against the persons and
property of others, possession of drugs affects the criminal who uses the
drugs most directly. The ripple effect on society caused by possession of
drugs, through related crimes, lost productivity, health problems, and the
like, is often not the direct consequence of possession, but of the
resulting addiction, something which this Court held in Robinson v.
California, 370 U.S., at 660-667, cannot be made a
crime.
|
| [167] |
To be constitutionally proportionate, punishment must be tailored to a
defendant's personal responsibility and moral guilt. See Enmund v.
Florida, 458 U.S., at 801. JUSTICE KENNEDY attempts
to justify the harsh mandatory sentence imposed on petitioner by focusing
on the subsidiary effects of drug use, and thereby ignores this aspect of
our Eighth Amendment jurisprudence. While the collateral consequences of
drugs such as cocaine are indisputably severe, they are not unlike those
which flow from the misuse of other, legal, substances. For example, in
considering the effects of alcohol on society, the Court has stressed that
"no one can seriously dispute the magnitude of the drunken driving problem
or the States' interest in eradicating it," Michigan Department of State
Police v. Sitz, 496 U.S. , (1990) (slip op., at 5), but at the same time
has recognized that the severity of the problem "cannot excuse the need
for scrupulous adherence to our constitutional principles," Grady v.
Corbin, 495 U.S. , (1990) (slip op., at 15). Thus, the Court has held that
a drunken driver who has been prosecuted for traffic offenses arising from
an accident cannot, consistent with the Double Jeopardy Clause,
subsequently be prosecuted for the death of the accident victim. Ibid.
Likewise, the Court scrutinized closely a state program of vehicle
checkpoints designed to detect drunken drivers before holding that the
brief intrusion upon motorists is consistent with the Fourth Amendment.
Sitz, supra, at (slip op., at 5). It is one thing to uphold a checkpoint
designed to detect drivers then under the influence of a drug that creates
a present risk that they will harm others. It is quite something else to
uphold petitioner's sentence because of the collateral consequences which
might issue, however indirectly, from the drugs he possessed. Indeed, it
is inconceivable that a State could rationally choose to penalize one who
possesses large quantities of alcohol in a manner similar to that in which
Michigan has chosen to punish petitioner for cocaine possession, because
of the tangential effects which might ultimately be traced to the alcohol
at issue. "Unfortunately, grave evils such as the narcotics traffic can
too easily cause threats to our basic liberties by making attractive the
adoption of constitutionally forbidden shortcuts that might suppress and
blot out more quickly the unpopular and dangerous conduct." Turner v.
United States, 396 U.S. 398, 427 (1970) (Black, J.,
dissenting). That is precisely the course JUSTICE KENNEDY advocates
here.
|
| [168] |
The "absolute magnitude" of petitioner's crime is not exceptionally
serious. Because possession is necessarily a lesser included offense of
possession with intent to distribute, it is odd to punish the former as
severely as the latter. Cf. Solem, 463 U.S., at 293.
Nor is the requisite intent for the crime sufficient to render it
particularly grave. To convict someone under the possession statute, it is
only necessary to prove that the defendant knowingly possessed a mixture
containing narcotics which weighs at least 650 grams. There is no mens rea
requirement of intent to distribute the drugs, as there is in the parallel
statute. Indeed, the presence of a separate statute which reaches
manufacture, delivery, or possession with intent to do either, undermines
the State's position that the purpose of the possession statute was to
reach drug dealers.*fn5 Although "intent to deliver can be
inferred from the amount of a controlled substance possessed by the
accused," People v. Abrego, 72 Mich. App. 176, 181, 249 N. W. 2d 345, 347
(1976), the inference is one to be drawn by the jury, see People v.
Kirchoff, 74 Mich. App. 641, 647-649, 254 N. W. 2d 793, 796-797 (1977). In
addition, while there is usually a pecuniary motive when someone possesses
a drug with intent to deliver it, such a motive need not exist in the case
of mere possession. Cf. Solem, supra, at 293-294. Finally, this statute
applies equally to first-time offenders, such as petitioner, and
recidivists. Consequently, the particular concerns reflected in recidivist
statutes such as those in Rummel and Solem are not at issue
here.
|
| [169] |
There is an additional concern present here. The State has conceded
that it chose not to prosecute Harmelin under the statute
prohibiting possession with intent to deliver, because it was "not
necessary and not prudent to make it more difficult for us to win a
prosecution." Tr. of Oral Arg. 30-31. The State thus aimed to avoid having
to establish Harmelin's intent to distribute
by prosecuting him instead under the possession statute.*fn6 Because the statutory punishment for the
two crimes is the same, the State succeeded in punishing Harmelin as
if he had been convicted of the more serious crime without being put to
the test of proving his guilt on those charges.
|
| [170] |
The second prong of the Solem analysis is an examination of "the
sentences imposed on other criminals in the same jurisdiction."
463 U.S., at 292. As noted above, there is no death
penalty in Michigan; consequently, life without parole, the punishment
mandated here, is the harshest penalty available. It is reserved for three
crimes: first-degree murder, see Mich. Comp. Laws § 750.316 (1991);
manufacture, distribution, or possession with intent to manufacture or
distribute 650 grams or more of narcotics; and possession of 650 grams or
more of narcotics. Crimes directed against the persons and property of
others -- such as second-degree murder, § 750.317; rape, § 750.520b; and
armed robbery, § 750.529 -- do not carry such a harsh mandatory sentence,
although they do provide for the possibility of a life sentence in the
exercise of judicial discretion. It is clear that petitioner "has been
treated in the same manner as, or more severely than, criminals who have
committed far more serious crimes." 463 U.S., at
299.
|
| [171] |
The third factor set forth in Solem examines "the sentences imposed
for commission of the same crime in other jurisdictions." Id., at 291-292.
No other jurisdiction imposes a punishment nearly as severe as Michigan's
for possession of the amount of drugs at issue here. Of the remaining 49
States, only Alabama provides for a mandatory sentence of life
imprisonment without possibility of parole for a first-time drug offender,
and then only when a defendant possesses ten kilograms or more of cocaine.
Ala. Code § 13A-12-231(2)(d) (Supp. 1990). Possession of the amount of
cocaine at issue here would subject an Alabama defendant to a mandatory
minimum sentence of only five years in prison. § 13A-12-231(2)(b).*fn7 Even under the Federal Sentencing
Guidelines, with all relevant enhancements, petitioner's sentence would
barely exceed ten years. See United States Sentencing Commission
Guidelines Manual, § 2D1.1 (1990). Thus, "it appears that [petitioner] was
treated more severely than he would have been in any other State." Solem,
supra, at 300. Indeed, the fact that no other jurisdiction provides such a
severe, mandatory penalty for possession of this quantity of drugs is
enough to establish "the degree of national consensus this Court has
previously thought sufficient to label a particular punishment cruel and
unusual." Stanford, 492 U.S., at 371. Cf. Coker, 433 U.S., at 596; Ford v. Wainwright, 477
U.S. 399, 408 (1986).
|
| [172] |
Application of Solem 's proportionality analysis leaves no doubt that
the Michigan statute at issue fails constitutional muster.*fn8 The statutorily mandated penalty of life
without possibility of parole for possession of narcotics is
unconstitutionally disproportionate in that it violates the Eighth
Amendment's prohibition against cruel and unusual punishment.
Consequently, I would reverse the decision of the Michigan Court of
Appeals.
|
| [173] |
JUSTICE MARSHALL, dissenting.
|
| [174] |
I agree with JUSTICE WHITE'S dissenting opinion, except insofar as it
asserts that the Eighth Amendment's Cruel and Unusual Punishments Clause
does not proscribe the death penalty. I adhere to my view that capital
punishment is in all instances unconstitutional. See Gregg v. Georgia, 428 U.S. 153, 231 (1976) (MARSHALL, J., dissenting).
I also believe that, "because of the uniqueness of the death penalty,"
id., at 188 (opinion of Stewart, Powell, and STEVENS, JJ., ), the Eighth
Amendment requires comparative proportionality review of capital
sentences. See Turner v. California, 498 U.S. , (1991) (MARSHALL, J.,
dissenting from denial of certiorari). However, my view that capital
punishment is especially proscribed and, where not proscribed, especially
restricted by the Eighth Amendment is not inconsistent with JUSTICE
WHITE'S central conclusion, ante, at 4-7, that the Eighth Amendment also
imposes a general proportionality requirement. As JUSTICE WHITE notes,
this Court has recognized and applied that requirement in both capital and
non-capital cases, and had it done so properly here it would have
concluded that Michigan's law mandating life sentences with no possibility
of parole even for first-time drug possession offenders is
unconstitutional.
|
| [175] |
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins,
dissenting.
|
| [176] |
While I agree wholeheartedly with JUSTICE WHITE's dissenting opinion,
I believe an additional comment is appropriate.
|
| [177] |
The severity of the sentence that Michigan has mandated for the crime
of possession of more than 650 grams of cocaine, whether diluted or
undiluted, does not place the sentence in the same category as capital
punishment. I remain convinced that Justice Stewart correctly
characterized the penalty of death as "unique" because of "its absolute
renunciation of all that is embodied in our concept of humanity." Furman
v. Georgia, 408 U.S. 238, 306 (1972) (Stewart, J.,
concurring). Nevertheless, a mandatory sentence of life imprisonment
without the possibility of parole does share one important characteristic
of a death sentence: The offender will never regain his freedom. Because
such a sentence does not even purport to serve a rehabilitative function,
the sentence must rest on a rational determination that the punished
"criminal conduct is so atrocious that society's interest in deterrence
and retribution wholly outweighs any considerations of reform or
rehabilitation of the perpetrator." Id., at 307. Serious as this
defendant's crime was, I believe it is irrational to conclude that every
similar offender is wholly incorrigible.
|
| [178] |
The death sentences that were at issue and invalidated in Furman were
"cruel and unusual in the same way that being struck by lightning is cruel
and unusual." Id., at 309. In my opinion the imposition of a life sentence
without possibility of parole on this petitioner is equally capricious. As
JUSTICE WHITE has pointed out, under the Federal Sentencing Guidelines,
with all relevant enhancements, petitioner's sentence would barely exceed
10 years. Ante, at 20. In most States, the period of incarceration for a
first offender like petitioner would be substantially shorter. No
jurisdiction except Michigan has concluded that the offense belongs in a
category where reform and rehabilitation are considered totally
unattainable. Accordingly, the notion that this sentence satisfies any
meaningful requirement of proportionality is itself both cruel and
unusual.
|
| [179] |
I respectfully dissent.
|
| |
|
| |
Opinion Footnotes
|
| |
|
| [180] |
*fn1 Mich. Comp. Laws Ann. § 333.7403(2)(a)(i)
(Supp. 1990-1991) provides a mandatory sentence of life in prison for
possession of 650 grams or more of "any mixture containing [a schedule 2]
controlled substance"; § 333.7214(a)(iv) defines cocaine as a schedule 2
controlled substance. Section 791.234(4) provides eligibility for parole
after 10 years in prison, except for those convicted of either
first-degree murder or "a major controlled substance offense"; §
791.233b[1](b) defines "major controlled substance offense" as, inter
alia, a violation of § 333.7403.
|
| [181] |
*fn2 Specifically, we rejected, in some detail,
the four-factor test promulgated by the Fourth Circuit in Hart v. Coiner, 483 F.2d 136 (CA4 1973). This test included the three
factors relied upon by the Rummel dissent. See Hart, supra, at
140-143.
|
| [182] |
*fn3 Solem v. Helm, 463 U.S. 277 (1983), apparently adopted this interpretation, quoting, as
it did, from one of these sources. See id., at 285 (quoting Sources of our
Liberties 236).
|
| [183] |
*fn4 Indeed, it is not clear that, by the
standards of the age, Oates' sentence was disproportionate, given that his
perjuries resulted in the deaths of 15 innocents. Granucci suggests that
it was not. See Granucci, "Nor Cruel and Unusual Punishments Inflicted:"
The Original Meaning, 57 Calif. L. Rev. 839, 859, and n. 97 (1969). And
Macaulay observed that Oates' "sufferings, great as they might seem, had
been trifling when compared with his crimes." 6 Macaulay, 137. See also, 2
id., at 203-204.
|
| [184] |
*fn5 Contrary to JUSTICE WHITE's suggestion,
post, at 3, n. 1, Granucci provides little (if any) direct evidence that
the Declaration of Rights embodied a proportionality principle. He simply
reasons that, because English law was concerned with proportionality, the
Declaration of Rights must have embodied such a principle. Granucci,
supra, at 844-847.
|
| [185] |
*fn6 JUSTICE WHITE apparently agrees that the
clause outlaws particular "modes" of punishment. He goes on to suggest,
however, that because the Founders did not specifically exclude a
proportionality component from words that "could reasonably be construed
to include it," the Eighth Amendment must prohibit disproportionate
punishments as well. Post, at 3. Surely this is an extraordinary method
for determining what restrictions upon democratic self-government the
Constitution contains. It seems to us that our task is not merely to
identify various meanings that the text "could reasonably" bear, and then
impose the one that from a policy standpoint pleases us best. Rather, we
are to strive as best we can to select from among the various "reasonable"
possibilities the most plausible meaning. We do not bear the burden of
"proving an affirmative decision against the proportionality component,"
ibid.; rather, JUSTICE WHITE bears the burden of proving an affirmative
decision in its favor. For if the Constitution does not affirmatively
contain such a restriction, the matter of proportionality is left to state
constitutions or to the democratic process.
|
| [186] |
*fn7 Printed collections of State Constitutions
were available to the Founders, see The Federalist No. 24, p. 159, n. (C.
Rossiter ed. 1961) (A. Hamilton); see also id., No. 47, p. 304-307 (J.
Madison) (comparing constitutions of all 13 States).
|
| [187] |
*fn8 The New Hampshire proportionality
provision, by far the most detailed of the genre, read: "All penalties
ought to be proportioned to the nature of the offence. No wise legislature
will affix the same punishment to the crimes of theft, forgery and the
like, which they do to those of murder and treason; where the same
undistinguishing severity is exerted against all offences; the people are
led to forget the real distinction in the crimes themselves, and to commit
the most flagrant with as little compunction as they do those of the
lightest dye: For the same reason a multitude of sanguinary laws is both
impolitic and unjust. The true design of all punishments being to reform,
not to exterminate, mankind." N. H. Const., Art. I, § 18 (1784).
The Ohio provision copied that of New Hampshire.
|
| [188] |
*fn9 JUSTICE WHITE suggests that because the
Framers prohibited "excessive fines" (which he asserts, and we will assume
for the sake of argument, means "disproportionate fines"), they must have
meant to prohibit "excessive" punishments as well. Post, at 1-2. This
argument apparently did not impress state courts in the 19th century, and
with good reason. The logic of the matter is quite the opposite. If "cruel
and unusual punishments" included disproportionate punishments, the
separate prohibition of disproportionate fines (which are certainly
punishments) would have been entirely superfluous. When two parts of a
provision (the Eighth Amendment) use different language to address the
same or similar subject matter, a difference in meaning is assumed. See
Walton v. Arizona, 497 U.S. , (1990) (opinion concurring in part and
concurring in judgment).
But, it might be argued, why would any rational person be careful to
forbid the disproportionality of fines but provide no protection against
the disproportionality of more severe punishments? Does not the one
suggest the existence of the other? Not at all. There is good reason to be
concerned that fines, uniquely of all punishments, will be imposed in a
measure out of accord with the penal goals of retribution and deterrence.
Imprisonment, corporal punishment and even capital punishment cost a State
money; fines are a source of revenue. As we have recognized in the context
of other constitutional provisions, it makes sense to scrutinize
governmental action more closely when the State stands to benefit. See
United States Trust Co. of New York v. New Jersey, 431 U.S. 1, 25-26 (1977); Perry v. United States, 294 U.S.
330, 350-351 (1935). (We relied upon precisely the lack of this
incentive for abuse in holding that "punitive damages" were not "fines"
within the meaning of the Eighth Amendment. Browning Ferris Industries of
Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257,
271-276 (1989)). Thus, some early State Constitutions prohibited excessive
fines without placing any restrictions on other modes of punishment. E.
g., Conn. Declaration of Rights Art. I, § 13 (1818) (prohibiting excessive
fines only); Ga. Const., Art. LIX (1777) (same).
|
| [189] |
*fn10 Neither State v. Driver, 78 N. C. 423
(1878), nor State ex rel. Garvey v. Whitaker, 48 La. 527, 19 So. 457
(1896) is to the contrary. They are examples of applying, not a
proportionality principle, but rather the principle (curiously in accord
with the original meaning of the phrase in the English Declaration of
Rights, discussed above) that a punishment is "cruel and unusual" if it is
illegal because not sanctioned by common law or statute. In Driver, the
court had imposed a sentence of five years in county jail for the
common-law offense of assault and battery, for which no statutory penalty
had been established. The North Carolina Supreme Court held the sentence
to violate the State's "cruel or unusual punishment" provision because a
county jail is "a close prison, where life is soon in jeopardy," and no
prisoner had ever "been imprisoned for five years in a County jail for any
crime however aggravated." 78 N. C. , at 425, 426-427. A subsequent North
Carolina case makes it clear that when the legislature has prescribed a
penalty of a traditional mode, the penalty's severity for the offense in
question cannot violate the State's "cruel or unusual punishment" clause.
State v. Blake, 157 N. C. 608, 611, 72 S. E. 1080, 1081-1082 (1911).
In Garvey, the defendants were sentenced to nearly six years in jail
for trespassing on public property. The sentence prescribed by the
relevant city ordinance was 30 days, but the defendants' one-hour
forty-minute occupation had been made the subject of 72 separate counts,
"each offence embracing only one and one-half minutes and one offence
following after the other immediately and consecutively," 48 La ., at 533,
19 So., at 459. The Louisiana Supreme Court found the sentence to have
been cruel and unusual "considering the offence to have been a continuing
one," ibid. We think it a fair reading of the case that the sentence was
cruel and unusual because it was illegal.
|
| [190] |
*fn11 JUSTICE WHITE argues that the Eighth
Amendment must contain a proportionality principle because otherwise
legislatures could "make overtime parking a felony punishable by life
imprisonment." Post, at 10. We do not in principle oppose the "parade of
horribles" form of argumentation, see Scalia, Assorted Canards of
Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 590-593
(1989-1990); but its strength is in direct proportion to (1) the certitude
that the provision in question was meant to exclude the very evil
represented by the imagined parade, and (2) the probability that the
parade will in fact materialize. Here, for the reasons we have discussed,
there is no cause to believe that the provision was meant to exclude the
evil of a disproportionate punishment. JUSTICE WHITE's argument has force
only for those who believe that the Constitution prohibited everything
that is intensely undesirable -- which is an obvious fallacy, see Art. I,
§ 9 (implicitly permitting slavery); Monaghan, Our Perfect Constitution,
56 N. Y. U. L. Rev. 353 (1981). Nor is it likely that the horrible example
imagined would ever in fact occur, unless, of course, overtime parking
should one day become an arguably major threat to the common good, and the
need to deter it arguably critical -- at which time the members of this
Court would probably disagree as to whether the punishment really is
"disproportionate," even as they disagree regarding the punishment for
possession of cocaine today. As Justice Frankfurter reminded us, "the
process of Constitutional adjudication does not thrive on conjuring up
horrible possibilities that never happen in the real world and devising
doctrines sufficiently comprehensive in detail to cover the remotest
contingency." New York v. United States, 326 U.S. 572, 583 (1946). It seems to us no more reasonable to hold that
the Eighth Amendment forbids "disproportionate punishment" because
otherwise the State could impose life imprisonment for a parking offense,
than it would be to hold that the Takings Clause forbids "disproportionate
taxation" because otherwise the State could tax away all income above the
subsistence level.
|
| [191] |
*fn12 At the time we decided Graham, it was not
clear that the Eighth Amendment was applicable to the States, but our
opinion obviously assumed that it was. See Rummel v. Estelle,
445 U.S. 263, 277, n. 13 (1980).
|
| [192] |
*fn13 State Supreme Courts reacted to Weems in
various ways. The Virginia Supreme Court suggested that, since only four
Justices had joined the majority opinion, the proportionality question
"may be fairly said to be still an open question in so far as the
authority of the Supreme Court is concerned." Hart v. Commonwealth, 131
Va. 726, 745, 109 S. E. 582, 588 (1921). Cf. North Georgia Fishing, Inc.
v. Di - Chem, Inc., 419 U.S. 601, 616-619 (1975)
(BLACKMUN, J., dissenting). The Supreme Court of Indiana apparently
thought Weems to be in accord with the traditional view expressed in Hobbs
v. State, 133 Ind. 404, 32 N. E. 1019 (1893). See Kistler v. State, 190
Ind. 149, 158 (1921). The North Carolina Supreme Court, after stating that
Weems contained "an interesting historical review" went on to hold that,
under North Carolina's "similar provision," punishment fixed by the
legislature "cannot be excessive." State v. Blake, 157 N. C. 608, 611, 72
S. E. 1080, 1081-1082 (1911).
|
| [193] |
*fn14 In Robinson v. California, 370
U.S. 660 (1962), the Court invalidated a 90-day prison sentence
for the crime of being "addicted to the use of narcotics." The opinion
does not cite Weems and rests upon the proposition that "even one day in
prison would be a cruel and unusual punishment for the 'crime' of having a
common cold," 370 U.S., at 667. Despite the Court's
statement to the contrary in Solem v. Helm, 463 U.S. 277, 287 (1983), there is no reason to believe that the
decision was an application of the principle of proportionality. See
Ingraham v. Wright, 430 U.S. 651, 667
(1977).
|
| |
|
| |
Dissent Footnotes
|
| |
|
| [194] |
*fn1 As JUSTICE SCALIA notes, ante, at 6, the
text of the Eighth Amendment is taken almost verbatim from the English
Declaration of Rights of 1689. He argues that if the Amendment was
intended to adopt whatever meaning the Declaration was understood in
England to have, the Amendment does not contain a proportionality
component because the Declaration did not include the proportionality
principle. JUSTICE SCALIA labors to demonstrate as much, but concedes that
there are scholars who disagree and have the view that the the Declaration
forbade both illegal and disproportionate punishments. Ante, at 14-15. One
such scholar, after covering much the same ground as does JUSTICE SCALIA,
concluded that "the English evidence shows that the cruel and unusual
punishments clause of the Bill of Rights of 1689 was first, an objection
to the imposition of punishments which were unauthorized by statute and
outside the jurisdiction of the sentencing court, and second, a
reiteration of the English policy against disproportionate penalties."
Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original
Meaning, 57 Calif. L. Rev. 839, 860 (1969). JUSTICE SCALIA goes on to
argue that whatever the Declaration meant to Englishmen, the almost
identical language of the Eighth Amendment should not be interpreted to
forbid excessive punishments. As indicated in the text, I
disagree.
|
| [195] |
*fn2 Indeed, the parties have cited only four
cases decided in the years since Solem in which sentences have been
reversed on the basis of a proportionality analysis. See Clowers v. State,
522 So. 2d 762 (Miss. 1988) (holding that trial court had discretion to
reduce a mandatory sentence of fifteen years without parole under a
recidivist statute for a defendant who uttered a forged check); Ashley v.
State, 538 So. 2d 1181 (Miss. 1989) (reaching a similar result for a
defendant who burgled a home to get $4.00 to pay a grocer for food eaten
in the store); State v. Gilham, 48 Ohio App. 3d 293, 549 N. E. 2d 555
(1988). In addition, in Naovarath v. State, Nev. , 779 P. 2d 944 (1989),
the court relied on both State and Federal Constitutions to strike a
sentence of life without parole imposed on an adolescent who killed and
then robbed an individual who had repeatedly molested him.
|
| [196] |
*fn3 Nor are appellate courts forced to expend
undue resources to evaluate prison sentences under Solem. In each case
cited by respondent in which an appellate court had to review a sentence
under Solem, the court quickly disposed of the constitutional challenge.
See United States v. Sullivan, 895 F.2d 1030,
1031-1032 (CA5), cert. denied, 498 U.S. (1990); United States v.
Benefield, 889 F.2d 1061, 1063-1065 (CA11 1989);
United States v. Savage, 888 F.2d 528 (CA7 1989),
cert. denied, 495 U.S. (1990); State v. Elbert, 125 N. H. 1, 15-16, 480 A.
2d 854, 862 (1984) (Souter, J.).
|
| [197] |
*fn4 The two statutes also set forth penalties
for those convicted based on lesser quantities of drugs. They provide for
parallel penalties for all amounts greater than 50 grams, but below that
point the penalties under the two statutes diverge.
|
| [198] |
*fn5 The Court of Appeals for the Sixth Circuit
has applied the Solem factors to uphold the mandatory life sentence
imposed by the Michigan statute concerning possession with intent to
deliver 650 or more grams of narcotics. See Young v. Miller, 883
F.2d 1276 (CA6 1989), cert. pending, No. 89-6960 (Jan. 29,
1990). In so doing, the court recognized that the sentence was
particularly harsh, especially in light of the lack of opportunity for the
exercise of judicial discretion, but found that it was not so
disproportionate to other sentences for drug trafficking as to violate the
Eighth Amendment. Id., at 1284-1285. Because the statute at issue here
concerns only drug possession, the Sixth Circuit's analysis has little
relevance.
|
| [199] |
*fn6 Both the State and JUSTICE KENNEDY, see
ante, at 13, point to the fact that the amount and purity of the drugs,
and Harmelin's possession of a
beeper, coded phone book, and gun all were noted in the presentence report
and provided circumstantial evidence of an intent to distribute. None of
this information, however, was relevant to a prosecution under the
possession statute. Indeed, because the sentence is statutorily mandated
for mere possession, there was no reason for defense counsel to challenge
the presence of this information in the presentence report. See Tr. of
Oral Arg. 10. It would likewise be inappropriate to consider petitioner's
characteristics in assessing the constitutionality of the
penalty.
|
| [200] |
*fn7 The Alabama statute is entitled
"Trafficking in cannabis, cocaine, etc.," and punishes "any person who
knowingly sells, manufactures, delivers, or brings into this state, or who
is knowingly in actual or constructive possession of" specified amounts of
various drugs. See Ala. Code § 13A-12-231(1) (Supp. 1990). The mandatory
minimum sentences vary depending on the particular drug involved and the
amount of the drug at issue.
|
| [201] |
*fn8 Because the statute under which petitioner
was convinced is unconstitutional under Solem, there is no need to reach
his remaining argument that imposition of a life sentence without the
possibility of parole necessitates the sort of individualized sentencing
determination heretofore reserved for defendants subject to the death
penalty.
|