The Eighth Amendment to the U.S. Constitution, in one of its major pronouncements, prohibits the imposition of cruel and unusual punishment. Although most of the issues addressed by the U.S. Supreme Court regarding the interpretation of this clause center on applications of capital punishment, the true battleground has concerned something different. The question of whether the Eighth Amendment requires the Court to strike down sentences of any type as being “disproportionate”—that is, sentences that seem to be greater than the crime warrants—has been a contentious and confusing one with regard to which the Court has struggled to define its role generally and to articulate a test or standard when it has chosen to rule on the proportionality of sentences.
II. Key Events
III. Further Legal Developments
In the Court’s own words, such law as it has established in the proportionality area is a “thicket of Eighth Amendment jurisprudence” and has not been “a model of clarity” (Lockyer v. Andrade 2003). Although the Court has found death sentences to be disproportionate in crimes other than murder (Coker v. Georgia 1977) and disproportionate where the defendant is either mentally retarded (Atkins v. Virginia 2002) or a juvenile (Roper v. Simmons 2005), it has struggled to define its involvement in noncapital sentences.
For a long period extending through the 20th century, it appeared that the Court was prepared to intervene only in a non–death sentence if that sentence involved something harsh and unusual in addition to incarceration. In Weems v. U.S. (1910), for example, the defendant received a 12-year sentence to be served in hard and painful labor, with the defendant chained at the wrists and ankles, for the crime of falsifying a public document. In addition, the punishment included the loss of civil rights such as parental authority and permanent surveillance by the government. The Court, in striking down the sentence as a violation of the Eighth Amendment, noted that other more serious crimes in the jurisdiction were punished less severely; it suggested that the punishment was not just but was of “tormenting” severity (Weems v. U.S. 1910, at 381).
Weems notwithstanding, the cases of Rummel v. Estelle (1980) and Hutto v. Davis (1982) appeared to represent the norm of the Court’s approach to this issue. William James Rummel was charged under Texas law with obtaining $125 under false pretenses, a felony in Texas. Moreover, because Rummel had previously been convicted of fraudulent use of a credit card to obtain $80 worth of goods and with passing a forged check in the amount of $28.36, he qualified under Texas law as a habitual criminal. Rummel was prosecuted and convicted under that recidivist statute and given the mandatory life sentence the statute provided. The life sentence under Texas law involved the possibility that the defendant could be paroled in as early as 12 years, a factor the Court thought important in assessing the true nature of the punishment.
The Court, in reviewing and denying Rummel’s Eighth Amendment challenge, stated that to the extent that proportionality claims had been successful, they had been raised in the context of capital cases and had been a function of the Court’s long-standing view of the unique nature of death as a punishment. The Court further stated that non–death sentence challenges had been successful only exceedingly rarely and involved an unusual corporal type of punishment like that found in Weems. The Rummel Court could not have been clearer when it stated, “Given the unique nature of the punishments considered in Weems and in the death penalty cases, one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative” (Rummel v. Estelle 1980, at 274).
Two years after Rummel, the Court decided in Hutto that a prison term of 40 years and a fine of $20,000 for possession and distribution of approximately nine ounces of marijuana was not disproportionately in violation of the Eighth Amendment and was a matter of legislative prerogative. The fact that the opinion was per curiam (signed by the Court as a whole and not authored by any one justice) seemed to underscore the strength of the Court’s hands-off approach.
The key event occurring just a year after Hutto was the Supreme Court case of Solem v. Helm (1983), in which the Court seemingly broke with, if not clear precedent, at least with the strong tenor of its prior proportionality cases. Solem, which dealt with a similar situation to Rummel, announced what is clearly a proportionality test to assess the constitutionality of noncapital sentences under the Eighth Amendment.
The Solem test contained three objective factors a court should consider in determining if the sentence imposed is consistent with the Eighth Amendment. First, a court should look to the gravity of the offense and the harshness of the penalty. Second, a court should compare the sentences imposed on other criminals in the same jurisdiction. Finally, courts should compare the sentences imposed for commission of the same crime in other jurisdictions.
When the Court applied this three-pronged test to the facts of Solem, it held the sentence of life without parole to be disproportionate to the crime involved and cruel and unusual in violation of the Eighth Amendment. First, Helm, the defendant, was convicted of the offense of writing a “no account” check for $100. This, in turn, triggered the application of South Dakota’s recidivist statute owing to his prior record of six nonviolent felonies. Under the statute, a defendant would receive a mandatory life sentence without the possibility of parole (unlike Rummel, in which parole was a possibility). In assessing the gravity of the offense in relation to the harshness of the penalty, the Court clearly came down on the defendant’s side.
In terms of the application of the second part, the Court noted that in South Dakota, Helms was sentenced to the same punishment reserved for much more serious crimes such as murder, kidnapping, first-degree rape, and other violent crimes. Finally, in assessing how the defendant would have been treated in other jurisdictions, the Court noted that in 48 of the 50 states, he would have received a less severe sentence.
The significance of this case was its remarkable departure from the Court’s long years of hands off on this issue. After what had clearly been a position of deferring to state legislatures and their assessments of the proper punishments for crimes, Solem seemed to open up the possibility that the courts had entered the fray. The question the case presented was whether the Supreme Court was truly committed to this new activist approach or viewed the case as an aberration dealing with a particularly unusual set of facts and circumstances.
Further Legal Developments
Of course, the cases discussed in the background section make up a significant portion of the Court’s legal decisions in this area. It has been the Court’s work since Solem, however, that has either, depending upon your perspective, fixed the aberration of Solem or further muddied the waters with another unworkable standard.
The case of Harmelin v. Michigan (1991) was the first important proportionality case after Solem. It involved the application of a Michigan mandatory life sentence law for certain drug offenses. Harmelin, the defendant, was convicted of possessing 672 grams of cocaine and sentenced to a mandatory life sentence without the possibility of parole. Early in the opinion, it was clear how the Court was going to deal with Solem’s insistence on performing the three-part proportionality test when it characterized the Solem decision as “scarcely the expression of clear and well established constitutional law.” (Harmelin v. Michigan 1991, at 965). Justice Antonin Scalia’s lengthy and scholarly discussion of the history of the Eighth Amendment and its historical precedent in the English Declaration of Rights of 1689 supported his interpretation that the amendment prohibited only cruel and unusual punishment (in other words, the manner, not the length, of the punishment) and did not support a proportionality requirement. Important to his interpretation was the notion that proportionality as a legal concept goes back to the Magna Carta and that numerous states at the time of the Constitution had specific provisions requiring proportionality in their sentencing laws, meaning that had the framers intended to graft that notion to the Eighth Amendment, they were well acquainted with the idea and could easily have done so. Scalia concluded his analysis by stating that the “cruel and unusual” language of the Eighth Amendment relates to the method of punishment only and not to the length of the punishment.
The final pronouncement of the Court on this matter came in Ewing v. California (2003), a case that dealt with the application of California’s three-strikes law to a defendant with a lengthy history of criminal convictions but whose only triggering crime was the theft of three golf clubs. Ewing was sentenced under the statute to 25 years to life in prison.
Although the opinion did not garner a majority of the Court, the reasoning of Justice Sandra Day O’Connor’s lead opinion relied on the framework set out by Justice Anthony Kennedy in his earlier concurrence in Harmelin. Kennedy found that the Eighth Amendment recognizes a limited proportionality principle in noncapital cases, which forbids the imposition of extreme sentences that are “grossly disproportionate” to the crime (Ewing v. California 2003).
Justice Kennedy identified four principles to consult before making the final determination under the Eighth Amendment. The Court was to look at the primacy of the legislature, the variety of legitimate penological schemes, the nature of the federal system, and the requirement that proportionality review be guided by objective factors. In applying these factors to the specifics of Ewing, the Court focused primarily on California’s legitimate interests of deterring and incapacitating offenders with long and serious records. These legitimate penological interests, when combined with the primacy of (deference to) the legislature, shaped the Court’s affirmation of the sentence.
Although the concept of proportionality of punishment has a long and rich history in England going back to the Magna Carta, and although it has been recognized and applied in capital and noncapital cases in the United States for almost a century, it appears to have gone the way of the Edsel and the dial phone (Donham 2005; see sec. IV for an excellent summary of historical evidence). The future of the Supreme Court’s Eighth Amendment jurisprudence, in other words, does not appear to include general proportionality as a working doctrine.
Instead, there appear to be three vastly different approaches on the table, none of which appears to garner a majority of the Court’s votes. There is the more liberal position of Justices Ruth Bader Ginsburg and Stephen Breyer, and presumably of Sonya Sotomayor and Elena Kagan (both new appointees), which suggests that a return to the Solem three-part test is appropriate. At the other end of the spectrum, Justices Antonin Scalia and Clarence Thomas adhere to the position that the Eight Amendment contains no proportionality requirement. Finally, and perhaps the most likely ground to be taken, is Justice Kennedy’s concurring opinion in Harmelin, which recognizes a “narrow proportionality principle” in the Eighth Amendment. Of the two Bush appointees, Chief Justice John Roberts and Associate Justice Samuel Alito, we know only that they have upheld the right to use lethal injection in capital cases and were in the minority in a ruling deciding whether life sentences for juvenile offenders constitutes cruel and unusual punishment—five justices, including Kennedy, stated that such sentences are improper (except in certain homicide cases) (Barnes 2008; Bravin 2010).
It is also possible to envision a case in which all nine justices would agree on reversing a particular sentence under the Eighth Amendment if it were so extreme as to be unacceptable to any rational person at any time at any place. The idea that legislatures could make overtime parking a felony punishable by life is theoretically possible without a proportionality principle. This notion particularly irked Justice Byron White in his Harmelin dissent (Harmelin v. Michigan 1991, at 1018), but it may take more than chiding from fellow justices about frightening scenarios to gain unanimity in an area in which most justices have seemed content to go their own way.
William L. Shulman
- Atkins v. Virginia, 536 U.S. 304 (2002).
- Coker v. Georgia, 433 U.S. 584 (1977).
- Ewing v. California, 538 U.S. 11 (2003).
- Harmelin v. Michigan, 501 U.S. 957 (1991).
- Hutto v. Davis, 454 U.S. 370 (1982).
- Lockyer v. Andrade, 538 U.S. 63, 66 (2003).
- Roper v. Simmons, 125 S.Ct. 1183 (2005).
- Rummel v. Estelle, 445 U.S. 263 (1980).
- Solem v. Helm, 463 U.S. 277 (1983).
- Weems v. U.S., 217 U.S. 349 (1910).
- Barnes, Robert, “Justices Uphold Lethal Injection Procedure.” Washington Post (April 17, 2008).
- Bravin, Jess, “Justices Restrict Life Terms for Youth.” Wall Street Journal (May 18, 2010).
- Cusac, Anne-Marie, Cruel and Unusual: The Culture of Punishment in America. New Haven, CT: Yale University Press, 2009.
- Donham, Joy M., “Note: Third Strike or Merely a Foul Tip? The Gross Disproportionality of Lockyer v. Andrade.” Akron Law Review 38 (2005): 369.
- Evans, Kimberly Masters, Capital Punishment: Cruel and Unusual? Detroit: Gale, 2008.
- Frost, Natasha, The Punitive State: Crime, Punishment, and Imprisonment across the United States. New York: LFB Scholarly Publishing, 2006.
- Jarvis, Brian, Cruel and Unusual: Punishment and U.S. Culture. London and Sterling, VA: Pluto Press, 2005.
- McKinley, James C., Jr. “Killer with Low IQ Executed in Texas.” New York Times (December 3, 2009).
- Melusky, Joseph Anthony, Cruel and Unusual Punishment: Rights and Liberties under the Law. Santa Barbara, CA: ABC-CLIO, 2003.
- Whitman, James Q., Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe. New York: Oxford University Press, 2003.