Subject:  HARMELIN v. MICHIGAN, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



HARMELIN v. MICHIGAN


certiorari to the court of appeals of michigan

No. 89-7272.  Argued November 5, 1990 -- Decided June 27, 1991

Petitioner Harmelin was convicted under Michigan law of possessing more
than 650 grams of cocaine and sentenced to a mandatory term of life in
prison without possibility of parole.  The State Court of Appeals affirmed,
rejecting his argument that the sentence was "cruel and unusual" within the
meaning of the Eighth Amendment.  He claims here that the sentence is cruel
and unusual because it is "significantly disproportionate" to the crime he
committed, and because the sentencing judge was statutorily required to
impose it, without taking into account the particularized circumstances of
the crime and of the criminal.

Held: The judgment is affirmed.

176 Mich. App. 524, 440 N. W. 2d 75, affirmed.

    Justice Scalia delivered the opinion of the Court with respect to Part
V, concluding that Harmelin's claim that his sentence is unconstitutional
because it is mandatory in nature, allowing the sentencer no opportunity to
consider "mitigating factors," has no support in the Eighth Amendment's
text and history.  Severe, mandatory penalties may be cruel, but they are
not unusual in the constitutional sense, having been employed in various
forms throughout the Nation's history.  Although Harmelin's claim finds
some support in the so-called "individualized capital-sentencing doctrine"
of this Court's death penalty jurisprudence, see, e. g., Woodson v. North
Carolina, 428 U. S. 280, that doctrine may not be extended outside the
capital context because of the qualitative differences between death and
all other penalties, see, e. g., id., at 303-305.  Pp. 34-36.

    Justice Scalia, joined by The Chief Justice, concluded in Parts I, II,
III, and IV that because the Eighth Amendment contains no proportionality
guarantee, Harmelin's sentence cannot be considered unconstitutionally
disproportional.  Pp. 2-34.

    (a) For crimes concededly classified and classifiable as felonies --
i.e., 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.  Rummel v. Estelle, 445 U. S. 263, 274.
Solem v. Helm, 463 U. S. 277, which decreed a "general principle of
proportionality," id., at 288, and used as the criterion for its
application a three-factor test that had been explicitly rejected in
Rummel, supra, at 281-282, and n. 27, and Hutto v. Davis, 454 U. S. 370,
373-374, was wrong and should be overruled.  Pp. 2-5.

    (b) Although Solem, supra, at 285, correctly discerned that the Eighth
Amendment prohibition was derived from the "cruell and unusall Punishments"
provision of the English Declaration of Rights of 1689, Solem's conclusion
that the latter provision embodied a right to be free from disproportionate
punishments is refuted by the circumstances of the Declaration's enactment
and the contemporaneous understanding of the English guarantee.  The
guarantee was directed at the arbitrary use of the sentencing power by the
King's Bench in particular cases and at the illegality, rather than the
disproportionality, of punishments thereby imposed.  Pp. 6-15.

    (c) That the Americans who adopted the Eighth Amendment intended its
Cruel and Unusual Punishments Clause as a check on the ability of the
Legislature to authorize particular modes of punishment -- i.e., cruel
methods of punishment that are not regularly or customarily employed --
rather than as a guarantee against disproportionate sentences is
demonstrated by the available evidence of contemporary understanding,
including the context of adoption, the debates of the state ratifying
conventions and the First Congress, and early commentary and judicial
decisions.  It is particularly telling that those who framed and approved
the Federal Constitution chose not to include within it the explicit
guarantee against disproportionate sentences that some State Constitutions
contained.  Pp. 15-25.

    (d) There are no adequate textual or historical standards to enable
judges to determine whether a particular penalty is disproportional.  The
first two of the factors that Solem found relevant -- the inherent gravity
of the defendant's offense and the sentences imposed for similarly grave
offenses in some jurisdictions -- fail for lack of an objective standard of
gravity.  Since, as the statutes Americans have enacted in different times
and places demonstrate, there is enormous variation of opinion as to what
offenses are serious, the proportionality principle is an invitation for
judges to impose their own subjective values.  Moreover, although the third
Solem factor -- the character of the sentences imposed by other States for
the same crime -- can be applied with clarity and ease, it is irrelevant to
the Eighth Amendment.  Traditional notions of federalism entitle States to
treat like situations differently in light of local needs, concerns, and
social conditions.  Pp. 25-30.

    (e) Although this Court's 20th-century jurisprudence has not remained
entirely in accord with the proposition that there is no Eighth Amendment
proportionality requirement, it has not departed to the extent that Solem
suggests.  While Weems v. United States, 217 U. S. 349 -- which was cited
by Solem, supra, at 287, as the "leading case" -- did contain language
suggesting that mere disproportionality might make a punishment cruel and
unusual, 217 U. S., at 366-367, it also contained statements indicating
that the unique punishment there at issue was unconstitutional because it
was unknown to Anglo-American tradition, id., at 377.  It is hard to view
Weems as announcing a constitutional proportionality requirement, given
that it did not produce a decision implementing such a requirement, either
in this Court or the lower federal courts for six decades.  This Court's
first such opinion, Coker v. Georgia, 433 U. S. 584, 592 was a death
penalty case.  The Coker line of authority should not be treated as a
generalized aspect of Eighth Amendment law, since proportionality review is
one of several respects in which "death is different," requiring
protections that the Constitution nowhere else provides.  Pp. 30-34.

    Justice Kennedy, joined by Justice O'Connor and Justice Souter,
concluded:

    1. This Court's decisions recognize that the Eighth Amendment's Cruel
and Unusual Punishments Clause encompasses a narrow proportionality
principle that applies to noncapital sentences.  See, e. g., Weems v.
United States, 217 U. S. 349, 371; Rummel v. Estelle, 445 U. S. 263,
271-274, and n. 11; Hutto v. Davis, 454 U. S. 370, 374, and n. 3; Solem v.
Helm, 463 U. S. 277.  Although these decisions have not been totally clear
or consistent, close analysis yields some common principles that give
content to the uses and limits of proportionality review.  First, the
fixing of prison terms for specific crimes involves a substantial
penological judgment that, as a general matter, is properly within the
province of the legislature, and reviewing courts should grant substantial
deference to legislative determinations.  Second, there are a variety of
legitimate penological schemes based on theories of retribution,
deterrence, incapacitation, and rehabilitation, and the Eighth Amendment
does not mandate adoption of any one such scheme.  Third, marked
divergences both in sentencing theories and the length of prescribed prison
terms are the inevitable, often beneficial, result of the federal
structure, and differing attitudes and perceptions of local conditions may
yield different, yet rational, conclusions regarding the appropriate length
of terms for particular crimes.  Fourth, proportionality review by federal
courts should be informed by objective factors to the maximum extent
possible, and the relative lack of objective standards concerning length,
as opposed to type, of sentence has resulted in few successful
proportionality challenges outside the capital punishment context.
Finally, the Eighth Amendment does not require strict proportionality
between crime and sentence, but rather forbids only extreme sentences that
are grossly disproportionate to the crime.  Pp. 1-6.

    2. In light of the foregoing principles, Harmelin's sentence does not
violate the Cruel and Unusual Punishments Clause.  Although a sentence of
life imprisonment without parole is the second most severe penalty
permitted by law, it is not grossly disproportionate to Harmelin's crime of
possessing more than 650 grams of cocaine.  His suggestion that the crime
was nonviolent and victimless is false to the point of absurdity.  Studies
demonstrate the grave threat that illegal drugs, and particularly cocaine,
pose to society in terms of violence, crime, and social displacement.  The
amount of cocaine Harmelin possessed has a potential yield of between
32,500 and 65,000 doses, and the Michigan Legislature could with reason
conclude that possession of this large an amount is momentous enough to
warrant the deterrence and retribution of a life sentence without parole.
Given the severity of Harmelin's crime, there is no need to conduct a
comparative analysis between his sentence and sentences imposed for other
crimes in Michigan and for the same crime in other jurisdictions.  This
Court's decisions indicate that such an analysis is appropriate in the rare
case in which a threshold comparison of the crime committed and the
sentence imposed leads to an inference of gross disproportionality, see
Solem, supra, at 293-300; Weems, supra, at 377-381, but not in the usual
case where no such inference arises, see, e. g., Rummel, supra, at 281.
Pp. 6-11.

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.

------------------------------------------------------------------------------




Subject: 89-7272 -- OPINION, HARMELIN v. MICHIGAN

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-7272



RONALD ALLEN HARMELIN, PETITIONER
v. MICHIGAN


on writ of certiorari to the court of appeals of michigan

[June 27, 1991]



    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.

    Petitioner was convicted of possessing 672 grams of cocaine and
sentenced to a mandatory term of life in prison without possibility of
parole. {1}  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).
    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.
I


A
    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.
    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. {2}  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 "not[ing] . . .
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.
    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.
    It should be apparent from the above discussion that our 5to-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.
B
    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. Decla ration of Rights, MDRV 16 (1776);
Md. Declaration of Rights, MDRV XXII (1776); Mass. Declaration of Rights,
Art. XXVI (1780); N. C. Declaration of Rights MDRV X (1776); N. H. Bill of
Rights, MDRV XXXIII (1784), and two prohibited "cruel" punishments, Pa.
Const., Art. IX, MDRV 13 (1790); S. C. Const., Art. IX, MDRV 4 (1790).  The
new Federal Bill of Rights, however, tracked Virginia's prohibition of
"cruel and unusual punishments," see Va. Declaration of Rights MDRV 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 "[t]hat excessive Baile ought
not to be required nor excessive Fines imposed nor cruell and unusuall
Punishments inflicted."
    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.
    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.) ("[I]mprisonment 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.
    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 MDRV 1896 (1833). {3}
    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).
    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.

    Whereas the late King James the Second, by the Assistance of diverse
Evill Councellors Judges and Ministers imployed by him did endeavour to
subvert and extirpate the Protestant Religion, and the Lawes and Liberties
of this Kingdome.


    "By Prosecutions in the Court of King's Bench for Matters and Causes
cognizable onely in Parlyament and by diverse other Arbitrary and Illegall
Courses.


    "[E]xcessive Baile hath beene required of Persons committed in
Criminall Cases to elude the Benefit of the Lawes made for the Liberty of
the Subjects.
    "And excessive Fines have been imposed.
    "And illegall and cruell Punishments have been inflicted.


    "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).


    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.
    "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:

    "1st, [T]he 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.
    "2dly, [S]aid 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.


    "4thly, [T]his will be an Encouragement and Allowance for giving the
like cruel, barbarous and illegal Judgments hereafter, unless this Judgment
be reversed.
    "5thly, . . . [T]hat the said Judgments were contrary to Law and
ancient Practice, and therefore erroneous, and ought to be reversed.
    "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 aflicted."  1
Journals of the House of Lords 367 (May 31, 1689), quoted in Second Trial
of Titus Oates, supra, at 1325.


    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.

    "[T]he 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.
    "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 . . .
.


    "That it seemed no less plain, That the Judgments were cruel, and of
ill Example to future Ages.
    "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.'
    "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.
    "It was of ill Example, and unusual, That an Englishman should be
exposed upon a Pillory, so many times a Year, during his Life.
    "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.


    "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.'
    "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).


    In all these contemporaneous discussions, as in the prologue of the
Declaration, a punishment is not considered objectionable because it is
disproportionate, {4} 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.
    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. {5}  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.
C
    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).
    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]
occu[r] in ordinary practice," Webster's 1828 edition, "[s]uch 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.).
    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. {6}  The arguments against it, however,
seem to us conclusive.
    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., MDRV 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, MDRV 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, {7} 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, 15 XVIII, XXXIII (1784).
Ohio Const., Art. VIII, 15 13, 14 (1802). {8}

    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. {9}
    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
"confirm[s] 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).
    In the January 1788 Massachusetts Convention, for example, the
objection was raised that Congress was

"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).


In the Virginia Convention, Patrick Henry decried the absence of a bill of
rights, stating:

"What says our [Virginia] Bill of Rights? -- `that excessive bail ought not
be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.' . . .
    "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.


    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, "[n]o 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 "run[ning] 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, "run[ning] 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 "run[n]ing away with [a] ship or vessel").
    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:

"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).


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:

    "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).


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:

"The provision [the Eighth Amendment] would seem wholly unecessary 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 MDRV 1896
(1833).


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, 15 13, 14 (1802);
Ind. Const., Art. I, 15 15-16 (1816); Me. Const., Art. I, MDRV 9 (1819); R.
I. Const., Art. I, MDRV 8 (1842); W. Va. Const., Art. II, MDRV 2 (1861);
Ga. Const., Art. I, 15 16, 21 (1868).
    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.
    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:

    "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. . . .  [T]he best heads and hearts
of the land of our ancestors, had long and loudly declaimed against the
wanton cruelty of many of the punishments practised 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).


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. {10}  One case, late in the century,
suggested in dictum, not a fullfledged 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, MDRV 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).
III
    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.
{11}  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.
    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 MDRV 272:34 (1988) ("not more than twenty years" in prison for sodomy)
with MDRV 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. 15 14:37; 14:68.1 (West 1986).  A battery that results in
"protracted and obvious disfigurement" merits imprisonment "for not more
than five years," MDRV 14:34.1, one half the maximum penalty for theft of
livestock or an oilfield seismograph, 15 14:67.1, 14:67.8.  We may think
that the First Congress punished with clear dis proportionality when it
provided up to seven years in prison and up to $1,000 in fine for
"cut[ting] off the ear or ears, . . . cut[ting] out or disabl[ing] the
tongue, . . . put[ting] out an eye, . . . cut[ting] off . . . any limb or
member of any person with intention . . . to maim or disfigure," but
provided the death penalty for "run[ning] away with [a] ship or vessel, or
any goods or merchandise to the value of fifty dollars."  Act of Apr. 30,
1790, ch. 9, 15 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. MDRV 113(d), unauthorized reproduction of
the "Smokey Bear" character or name with the same penalty, 18 U. S. C. MDRV
711, offering to barter a migratory bird with up to two years in prison, 16
U. S. C. MDRV 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. MDRV 1704.  Perhaps both we and they would be right, but the point is
that there are no textual or historical standards for saying so.
    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.
    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 dissimilar 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)
("[W]hoever . . . shall maim another, or shall disfigure him . . . shall be
maimed or disfigured in like sort").
    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. MDRV
35-7-1031(c) (1988) (6 months); W. Va. Code MDRV 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.
IV
    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 "accessor[ies]" 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.
    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:

"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.


    As to the latter:

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.


Other portions of the opinion, however, suggest that mere
disproportionality, by itself, might make a punishment cruel and unusual:

"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.

"[T]he 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).


    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 . . . punishmen[t]," 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 im prisonment 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. {12}  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). {13}  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).
    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. {14}  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.
V
    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.
    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).
    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 capitalsentencing 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.
    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.

    "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 ab solute renunciation of all that is embodied in our concept of
humanity."  Furman v. Georgia, 408 U. S., at 306 (Stewart, J.,
concurring).


    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.
    The judgment of the Michigan Court of Appeals is

Affirmed.


 
 
 
 
 

------------------------------------------------------------------------------
1
    Mich. Comp. Laws Ann. MDRV 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"; MDRV
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"; MDRV 791.233b[1](b) defines "major
controlled substance offense" as, inter alia, a violation of MDRV
333.7403.

2
    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.

3
    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).

4
    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.

5
    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.

6
    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 re strictions
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.

7
    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).

8
    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, MDRV 18 (1784).
    The Ohio provision copied that of New Hampshire.

9
    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, MDRV 13 (1818)
(prohibiting excessive fines only); Ga. Const., Art. LIX (1777) (same).
 

10
    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.

11
    Justice White argues that the Eighth Amendment must contain a
proportionality principle because otherwise legislatures could "mak[e]
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, MDRV 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, "[t]he 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.

12
    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).

13
    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).

14
    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 "[e]ven 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).





Subject: 89-7272 -- CONCUR, HARMELIN v. MICHIGAN

 


    SUPREME COURT OF THE UNITED STATES


No. 89-7272



RONALD ALLEN HARMELIN, PETITIONER
v. MICHIGAN


on writ of certiorari to the court of appeals of michigan

[June 27, 1991]



    Justice Kennedy, with whom Justice O'Connor and Justice Souter join,
concurring in part and concurring in the judgment.

    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.
I


A
    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).
    The Eighth Amendment proportionality principle also applies to
noncapital sentences.  In Rummel v. Estelle, 445 U. S. 263 (1980), we
acknowledged the existence of the proportionality rule for both capital and
noncapital 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).
B
    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.
    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, "[r]eviewing 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").
    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).
    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, ("[t]he 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.
"[O]ur 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).
    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 " `[t]he 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 noncapital 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 " `[o]utside 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.
    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 dispro portioned" sentences); Coker, supra, at 592
(Eighth Amendment prohibits "grossly disproportionate" sentences); Rummel,
supra, at 271 (same).
II
    With these considerations stated, it is necessary to examine the
challenged aspects of petitioner's sentence: its severe length and its
mandatory operation.
A
    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.   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 "[n]o 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.
    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 stand point, 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.
    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).
    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).
    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").
    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. ("[N]o single criterion
can identify when a sentence is so grossly disproportionate that it
violates the Eighth Amendment").
    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.
    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 "[e]ven 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.
    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 "eviscerate[s]" Solem, nor "abandon[s]"
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.
B
    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 noncapital cases.  Ante, at 34-36.
    The mandatory nature of this sentence comports with our noncapital
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 "d[id] 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.
    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.
    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. MDRV 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."  MDRV
333.7401(4); MDRV 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.
    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.
*   *   *
    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.

------------------------------------------------------------------------------




Subject: 89-7272 -- DISSENT, HARMELIN v. MICHIGAN

 


    SUPREME COURT OF THE UNITED STATES


No. 89-7272



RONALD ALLEN HARMELIN, PETITIONER
v. MICHIGAN


on writ of certiorari to the court of appeals of michigan

[June 27, 1991]



    Justice White, with whom Justice Blackmun and Justice Stevens join,
dissenting.
    The Eighth Amendment provides that "[e]xcessive 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.
    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:
    "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 regu lations 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).


    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).
    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.
    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. {1}
    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:
"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.



[T]he 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
dispro portioned 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.)


    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.
    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 "involve[d] 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 disproportion
ality 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.
    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.
    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.
    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
"[t]ime 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).
    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.
    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. {2}  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 noncapital sentences with a high degree of sensitivity to
principles of federalism and state autonomy."  {3}  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.
    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 "[w]renched out of its
common-law context, and applied to the actions of a legislature, the word
`unusual' could hardly mean `contrary to law,' " because "[t]here 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
"[i]t 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.
    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.
    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 appli
cation.  If the concept of proportionality is downgraded in the Eighth
Amendment calculus, much of this Court's capital penalty jurisprudence will
rest on quicksand.
    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.
    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 dis proportionality."
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," "[b]ut a
combination of objective factors can make such analysis possible."  463 U.
S., at 291, n. 17.
    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).
    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 "[t]he current judgment with respect to the death
penalty for rape," though "not wholly unanimous among state legislatures, .
. . weigh[ed] 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.
    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

"[f]or 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).


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.
    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.
    Petitioner, a first-time offender, was convicted of possession of 672
grams of cocaine.  The statute under which he was convicted, Mich. Comp.
Laws MDRV 333.7403(2)(a)(i) (1980), provides that a person who knowingly or
intentionally possesses any of various narcotics, including cocaine,
"[w]hich 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 15 791.233b[1](b),
791.234(4).  A related statute, MDRV 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 "manufacture[s], deliver[s], or possess[es] with
intent to manufacture or deliver," 650 grams or more of a narcotic mixture.
{4}  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).
    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.
    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 "[t]he 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.
    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.
    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 "[n]o 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.
    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. {5}  Although "[i]ntent 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.
    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. {6}  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.
    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 MDRV 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, MDRV 750.317; rape, MDRV 750.520b; and armed
robbery, MDRV 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.
    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
MDRV 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.  MDRV 13A-12231(2)(b). {7}  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, MDRV 2D1.1 (1990).  Thus, "[i]t
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).
    Application of Solem's proportionality analysis leaves no doubt that
the Michigan statute at issue fails constitutional muster. {8}  The
statutorily mandated penalty of life without possibility of parole for
possession of narcotics is unconsti tutionally 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.

 
 
 
 
 

------------------------------------------------------------------------------
1
    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 "[t]he 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.

2
    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.

3
    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.).

4
    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.

5
    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 oppor
tunity 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.

6
    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.

7
    The Alabama statute is entitled "Trafficking in cannabis, cocaine,
etc.," and punishes "[a]ny 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.

8
    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.





Subject: 89-7272 -- DISSENT, HARMELIN v. MICHIGAN

 


    SUPREME COURT OF THE UNITED STATES


No. 89-7272



RONALD ALLEN HARMELIN, PETITIONER
v. MICHIGAN


on writ of certiorari to the court of appeals of michigan

[June 27, 1991]



    Justice Marshall, dissenting.
    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,
"[b]ecause 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 noncapital
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.
------------------------------------------------------------------------------




Subject: 89-7272 -- DISSENT, HARMELIN v. MICHIGAN

 


    SUPREME COURT OF THE UNITED STATES


No. 89-7272



RONALD ALLEN HARMELIN, PETITIONER
v. MICHIGAN


on writ of certiorari to the court of appeals of michigan

[June 27, 1991]



    Justice Stevens, with whom Justice Blackmun joins, dissenting.

    While I agree wholeheartedly with Justice White's dissenting opinion, I
believe an additional comment is appropriate.

    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.

    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.

    I respectfully dissent.
------------------------------------------------------------------------------
