ewing california argued november decided march california three strikes law defendant convicted felony previously convicted two serious violent felonies must receive indeterminate life imprisonment term defendant becomes eligible parole date calculated reference minimum term case years parole petitioner ewing convicted felony grand theft stealing three golf clubs worth apiece required three strikes law prosecutor formally alleged trial found ewing convicted previously four serious violent felonies sentencing years life refused exercise discretion reduce conviction misdemeanor state law permits certain offenses known wobblers classified either misdemeanors felonies dismiss allegations prior relevant convictions state appeal affirmed relying rummel estelle rejected ewing claim sentence grossly disproportionate eighth amendment reasoned enhanced sentences three strikes law served state legitimate goal deterring incapacitating repeat offenders state denied review held judgment affirmed affirmed justice joined chief justice justice kennedy concluded ewing sentence grossly disproportionate therefore violate eighth amendment prohibition cruel unusual punishments pp eighth amendment narrow proportionality principle applies noncapital sentences harmelin michigan kennedy concurring part concurring judgment amendment application context guided principles distilled justice kennedy concurrence harmelin primacy legislature variety legitimate penological schemes nature federal system requirement proportionality review guided objective factors inform final principle eighth amendment require strict proportionality crime sentence forbids extreme sentences disproportionate crime pp state legislatures enacting three strikes laws made deliberate policy choice individuals repeatedly engaged serious violent criminal behavior whose conduct deterred conventional punishment approaches must isolated society protect public safety though laws relatively new longstanding tradition deferring state legislatures making implementing important policy decisions constitution mandate adoption one penological theory nothing eighth amendment prohibits california choosing incapacitate criminals already convicted least one serious violent crime recidivism long recognized legitimate basis increased punishment serious public safety concern california nation criticism law appropriately directed legislature primarily responsible making policy choices underlying criminal sentencing scheme pp examining ewing claim sentence grossly disproportionate gravity offense must compared harshness penalty even standing alone grand theft taken lightly california noted crime seriousness context proportionality review wobbler moment remains felony unless trial imposes misdemeanor sentence trial judge justifiably exercised discretion extend lenient treatment given ewing long criminal history weighing offense gravity current felony long history felony recidivism must placed scales approach accord proper deference policy judgments find expression legislature choice sanctions ewing sentence justified state interest incapacitating deterring recidivist felons amply supported long serious criminal record convicted numerous offenses served nine separate prison terms committed crimes probation parole prior strikes serious felonies including robbery residential burglary though long current sentence reflects rational legislative judgment entitled deference pp justice scalia agreed petitioner sentence violate eighth amendment prohibition cruel unusual punishments ground prohibition aimed excluding certain modes punishment case demonstrates proportionality principle intelligently applied solem helm given stare decisis effect pp justice thomas concluded petitioner sentence violate eighth amendment prohibition cruel unusual punishments amendment contains proportionality principle announced judgment delivered opinion rehnquist kennedy joined scalia thomas filed opinions concurring judgment stevens filed dissenting opinion souter ginsburg breyer joined breyer filed dissenting opinion stevens souter ginsburg joined gary albert ewing petitioner california writ certiorari appeal california second appellate district march justice announced judgment delivered opinion chief justice justice kennedy join case decide whether eighth amendment prohibits state california sentencing repeat felon prison term years life state three strikes law california three strikes law reflects shift state sentencing policies toward incapacitating deterring repeat offenders threaten public safety law designed ensure longer prison sentences greater punishment commit felony previously convicted serious violent felony offenses cal penal code ann west march california assemblymen bill jones jim costa introduced assembly bill legislative version later become three strikes law assembly committee public safety defeated bill weeks later public outrage defeat sparked voter initiative add proposition based loosely bill ballot november general election october proposition circulating polly klaas kidnaped home petaluma california admitted killer richard allen davis long criminal history included two prior kidnaping convictions davis served half recent sentence years kidnaping assault burglary davis served entire sentence still prison day polly klaas kidnaped polly klaas murder galvanized support three strikes initiative within days proposition way becoming fastest qualifying initiative california history january sponsors assembly bill resubmitted amended version bill conformed proposition january assembly bill passed assembly margin senate passed margin march governor pete wilson signed bill law march california voters approved proposition margin percent november california thus became second state enact three strikes law november voters washington state approved three strikes law initiative margin dept justice national institute justice clark austin henry three strikes review state legislation hereinafter review state legislation federal government enacted three strikes laws ibid though three strikes laws vary state state share common goal protecting public safety providing lengthy prison terms habitual felons california current three strikes law consists two virtually identical statutory schemes designed increase prison terms repeat felons people superior san diego cty ex rel romero cal romero defendant convicted felony previously convicted one prior felonies defined serious violent cal penal code ann west supp sentencing conducted pursuant three strikes law prior convictions must alleged charging document defendant right jury determination prosecution proved prior convictions beyond reasonable doubt west defendant one prior serious violent felony conviction must sentenced twice term otherwise provided punishment current felony conviction west west supp defendant two prior serious violent felony convictions must receive indeterminate term life imprisonment west west supp defendants sentenced life three strikes law become eligible parole date calculated reference minimum term greater three times term otherwise provided current conviction years term determined pursuant underlying conviction including enhancements west west supp california law certain offenses may classified either felonies misdemeanors crimes known wobblers crimes otherwise misdemeanors become wobblers defendant prior record example petty theft misdemeanor becomes wobbler defendant previously served prison term committing specified crimes west west supp crimes grand theft wobblers regardless defendant prior record see west types wobblers triggering offenses three strikes law treated felonies california law wobbler presumptively felony remains felony except discretion actually exercised make crime misdemeanor people williams cal emphasis deleted internal quotation marks omitted california prosecutors may exercise discretion charge wobbler either felony misdemeanor likewise california trial courts discretion reduce wobbler charged felony misdemeanor either preliminary examination sentencing avoid imposing three strikes sentence cal penal code ann west people superior los angeles cty ex rel alvarez cal exercising discretion may consider factors direct similar sentencing decisions nature circumstances offense defendant appreciation attitude toward offense general objectives sentencing ibid internal quotation marks citations omitted california trial courts also vacate allegations prior serious violent felony convictions either motion prosecution sua sponte romero supra ruling whether vacate allegations prior felony convictions courts consider whether light nature circumstances defendant present felonies prior serious violent felony convictions particulars background character prospects defendant may deemed outside three strikes scheme spirit whole part people williams cal thus trial courts may avoid imposing three strikes sentence two ways first reducing wobblers misdemeanors qualify triggering offenses second vacating allegations prior serious violent felony convictions parole prison term petitioner gary ewing walked pro shop el segundo golf course los angeles county march walked three golf clubs priced apiece concealed pants leg shop employee whose suspicions aroused observed ewing limp pro shop telephoned police police apprehended ewing parking lot ewing stranger criminal justice system age pleaded guilty theft sentenced six months jail suspended three years probation fine convicted felony grand theft auto sentenced one year jail three years probation ewing completed probation however sentencing reduced crime misdemeanor permitted ewing withdraw guilty plea dismissed case convicted petty theft prior sentenced days county jail three years probation ewing convicted battery sentenced days county jail two years summary probation one month later convicted theft sentenced days county jail months probation january ewing convicted burglary sentenced days county jail one year summary probation february convicted possessing drug paraphernalia sentenced six months county jail three years probation july convicted appropriating lost property sentenced days county jail two years summary probation september convicted unlawfully possessing firearm trespassing sentenced days county jail one year probation october november ewing committed three burglaries one robbery long beach california apartment complex period awakened one victims asleep living room sofa tried disconnect video cassette recorder television room screamed ewing ran front door another occasion ewing accosted victim mailroom apartment complex ewing claimed gun ordered victim hand wallet victim resisted ewing produced knife forced victim back apartment ewing rifled bedroom victim fled apartment screaming help ewing absconded victim money credit cards december ewing arrested premises apartment complex trespassing lying police officer knife used robbery glass cocaine pipe later found back seat patrol car used transport ewing police station jury convicted ewing robbery three counts residential burglary sentenced nine years eight months prison ewing paroled months later ewing stole golf clubs issue case charged ultimately convicted one count felony grand theft personal property excess see cal penal code west supp west required three strikes law prosecutor formally alleged trial later found ewing convicted previously four serious violent felonies three burglaries robbery long beach apartment complex see west west supp sentencing hearing ewing asked reduce conviction grand theft wobbler california law misdemeanor avoid three strikes sentence see west west supp ewing also asked trial exercise discretion dismiss allegations prior serious violent felony convictions purposes avoiding three strikes sentence see romero cal sentencing ewing trial took note entire criminal history including fact parole committed latest offense also heard arguments defense counsel plea ewing end trial judge determined grand theft remain felony also ruled four prior strikes three burglaries robbery long beach stand newly convicted felon two serious violent felony convictions past ewing sentenced three strikes law years life california appeal affirmed unpublished opinion apr relying decision rummel estelle rejected ewing claim sentence grossly disproportionate eighth amendment enhanced sentences recidivist statutes like three strikes law reasoned serve legitimate goal deterring incapacitating repeat offenders california denied ewing petition review granted certiorari affirm ii eighth amendment forbids cruel unusual punishments contains narrow proportionality principle applies noncapital sentences harmelin michigan kennedy concurring part concurring judgment cf weems robinson california applying eighth amendment via fourteenth amendment recently addressed proportionality principle applied terms years series cases beginning rummel estelle supra rummel held violate eighth amendment state sentence offender life prison possibility parole like ewing rummel sentenced lengthy prison term recidivism statute rummel two prior offenses felony fraudulent use credit card obtain worth goods services felony conviction passing forged check amount triggering offense conviction felony theft obtaining false pretenses ruled aving twice imprisoned felonies texas entitled place upon rummel onus one simply unable bring conduct within social norms prescribed criminal law state recidivism statute nothing societal decision person commits yet another felony subjected admittedly serious penalty incarceration life subject state judgment whether grant parole noted occasion stated eighth amendment prohibits imposition sentence grossly disproportionate severity crime utside context capital punishment successful challenges proportionality particular sentences exceedingly rare although stated proportionality principle come play extreme example legislature made overtime parking felony punishable life imprisonment held mandatory life sentence imposed upon petitioner constitute cruel unusual punishment eighth fourteenth amendments hutto davis per curiam defendant sentenced two consecutive terms years prison possession intent distribute nine ounces marijuana distribution marijuana held sentence constitutional short rummel stands proposition federal courts reluctant review legislatively mandated terms imprisonment successful challenges proportionality particular sentences exceedingly rare citations internal quotation marks omitted three years rummel solem helm held eighth amendment prohibited life sentence without possibility parole seventh nonviolent felony triggering offense solem uttering account check specifically stated eighth amendment ban cruel unusual punishments prohibits sentences disproportionate crime committed constitutional principle proportionality recognized explicitly almost century solem explained three factors may relevant determination whether sentence disproportionate violates eighth amendment gravity offense harshness penalty ii sentences imposed criminals jurisdiction iii sentences imposed commission crime jurisdictions applying factors solem struck defendant sentence life without parole specifically noted contrast sentence sentence rummel pursuant defendant eligible parole see also south dakota commutation system fundamentally different parole system us rummel indeed explicitly declined overrule rummel ur conclusion today inconsistent rummel estelle see also ur decision entirely consistent prior cases including rummel estelle eight years solem grappled proportionality issue harmelin supra harmelin recidivism case rather involved offender convicted possessing grams cocaine sentenced life prison without possibility parole majority rejected harmelin claim sentence grossly disproportionate violated eighth amendment however agree proportionality argument failed justice scalia joined chief justice wrote proportionality principle aspect death penalty jurisprudence rather generalizable aspect eighth amendment law thus declined apply gross disproportionality principles except reviewing capital sentences ibid justice kennedy joined two members concurred part concurred judgment justice kennedy specifically recognized eighth amendment proportionality principle also applies noncapital sentences identified four principles proportionality review primacy legislature variety legitimate penological schemes nature federal system requirement proportionality review guided objective factors inform final one eighth amendment require strict proportionality crime sentence rather forbids extreme sentences disproportionate crime citing solem supra justice kennedy concurrence also stated solem mandate comparative analysis within jurisdictions proportionality principles cases distilled justice kennedy concurrence guide application eighth amendment new context called upon consider many years laws providing enhanced sentencing repeat offenders see dept justice bureau justice assistance national assessment structured sentencing yet three strikes laws effected sea change criminal sentencing throughout laws responded widespread public concerns crime targeting class offenders pose greatest threat public safety career criminals one chief architects california three strikes law explained three strikes intended go beyond simply making sentences tougher intended focused effort create sentencing policy use judicial system reduce serious violent crime ardaiz california three strikes law history expectations consequences mcgeorge rev hereinafter ardaiz throughout legislatures enacting three strikes laws made deliberate policy choice individuals repeatedly engaged serious violent criminal behavior whose conduct deterred conventional approaches punishment must isolated society order protect public safety though three strikes laws may relatively new tradition deferring state legislatures making implementing important policy decisions longstanding weems payne tennessee rummel solem harmelin kennedy concurring part concurring judgment traditional deference legislative policy choices finds corollary principle constitution mandate adoption one penological theory kennedy concurring part concurring judgment sentence variety justifications incapacitation deterrence retribution rehabilitation see lafave scott substantive criminal law pp explaining theories punishment justifications may play role state sentencing scheme selecting sentencing rationales generally policy choice made state legislatures federal courts california legislature enacted three strikes law made judgment protecting public safety requires incapacitating criminals already convicted least one serious violent crime nothing eighth amendment prohibits california making choice contrary cases establish valid interest deterring segregating habitual criminals parke raley oyler boles constitutionality practice inflicting severer criminal penalties upon habitual offenders longer open serious challenge recidivism long recognized legitimate basis increased punishment see recidivism typical sentencing factor one might imagine witte repeatedly upholding recidivism statutes rejected double jeopardy challenges enhanced punishment imposed later offense stiffened penalty latest crime considered aggravated offense repetitive quoting gryger burke california justification pretext recidivism serious public safety concern california throughout nation according recent report approximately percent former inmates released state prisons charged least one serious new crime within three years release see dept justice bureau justice statistics langan levin special report recidivism prisoners released june particular released property offenders like ewing higher recidivism rates released committing violent drug offenses approximately percent property offenders released arrested within three years compared approximately percent violent offenders percent offenders percent drug offenders ibid sacramento bee studied three strikes offenders california found aggregate prior felony convictions average apiece see furillo three strikes verdict offenders long criminal histories sacramento bee mar prior convictions included robberies burglaries ibid percent three strikes offenders convicted least one violent crime ibid responsible homicides attempted slayings sexual assaults child molestations ibid sacramento bee concluded based investigation vast majority cases regardless third strike three strikes law snaring habitual offenders multiple felony convictions ibid state interest deterring crime also lends support three strikes law long viewed incapacitation deterrence rationales recidivism statutes recidivist statute primary goals deter repeat offenders point life one repeatedly commits criminal offenses serious enough punished felonies segregate person rest society extended period time rummel supra four years passage california three strikes law recidivism rate parolees returned prison commission new crime dropped nearly percent california dept justice office attorney general three strikes impact california criminal justice system four years even dramatically unintended positive consequence strikes impact parolees leaving state california parolees leaving state parolees jurisdictions entering california striking turnaround started first time parolees left state entered since trend continued net parolees left california ibid see also janiskee erler crime punishment romero analysis case california three strikes law duquesne rev prosecutors los angeles routinely report tell moving state fear getting second third strike nonviolent offense quoting sanchez movement builds three strikes law washington post sure california three strikes law sparked controversy critics doubted law wisdom effectiveness reaching goals see zimring hawkins kamin punishment democracy three strikes california vitiello three strikes return rationality crim criticism appropriately directed legislature primary responsibility making difficult policy choices underlie criminal sentencing scheme sit superlegislature policy choices enough state california reasonable basis believing dramatically enhanced sentences habitual felons advance goals criminal justice system substantial way see solem iii backdrop consider ewing claim three strikes sentence years life unconstitutionally disproportionate offense shoplifting three golf clubs brief petitioner first address gravity offense compared harshness penalty threshold note ewing incorrectly frames issue gravity offense merely shoplifting three golf clubs rather ewing convicted felony grand theft stealing nearly worth merchandise previously convicted least two violent serious felonies even standing alone ewing theft taken lightly crime certainly one passive felonies person commit solem supra internal quotation marks omitted contrary california noted seriousness grand theft context proportionality review see lynch cal theft property felony federal law vast majority see app brief petitioner grand theft wobbler california law moment though california courts discretion reduce felony grand theft charge misdemeanor remains felony purposes unless trial imposes misdemeanor sentence anderson cal tobriner concurring see generally witkin epstein california criminal law ed purpose trial judge sentencing discretion downgrade certain felonies impose misdemeanor sentence cases rehabilitation convicted defendant either require adversely affected incarceration state prison felon anderson supra tobriner concurring california law reduction based notion wobbler conceptually misdemeanor necochea superior cal app cal rptr rather intended extend misdemeanant treatment potential felon ibid ewing case however trial judge justifiably exercised discretion extend lenient treatment given ewing long criminal history weighing gravity ewing offense must place scales current felony also long history felony recidivism approach fail accord proper deference policy judgments find expression legislature choice sanctions imposing three strikes sentence state interest merely punishing offense conviction triggering offense addition interest dealing harsher manner repeated criminal acts shown simply incapable conforming norms society established criminal law see rummel solem supra give full effect state choice legitimate penological goal proportionality review ewing sentence must take goal account ewing sentence justified state interest incapacitating deterring recidivist felons amply supported long serious criminal ewing convicted numerous misdemeanor felony offenses served nine separate terms incarceration committed crimes probation parole prior strikes serious felonies including robbery three residential burglaries sure ewing sentence long one reflects rational legislative judgment entitled deference offenders committed serious violent felonies continue commit felonies must incapacitated state california entitled place upon ewing onus one simply unable bring conduct within social norms prescribed criminal law state rummel supra ewing rare case threshold comparison crime committed sentence imposed leads inference gross disproportionality harmelin kennedy concurring part concurring judgment hold ewing sentence years life prison imposed offense felony grand theft three strikes law grossly disproportionate therefore violate eighth amendment prohibition cruel unusual punishments judgment california appeal affirmed ordered gary albert ewing petitioner california writ certiorari appeal california second appellate district march justice scalia concurring judgment concurring opinion harmelin michigan concluded eighth amendment prohibition cruel unusual punishments aimed excluding certain modes punishment guarantee disproportionate sentences respect principle stare decisis might nonetheless accept contrary holding solem helm eighth amendment contains narrow proportionality principle felt intelligently apply case demonstrates proportionality notion punishment fit crime inherently concept tied penological goal retribution becomes difficult even speak intelligently deterrence rehabilitation given significant weight harmelin supra mention giving weight purpose california three strikes law incapacitation present case game plurality acknowledged constitution mandate adoption one penological theory sentence variety justifications incapacitation deterrence retribution rehabilitation ante internal quotation marks omitted acknowledgment made longer suffices merely assess gravity offense compared harshness penalty ante classic description proportionality principle alone quite resistant legal analysis becomes merely first step inquiry ibid completed step discussion fairness convincingly establish proportionate punishment stealing three golf clubs plurality must add analysis show ewing sentence justified state interest incapacitating deterring recidivist felons ante indeed though anything principle proportionality mystery perhaps plurality revise terminology reads eighth amendment unstated proposition punishment reasonably proportionate gravity offense rather unstated proposition punishment reasonably pursue multiple purposes criminal law formulation make clearer ever course plurality applying law evaluating policy agree petitioner sentence violate eighth amendment prohibition cruel unusual punishments concur judgment gary albert ewing petitioner california writ certiorari appeal california second appellate district march justice thomas concurring judgment agree justice scalia view proportionality test announced solem helm incapable judicial application even solem test perfectly clear however feel compelled stare decisis apply view cruel unusual punishments clause eighth amendment contains proportionality principle see harmelin michigan opinion scalia plurality concludes petitioner sentence violate eighth amendment tion cruel unusual punishments concur judgment gary albert ewing petitioner california writ certiorari appeal california second appellate district march justice stevens justice souter justice ginsburg justice breyer join dissenting justice breyer cogently explained sentence imposed case cruel concurrences prompt separate writing emphasize proportionality review capable judicial application also required eighth amendment eighth amendment succinctly prohibits sanctions atkins virginia see also amdt excessive bail shall required excessive fines imposed cruel unusual punishments inflicted faithful amendment text held constitution directs judges apply best judgment determining proportionality fines see bajakajian bail see stack boyle forms punishment including imposition death sentence see coker georgia anomalous indeed suggest eighth amendment makes proportionality review applicable context bail fines context forms punishment imprisonment solem helm rather broadly prohibiting excessive sanctions eighth amendment directs judges exercise wise judgment assessing proportionality forms punishment absence rule disable judges exercising discretion construing outer limits sentencing authority eighth amendment imposes judges constantly called upon draw lines variety contexts exercise judgment give meaning constitution broadly phrased protections example due process clause directs judges employ proportionality review assessing constitutionality punitive damages awards basis see bmw north america gore also although sixth amendment guarantees criminal defendants right speedy trial courts often asked determine basis whether particular delay constitutionally permissible see doggett throughout nation history guideline sentencing became prevalent federal state trial judges imposed specific sentences pursuant grants authority gave uncabined discretion within broad ranges see stith cabranes fear judging sentencing guidelines federal courts hereinafter stith cabranes beginning republic federal judges entrusted wide sentencing discretion see also mistretta unheard statute authorize sentence ranging one year life example see state perley citing maine statute made robbery punishable imprisonment life term years southard offense armed punishable imprisonment life term years exercising discretion sentencing judges wisely employed proportionality principle took account justifications punishment namely deterrence incapacitation retribution rehabilitation see stith cabranes likewise think clear eighth amendment prohibition cruel unusual punishments expresses broad basic proportionality principle takes account justifications penal sanctions broad proportionality principle preclude reliance justifications punishment support example life sentence overtime parking see rummel estelle accordingly respectfully dissent gary albert ewing petitioner california writ certiorari appeal california second appellate district march justice breyer justice stevens justice souter justice ginsburg join dissenting constitutional question whether three strikes sentence imposed california upon gary ewing grossly disproportionate crime ante plurality opinion sentence amounts real prison term least years criminal conduct consists theft three golf clubs priced total see ante offender criminal history includes four felony convictions arising three separate burglaries one armed ante solem helm found grossly disproportionate somewhat longer sentence imposed recidivist offender triggering criminal conduct somewhat less severe view differences determinative reach ultimate conclusion precedent sets forth framework analyzing ewing eighth amendment claim eighth amendment forbids cruel unusual punishments prison terms including terms years grossly disproportionate solem supra see lockyer andrade post applying gross disproportionality principle courts must keep mind legislative policy primarily determine appropriateness punishment severity hence defer legislative policy judgments gore see harmelin michigan kennedy concurring part concurring judgment solem supra rummel estelle weems courts properly respect judgments find sentence fails test rare instances solem supra harmelin supra kennedy concurring part concurring judgment rummel supra uccessful challenges proportionality particular sentences exceedingly rare find necessary extended rejecting claim sentence grossly disproportionate harmelin supra kennedy concurring part concurring judgment quoting solem supra plurality applies justice kennedy analytical framework harmelin supra opinion concurring part concurring judgment ante present purposes consider ewing eighth amendment claim terms see ante stevens dissenting implement approach courts faced gross disproportionality claim must first make threshold comparison crime committed sentence imposed harmelin supra kennedy concurring part concurring judgment claim crosses threshold rare occurrence compare sentence issue sentences imposed criminals jurisdictions solem supra harmelin supra kennedy concurring part concurring judgment comparative analysis validate invalidate initial judgment sentence grossly disproportionate crime ibid recognize warnings implicit frequent repetition words rare nonetheless believe case us rare case one say reasonable confidence punishment grossly disproportionate crime ii ewing claim crosses gross disproportionality threshold first precedent makes clear ewing sentence raises serious disproportionality question ewing recidivist hence two cases directly point considered constitutionality recidivist sentencing rummel solem ewing claim falls two cases stronger claim presented rummel upheld recidivist sentence tional weaker claim presented solem struck recidivist sentence unconstitutional three kinds characteristics define relevant comparative spectrum length prison term real time time offender likely actually spend prison criminal conduct offender actual behavior circumstances offender criminal history see rummel supra using factors solem supra cf sentencing commission guidelines manual ch pt ussg empirical study summary reports convictions sample augmented presentence reports leads sentences based primarily upon offense characteristics offender criminal record see rummel held constitutional sentence life imprisonment parole available within years offense obtaining false pretenses committed offender two prior felony convictions involving small amounts money ante solem held unconstitutional sentence life imprisonment without parole crime writing check nonexistent bank account committed offender six prior felony convictions including three burglary ante three pertinent comparative factors made constitutional difference third factor prior record explain difference offender prior record worse solem found sentence long rummel upheld sentence second factor offense conduct explain difference nature triggering offense viewed terms actual monetary loss two cases one critical factor explains difference outcome length likely prison term measured real time rummel upheld sentence state sentencing statute authorized parole offender rummel years powell dissenting solem struck sentence sentence required offender helm spend rest life prison consider present case third factor offender characteristics prior record differ significantly solem ewing prior record consists four prior felony convictions involving three burglaries one knife contrasted helm six prior felony convictions including three burglaries though none weapons second factor offense behavior worse solem degree difficult say actual behavior shoplifting differs significantly issue solem passing bad check rummel obtaining money false pretenses rather difference lies value goods obtained difference measured terms relevant feature loss victim wholesale value adjusted irrelevant feature inflation comes values compared solem values compared rummel see ussg loss victim properly measures value goods unlawfully taken dept labor bureau labor statistics inflation consumer spending inflation calculator http alternatively one measures value difference terms golf clubs sticker price comes compared solem compared rummel see ibid difference length real prison term first critical factor solem rummel considerably important ewing sentence amounts real terms least years without parole credits sentence considerably shorter helm sentence solem amounted real terms life prison nonetheless ewing real prison term twice long term issue rummel amounted real terms least years ewing sentence unlike rummel like helm sentence solem long enough consume productive remainder almost offender life means ewing seriously ill sentenced age likely die prison upshot length real prison term factor explains difference outcome places ewing closer solem rummel though greater value golf clubs ewing stole moves ewing case back slightly rummel direction overall comparison places ewing sentence well within twilight zone solem rummel zone argument unconstitutionality substantial cases determine constitutional outcome second ewing sentence face imposes one severe punishments available upon recidivist subsequently engaged one less serious forms criminal conduct see infra deny seriousness shoplifting amicus curiae tells us costs retailers range billion annually brief california district attorneys association amicus curiae consider conduct terms factors mentioned solem harm caused threatened victim society absolute magnitude crime offender culpability respect three criteria behavior ranks well toward bottom criminal conduct scale solicitor general urged us consider three criteria frequency crime commission ease difficulty detection degree crime may deterred differing amounts punishment brief amicus curiae considered terms criteria least latter two triggering conduct also ranks toward bottom scale unlike say drug crimes shoplifting often takes place stores open customers whose presence along store employees cameras help detect crime evidence presented law enforcement community believes lengthy prison terms necessary adequately deter shoplifting contrary instances shoplifting suggest offense often punished without prison sentence hand shoplifting frequently committed crime frequency standing alone make critical difference otherwise traffic offenses warrant even serious punishment case course involves shoplifting engaged recidivist one might argue crime committed recidivist serious crime potentially warranting sentence rejected view solem harmelin recognition penalty per se constitutional solem supra harmelin recidivist defendant punished offense conviction considered aggravated offense repetitive quoting gryger burke said offense among less serious punishment among serious cf rummel powell dissenting overtime parking violation trigger life sentence even serious recidivist third objective evidence suggests many experienced judges consider ewing sentence disproportionately harsh sentencing commission based federal sentencing guidelines primarily upon review judges actually sentenced offenders include shoplifting similar offenses among crimes might trigger especially long sentences recidivists see ussg guideline sentencing career offenders ch pt sentences based part upon commission review summary reports convictions sample augmented presentence reports see also infra congress include offenses among triggering crimes sought sentences near maximum certain recidivists requiring sentence near maximum triggering crime crime violence drug related grand theft among triggering strike offenses federal three strikes law see infra see requiring substantial term imprisonment history two prior felony convictions taken together three circumstances make clear ewing gross disproportionality argument strong one claim must pass threshold test function test threshold test must permit arguably unconstitutional sentences actually unconstitutional sentences pass threshold least arguments unconstitutionality unusually strong ones threshold test blocked every ultimately invalid constitutional claim even strong ones threshold test determinative test determinative test failed take account highly pertinent sentencing information namely comparison sentences solem supra sentencing comparisons particularly important provide proportionality review objective content way contrast threshold test makes assessment constitutionality highly subjective course transform threshold test violate earlier precedent see harmelin supra kennedy concurring part concurring judgment iii believing ewing argument strong one sufficient pass threshold turn comparative analysis comparison ewing sentence sentences requires answers two questions first jurisdictions california times without three strikes penalty punish offense conduct second upon conduct jurisdictions california impose prison term moreover since hypothetical punishment beside point relevant prison time comparative purposes real prison time time offender must actually serve sentencing statutes often shed little light upon real prison time sentencing laws normally set maximum sentences giving sentencing judge discretion choose actual sentence within broad range many provide credits parole often permitting release say sentence served see alaska stat stat thus statutory maximum rarely sentence imposed sentence imposed rarely sentence served part parties briefs discuss sentencing statutes nonetheless discussion along readily available information validates initial belief ewing sentence comparatively speaking extreme california know following first end world war ii california enacted three strikes law ante one like ewing served years prison know certain maximum sentence ewing crime conviction grand theft period years cal penal code ann west see cal dept corrections offender information services administrative services division historical data time served male felons paroled institutions table hereinafter historical data time served california felons lodging petitioner currently absent application three strikes penalty offender received maximum sentence years cal penal code ann west west supp know california habitual offender laws apply grand theft west repealed also know time offender actually served likely far less years statistical data shows median time actually served grand theft auto theft two years percent convicted crime served less three four years historical data time served california felons table second statistics suggest recidivists sorts convicted time period california served small fraction ewing sentence average recidivists served three four additional years prison percent serving less additional real seven eight years table third know california reserved still reserves prison time least real years prison criminals convicted crimes far worse ewing statistics years example indicate typical nonrecidivist male murderers served real years prison percent murderers serving less real years table moreover california moved toward sentencing system statutory punishment approximates time served still punishes far less harshly engaged far serious conduct imposes example upon nonrecidivists guilty arson causing great bodily injury maximum sentence nine years prison cal penal code ann west prison term years arson causes great bodily injury imposes upon guilty voluntary manslaughter maximum sentence years prison term years voluntary manslaughter reserves sentence imposes upon ewing nonrecidivist murderers see west supp sentence years life murder jurisdictions know following bound federal sentencing guidelines impose upon recidivist ewing sentence ordinary case exceed months prison ussg assuming base offense level criminal history vi mitigating aggravating adjustments ch pt sentencing table guidelines based part upon study actual federal sentences see supra reserve sentence recidivists currently commit crimes murder air piracy robbery involving discharge firearm serious bodily injury million drug offenses involving example pounds heroin aggravated theft million similar offenses guidelines reserve years real prison time good time less percent ewing sentence recidivists go commit instance voluntary manslaughter aggravated assault firearm causing serious bodily injury motivated money kidnaping residential burglary involving million drug offenses involving least one pound cocaine similar offenses ewing also subject federal three strikes law grand theft triggering offense three exceptions see infra page us information actual time served offenders know however law make legally impossible offender serve years prison jurisdictions well federal courts see appendix part infra years see appendix part infra years additional see appendix part infra nine law might make legally possible impose sentence years see appendix part infra though fact course mean judges actually done see infra page say might law five nine restricts sentencing judge ability impose term long parole amount least years actual imprisonment see appendix part infra also know california supporting california case despite every incentive find someone else like ewing serve actually served real prison term anywhere approaching imposed upon ewing come precisely three examples brief amicus curiae solicitor general points ex parte howington alabama sentenced offender three prior burglary convictions two prior grand theft convictions life theft solicitor general also points state heftel south dakota sentenced offender seven prior felony convictions years imprisonment theft solicitor general cites sims state nevada sentenced defendant three prior felony convictions including armed robbery nine misdemeanor convictions life without parole theft purse wallet containing first cases howington beside point offender eligible parole years rummel years code west second case heftel factually point legally point south dakota courts consider constitutionality sentence third case sims point factually legally nevada vote found sentence constitutional concede example single instance similar sentence imposed outside context california three strikes law prison population approaching two million individuals dept justice office justice programs bureau justice statistics prison statistics http available clerk case file upshot comparison sentencing practices jurisdictions california times respect crimes validates initial threshold examination suggested given information available given state federal parties ability provide additional contrary data given failure assume constitutional purposes following statement true outside california three strikes context ewing recidivist sentence virtually unique harshness offense conviction considerable degree iv end matter california sentenced ewing pursuant three strikes law law represents deliberate effort provide stricter punishments recidivists cal penal code ann west intent legislature ensure longer prison sentences greater punishment commit felony previously convicted serious violent felony offenses ante important consider whether special criminal justice concerns related california three strikes policy might justify including ewing theft within class triggering criminal conduct thereby imposing severe punishment even ewing sentence otherwise seem disproportionately harsh cf harmelin noting primacy legislature making sentencing policy find special criminal justice concerns might justify sentence obvious potential justification bringing ewing theft within ambit statute administrative california must draw kind workable line conduct trigger conduct trigger three strikes sentence fact line drawn somewhere justify drawn anywhere pearce commissioner frankfurter dissenting statute administrative objective seem one separating serious less serious triggering criminal conduct yet statute job particularly well administrative line statute draws separates felonies misdemeanors see brief respondent california statute relies fundamentally traditional classifications certain crimes felonies words suggest graduated difference degree examination california applies labels practice criminal conduct suggests offenses necessarily reflect differences see watson marshall dissenting distinction often reflects history logic rummel casual review various criminal justice systems force union shows line dividing felony theft petty larceny line usually based value property taken varies markedly one state another indeed california uses words way unrelated seriousness offense conduct set criminal statutes called wobblers see ante one issue case wobbler statutes classify criminal conduct either felony misdemeanor depending upon actual punishment imposed cal penal code ann west ante turn depends primarily upon whether rehabilitation convicted defendant either require adversely affected incarceration state prison felon anderson cal tobriner concurring part dissenting part ante cases classification turns primarily upon nature offender comparative seriousness offender conduct subset wobbler statutes including petty theft prior statute cal penal code ann west supp defining crime companion case lockyer andrade post authorizes treatment otherwise misdemeanor conduct see cal penal code ann west felony offender previously committed property crime distinction turns upon characteristics offender specific offense conduct issue result importing kind distinction california three strikes statute series anomalies one anomaly concerns seriousness triggering behavior wobbler statutes cover wide variety criminal behavior ranging assault deadly weapon vehicular manslaughter money laundering defacement property graffiti west supp stealing worth chickens nuts avocados west supp west behavior obviously less serious even engaged twice criminal conduct california statutes classify pure misdemeanors reckless driving cal veh code ann west supp west reckless driving causing bodily injury use force threat force interfere another civil rights cal penal code ann west selling poisoned alcohol child neglect manufacturing selling false government documents intent conceal true citizenship west supp another anomaly concerns temporal order offender whose triggering crime third crime likely fall within ambit three strikes statute provided first crime chicken theft worth subsequently graduated serious crimes say crimes violence chicken theft first offense likely considered misdemeanor similar offender likely fall within scope three strikes statute however chicken theft third crime chicken theft third offense likely treated felony anomaly concerns offender criminal record california wobbler petty theft prior statute issue lockyer andrade post classifies petty theft felony offender prior record includes least one conviction certain offenses cal penal code ann west supp thus violent criminal committed two violent offenses steals fall within ambit three strikes statute prior record reveals similar property crimes similar offender fall within scope three strikes statute however offender instead committed two previous violent crimes committed one previous violent crime one previous petty theft ewing conduct brought within realm petty theft statute prior inflation time difficult find strong need define lower boundary state done three strikes statute defining prior strikes simply lists kinds serious criminal conduct falls within definition strike listing violent felonies west supp listing serious felonies obvious reason statute enumerate consistent purposes relevant triggering crimes given possibility given anomalies result california chosen approach see california justify administrative grounds sentence seriously disproportionate ewing see parts ii iii supra neither see way inclusion ewing conduct triggering crime significant criminal justice objective one might argue commit several property crimes receive long terms imprisonment order incapacitate prevent committing crimes future object particular three strikes statute rather plurality says california seeks reduce serious violent crime ante quoting ardaiz california three strikes law history expectations consequences mcgeorge rev emphasis added statute definitions kinds crime include crimes person crimes create danger physical harm drug crimes see cal penal code ann west supp west supp murder voluntary manslaughter west supp west supp burglary selling giving offering sell give heroin cocaine minor include even serious crimes property obtaining large amounts money say theft embezzlement fraud given omission vast categories property crimes including grand theft unarmed strike definition one argue incapacitation grounds inclusion ewing crime among triggers remaining criminal law objectives seem relevant one argues ewing inclusion within ambit three strikes statute grounds retribution cf vitiello three strikes return rationality crim criminology california three strikes law like abitual offender statutes retributive term imprisonment imposed without regard culpability offender degree social harm caused offender behavior little gravity offens reasons previously discussed terms deterrence ewing term amounts overkill see parts ii iii supra rehabilitation obviously beside point upshot view state find three strikes law special criminal justice need sufficient rescue sentence relevant considerations indicate unconstitutional justice scalia justice thomas argue review gross disproportionality sentence term years ante scalia concurring judgment ante thomas concurring judgment otherwise make difficult legislators sentencing judges determine sentencing laws practices pass constitutional muster concede rule give legislators sentencing judges guidance application eighth amendment sentence term years requires approach view like plurality meaningful enforcement eighth amendment demands application even sentencing outer bounds approach nonetheless offer guidance example ewing sentence minimum times length sentences jurisdictions impose similar circumstances sentence sufficiently long require typical offender spend virtually remainder active life prison factors discussed along questions asked along way help identify gross disproportionality fairly objective way outer bounds sentencing sum even accept present purposes plurality analytical framework ewing sentence life imprisonment minimum term years grossly disproportionate triggering offense conduct stealing three golf clubs ewing recidivism notwithstanding reasons dissent appendix opinion breyer jurisdictions well federal courts laws make impossible sentence offender years federal months ussg ch pt sentencing table alaska three five years presumptive term three years alaska stat arizona four six years presumptive sentence five years rev stat ann west connecticut years stat delaware two years del code tit supp recidivist offender penalty applicable see buckingham state del district columbia years code ann west recidivist offender penalty applicable see west amended florida years stat ann west amended west georgia years code ann supp hawaii months haw rev stat iv supp idaho years idaho code offender penalty five years life prison likely applicable idaho general rule entered day charged information count single conviction purposes establishing habitual offender status state harrington idaho app quoting state brandt idaho app however nature convictions given situation must examined make certain general rule appropriate ibid case ewing prior felony convictions stemmed acts committed apartment complex three four felonies committed within day fourth offense committed five weeks earlier see app tr information case cal super available clerk case file review idaho case law suggests case factually distinguishable cases idaho courts declined adhere general rule see brandt supra three separately charged property offenses involving three separate homes different victims committed period state mace idaho app unrelated crimes grand theft dui committed different dates different counties state smith idaho app separate distinguishable crimes committed different victims different counties illinois two five years comp ch supp ch supp recidivist offender penalty applicable ch indiana months months added aggravating circumstances ind code ann west west supp recidivist offender penalty applicable see west amended iowa three five years iowa code ann west supp west west supp kansas months stat ann recidivist offender penalty applicable see kentucky years rev stat ann lexis supp lexis maine less one year rev stat tit west west supp amended west supp recidivist offender penalty applicable see west supp amended massachusetts five years mass laws ch west recidivist offender penalty applicable see ch west commonwealth hall mass minnesota five years stat subd recidivist offender penalty applicable see subd mississippi five years miss code ann lexis recidivist offender penalty applicable see nebraska five years neb rev stat cum supp recidivist offender penalty applicable see new jersey extended term years instead three five years stat ann supp whether offense treated theft supp shoplifting even ewing felonies regarded one predicate crime ewing separately convicted sentenced least one crime least sentence authorized new mexico months stat ann amended new york three four years penal law west west north carolina months exact sentencing range dependent details offender criminal history stat recidivist offender penalty applicable see north dakota years cent code amended ohio months ohio rev code ann west supp general recidivist statute oregon five years rev stat rev stat ann supp general recidivist statute pennsylvania five years one prior theft retail theft otherwise seven years stat tit purdon iii iv purdon supp purdon recidivist offender penalty applicable see cons stat rhode island years laws recidivist offender penalty applicable see south carolina five years code ann west cum recidivist offender penalty applicable see tennessee four eight years code ann utah five years utah code ann amended recidivist offender penalty applicable see supp washington months exact sentencing range dependent details offender score rev code supplementary pamphlet maximum sentence five years recidivist offender penalty applicable see supplementary pamphlet wyoming years wyo stat ann michie recidivist offender penalty applicable see four offender received sentence years prison colorado years extraordinary aggravating circumstances defendant parole another felony time commission triggering offense rev stat ii recidivist offender penalty applicable see maryland years md ann code art repealed recidivist offender penalty applicable see art new hampshire years rev stat ann ii supp recidivist offender penalty applicable see wisconsin years time ewing offense stat ann west supp west amended wisconsin subsequently amended relevant statutes offender eligible sentence three years see west supp effective february offender eligible sentence two years see four additional offender sentenced years prison arkansas years ark code ann amended eligible parole serving sentence missouri years mo rev stat west west amended eligible parole years latest texas years tex penal code ann supp eligible parole serving sentence tex govt code ann supp virginia statutory range years less months discretion jury following bench trial code ann supp discretionary sentencing guideline ranges established virginia sentencing commission maximum years months years months see virginia criminal sentencing commission virginia sentencing guidelines manual larceny section recommendation table ed petitioner likely falling within discretionary guideline range years month years months see brief petitioner recidivist offender penalty applicable see nine law might make legally possible impose sentence years upon offender five nine offender years alabama life term less years code lexis supp michie eligible parole lesser sentence years michie louisiana louisiana courts imposed sentence life without possibility parole time ewing offense la stat ann west supp ii ii west amended west supp petitioner argues despite statutory authority impose sentence louisiana courts carefully scrutinized life sentence cases involving recidivists charged nonviolent crime brief petitioner see brief families mandatory minimums amicus curiae state hayes la app holding life sentence impermissibly excessive defendant convicted theft prior robbery conviction see brief respondent contesting petitioner argument louisiana amended recidivist statute require triggering offense violent felony offender least two prior violent felony convictions eligible life sentence la stat ann ii west supp current law offender face sentence years west supp michigan imprisonment life lesser term comp laws ann west instead years petitioner contends see brief petitioner brief families mandatory minimums amicus curiae triggering offense punishable upon first conviction imprisonment maximum term years west larceny ewing convicted michigan law felony punishable imprisonment years west supp eligible parole following minimum term set sentencing judge west montana years mont code ann offender subject minimum term years prison state suggests brief respondent ewing meet requirements must persistent felony offender defined time offender previous felony conviction see reply brief petitioner eligible parole term mont code ann nevada life without possibility parole life possibility parole serving years definite term years eligibility parole serving years rev stat ann lexis oklahoma less years time ewing offense okla tit west supp amended four years life west west amended eligible parole serving sentence tit west thus assuming sentence term years years montana see supra parole eligibility arise late years south dakota maximum penalty life imprisonment minimum term codified laws supp eligible parole serving sentence thus assuming sentence term years years montana see supra parole eligibility arise late years vermont including life stat tit years tit state angelucci discretion sentence habitual offender sentence specified grand larceny alone eligible parole six months stat tit amended west virginia petitioner contends subject misdemeanor sentence days shoplifting code brief petitioner however offender charged grand larceny see state ex rel chadwell duncil prosecutor discretion charge defendant either shoplfting grand larceny felony punishable imprisonment state penitentiary years discretion trial year jail code west virginia habitual offender statute felon twice convicted crime punishable confinement penitentiary shall sentenced life imprisonment parole eligibility years amicus curiae behalf petitioner notes light existing precedents west virginia courts countenance sentence life without possibility parole years shoplifting golf clubs brief families mandatory minimums amicus curiae citing state barker per curiam state deal see brief respondent contesting argument footnotes hardly surprising statistics relied upon justice breyer show prior enactment three strikes law one like ewing served years prison post dissenting opinion profound disappointment perceived lenity criminal sentencing especially repeat felons led passage three strikes laws first place see review state legislation justice breyer argues including ewing grand theft triggering offense justified incapacitation grounds crimes count prior strikes post state interest dealing repeat felons like ewing limited explained overarching objective three strikes law prevent serious violent offenders like ewing repeating criminal behavior see cal penal code ann west intent legislature ensure longer prison sentences greater punishment commit felony previously convicted serious violent felony offenses california legislature therefore made deliberate policy decision gravity new felony determinative factor application three strikes law ardaiz neither eighth amendment precedent forecloses legislative choice footnotes present purposes post dissenting opinion justice breyer applies framework established harmelin michigan analyzing ewing eighth amendment claim agree justice breyer ewing sentence grossly disproportionate even harmelin narrow proportionality framework however clear case controlled harmelin considered proportionality life sentence imposed drug offender prior felony convictions rather analysis established solem helm specifically addressed recidivist sentencing seems directly point numerous examples given situations courts faced imprecise commands must make difficult decisions see kyles whitley reviewing whether undisclosed evidence material arizona fulminante considering whether confession coerced whether admission coerced confession harmless error strickland washington addressing whether defense counsel performance deficient whether deficiency prejudicial darden wainwright assessing whether prosecutorial misconduct deprived defendant fair trial christensen harris county scalia concurring part concurring judgment addressing whether agency construction statute footnotes throughout appendix parts penalties listed jurisdiction pertaining imprisonment reflect possible fines forms penalties applicable laws jurisdiction see discussion relevant sentencing provisions louisiana michigan oklahoma south dakota infra page