Proportionality
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Annotations
In O’Neil v. Vermont,244 Justice Field argued in dissent that, in addition to prohibiting punishments deemed barbarous and inhumane, the Eighth Amendment also condemned “all punishments which by their excessive length or severity are greatly disproportionate to the offenses charged.” In Weems v. United States,245 the Court adopted this view in striking down a sentence in the Philippine Islands of 15 years incarceration at hard labor with chains on the ankles, loss of all civil rights, and perpetual surveillance, for the offense of falsifying public documents. The Court compared the sentence with those meted out for other offenses and concluded: “This contrast shows more than different exercises of legislative judgment. It is greater than that. It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice.”246 Punishments as well as fines, therefore, can be condemned as excessive.247
In Robinson v. California248 the Court carried the principle to new heights, setting aside a conviction under a law making it a crime to “be addicted to the use of narcotics.” The statute was unconstitutional because it punished the “mere status” of being an addict without any requirement of a showing that a defendant had ever used narcotics within the jurisdiction of the state or had committed any act at all within the state’s power to proscribe, and because addiction is an illness that—however it is acquired— physiologically compels the victim to continue using drugs. The case could stand for the principle, therefore, that one may not be punished for a status in the absence of some act,249 or it could stand for the broader principle that it is cruel and unusual to punish someone for conduct that he is unable to control, which would make it a holding of far-reaching importance.250 In Powell v. Texas,251 a majority of the Justices took the latter view of Robinson, but the result, because of one Justice’s view of the facts, was a refusal to invalidate a conviction of an alcoholic for public drunkenness. Whether either the Eighth Amendment or the Due Process Clauses will govern the requirement of the recognition of capacity defenses to criminal charges remains to be decided.
The Court has gone back and forth in its acceptance of proportionality analysis in non-capital cases. It appeared that such analysis had been closely cabined in Rummel v. Estelle,252 upholding a mandatory life sentence under a recidivist statute following a third felony conviction, even though the defendant’s three nonviolent felonies had netted him a total of less than $230. The Court reasoned that the unique quality of the death penalty rendered capital cases of limited value, and distinguished Weems on the ground that the length of the sentence was of considerably less concern to the Court than were the brutal prison conditions and the post-release denial of significant rights imposed under the peculiar Philippine penal code. Thus, in order to avoid improper judicial interference with state penal systems, Eighth Amendment judgments must be informed by objective factors to the maximum extent possible. But when the challenge to punishment goes to the length rather than the seriousness of the offense, the choice is necessarily subjective. Therefore, the Rummel rule appeared to be that states may punish any behavior properly classified as a felony with any length of imprisonment purely as a matter legislative grace.253 The Court dismissed as unavailing the factors relied on by the defendant. First, the fact that the nature of the offense was nonviolent was found not necessarily relevant to the seriousness of a crime, and the determination of what is a “small” amount of money, being so subjective, was a legislative task. In any event, the state could focus on recidivism, not the specific acts. Second, the comparison of punishment imposed for the same offenses in other jurisdictions was found unhelpful, differences and similarities being more subtle than gross, and in any case in a federal system one jurisdiction would always be more severe than the rest. Third, the comparison of punishment imposed for other offenses in the same state ignored the recidivism aspect.254
Rummel was distinguished in Solem v. Helm,255 the Court stating unequivocally that the Cruel and Unusual Punishments Clause “prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed,” and that “[t]here is no basis for the State’s assertion that the general principle of proportionality does not apply to felony prison sentences.”256 Helm, like Rummel, had been sentenced under a recidivist statute following conviction for a nonviolent felony involving a small amount of money.257 The difference was that Helm’s sentence of life imprisonment without possibility of parole was viewed as “far more severe than the life sentence we considered in Rummel v. Estelle.”258 Rummel, the Court pointed out, “was likely to have been eligible for parole within 12 years of his initial confinement,” whereas Helm had only the possibility of executive clemency, characterized by the Court as “nothing more than a hope for ‘an ad hoc exercise of clemency.’”259 The Solem Court also spelled out the “objective criteria” by which proportionality issues should be judged: “(I) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.”260 Measured by these criteria, Helm’s sentence was cruel and unusual. His crime was relatively minor, yet life imprisonment without possibility for parole was the harshest penalty possible in South Dakota, reserved for such other offenses as murder, manslaughter, kidnaping, and arson. In only one other state could he have received so harsh a sentence, and in no other state was it mandated.261
The Court remained closely divided in holding in Harmelin v. Michigan262 that a mandatory term of life imprisonment without possibility of parole was not cruel and unusual as applied to the crime of possession of more than 650 grams of cocaine. There was an opinion of the Court only on the issue of the mandatory nature of the penalty, the Court rejecting an argument that sentencers in non-capital cases must be allowed to hear mitigating evidence.263 As to the length of sentence, three majority Justices—Kennedy, O’Connor, and Souter—would recognize a narrow proportionality principle, but considered Harmelin’s crime severe and by no means grossly disproportionate to the penalty imposed.264
Twelve years after Harmelin the Court still could not reach a consensus on rationale for rejecting a proportionality challenge to California’s “three-strikes” law, as applied to sentence a repeat felon to 25 years to life imprisonment for stealing three golf clubs valued at $399 apiece.265 A plurality of three Justices (O’Connor, Kennedy, and Chief Justice Rehnquist) determined that the sentence was “justified by the State’s public safety interest in incapacitating and deterring recidivist felons, and amply supported by [the petitioner’s] long, serious criminal record,” and hence was not the “rare case” of “gross disproportional[ity].”266 The other two Justices voting in the majority were Justice Scalia, who objected that the proportionality principle cannot be intelligently applied when the penological goal is incapacitation rather than retribution,267 and Justice Thomas, who asserted that the Cruel and Unusual Punishments Clause “contains no proportionality principle.”268 Not surprisingly, the Court also rejected a habeas corpus challenge to California’s “three-strikes” law for failure to clear the statutory hurdle of establishing that the sentencing was contrary to, or an unreasonable application of, “clearly established federal law.”269 Justice O’Connor’s opinion for a five-Justice majority explained, in understatement, that the Court’s precedents in the area “have not been a model of clarity . . . that have established a clear or consistent path for courts to follow.”270
Declaring that “[t]he concept of proportionality is central to the Eighth Amendment,” Justice Kennedy, writing for a five-Justice majority in Graham v. Florida,271 held that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.”272 Justice Kennedy characterized proportionality cases as falling within two general types. The first type comprises challenges to the length of actual sentences imposed as being grossly disproportionate, and such challenges are re-subject The second type comprises challenges to particular sentencing practices as being categorically impermissible, but categorical restrictions had theretofore been limited to imposing the death penalty on those with diminished capacity. In Graham, Justice Kennedy broke new ground and recognized a categorical restriction on life without parole for nonhomicide offenses by juveniles, citing considerations and applying analysis similar to those used in his juvenile capital punishment opinion in Roper.273 In considering objective indicia of a national consensus on the sentence, the Graham opinion looked beyond statutory authorization—thirty-seven states and the District of Columbia permitted life without parole for some juvenile nonhomicide offenders—to actual imposition, which was rare outside Florida. Justice Kennedy also found support “in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over.”274 After finding that a consensus had developed against the sentencing practice at issue, Justice Kennedy expressed an independent judgment that imposing life without parole on juveniles for nonhomicide offenses failed to serve legitimate penological goals adequately.275 Factors in reaching this conclusion included the severity of the sentence, the relative culpability of juveniles, and the prospect for their rehabilitation.276
The concept of proportionality also drove Justice Kagan’s analysis in Miller v. Alabama, a case questioning the imposition of mandatory life imprisonment without parole on juveniles convicted of homicide.277 Her analysis began by recounting the factors, stated in Roper and Graham, that mark children as constitutionally different from adults for purposes of sentencing: Children have diminished capacities and greater prospects for reform.278 Nevertheless, these factors, even when coupled with the severity of a life without parole sentence, did not lead Justice Kagan to bar life without parole for juveniles in homicide cases categorically.279 Her more immediate concern was that the mandatory life sentences in Miller left no room for a sentencer to consider a juvenile offender’s special immaturity, vulnerability, suggestibility, and the like.280 In Justice Kagan’s view, a process that mandates life imprisonment without parole for juvenile offenders is constitutionally flawed because it forecloses any consideration of the hallmark distinctions of youth in meting out society’s severest penalties.281 In leading four Justices in dissent, Chief Justice Roberts observed that most states and the Federal Government have statutes mandating life sentences without parole for certain juvenile offenders in homicide cases, and that those mandated sentences are commonly imposed. These sentences simply are not “unusual,” nor does state law and practice indicate societal opprobrium toward them. Justice Kagan remained unconvinced, finding the dissent’s methodology less persuasive when the issue is the process that must be used in imposing a particular sentence as opposed to categorically barring a type of sentence altogether.
244 144 U.S. 323, 339–40 (1892). See also Howard v. Fleming, 191 U.S. 126, 135–36 (1903).
245 217 U.S. 349 (1910). The Court was here applying not the Eighth Amendment but a statutory bill of rights applying to the Philippines, which it interpreted as having the same meaning. Id. at 367.
246 217 U.S. at 381.
247 “The Eighth Amendment succinctly prohibits ‘excessive’ sanctions.” Atkins v. Virginia, 536 U.S. 304, 311 (2002) (applying proportionality review to determine whether execution of the mentally retarded is cruel and unusual). Proportionality in the context of capital punishment is considered under “Limitations on Capital Punishment: Proportionality,” supra.
248 370 U.S. 660 (1962).
249 A different approach to essentially the same problem was taken in Thompson v. Louisville, 362 U.S. 199, 206 (1960), which set aside a conviction for loitering and disorderly conduct as being supported by “no evidence whatever.” Cf. Johnson v. Florida, 391 U.S. 596 (1968) (no evidence that the defendant was “wandering or strolling around” in violation of vagrancy law).
250 Fully applied, the principle would raise to constitutional status the concept of mens rea, and it would thereby constitutionalize some form of insanity defense as well as other capacity defenses. For a somewhat different approach, see Lambert v. California, 355 U.S. 225 (1957) (due process denial for city to apply felon registration requirement to someone present in city but lacking knowledge of requirement). More recently, this controversy has become a due process matter, with the holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the facts necessary to constitute the crime charged, Mullaney v. Wilbur, 421 U.S. 684 (1975), raising the issue of the insanity defense and other such questions. See Rivera v. Delaware, 429 U.S. 877 (1976); Patterson v. New York, 432 U.S. 197, 202–05 (1977). In Solem v. Helm, 463 U.S. 277, 297 n.22 (1983), an Eighth Amendment proportionality case, the Court suggested in dictum that life imprisonment without possibility of parole of a recidivist who was an alcoholic, and all of whose crimes had been influenced by his alcohol use, was “unlikely to advance the goals of our criminal justice system in any substantial way.”
251 392 U.S. 514 (1968). The plurality opinion by Justice Marshall, joined by Justices Black and Harlan and Chief Justice Warren, interpreted Robinson as proscribing only punishment of “status,” and not punishment for “acts,” and expressed a fear that a contrary holding would impel the Court into constitutional definitions of such matters as actus reus,mens rea, insanity, mistake, justification, and duress. Id. at 532–37. Justice White concurred, but only because the record did not show that the defendant was unable to stay out of public; like the dissent, Justice White was willing to hold that if addiction as a status may not be punished neither can the yielding to the compulsion of that addiction, whether to narcotics or to alcohol. Id. at 548. Dissenting Justices Fortas, Douglas, Brennan, and Stewart wished to adopt a rule that “[c]riminal penalties may not be inflicted upon a person for being in a condition he is powerless to change.” That is, one under an irresistible compulsion to drink or to take narcotics may not be punished for those acts. Id. at 554, 567.
252 445 U.S. 263 (1980).
253 In Hutto v. Davis, 454 U.S. 370 (1982), on the authority of Rummel, the Court summarily reversed a decision holding disproportionate a prison term of 40 years and a fine of $20,000 for defendant’s possession and distribution of approximately nine ounces of marijuana said to have a street value of about $200.
254 Rummel, 445 U.S. at 275–82. The dissent deemed these three factors to be sufficiently objective to apply and thought they demonstrated the invalidity of the sentence imposed. Id. at 285, 295–303.
255 463 U.S. 277 (1983). The case, like Rummel, was decided by a 5–4 vote.
256 463 U.S. at 284, 288.
257 The final conviction was for uttering a no-account check in the amount of $100; previous felony convictions were also for nonviolent crimes described by the Court as “relatively minor.” 463 U.S. at 296–97.
258 463 U.S. at 297.
259 463 U.S. at 297, 303.
260 463 U.S. at 292.
261 For a suggestion that Eighth Amendment proportionality analysis may limit the severity of punishment possible for prohibited private and consensual homosexual conduct, see Justice Powell’s concurring opinion in Bowers v. Hardwick, 478 U.S. 186, 197 (1986).
262 501 U.S. 957 (1991).
263 “Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense.” 501 U.S. at 994. The Court’s opinion, written by Justice Scalia, then elaborated an understanding of “unusual”—set forth elsewhere in a part of his opinion subscribed to only by Chief Justice Rehnquist—that denies the possibility of proportionality review altogether. Mandatory penalties are not unusual in the constitutional sense because they have “been employed in various form throughout our Nation’s history.” This is an application of Justice Scalia’s belief that cruelty and unusualness are to be determined solely by reference to the punishment at issue, and without reference to the crime for which it is imposed. See id. at 975–78 (not opinion of Court—only Chief Justice Rehnquist joined this portion of the opinion). Because a majority of other Justices indicated in the same case that they do recognize at least a narrow proportionality principle (see id. at 996 (Justices Kennedy, O’Connor, and Souter concurring); id. at 1009 (Justices White, Blackmun, and Stevens dissenting); id. at 1027 (Justice Marshall dissenting)), the fact that three of those Justices (Kennedy, O’Connor, and Souter) joined Justice Scalia’s opinion on mandatory penalties should probably not be read as representing agreement with Justice Scalia’s general approach to proportionality.
264 Because of the “serious nature” of the crime, the three-Justice plurality asserted that there was no need to apply the other Solem factors comparing the sentence to sentences imposed for other crimes in Michigan, and to sentences imposed for the same crime in other jurisdictions. 501 U.S. at 1004. Dissenting Justice White, joined by Justices Blackmun and Stevens (Justice Marshall also expressed agreement on this and most other points, id. at 1027), asserted that Justice Kennedy’s approach would “eviscerate” Solem. Id. at 1018.
265 Ewing v. California, 538 U.S. 11 (2003).
266 538 U.S. at 29–30.
267 538 U.S. at 31.
268 538 U.S. at 32. The four dissenting Justices thought that the sentence was invalid under the Harmelin test used by the plurality, although they suggested that the Solem v. Helm test would have been more appropriate for a recidivism case. See 538 U.S. at 32, n.1 (opinion of Justice Stevens).
269 Lockyer v. Andrade, 538 U.S. 63 (2003). The three-strikes law had been used to impose two consecutive 25-year-to-life sentences on a 37-year-old convicted of two petty thefts with a prior conviction.
270 538 U.S. at 72.
271 560 U.S. ___, No. 08–7412, slip op. (2010).
272 Id. at 31. The opinion distinguishes life without parole from a life sentence. An offender need not be guaranteed eventual release under the Graham holding, just a realistic opportunity for release based on conduct during confinement.
273 See 543 U.S. 551 (2005). Concurring in the judgement in Graham, Chief Justice Roberts resolved the case under a proportionality test, finding the majority’s categorical restriction to be unwise and unnecessary in Graham’s circumstances. 560 U.S. ___, No. 08–7412, slip op. (Roberts, C.J., concurring).
274 560 U.S. ___, No. 08–7412, slip op. at 29.
275 For a parallel discussion in Roper, see 543 U.S. 551, 568–75 (2005).
276 In dissent, Justice Thomas, joined by Justice Scalia and, in part, by Justice Alito, questioned both the basis and the reach of the majority opinion. In addition to strongly objecting to adopting any categorical rule in a nonhomicide context, Justice Thomas pointedly criticized the conclusion that the legislative and judicial records established a consensus against imposing life without parole on juvenile offenders in nonhomicide cases. He also disparaged the majority’s independent judgment on the morality and justice of the sentence as wrongfully pre-empting the political process. 560 U.S. ___, No. 08–7412, slip op. (Thomas, J., dissenting).
277 567 U.S. ___, No. 10–9646, slip op. (2012).
278 Id. at 8.
279 Id. at 20.
280 Id. at 15.
281 Id. at 8. In Montgomery v. Louisiana, the Court cautioned, however, that Miller should not be read as merely imposing additional procedural hurdles before a juvenile offender could be sentenced to life without parole. See 577 U.S. ___, No. 14– 280, slip op. at 16 (2016). Instead, according to the Montgomery Court, Miller barred a sentence of life without parole for “all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. at 17.
