Proportionality in Sentencing

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Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Supreme Court has also held that the Eighth Amendment’s prohibition against “cruel and unusual punishments” applies to punishments that are disproportionate to the offense.1 In 1892, Justice Stephen Field argued in dissent in O’Neil v. Vermont,2 that, in addition to prohibiting punishments deemed barbarous and inhumane, the Eighth Amendment also condemned “all punishments which by their excessive length or severity are greatly disproportionate to the offenses charged.” In 1910, the Court appeared to adopt Justice Stephen Field’s view in Weems v. United States,3 striking down a sentence imposed in the Philippine Islands for the offense of falsifying public documents that included fifteen years’ incarceration at hard labor with chains on the ankles, loss of all civil rights, and perpetual surveillance. Comparing the sentence with those meted out for other offenses, the Court concluded: “This contrast shows more than different exercises of legislative judgment. It is greater than that. It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice.” 4

The Court has distinguished death penalty cases from length of sentence cases, providing greater deference to state determinations in the latter. In Rummel v. Estelle,5 the Court upheld a mandatory life sentence under a recidivist statute following a third felony conviction, even though the defendant’s three nonviolent felonies had netted him a total of less than $230. In its ruling, the Court reasoned that the unique quality of the death penalty rendered capital cases of limited value to cases concerning the length of a sentence.6 The Court further distinguished Weems on the ground that the prison conditions and post-release denial of significant rights imposed under the particular Philippine penal code were of considerably greater concern than the length of the sentence. In order to avoid improper judicial interference with state penal systems, the Court reasoned that objective factors must inform Eighth Amendment judgments to the maximum extent possible.7 But when a punishment is challenged based on its length rather than the seriousness of the offense, the choice is necessarily subjective. Therefore, the Rummel rule appears to be that states may punish any behavior properly classified as a felony with any length of imprisonment purely as a matter legislative discretion.8 In dismissing the defendant’s arguments to the contrary, the Court first noted that the nonviolent nature of the offense was not necessarily relevant to the crime’s seriousness, and that determining what is a “small” amount of money, being subjective, was a legislative task. In any event, the Court opined that the state could focus on recidivism not the specific acts. Second, the Court ruled that comparing punishments imposed for the same offenses across jurisdictions was not helpful—differences and similarities being more subtle than gross—and, in any case, in a federal system, one jurisdiction would always be more severe than the rest. Third, the Court noted that comparing punishments imposed for other offenses in the same state ignored the recidivism aspect.9

The Court’s deference to state determinations is not inviolate, however. The Court distinguished Rummel in Solem v. Helm,10 stating unequivocally that the Cruel and Unusual Punishments Clause “prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed,” and that “[t]here is no basis for the State’s assertion that the general principle of proportionality does not apply to felony prison sentences.” 11 Helm, like Rummel, had been sentenced under a recidivist statute following conviction for a nonviolent felony involving a small amount of money.12 The Court, however, viewed Helm’s sentence of life imprisonment without possibility of parole to be “far more severe than the life sentence we considered in Rummel v. Estelle.” 13 Rummel, the Court pointed out, “was likely to have been eligible for parole within twelve years of his initial confinement,” whereas Helm had only the possibility of executive clemency, characterized by the Court as “nothing more than a hope for ‘an ad hoc exercise of clemency.’” 14 The Solem Court also identified “objective criteria” by which proportionality issues should be judged: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” 15 Measured by these criteria, the Court concluded that Helm’s sentence was cruel and unusual. His crime was relatively minor, yet life imprisonment without possibility for parole was the harshest penalty possible in South Dakota, reserved for such other offenses as murder, manslaughter, kidnaping, and arson. In only one other state could Helm have received so harsh a sentence, and in no other state was it mandated.16

Harmelin v. Michigan 17 saw a closely divided Court hold that a mandatory term of life imprisonment without possibility of parole was not cruel and unusual as applied to the crime of possession of more than 650 grams of cocaine. The Court limited its opinion to the mandatory nature of the penalty, rejecting an argument that sentencers in non-capital cases must be allowed to hear mitigating evidence.18 As to the length of sentence, three majority Justices—Anthony Kennedy, Sandra Day O’Connor, and David Souter—recognized a narrow proportionality principle, but considered Harmelin’s crime severe and by no means grossly disproportionate to the penalty imposed.19

Twelve years after Harmelin, in Ewing v. California,20 the Court did not reach a consensus on a rationale for rejecting a proportionality challenge to California’s “three-strikes” law, as applied to a sentence of twenty-five years to life in prison for a repeat offender who had stolen three golf clubs valued at $399 apiece. A plurality of three Justices (Sandra Day O’Connor, Anthony Kennedy, and Chief Justice William Rehnquist) determined that the sentence was “justified by the State’s public safety interest in incapacitating and deterring recidivist felons, and amply supported by [the petitioner’s] long, serious criminal record,” and hence was not the “rare case” of “gross disproportional[ity].” 21 The other two Justices voting in the majority were Justice Antonin Scalia, who objected that the proportionality principle cannot be intelligently applied when the penological goal is incapacitation rather than retribution,22 and Justice Clarence Thomas, who asserted that the Cruel and Unusual Punishments Clause “contains no proportionality principle.” 23 The Court also rejected a habeas corpus challenge to California’s “three-strikes” law for failure to clear the statutory hurdle of establishing that the sentencing was contrary to, or an unreasonable application of, “clearly established federal law.” 24 Justice Sandra Day O’Connor’s opinion for a five-Justice majority explained, in understatement, that the Court’s precedents in the area “have not been a model of clarity . . . that have established a clear or consistent path for courts to follow.” 25

1: See, e.g., Solem v. Helm, 463 U.S. 277, 284 (1983).
2: 144 U.S. 323, 339–40 (1892).See also Howard v. Fleming, 191 U.S. 126, 135–36 (1903).
3: 217 U.S. 349 (1910). The Court was here applying not the Eighth Amendment but a statutory bill of rights applying to the Philippines, which it interpreted as having the same meaning. Id. at 367.
4: 217 U.S. at 381.
5: 445 U.S. 263 (1980).
6: Id. at 272.
7: Id. at 272–75.
8: In Hutto v. Davis, 454 U.S. 370 (1982), on the authority of Rummel, the Court summarily reversed a decision holding disproportionate a prison term of forty years and a fine of $20,000 for defendant’s possession and distribution of approximately nine ounces of marijuana said to have a street value of about $200.
9: Rummel, 445 U.S. at 275–82. The dissent deemed these three factors to be sufficiently objective to apply and thought they demonstrated the invalidity of the sentence imposed. Id. at 285, 295–303.
10: 463 U.S. 277 (1983). The case, like Rummel, was decided by a 5-4 vote.
11: Id. at 284, 288.
12: The final conviction was for uttering a no-account check in the amount of $100; previous felony convictions were also for nonviolent crimes described by the Court as “relatively minor.” Id. at 296–97.
13: Id. at 297.
14: Id. at 297, 303.
15: Id. at 292.
16: For a suggestion that Eighth Amendment proportionality analysis may limit the severity of punishment possible for prohibited private and consensual homosexual conduct, see Justice Lewis Powell’s concurring opinion in Bowers v. Hardwick, 478 U.S. 186, 197 (1986).
17: 501 U.S. 957 (1991).
18: “Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense.” 501 U.S. at 994. The Court’s opinion, written by Justice Antonin Scalia, then elaborated an understanding of “unusual” —set forth elsewhere in a part of his opinion subscribed to only by Chief Justice William Rehnquist—that denies the possibility of proportionality review altogether. Mandatory penalties are not unusual in the constitutional sense because they have “been employed in various form throughout our Nation’s history.” This is an application of Justice Antonin Scalia’s belief that cruelty and unusualness are to be determined solely by reference to the punishment at issue and without reference to the crime for which it is imposed.See id. at 975–78 (not opinion of Court—only Chief Justice Rehnquist joined this portion of the opinion). Because a majority of other Justices indicated in the same case that they do recognize at least a narrow proportionality principle (see id. at 996 (Kennedy, O’Connor, and Souter, JJ., concurring); id. at 1009 (White, Blackmun, and Stevens, JJ., dissenting); id. at 1027 (Marshall, J., dissenting)), the fact that three of those Justices (Anthony Kennedy, Sandra Day O’Connor, and David Souter) joined Justice Antonin Scalia’s opinion on mandatory penalties should probably not be read as representing agreement with Justice Antonin Scalia’s general approach to proportionality.
19: Because of the “serious nature” of the crime, the three-Justice plurality asserted that there was no need to apply the other Solem factors comparing the sentence to sentences imposed for other crimes in Michigan, and to sentences imposed for the same crime in other jurisdictions. Harmelin, 501 U.S. at 1004. Dissenting Justice White, joined by Justices Blackmun and Stevens (Justice Thurgood Marshall also expressed agreement on this and most other points, id. at 1027), asserted that Justice Kennedy’s approach would “eviscerate” Solem. Id. at 1018.
20: 538 U.S. 11 (2003).
21: Id. at 29–30.
22: Id. at 31.
23: Id. at 32. The four dissenting Justices thought that the sentence was invalid under the Harmelin test used by the plurality, although they suggested that the Solem v. Helm test would have been more appropriate for a recidivism case. See Ewing, 538 U.S. at 32, n.1 (opinion of Justice Stevens).
24: Lockyer v. Andrade, 538 U.S. 63 (2003). The three-strikes law had been used to impose two consecutive twnty-five-year-to-life sentences on a thirty-seven-year-old convicted of two petty thefts with a prior conviction.
25: Id. at 72.