Decided June 27, 1991
JUSTICE SCALIA announced the judgment of the Court and delivered the opinion of the Court with respect to Part IV, and an opinion with respect to Parts I, II, and III, 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.... 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.....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....the "general principle of proportionality" was "deeply rooted and frequently repeated in common-law jurisprudence," had been embodied in the English Bill of Rights "in language that was later adopted in the Eighth Amendment," and had been "recognized explicitly in this Court for almost a century...."
It should be apparent from the above discussion that our 5-to-4 decision eight years ago in Solem was scarcely the expression of clear and well accepted constitutional law..... We conclude from this examination that Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee....
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.
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
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....JUSTICE KENNEDY, with whom JUSTICE O'CONNOR and JUSTICE SOUTER join, concurring in part and concurring in the judgment.
I concur in Part IV 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 JUSTICE WHITE has the best of the historical argument, 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.Our decisions recognize that the Cruel and Unusual Punishments Clause encompasses a narrow proportionality principle....
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." 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." And the responsibility for making these fundamental choices and implementing them lies with the legislature....
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." The federal and state criminal systems have accorded different weights at different times to the penological goals of retribution, deterrence, incapacitation, and rehabilitation. And competing theories of mandatory and discretionary sentencing have been in varying degrees of ascendancy or decline since the beginning of the Republic.
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. "Our federal system recognizes the independent power of a State to articulate societal norms through criminal law." State sentencing schemes may embody different penological assumptions, making interstate comparison of sentences a difficult and imperfect enterprise....
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.'" The most prominent objective factor is the type of punishment imposed....
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.
The crime of uttering a no account check at issue in Solem was
"`one of the most passive felonies a person could commit.'" The
felonies underlying the defendant's recidivism
conviction, moreover, were "all relatively minor." 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."
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. From any standpoint, this crime falls in a different category from the relatively minor, nonviolent crime at issue in Solem. Possession, use, and distribution of illegal drugs represent "one of the greatest problems affecting the health and welfare of our population." Petitioner's suggestion that his crime was nonviolent and victimless, echoed by the dissent, is false to the point of absurdity. To the contrary, petitioner's crime threatened to cause grave harm to society....
The severity of petitioner's crime brings his sentence within the constitutional boundaries established by our prior decisions....
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....
[O]ne 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," 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." It did not mandate such inquiries.
A better reading of our cases leads to the conclusion that intrajurisdictional and interjurisdictional 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.....
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, and it takes full account of 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.
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. 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.
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." 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" 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, or, more generally, to impose any
punishment that is
grossly disproportionate to the offense for which the defendant has
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." 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.
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
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..... If JUSTICE SCALIA really means what he says -
Amendment contains no proportionality guarantee," 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, 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.....
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. 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.'" In so doing, the Court
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."
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." 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," and thus have focused not on "the subjective views of individual Justices," but on "objective factors to the maximum possible extent." It is this type of objective factor which forms the basis for the tripartite proportionality analysis set forth in Solem....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," "the sentences imposed on other criminals in the same jurisdiction," and "the sentences imposed for commission of the same crime in other jurisdictions." JUSTICE KENNEDY, however, maintains that "one factor may be sufficient to determine the constitutionality of a particular sentence," and that there is no need to consider the second and third factors unless "a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." 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...."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." 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]," 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." But Solem recognized that
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.....JUSTICE MARSHALL, dissenting [omitted].
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