OPINION
Brach E. Norris was convicted by a jury of child molestation in the first-degree. Norris had also been convicted of child molestation ten years earlier. The State of Washington’s “two strikes” law for repeat sex offenders provides for a mandatory sentence of life in prison without the possibility of parole, and Norris was so sentenced. Invoking the Eighth Amendment’s prohibition against cruel and unusual punishment, Norris challenges his sentence as grossly disproportionate to his offense.
The Washington Court of Appeals denied Norris’s claim, holding his life-without-parole sentence not grossly disproportionate to his crime. On habeas review, we decide whether the Washington Court of Appeals’s decision denying Norris’s claim “was contrary to, or involved an unreasonable application of, clearly established federal law.” 28 U.S.C. § 2254(d)(1). We conclude that the decision was not contrary to clearly established federal law. Additionally, while finding the issue a close one, we conclude that Norris’s Eighth Amendment claim would fail even on de novo review, and thus need not determine whether the state appellate court decision involved an unreasonable application of clearly established federal law. We affirm.
I.
A.
In November 1993, Washington became the first State to enact a “three strikes” law. U.S. Dept, of Justice, National Institute of Justice, J. Clark, J. Austin, & D. Henry, “Three Strikes and You’re Out”: A Review of State Legislation 1 (Sept. 1997). Formally titled the Persistent Offender Accountability Act (POAA), Wash. Rev. Code § 9.94A.570
et seq.,
the law amended Washington’s sentencing scheme to require sentences of life imprisonment without the possibility of parole for defendants who are convicted of a felony defined as a “most serious offense” in Wash. Rev.Code. § 9.94A.030(31),
1
and have previously been convicted of at least two such offenses on separate occasions.
See id.
at §§ 9.94A.570, 9.94A.030(36). By “provid[ing] a mandatory sentence based on
*1280
the seriousness of the crime and a predetermined number of prior convictions,”
State v. Thorne,
In 1996, the Washington Legislature passed a “two strikes” amendment to the POAA.
See State v. Morin,
B.
At approximately 2:00 p.m. on March 5, 2001, Mark Hyndman and three of his four children, including his stepdaughter, C.D., then five years old, went to a McDonald’s restaurant in Spokane, Washington, for a late lunch. After they finished eating, Hyndman’s children went to play in an enclosed playroom inside the restaurant. As he sat outside the playroom and watched his children play, Hyndman noticed Norris, then 42-years old, sitting alone inside the playroom and making facial expressions at Hyndman’s children while they threw balls against netting on the structure in the playroom. He also saw Norris get up and walk back and forth inside the playroom a few times, repeatedly looking up into the tubes on the structure on which some of the children were playing. Hyndman eventually went into the playroom and sat down so he could watch his children more closely.
Norris approached Hyndman and began talking to him. Hyndman, smelling alcohol on Norris’s breath, moved away slightly and continued to watch his children. Hyndman’s children were in different areas of the playroom at this time — the youngest was playing with some balls, and the others were playing on the slide next to Norris.
At some point, Hyndman, who had been watching his youngest child play with the balls, turned around and saw Norris bend, reach down with one hand, and touch C.D., who had just come down the slide, between the legs. Hyndman immediately grabbed Norris by the shirt and shoved him against a wall inside the playroom. He then *1281 shoved Norris outside the playroom, through the McDonald’s lobby, and outside the restaurant, yelling to the McDonald’s employees to call the police and that Norris had just inappropriately touched his daughter. Once outside, Norris broke free from Hyndman’s grasp and ran away, but Hyndman pursued him on foot. Norris eventually ducked behind an air conditioning unit adjacent to a nearby building, but three police officers arrived soon thereafter and took him into custody.
A few days later, Washington charged Norris with one count of child molestation in the first-degree in violation of Revised Code of Washington § 9A.44.083(1). At trial, Hyndman testified that he saw Norris “reach[ ] down to fondle [C.D.]” as she was trying to pull herself off the edge of the slide, touching her genitalia over her clothing and moving his fingers between her legs. Hyndman stated that the touch occurred “very quickly” — -a couple of seconds at most — and in “a real sweeping quick motion,” after which Norris “stood right up as if nothing had ever happened.” C.D. also testified at trial, stating that while she was playing on the slide at the McDonald’s a man touched her on her “privates,” “[t]he front one.” She also stated that the man had “wiggled” his hand and that she felt his fingers. C.D. could not identify Norris as the man who touched her but indicated that the man who touched her was the same person Hyndman had fought with at the McDonald’s. On cross-examination, C.D. testified that the man had not hurt her.
Norris testified in his own defense. He offered an innocent explanation for his conduct, stating that while he was talking to Hyndman he heard a noise, turned to see C.D. on the edge of the slide, and instinctively grabbed her ankle and then placed his hand further up her body — he could not remember exactly where — to steady her, believing that she was going to fall. Norris also testified that he had just gotten off work, drunk two beers, and stopped at the McDonald’s to pass the time until his bus came.
At the end of the trial, the trial judge instructed the jury that “[a] person commits the crime of child molestation in the first-degree [in violation of Wash. Rev. Code § 9A.44.083(1) ] when he or she has sexual contact with a person who is less than 12 years old ...,” where “sexual contact” is defined as “any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desires of either party or a third party.” The jury convicted Norris of first-degree child molestation.
Before the sentencing hearing, Norris, who had previously been convicted of first-degree child molestation in 1991,
4
filed a motion challenging the application of Washington’s two strikes law to his present conviction as cruel and unusual punishment under the federal Constitution’s Eighth Amendment. Addressing
Andrade v. Attorney General of the State of California,
The trial court first applied the Fain factors to repeat first-degree child molesters in the abstract and concluded that, “in general[,] as far as an objective look at the sentencing scheme for this case[,] ... application of [the] two strikes law is not cruel and unusual punishment under the [Eighth Amendment].” The trial court next considered whether application of the two strikes law to Norris’s specific offense constituted cruel and unusual punishment. The court explained:
I think the question becomes ... is this a child molestation in the first degree [that] is classified as a violent crime and the answer is yes[;] all the elements of child molestation in the first degree were demonstrated beyond a reasonable doubt, and the jury made a finding of guilty in this case.
Unlike the Andrade case where we started out from the get-go with a non-serious, nonviolent, non-threatening charge of shoplifting or theft, we don’t start out on that level in this case. We start out with exactly the type of crime that the ... two strikes law is intending to prevent.
Secondly, not only do we have a prior conviction for [ ] Norris, it happens to be a prior conviction of exactly the same offense, child molestation ... in the first degree.... That matter also involved a young[ ] ... female child as this matter did.
One of the major thrusts of the [POAA] is to prevent recidivism. This is a repeat offense. It has many of the earmarks of the prior offense as best I can determine from what I reviewed in the [presentence report]. 6
*1283 [A]nother issue I find disturbing in this particular case is this case took place in an open, very public area. There was another adult nearby. It indicates to me a complete lack of impulse control on [ ] Norris’[s] part and ... risk[-]taking in a public place; in other words, the risk that [Norris is] going to be caught causes me concern about his behavior and the kind of behavior that the two strikes law is intended] to prevent, [e.g.,] repeat behavior.
.... This is not a shoplifting case. This is a case of a commission of an offense that is specifically prohibited by a very tailored, limited two strikes law to sex offenders.
The trial court concluded that “the application of the [POAA] for two strikes [to Norris’s most recent child molestation conviction] did not violate the [Eighth Amendment],” and sentenced Norris to a term of life imprisonment without the possibility of parole.
On direct review, the Washington Court of Appeals affirmed in an unpublished opinion. Relying on
State v. Thorne,
Addressing the first Fain factor, the Washington Court of Appeals concluded that Norris had “committed a most serious, violent, sex offense against a child.” It acknowledged Norris’s “argu[ment] that the touch was ‘de minimis,’ and was ‘a brief one-second touch over clothing’ that did not involve violence” but rejected it, reasoning that “the [Washington] Legislature has classified first degree molestation as a ‘most serious,’ ‘violent,’ ‘sex offense,’ ” and “Norris ... was convicted of first degree child molestation.” Turning to the second factor, the court stated that the legislative purpose behind the two strikes law was two-fold: “to provide mandatory sentences for repeat offenders to deter such crimes and to protect society.” And, as Norris “had previously committed the same crime,” “violated the conditions of his parole by interacting with young children, without required supervision,” and “now ... molested another young girl, in a public place, with her stepfather close by, watching him and the children,” the court held that “Norris’s sentence [was] consistent with the purposes of the [two strikes law].” Additionally, the Washington Court of Appeals held that Norris’s sentence was comparable to the sentence he would have received for committing similar crimes in the State — the fourth Fain factor — -because “[s]everal other similar offenses, such as first or second degree rape and first or second degree rape of a child[,] would similarly qualify an offender for life in prison if the offender had a prior first degree molestation conviction.” 8
*1284
In examining other jurisdictions’ sentencing schemes under the third
Fain
factor, the Washington Court of Appeals did note that “[m]ost states that have ‘two strikes’ laws require sex offenses with some degree of penetration and infliction of serious bodily harm.” In addition, according to the state appellate court, only “[a] small[] number of states would impose a sentence of life in prison without parole for a second offense after a similar prior offense. For example, Georgia, Montana, New Mexico, South Carolina, and Wisconsin all have two strikes laws for some types of sexual offenses.” Nonetheless, citing
State v. Gimarelli,
The Washington Court of Appeals also drew a distinction between property crimes and crimes against persons:
This violent sex offense against a child is quite different from [a] nonviolent property crime.... The Legislature has a right to discourage such behavior and protect the public from such offenders.
In this case, Mr. Norris is a repeat child molester. He showed a lack of impulse control in molesting a five-year-old girl under the watchful eye of her father. Molesting a child is considered a violent sexual offense.
Based on this analysis, the Washington Court of Appeals concluded that Norris’s life-without-parole sentence was not grossly disproportionate to his crime. The Washington Supreme Court denied discretionary review, without comment.
Norris filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of Washington. Applying federal law, the district court concluded that Norris’s life-without-parole sentence did not violate the Eighth Amendment:
While life imprisonment without the possibility of parole is indeed a harsh sentence, ... it is not grossly disproportionate to the crime of which [Norris] was convicted____[M]olesting a child is necessarily a ‘most serious offense.’ The victims of child molestation suffer incalculable harm. The gravity of the offense is intensified in this case by the fact that the victim was only five-years-old at the time of the incident and the offense occurred while her parents were, essentially, in the same room. Thus, ‘a threshold comparison of the crime committed and the sentence imposed’ does not lead to an inference of gross disproportionality [under the Eighth Amendment].
The district court also concluded that the Washington standard as applied by the Washington courts was not contrary to or an unreasonable application of Supreme Court Eighth Amendment caselaw:
.... The ultimate question under both federal and state law is the same: is [Norris’s] sentence grossly disproportionate to this crime? The Fain factors mirror the considerations articulated by the Ninth Circuit ...: both require consideration of the nature of the crime and both permit comparison of the sentences imposed for similar crimes in various jurisdictions.... It follows that, if [Norris’s] sentence passed muster under the Washington test, it must necessarily be proportionate for purposes of the Eighth Amendment as well.
Having reviewed the record and the opinion of the [state appellate court], th[is] Court concludes that the [state court] did not apply the law concerning gross disproportionality in an objectively unreasonable manner. The [state court] *1285 reached the same conclusion that this Court reached in applying Ninth Circuit law.
After rejecting Norris’s other claims, the district court denied his habeas petition.
Norris timely filed a notice of appeal and applied for a certificate of appeal-ability. We certified one issue for appeal: “whether appellant’s sentence of life in prison without the possibility of parole violates the Eighth Amendment’s bar against cruel and unusual punishment.” 9 We also ordered appointment of counsel for Norris on appeal.
II.
This petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214. Under AEDPA, a federal habeas court may grant a habeas petition if,
inter alia,
the state court’s adjudication of the merits of the petitioner’s claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). If § 2254(d)(1) is satisfied, “then federal habeas courts must review the substantive constitutionality of the state custody de novo.”
Frantz v. Hazey,
A.
We begin by determining the relevant Supreme Court authority clearly established at the time the relevant state court decision became final.
Williams v. Taylor,
The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST. amend. VIII. The last clause “prohibits not only barbaric punishments,”
Solem v. Helm,
Relying on Solem, Norris argues that the Supreme Court has clearly established a three-factor approach for determining whether a noncapital sentence for a term of years is grossly disproportionate to the crime committed. In Solem, the Court
announced three objective factors to guide review of a sentence for a term of years under the Eighth Amendment. First, a reviewing court must look to the gravity of the offense and the harshness of the penalty.... Second, ‘it may be helpful to compare the sentences imposed on other criminals in the same jurisdiction.’ ... Finally, ... ‘courts may find it useful to compare the sentences imposed for [the] commission of the same crime in other jurisdictions.’
Gonzalez v. Duncan,
Reflecting this disarray, the Supreme Court held, the same day
Ewing
was decided, that “the only relevant clearly established law amenable to the ‘contrary to’ or ‘unreasonable application of [AEDPA] framework is the gross disproportionality principle, the precise contours of which are unclear and which is applicable only in the ‘exceedingly rare’ and ‘extreme’ case.”
Andrade,
The gross disproportionality principle necessarily has a core of clearly established meaning; a principle with no substance is no principle at all. The meaning of a principle may “emerge in application over the course of time,”
Yarborough,
There was indeed some elucidation of the gross disproportionality principle available to the state courts when they decided this case. First, the Supreme Court has uniformly applied — and thus given meaning to — -the gross disproportionality principle by consistently measuring the relationship between the severity of the punishment inflicted upon the offender and the nature and number of offenses committed, even though it has sometimes used different frameworks to conduct this analysis.
See Ewing,
B.
We turn now to the case before us and ask if the state court adjudication of Norris’s claim was “contrary to, or involved an unreasonable application of’ the proportionality principle when it concluded that Norris’s sentence was not grossly disproportionate to his crime under Washington’s two strikes law. See 28 U.S.C. § 2254(d)(1).
1.
The Washington Court of Appeals did not address Norris’s Eighth Amendment claim as such. Rather, it analyzed his claim under the Washington Constitution, relying on
Thorne,
The State argues that the state courts’ reliance on the
Fain
factors cannot be contrary to clearly established Supreme Court caselaw because the Supreme Court has not ruled on the question whether a sentence of life without the possibility of parole for a repeat sex offender violates the Eighth Amendment’s bar against cruel and unusual punishment. This contention — that there is no clearly established Supreme Court law unless the Supreme Court has addressed the precise circumstances presented to us in a federal habeas petition — has been repeatedly rejected.
See Panetti,
Norris argues that the Washington Court of Appeals’s failure to address the
Solem
factors and use of the
Fain
factors
exclusively
was contrary to clearly established Supreme Court caselaw. As previously discussed, however, the Supreme Court, shortly before the Washington Court of Appeals’s decision became final, made clear in
Andrade
that the only relevant clearly established law for purposes of § 2254(d)(1) in an Eighth Amendment challenge such as this one was the gross disproportionality principle, and stressed that its “precise contours” were “unclear.”
*1289 2.
In the alternative, Norris argues that the Washington Court of Appeals’s use of the
Fain
factors was an unreasonable application of the proportionality principle to the facts of this case. “A state court’s decision is an unreasonable application of clearly established federal law if ‘the state court identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.’ ”
Rios v. Garcia,
Applying the proportionality analysis developed in Fain and its progeny, the Washington Court of Appeals held Norris’s life-without-parole sentence not grossly disproportionate to his crime because the nature of his crime, first-degree child molestation, is defined by Washington statute as a “violent” and “most serious” offense; his sentence served the legislative purposes behind the two strikes law of incapacitation and deterrence for recidivist sex offenders; and he would have received the same sentence under the two strikes law for committing similar crimes. 14
‘Although each of these analyses was permissible and relevant to an Eighth Amendment proportionality analysis, the Washington Court of Appeals did not separately grapple in the course of its analysis with the ultimate comparison of the severity of Norris’s sentence of life imprisonment without the possibility of parole— “the second most severe penalty permitted by law,”
Harmelin,
C.
In considering
de novo
Norris’s Eighth Amendment gross disproportionality claim, we begin by determining whether “the crime committed and the sentence imposed leads to an inference of gross disproportionality.”
Harmelin,
With respect to the harshness of his sentence, Norris argues that a sentence of life imprisonment without the possibility of parole is extremely harsh, and the State so concedes, as it must. “[L]ife without parole is ‘the second most severe
*1291
penalty permitted by law.’ ”
Graham,
A life sentence is obviously more severe without parole than with it.
See Solem,
The question therefore is whether Norris’s harsh sentence of life imprisonment without the possibility of parole is justified by the gravity of his most recent offense and criminal history. Although the issue is close, we hold that it is.
In evaluating the gravity of Norris’s most recent offense, the State of Washington, like the state courts in this case, relies heavily on the fact that Norris’s offense, first-degree child molestation, is defined by state statute as a “most serious,” Wash. Rev.Code § 9.94A.030(31)(a), and “violent” offense,
id.
at § 9.94A.030(53)(a)(i).
See id.
at § 9A.44.083(2). We recognize that the statutory classification of crimes, like “the fixing of prison terms for [those] crimes[,] involves a substantive penological judgment that, as a general matter, is ‘properly within the province of legislatures, not
*1292
courts.’ ”
Harmelin,
To determine the gravity of an offense, we must “look beyond the label of the crime” to examine the “factual specifics” of the offense.
Reyes v. Warden,
Norris’s most recent offense, first-degree child molestation, is a class A felony punishable by up to life imprisonment with the possibility of parole. See Wash. Rev. Code §§ 9A.44.083; 9A.20.021; 9.94A.728. Additionally, because of Norris’s criminal history and the statutory “seriousness level” of his offense, even if his offense had not been his second strike and he thus had not been sentenced pursuant to the POAA, Norris would have been subject under Washington’s sentencing guidelines to a term of imprisonment between 98 and 130 months. See id. at §§ 9.94A.515; 9.94A.510. Nonetheless, Norris argues that his conduct was not “so serious” as to justify a life-without-parole sentence because it involved only a momentary touching of a young child between the legs on the outside of her clothing — “representing] perhaps the most minimal conduct which could possibly have satisfied the statute” — and, according to Norris, involved neither violence nor the threat of it. The State disputes Norris’s description of his conduct as de minimis, arguing that it involved “a purposeful touch with the purpose of sexual gratification,” and was done “under the very eyes of the parent, in a public restaurant frequent[ed] by children, indicating] a severe lack of impulse control.” The State also notes that child molestation is a crime against a person and *1293 therefore inherently involves a degree of force.
The factual specifics of Norris’s offense involved him touching a five-year-old girl on her “privates” or “genitalia” and over her clothing for at most “a couple of seconds.” While the absolute magnitude of this conduct may be less severe relative to the conduct of some first-degree child molesters,
see, e.g., State v. Flores,
Furthermore, “[t]he impact of [child molestation] on the lives of [its] victims is extraordinarily severe.”
Cacoperdo v. Demosthenes,
Moreover, and critically, the question in this case is not whether Norris’s most recent first-degree child molestation offense would by itself justify the harsh sentence he received. Because Norris was sentenced as a recidivist under the two strikes law, “in weighing the gravity of [his] offense, we must place on the scales not only his current felony,” but also his criminal history.
Ewing,
Norris’s previous armed robbery and second-degree theft offenses are of limited probative value for present purposes. Those offenses are unrelated to the conduct for which Norris was sentenced as a repeat offender and are not rationally related to Washington’s interest in deterring sex offender recidivism.
Cf. Gonzalez,
The circumstances under which Norris committed his previous first-degree child molestation offense are not sufficiently developed in the record for us to determine the gravity of that offense.
22
See, e.g., Reyes,
When the Washington Legislature enacted the two strikes law, it determined that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent sex offense.
See Morin,
To be sure, as we previously discussed, Norris’s sentence of life imprisonment without the possibility of parole is harsh and forsakes any rehabilitative ideal. “By denying [Norris] the right to reenter the community, [Washington has] ma[de] an irrevocable judgment about [his] value and place in society.”
Graham,
III.
We conclude that Norris’s sentence is not grossly disproportionate to his crime and so does not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Thus, regardless whether the Washington Court of Appeals’s failure to weigh the severity of Norris’s sentence in determining whether it was grossly disproportionate to the offenses he committed was an objectively unreasonable application of the gross dis-proportionality principle as established by the Supreme Court, we must affirm the district court’s denial of Norris’s petition for a writ of habeas corpus.
AFFIRMED.
Notes
. A "most serious offense" includes "(a) Any felony defined under any law as a class A felony or criminal solicitation of or criminal conspiracy to commit a class A felony; (b) Assault in the second degree; (c) Assault of a child in the second degree; (d) Child molestation in the second degree; (e) Controlled substance homicide; (f) Extortion in the first degree; (g) Incest when committed against a child under age fourteen; (h) Indecent liberties; (i) Kidnaping in the second degree; (j) Leading organized crime; (k) Manslaughter in the first degree; (l) Manslaughter in the second degree; (m) Promoting prostitution in the first degree; (n) Rape in the third degree; (o) Robbery in the second degree; (p) Sexual exploitation; ... [and] (s) Any other class B felony offense with a finding of sexual motivation[.]” Wash. Rev.Code. § 9.94A.030(31).
. Sex offenses that are strikes under the two strikes law include first-degree child molestation, indecent liberties with forcible compulsion, rape, statutory rape, and certain crimes committed with a sexual motivation. See Wash. Rev.Code § 9.94A.030(36)(b)(i). These offenses are also defined as "most serious offenses” in § 9.94A.030(31).
. Washington sex offenders are otherwise subject to Washington's "determinate-plus" sentencing scheme, which provides for minimum terms of imprisonment and maximum sentences of life imprisonment with parole for class A felonies, 10 years for class B felonies, and five years for class C felonies. Wash. Rev.Code §§ 9.94A.505; 9.94A.507; 9.94A.510; 9.94A.515; 9.94A.728;
see State v. Brundage,
. Norris was also convicted of second-degree theft in 1999 and armed robbery in 1976. Second-degree theft and armed robbery are not predicate crimes under the Washington two-strike sexual offense amendment to the Washington POAA.
. The Washington proportionality analysis explicated in
Fain
was adopted from the Fourth Circuit's proportionality analysis in
Hart v. Coiner,
. There is nothing in the record describing the offense conduct underlying Norris's 1991 child molestation conviction except for a single statement made by the state prosecutor at the sentencing hearing: "[T]he [1991 child molestation conviction,] had [Norris] been convicted on the facts presented[,] would have been a child rape. It appears that according to plea negotiations it was pled down to ... child molest[ation].”
. Article I, Section 14 of Washington's Constitution provides that "Excessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.”
. The Washington Court of Appeals rejected as an improper inquiry Norris's contention that he would have received a significantly shorter sentence if the two strikes law did not exist.
. Norris raises three uncertified issues in his opening brief and requests that the court expand the Certificate of Appealability (COA) to include them.
See
9th Cir. R. 22-1 (e). Because Norris concedes that these issues were not presented to the district court, we may not consider them on appeal, and so deny the request to certify them.
See Smith v. Richards,
. The Supreme Court has held that some sentences are so disproportionate to certain crimes or certain crimes committed by certain classes of offenders that they are categorically barred by the Eighth Amendment's prohibition against cruel and unusual punishment.
See Graham v. Florida,-U.S.-,
. Justice Kennedy took the view in his
Harmelin
concurrence that a court needs to address the second and third
Solem
factors— the intrajurisdictional and interjurisdictional analyses — only if it concludes that there is "an inference of gross disproportionality” after addressing the first
Solem
factor.
Harmelin,
. The Supreme Court has since settled on an authoritative answer to how reviewing courts should apply the proportionality principle to non-capital sentences, adopting the three-factor approach established by Justice Kennedy in his Harmelin concurrence:
A court must begin by comparing the gravity of the offense and the severity of the sentence. '[I]n the rare case in which [this] threshold comparison ... leads to an inference of gross disproportionality’ the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.
*1287
Graham,
. We repeat that the approach in Justice Kennedy’s
Harmelin
concurrence was recently adopted by a majority of the Supreme Court.
See Graham,
. The Washington Court of Appeals also conducted an interjurisdictional analysis — the third Fain factor — concluding that while five other states — Georgia, Montana, New Mexico, South Carolina, and Wisconsin' — have two strikes laws, and only a “small number” of states would have imposed a life-without-parole sentence for a second similar prior offense "for some types of sexual offenses,” this factor was not dispositive. As Norris correctly points out on appeal, there were at that time actually eight other states — California, Connecticut, Georgia, Missouri, Montana, New Mexico, South Carolina, and Wisconsin — that had two strikes laws, three of which — California, Connecticut, and New Mexico — would have imposed life-wzrfz-parole sentences rather than life-wzihoni-parole sentences for second-strike offenses. See California Penal Code § 667.71; C.G.S.A. § 53a-40; O.C.G.A. § 17-10-7 (b)(2); V.A.M.S. § 558.018; M.C.A. § 46-18-219(1)(a); N.M.S.A. § 31-18-25; S.C. Stat. § 17-25-45(a); Wis. Stat. § 939.62. Additionally, only Wisconsin might have imposed a life-without-parole sentence based on the facts of this case. See Wis. Stat. §§ 939.62(2m)(a) (defining "serious child sex offense” as including "sexual assault of a child”), 948.02 (defining "sexual assault” to include "sexual contact”), 948.01(5)(a) (defining "sexual contact” as "intentional touching, whether direct or through clothing, if that intentional touching is ... for the purpose of ... sexually arousing or gratifying the defendant”). Based on these errors, Norris contends that the Washington Court of Appeals's interjurisdictional analysis was an unreasonable application of clearly established Supreme Court law.
To be sure, although the Supreme Court did not require an interjurisdictional analysis at the time of the Washington Court of Appeals's decision, the court was still bound reasonably to apply any subanalyses it used toward the end of applying the Eighth Amendment gross disproportionality principle. Nonetheless, any error in the Washington Court of Appeals’s interjurisdictional analysis does not amount to an unreasonable application of the gross disproportionality principle in this case. If anything the Washington Court of Appeals appears to have understated the most relevant support for Norris's sentence in its analysis by failing to note that one other state, Wisconsin, probably would have imposed the same sentence based on the same facts.
. The issue here is not whether “the [Washington] Court of Appeal[s] ... g[a]ve certain facts and circumstances
adequate
weight (and hence adequate discussion),”
Early,
. The Governor of the State of Washington may pardon or grant clemency to a defendant sentenced under the POAA, but the Legislature has "recommend[ed] that any offender subject to [the POAA] not be considered for release until the offender has reached the age of at least sixty years old and has been judged to be no longer a threat to society.” Wash. Rev.Code § 9.94A.565. It has also "recommend[ed] that sex offenders be held to the utmost scrutiny ... regardless of age.” Id.
. We are not aware of any case in which our court has applied the Eighth Amendment proportionality principle to a life-without-parole sentence for a non-homicide crime.
. Though "[r]eviewing courts ... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes,”
Solem,
. The Supreme Court has struck down terms-of-years sentences for non-homicide crimes against a person as constitutionally excessive where the challenge is to "a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes,” not a particular defendant's sentence.
See Graham
. Norris’s attempt to downplay the severity of his offense by attacking his conviction is similarly unavailing. Although Norris is correct that "in those cases in which the evidence shows touching through clothing, ... [Washington] courts ... require[ ] ... additional evidence of sexual gratification,”
State v. Powell,
. We do not second-guess the state courts' determination that Norris's behavior exhibited a severe lack of impulse control, as Norris does not challenge it on appeal. See 28 U.S.C. § 2254(e)(1) (providing that "a determination of a factual issue made by-a State court shall be presumed to be correct,” and that this presumption may be rebutted only by "clear and convincing evidence”);
Taylor v. Maddox,
. At the sentencing hearing for Norris’s most recent offense, the prosecutor stated, with respect to the 1991 child molestation conviction, that "had [Norris] been convicted on the facts presented[,] [the offense] would have been a child rape.” Because there is no way to confirm the veracity of this statement, we do not rely on it.
. It is unclear whether determinate recidivist sentencing schemes have any appreciable effect in decreasing crime,
see
California Legislative Analyst's Office, A Primer: Three Strikes — The Impact After More Than a Decade (Oct. 2005), http://www.lao.ca.gov/2005/ 3_strikes/3_strikes_102005.htm, or whether they promote a retributive penological goal,
see
Michael Vitiello,
Three Strikes: Can We Return to Rationality?,
87 J. CRIM. L. & C. 395, 427 (1997). Additionally, many commentators have suggested that recidivist sen-tenting schemes are influenced in large part by political pressure to appear “tough on crime” rather than legitimate penological justifications.
See, e.g.,
Pamela S. Karlan,
“Pricking the Line”: The Due Process Clause, Punitive Damages, and Criminal Punishment,
88 MN. L. REV. 880, 890 (2004); Nancy J. King & Susan R. Klein, Essential Elements, 54 VAND. L. REV. 1467, 1488 (2001). In any event, "criticism [regarding the 'wisdom, cost-efficiency, and effectiveness’ of recidivist
*1296
sentencing schemes] is appropriately directed at the legislature, which has primary responsibility for making the difficult policy choices that underlie any criminal sentencing scheme.”
Ewing,