See also Graham v. West Virginia, 224 U. S. 616 (1912). §§ 333.7401(4), 333.7403(3). "The disenfranchisement of a citizen," he said, "is not an unusual punishment; it was the consequence of treason, and of infamous crimes, and it was altogether discretionary in the legislature to extend that punishment to other offences.". is especially proscribed and, where not proscribed, especially restricted by the Eighth Amendment is not inconsistent with JUSTICE WHITE's central conclusion, ante at 501 U. S. 1012-1015, that the Eighth Amendment also imposes a general proportionality requirement. As noted earlier, mandatory death sentences abounded in our first Penal Code. & Criminology 378, 378-382 (1980); Welling & Hipfner, Cruel and Unusual? Ala.Code § 13A-12-231(2)(d) (Supp. JUSTICE SCALIA concludes that "the Eighth Amendment contains no proportionality guarantee." at 463 U. S. 291-292. The plurality opinion in Gregg, supra at 428 U. S. 173, observed that the Eighth Amendment's proscription of cruel and unusual punishment is an evolving, concept and announced that punishment would violate the Amendment if it "involve[d] the unnecessary and wanton infliction of pain" or if it was "grossly out of proportion to the severity of the crime." length of sentence, and, especially with a crime as severe as this one, we should do so only in the most extreme circumstance. Let us remember that it has come to us from a government of a different form and genius from ours. La.Rev.Stat.Ann. 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. 89-7272. 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 "manufacture[s], deliver[s], or possess[es] with intent. IX, § 4 (1790). See also Solem, supra at 463 U. S. 294-295 (comparison of different terms of years for imprisonment "troubling" but not "unique to this area"). See Solem, supra at 463 U. S. 294 ("The easiest comparison [of different sentences] is between capital punishment and noncapital punishment"). (This document was promulgated in February, 1689, and was enacted into law as the Bill of Rights, 1 Wm. Printed collections of state constitutions were available to the Founders, see The Federalist No. The first prong of Solem requires a court to consider two discrete factors -- the gravity of the offense and the severity of the punishment. No. As our earlier discussion should make clear, this claim has no support in the text and history of the Eighth Amendment. We made no mention of Weems, although the petitioner had relied upon that case. Id. A minority of the Lords dissented, however, and their statement sheds light on the meaning of the "cruell and unusuall Punishments" clause: "1st, [T]he King's Bench, being a Temporal Court, made it a Part of the Judgment, That Titus Oates, being a Clerk, should, for his said Perjuries, be divested of his canonical and priestly Habit . A. Washton, Cocaine Addiction: Treatment, Recovery, and Relapse Prevention 18 (1989). Ante at 501 U. S. 994-996. 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. cut[ting] off . (We relied upon precisely the lack of this incentive for abuse in holding that "punitive damages" were not "fines" within the meaning of the Eighth Amendment. . . Later in his opinion, however, ante at 501 U. S. 994, JUSTICE SCALIA backtracks and appears to accept. II, § 2 (1861-1863); Ga.Const., Art. (Of course Rummel had not said merely "one could argue," but "one could argue without fear of contradiction by any decision of this Court." 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. 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." 139, 140, 80 Eng.Rep. Solem, supra at 463 U. S. 293. 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. In cases involving the fundamental right, the _____ standard of view is used to resolve the case. share the judges' view that the offenses are similarly grave. The second prong of the Solem analysis is an examination of "the sentences imposed on other criminals in the same jurisdiction." Instead, courts have demonstrated that they are, "capable of applying the Eighth Amendment to disproportionate noncapital sentences with a high degree of sensitivity to principles of federalism and state autonomy. The amount of cocaine Harmelin possessed has a potential yield of between 32,500 and 65,000 doses, and the Michigan Legislature could with reason conclude that possession of this large an amount is momentous enough to warrant the deterrence and retribution of a life sentence without parole. But if this is so, then neither could the term "unusual" mean "contrary to custom," for, until Congress passed the first penal law, there were no "customary" federal punishments either. 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. If the proof of the pudding is in the eating, however, it is hard to view Weems as announcing a constitutional requirement of proportionality, given that it did not produce a decision implementing such a requirement, either here or in the lower federal courts, for six decades. In the 19th century, judicial agreement that a "cruel and unusual" (or "cruel or unusual") provision did not constitute a proportionality requirement appears to have been universal. . 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." 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. at 445 U. S. 274. at 463 U. S. 290, n. 16, Solem is best understood as holding that comparative. The search yielded weapons and drugs. Having decreed that a general principle of disproportionality exists, the Court used as the criterion for its application the three-factor test that had been explicitly rejected in both Rummel and Davis. Accordingly, we have addressed anew, and in greater detail, the question whether the Eighth Amendment contains a proportionality guarantee -- with particular attention to the background of the Eighth Amendment (which Solem discussed in only two pages, see 463 U.S. at 463 U. S. 284-286) and to the understanding of the Eighth Amendment before the end of the 19th century (which Solem discussed not at all). 176 Mich. App. Although our proportionality decisions have not been clear or consistent in all respects. "As a moral or political issue [the punishment of offenders] provokes intemperate emotions, deeply conflicting interests, and intractable disagreements.". The Ohio provision copied that of New Hampshire. See, e.g., In re Kemmler, 136 U. S. 436, 136 U. S. 446-447 (1890). Id. 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). The statute at issue in Solem made the offender liable to a maximum, not a mandatory, sentence of life imprisonment without parole. The mandatory sentence of life imprisonment without possibility of parole "is the most severe punishment that the State could have imposed on any criminal for any crime," id. The issue is what else should be regarded to be as serious as these offenses, or even to be more serious than some of them. [Footnote 2/4] There is no room for judicial discretion in the imposition of the life sentence upon conviction. bounds. 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.". It is worth noting, however, that there was good reason for that choice -- a reason that reinforces the necessity of overruling Solem. Despite the Court's statement to the contrary in Solem v. Helm, 463 U.S. at 463 U. S. 287, there is no reason to believe that the decision was an application of the principle of proportionality. (e) Although this Court's 20th-century jurisprudence has not remained entirely in accord with the proposition that there is no Eighth Amendment proportionality requirement, it has not departed to the extent that Solem suggests. The State of Massachusetts punishes sodomy more severely than assault and battery, compare Mass.Gen.Laws § 272:34 (1988) ("not more than twenty years" in prison for sodomy) with § 265:13A ("not more than two and one-half years" in prison for assault and battery); whereas, in several States, sodomy is not unlawful at all. Pp. See Gregg v. Georgia, 428 U. S. 153, 428 U. S. 231 (1976) (MARSHALL, J., dissenting). at 433 U. S. 596 (plurality opinion). See United States v. Sullivan, 895 F.2d 1030, 1031-1032 (CA5), cert. Rummel, 445 U.S. at 445 U. S. 281. ", "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. The comparable statistics for assault, robbery, and weapons arrests were 55, 73, and 63 percent, respectively. . Cases; Outline ☰ Criminal Law Outline ... a punishment can be declared cruel and unusual because it is disproportionate to the crime only in extreme cases (Harmelin v. Michigan). His reasons for claiming that it should not be so construed are weak. 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? Mich.Comp.Laws Ann. at 445 U. S. 271-274, and n. 11, but we refused to strike down a sentence of life imprisonment, with possibility of parole, for recidivism based on three underlying felonies. . Our decisions recognize that the Cruel and Unusual Punishments Clause encompasses a narrow proportionality principle. Studies demonstrate the grave threat that illegal drugs, and particularly cocaine, pose to society in terms of violence, crime, and social displacement. Indeed, Rummel v. Estelle, 445 U. S. 263 (1980), the holding of which JUSTICE SCALIA does not question, itself recognized that the Eighth Amendment contains a proportionality requirement, for it did not question Coker and indicated that the proportionality principle would come into play in some extreme, nonfelony cases. 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. -- 'that excessive bail ought not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' 501 U. S. 1001-1005. Moreover, even if "similarly grave" crimes could be identified, the penalties for them would not necessarily be comparable, since there are many other justifications for a difference. However, what evidence exists from debates at the state ratifying conventions that prompted the Bill of Rights, as well as the floor debates in the First Congress which proposed it, "confirm[s] the view that the cruel and unusual punishments clause was directed at prohibiting certain methods of punishment." 47, pp. 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? (plurality opinion), it does not foreclose all of them, since there remain the possibilities of retroactive legislative reduction and executive clemency. Our most recent decision discussing the subject is Solem v. Helm, 463 U. S. 277 (1983). 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. Ibid. Hudson v. Michigan Case Brief. IX, § 13 (1790); S.C.Const., Art. ed. Petitioner Harmelin was convicted under Michigan law of possessing more than 650 grams of cocaine and sentenced to a mandatory term of life in prison without possibility of parole. In a federal system, moreover, some state will always have the distinction of imposing the harshest punishment for a particular crime. Here, Michigan could, with good reason, conclude that petitioner's crime is more serious than the crime in Davis. . JUSTICE KENNEDY attempts to justify the harsh mandatory sentence imposed on petitioner by focusing on the subsidiary effects of drug use, and thereby ignores this aspect of our Eighth Amendment jurisprudence. Similarly, a rational basis exists for Michigan to conclude that petitioner's crime is as serious and violent as the crime of felony murder without specific intent to kill, a crime for which "no sentence of imprisonment would be disproportionate," Solem, 463 U.S. at 463 U. S. 290, n. 15. Even then, some continued to state that "[a] sentence within the statutory limits is not cruel and unusual punishment." Solem v. Helm, 463 U. S. 277 (1983), set aside under the Eighth Amendment, because it was disproportionate, a sentence of life imprisonment without possibility of parole, imposed under a South Dakota recividist statute for successive offenses that included three convictions of third-degree burglary, one of obtaining money by false pretenses, one of grand larceny, one of third-offense driving while intoxicated, and one of writing a "no account" check with intent to defraud. 1823), aff'd, 3 Cow. . (No. ", "By Prosecutions in the Court of Kings Bench for Matters and Causes cognizable onely in Parlyament and by diverse other Arbitrary and Illegall Courses. : Capital Punishment in Canada, 26 U.Toronto L.J. An early (perhaps the earliest) judicial construction of the federal provision is illustrative. See also 1 Stephen, supra at 458, 471-472 (until 1826, all felonies, except mayhem and petty larceny, were punishable by death). In Louisiana, one who assaults another with a dangerous weapon faces the same maximum prison term as one who removes a shopping basket "from the parking area or grounds of any store . Justice McKenna, writing for himself and three others, held that the imposition of cadena temporal was "Cruel and Unusual Punishment." Solem v. Helm, 463 U. S. 277, which decreed a "general principle of proportionality," id. This amount of pure cocaine has a potential yield of between 32,500 and 65,000 doses. With the exception of capital cases, the severity of the sentence for any crime is a matter that the Amendment leaves to the discretion of legislators. See Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Calif.L.Rev. 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. . . 686 (N.Y. 1824), the defendant, upon conviction of challenging another to a duel, had been disenfranchised. . "Unfortunately, grave evils such as the narcotics traffic can too easily cause threats to our basic liberties by making attractive the adoption of constitutionally forbidden shortcuts that might suppress and blot out more quickly the unpopular and dangerous conduct.". 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 . . Cf. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which O'CONNOR and SOUTER, JJ., joined, post, p. 501 U. S. 996. . Drugs are, without doubt, a serious societal problem. granted, 495 U.S. 956 (1990). Petitioner Harmelin was convicted under Michigan law of possessing more than 650 grams of cocaine and sentenced to a mandatory term of life in prison without possibility of parole. Brief Fact Summary Petitioner was convicted of possessing 672 grams of cocaine and sentenced to life in prison without parole. Judges will be comparing what they consider comparable. This is so, in part, because we have applied the rule in few cases, and even then to sentences of different types. Another commentator, after explaining (in somewhat convoluted fashion) that the "spirit" of the Excessive Bail and Excessive Fines Clauses forbade excessive imprisonments, went on to add: "Under the [Eighth] amendment, the infliction of cruel and unusual punishments is also prohibited. See 4 Blackstone, supra at *9-*19. 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. 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. 112-119 (1790). Court's abrogation of its responsibility to uphold constitutional principles. Prosecutorial discretion before sentence and executive or legislative clemency afterwards provide means for the State to avert or correct unjust sentences. See Ingraham v. Wright, 430 U. S. 651, 430 U. S. 667 (1977). 501 U. S. 985-990. The scheme provides clear notice of the severe consequences that attach to possession of drugs in wholesale amounts, thereby giving force to one of the first purposes of criminal law -- deterrence. As to the former, Justice McKenna wrote: "No circumstance of degradation is omitted. Imprisonment, corporal punishment, and even capital punishment cost a State money; fines are a source of revenue. 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. Pp. The fact that this is one of those rare instances is no reason to abandon the analysis. The mandatory minimum sentences vary depending on the particular drug involved and the amount of the drug at issue. As indicated in the text, I disagree. Harmelin v. Michigan, 501 U.S. 957 (1991), was a case decided by the Supreme Court of the United States under the Eighth Amendment to the United States Constitution.The Court ruled that the Eighth Amendment's Cruel and Unusual Punishment Clause allowed a state to impose a life sentence without the possibility of parole for the possession of 672 grams of cocaine. D. Garland, Punishment and Modern Society 1 (1990). Furthermore, if the Framers had meant to outlaw 'disproportional' punishments, they would have used that word, as many contemporary state constitutions did. 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. Reasons for claiming that it is contrary to justice Scalia 's suggestion, ante 501... 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