Lead Opinion
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
I
A
The Eighth Amendment, which applies against the States by virtue of the Fourteenth Amendment, see Robinson v. California,
Two years later, in Hutto v. Davis,
A year and a half after Davis we uttered what has been our last word on this subject to date. Solem v. Helm,
It should be apparent from the above discussion that our 5-to-4 decision eight years ago in Solem was scarcely the expression of clear and well accepted constitutional law. We have long recognized, of course, that the doctrine of stare decisis is less rigid in its application to constitutional precedents, see Payne v. Tennessee, ante, at 828; Smith v. Allwright,
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, pp. 279, 295-298 (1981).) In 1791, five State Constitutions prohibited “cruel or unusual punishments,” see Del. Declaration of Rights, § 16 (1776); Md. Declaration of Rights, § XXII (1776); Mass. Declaration of Rights, Art. XXVI (1780); N. C. Declaration of Rights, § X (1776); N. H. Bill of Rights, Art. XXXIII (1784), and two prohibited “cruel” punishments, Pa. Const., Art. IX, § 13 (1790); S. C. Const., Art. IX, § 4 (1790). The new Federal Bill of Rights, however, tracked Virginia’s prohibition of “cruel and unusual punishments,” see Va. Declaration of Rights, §9 (1776), which most closely followed the English provision. In fact, the entire text of the Eighth Amendment is taken almost verbatim from the English Declaration of Rights, which provided “[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 con
As Solem observed,
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, how
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 Jef-freys’ 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) (hereinafter Chitty). 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,
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 Kings Bench for Matters and Causes cognizable onely in Parlyament and by diverse other Arbitrary and Illegall Courses.
“[Ejxcessive 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 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
“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, pp. 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 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 Cоurt, 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 afflicted.” 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 theiraccepting 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 to be 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 was [sic] 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,
In sum, we think it most unlikely that the English Cruell and Unusuall 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,
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,
Wrenched out of its common-law context, and applied to the actions of a legislature, the word “unusual” could hardly mean “contrary tо law.” But it continued to mean (as it continues to mean today) “such as [does not] occu[r] in ordinary practice,” Webster’s American Dictionary (1828), “[s]uch as is [not] in common use,” Webster’s Second International Dictionary 2807 (1954). According to its terms, then, by forbidding “cruel and unusual punishments,” see Stanford v. Kentucky,
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.
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 befоre 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.
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).
“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,
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 unusuál 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).
“The provision [the Eighth Amendment] would seem wholly unnecessary in a free government, since it is scarcely possible, that any department of such a government should authorize, or justify such atrocious conduct. It was, however, adopted as an admonition to all departments of the national government, to warn them against such violent proceedings, as had taken place in England in the arbitrary reigns of some of the Stuarts.” 3 J. Story, Commentaries on the Constitution of the United States § 1896 (1833).
Many other Americans apparently agreed that the Clause only outlawed certain modes of punishment: During the 19th century several States ratified constitutions that prohibited “cruel and unusual,” “cruel or unusual,” or simply “cruel” punishments and required all punishments to be proportioned to the offense. Ohio Const., Art. VIII, §§ 13, 14 (1802); Ind. Const., Art. I, §§ 15-16 (1816); Me. Const., Art. I, § 9 (1819); R. I. Const., Art. I, § 8 (1842); W. Va. Const., Art. II, § 2 (1861-1863); Ga. Const., Art. I, §§ 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,
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,
“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. Hitchings,
II
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
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
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,
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
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
Ill
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,
“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.”217 U. S., 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,
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,
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.
IV
Petitioner claims that his sentence violates the Eighth Amendment for a reason in addition to its alleged dispropor-tionality. 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 discussiоn 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
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,
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,
“The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our conceptof 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.
Notes
Michigan Comp. Laws Ann. §333.7403(2)(a)(i) (West Supp. 1990-1991) provides a mandatory sentence of life in prison for possession of 650 grams or more of “any mixture containing [a schedule 2] controlled substance”; § 333.7214(a)(iv) defines cocaine as a schedule 2 controlled substance. Section 791.234(4) provides eligibility for parole after 10 years in prison, except for those convicted of either first-degree murder or “a major controlled substance offense”; § 791.233b[1](b) defines “major controlled substance offense” as, inter alia, a violation of § 333.7403.
Specifically, we rejected, in some detail, the four-factor test promulgated by the Fourth Circuit in Hart v. Coiner,
Solem v. Helm,
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.
Contrary to Justice White’s suggestion, post, at 1011-1012, 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.
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 1011. Surely this is an extraordinary method for determining what restrictions upon democratic self-government the Constitution contains. It seems to us that our task is not merely to identify various meanings that
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, pp. 304-307 (J. Madison) (comparing constitutions of all 13 States).
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., Pt. I, Art. XVIII (1784).
The Ohio provision copied that of New Hampshire.
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 1009. 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,
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
Neither State v. Driver,
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’ 1-hour 40-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,”
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 1018. We do not in principle oppose the “parade of horribles” form of argumentation, see Scalia, Assоrted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 590-593 (1989-1990); but its strength is in direct proportion to (1) the certitude that the provision in question was meant to exclude the very evil represented by the imagined parade, and (2) the probability that the parade will in fact materialize. Here, for the reasons we have discussed, there is no cause to believe that the provision was meant to exclude the evil of a disproportionate punishment. Justice White’s argument has force only for those who believe that the Constitution prohibited everything that is intensely undesirable — which is an obvious fallacy, see Art. I, § 9 (implicitly permitting slavery); Monaghan, Our Perfect Constitution, 56 N. Y. U. L. Rev. 353 (1981). Nor is it likely that the horrible example imagined would ever in fact occur, unless, of course, overtime parking should one day become an arguably major threat to the common good, and the need to deter it arguably critical — at which time the Members of this Court would probably disagree as to whether the punishment really is “disproportionate,” even as they disagree regarding the punishment for possession of cocaine today. As Justice Frankfurter reminded us, “[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,
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,
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,
In Robinson v. California,
Concurrence Opinion
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, compare ante, at 966-985, with post, at 1009-1011, 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,
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,
The Eighth Amendment proportionality principle also applies to noncapital sentences. In Rummel v. Estelle,
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,
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 819. 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,
Third, marked divergences both in underlying theories of sentencing and in the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure. See Solem, supra, at 291, n. 17 (“The inherent nature of our federal system” may result in “a wide range of constitutional sentences”). “Our federal system recognizes the independent power of a State to articulate societal norms through criminal law.” McCleskey v. Zant,
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,
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,
I — I h — 1
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.
Petitioner was convicted of possession of more than 650 grams (over 1.5 pounds) of cocaine. This amount of pure cocaine has a potеntial yield of between 32,500 and 65,000 doses. A. Washton, Cocaine Addiction: Treatment, Recovery, and Relapse Prevention 18 (1989). From any standpoint, this crime falls in a different category from the relatively minor, nonviolent crime at issue in Solem. Possession, use, and distribution of illegal drugs represent “one of the greatest problems affecting the health and welfare of our population.” Treasury Employees v. Von Raab,
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
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,
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,”
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
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. 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,
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 1018, 1020, 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.
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 994 — 996.
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,
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. § 333.7401 (West Supp. 1990-1991). Sentencing courts may depart from the minimum terms specified for all amounts, except those exceeding 650 grams, “if the court finds on the record that there are substantial and compelling reasons to do so.” §§ 333.7401(4), 333.7403(3). This system is not an ancient one revived in a sudden or surprising way; it is, rather, a recent enactment calibrated with care, clarity, and much deliberation to ad
The Michigan scheme does possess mechanisms for consideration of individual circumstances. Prosecutorial discretion before sentence and executive or legislative clemency after-wards 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 $3,500 in cash.
HH 1 — I
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
Dissenting Opinion
with whom Justice Blackmun and Justice Stevens join, dissenting.
The Eighth Amendment provides that “[ejxcessive 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 965. Accordingly, he says Solem v. Helm,
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 exces-siveness 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,
“No express restriction is laid in the constitution, upon the power of imprisoning for crimes. But, as it is forbidden to demand unreasonable bail, which merely exposes the individual concerned, to imprisonment in case he cannot procure it; as it is forbidden to impose unreasonable fines, on account of the difficulty the person fined would have of paying them, the default of which would be punished by imprisonment only, it would seem, that imprisonment for an unreasonable length of time, is also contrary to the spirit of the constitution. Thus in cases where the courts have a discretionary power to fine and imprison, shall it be supposed, that the power to fine is restrained, but the power to imprison is wholly unrestricted by it? In the absence of all express regulations on the subject, it would surely be absurd to imprison an individual for a term of years, for some inconsiderable 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 976. 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
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 985. 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.
“Such penalties for such offenses amaze those who . . . bеlieve that it is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense. Weems v. United States,217 U. S. 349 , 366-367 (1910).
“[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.’” Id., at 371, 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,”
Robinson v. California,
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,
If Justice Scalia really means what he says — “the Eighth Amendment contains no propоrtionality guarantee,” ante, at 965, 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 994, Justice Scalia backtracks and appears to ac
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,
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 985-986, 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.
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 976, the fact that a punish
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 985-986. 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 application. If the conceрt 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,”
Moreover, as Justice Kennedy concedes, see ante, at 1005, the use of an intrajurisdictional and interjurisdictional 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,
Thus, in Weems,
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 1005. 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 1001. 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 similarlines 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,
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 Ann. §333.7403(2)(a)(i) (West Supp. 1990-1991), 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 controlled substance is guilty of a felony and shall be imprisoned for life.” No particular degree of drug purity is required for a conviction. Other statutes make clear that an individual convicted of possessing this quantity of drugs is not eligible for parole. See §§ 791.233b [l](b), 791.234(4). A related statute, §333.7401(2)(a)(i), which was enacted at the same time as the statute under which petitioner was convicted, mandates the same penalty of life imprisonment without possibility of parole for someone who “manufacturéis], delivers], or possesses] with intent
The first Solem factor requires a reviewing court to assess the gravity of the offense and the harshness of the 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,
To be constitutionally proportionate, punishment must be tailored to a defendant’s personal responsibility and moral guilt. See Enmund v. Florida,
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, supra, 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.
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.
The second prong of the Solem analysis is an examination of “the sentences imposed on other criminals in the same jurisdiction.”
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 10 kilograms or more of cocaine. Ala. Code § 13A-12-231(2)(d) (Supp. 1990). Possession of the amount of cocaine at issue here would subject an Alabama defendant to a mandatory minimum sentence of only five years in prison. § 13A-12-231(2)(b).
Application of Solem’s proportionality analysis leaves no doubt that the Michigan statute at issue fails constitutional muster.
As Justice Scalia notes, ante, at 966, 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 declaration forbade both illegal and disproportionate punishments. Ante, at 974-975. 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
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,
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,
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.
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,
Both the State and Justice Kennedy, see ante, at 1008, 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.
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.
Because the statute under which petitioner was convicted 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.
Dissenting Opinion
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,
Dissenting Opinion
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,
The death sentences that were at issue and invalidated in Furman were “cruel and unusual in the same way that being
I respectfully dissent.