harmelin michigan argued november decided june petitioner harmelin convicted michigan law possessing grams cocaine sentenced mandatory term life prison without possibility parole state appeals affirmed rejecting argument sentence cruel unusual within meaning eighth amendment claims sentence cruel unusual significantly disproportionate crime committed sentencing judge statutorily required impose without taking account particularized circumstances crime criminal held judgment affirmed app affirmed justice scalia delivered opinion respect part iv concluding harmelin claim sentence unconstitutional mandatory nature allowing sentencer opportunity consider mitigating factors support eighth amendment text history severe mandatory penalties may cruel unusual constitutional sense employed various forms throughout nation history although harmelin claim finds support individualized doctrine death penalty jurisprudence see woodson north carolina doctrine may extended outside capital context qualitative differences death penalties see pp justice scalia joined chief justice concluded parts ii iii eighth amendment contains proportionality guarantee harmelin sentence considered unconstitutionally disproportional pp crimes concededly classified classifiable felonies punishable significant terms imprisonment state penitentiary length sentence actually imposed purely matter legislative prerogative rummel estelle solem helm decreed general principle proportionality used criterion application test explicitly rejected rummel supra hutto davis wrong overruled pp although solem supra correctly discerned eighth amendment prohibition derived cruell unusuall punishments provision english declaration rights solem conclusion latter provision embodied right free disproportionate punishments refuted circumstances declaration enactment contemporaneous understanding english guarantee guarantee directed arbitrary use sentencing power king bench particular cases illegality rather disproportionality punishments thereby imposed pp americans adopted eighth amendment intended cruel unusual punishments clause check ability legislature authorize particular modes punishment cruel methods punishment regularly customarily employed rather guarantee disproportionate sentences demonstrated available evidence contemporary understanding including context adoption debates state ratifying conventions first congress early commentary judicial decisions particularly telling framed approved federal constitution chose include within explicit guarantee disproportionate sentences state constitutions contained pp adequate textual historical standards enable judges determine whether particular penalty disproportional first two factors solem found relevant inherent gravity defendant offense sentences imposed similarly grave offenses jurisdictions fail lack objective standard gravity since statutes americans enacted different times places demonstrate enormous variation opinion offenses serious proportionality principle invitation judges impose subjective values moreover although third solem factor character sentences imposed crime applied clarity ease irrelevant eighth amendment traditional notions federalism entitle treat like situations differently light local needs concerns social conditions pp although jurisprudence remained entirely accord proposition eighth amendment proportionality requirement departed extent solem suggests weems cited solem supra leading case contain language suggesting mere disproportionality might make punishment cruel unusual also contained statements indicating unique punishment issue unconstitutional unknown tradition hard view weems announcing constitutional proportionality requirement given produce decision implementing requirement either lower federal courts six decades first opinion coker georgia death penalty case coker line authority treated generalized aspect eighth amendment law since proportionality review one several respects death different requiring protections constitution nowhere else provides pp justice kennedy joined justice justice souter concluded decisions recognize eighth amendment cruel unusual punishments clause encompasses narrow proportionality principle applies noncapital sentences see weems rummel estelle hutto davis solem helm although decisions totally clear consistent close analysis yields common principles give content uses limits proportionality review first fixing prison terms specific crimes involves substantial penological judgment general matter properly within province legislature reviewing courts grant substantial deference legislative determinations second variety legitimate penological schemes based theories retribution deterrence incapacitation rehabilitation eighth amendment mandate adoption one scheme third marked divergences sentencing theories length prescribed prison terms inevitable often beneficial result federal structure differing attitudes perceptions local conditions may yield different yet rational conclusions regarding appropriate length terms particular crimes fourth proportionality review federal courts informed objective factors maximum extent possible relative lack objective standards concerning length opposed type sentence resulted successful proportionality challenges outside capital punishment context finally eighth amendment require strict proportionality crime sentence rather forbids extreme sentences grossly disproportionate crime pp light foregoing principles harmelin sentence violate cruel unusual punishments clause although sentence life imprisonment without parole second severe penalty permitted law grossly disproportionate harmelin crime possessing grams cocaine suggestion crime nonviolent victimless false point absurdity studies demonstrate grave threat illegal drugs particularly cocaine pose society terms violence crime social displacement amount cocaine harmelin possessed potential yield doses michigan legislature reason conclude possession large amount momentous enough warrant deterrence retribution life sentence without parole given severity harmelin crime need conduct comparative analysis sentence sentences imposed crimes michigan crime jurisdictions decisions indicate analysis appropriate rare case threshold comparison crime committed sentence imposed leads inference gross disproportionality see solem supra weems supra usual case inference arises see rummel supra pp carla johnson appointment argued cause filed brief petitioner richard thompson argued cause respondent brief michael modelski briefs amici curiae urging reversal filed american civil liberties union et al steven shapiro criminal defense attorneys michigan et al neil fink elizabeth jacobs william swor briefs amici curiae urging affirmance filed solicitor general starr acting assistant attorney general mueller deputy solicitor general bryson james feldman state arizona robert corbin attorney general jessica gifford funkhouser vicki gotkin adler assistant attorney general state michigan frank kelley attorney general gay secor hardy solicitor general davison hunter thomas nelson assistant attorneys general national district attorneys association richard ieyoub jack yelverton james manak prosecuting attorneys association michigan robert weiss john timothy baughman washington legal foundation et al daniel popeo paul kamenar justice scalia announced judgment delivered opinion respect part iv opinion respect parts ii iii chief justice joins petitioner convicted possessing grams cocaine sentenced mandatory term life prison without possibility parole michigan appeals initially reversed conviction evidence supporting obtained violation michigan constitution app petition rehearing appeals vacated prior decision affirmed petitioner sentence rejecting argument sentence cruel unusual within meaning eighth amendment michigan denied leave appeal granted certiorari petitioner claims sentence unconstitutionally cruel unusual two reasons first significantly disproportionate crime committed second sentencing judge statutorily required impose without taking account particularized circumstances crime criminal eighth amendment applies virtue fourteenth amendment see robinson california provides excessive bail shall required excessive fines imposed cruel unusual punishments inflicted rummel estelle held constitute cruel unusual punishment impose life sentence recidivist statute upon defendant convicted successively fraudulent use credit card obtain worth goods services passing forged check amount obtaining false pretenses said one argue without fear contradiction decision crimes concededly classified classifiable felonies punishable significant terms imprisonment state penitentiary length sentence actually imposed purely matter legislative prerogative specifically rejected proposition asserted dissent opinion powell unconstitutional disproportionality established weighing three factors gravity offense compared severity penalty penalties imposed within jurisdiction similar crimes penalties imposed jurisdictions offense opinion however said say proportionality principle come play extreme example mentioned dissent legislature made overtime parking felony punishable life imprisonment two years later hutto davis similarly rejected eighth amendment challenge prison term years fine possession distribution approximately nine ounces marijuana thought result clear light rummel per curiam opinion said fourth circuit sustaining constitutional challenge viewed ignored consciously unconsciously hierarchy federal system tolerated unless wish anarchy prevail explicitly rejected application three factors discussed rummel dissent see however whereas rummel said successful proportionality challenges outside context capital punishment exceedingly rare discussing solitary example weems explained involving punishment unique nature davis misdescribed rummel said successful challenges exceedingly rare emphasis added point inserted reference description rummel overtime parking content imperceptibly event ominously expanded rummel saying proportionality principle come play fanciful parking example became ing situations proportionality principle come play fanciful parking example davis supra emphasis added combination expanded text plus expanded permitted inference gross disproportionality example exceedingly rare situations eighth amendment challenges successful indeed one might say positively invited inference incompatible sharp per curiam reversal fourth circuit finding years possession distribution nine ounces marijuana grossly disproportionate therefore unconstitutional year half davis uttered last word subject date solem helm set aside eighth amendment disproportionate sentence life imprisonment without possibility parole imposed south dakota recividist statute successive offenses included three convictions burglary one obtaining money false pretenses one grand larceny one driving intoxicated one writing account check intent defraud solem account weems longer involved punishment unique nature rummel supra leading case solem exemplifying general principle proportionality deeply rooted frequently repeated jurisprudence embodied english bill rights language later adopted eighth amendment recognized explicitly almost century recent recognitions overtime parking footnotes rummel davis statement rummel one argue without fear contradiction decision crimes concededly classified classifiable felonies length sentence actually imposed purely matter legislative prerogative rummel supra according solem really important words passage one argue emphasis added solem rummel merely recognized argument possible extent state makes argument find meritless course rummel said merely one argue one argue without fear contradiction decision emphasis added decreed general principle disproportionality exists used criterion application test explicitly rejected rummel davis cases said merely indicated one factor dispositive given case though davis expressly approvingly quite correctly described rummel disapproved objective factors emphasis added see rummel apparent discussion decision eight years ago solem scarcely expression clear well accepted constitutional law long recognized course doctrine stare decisis less rigid application constitutional precedents see payne tennessee ante smith allwright mitchell grant powell concurring burnet coronado oil gas brandeis dissenting think especially true constitutional precedent recent apparent tension decisions accordingly addressed anew greater detail question whether eighth amendment contains proportionality guarantee particular attention background eighth amendment solem discussed two pages see understanding eighth amendment end century solem discussed conclude examination solem simply wrong eighth amendment contains proportionality guarantee solem based conclusion principally upon proposition right free disproportionate punishments embodied within cruell unusuall punishments provision english declaration rights incorporated language eighth amendment doubt declaration rights antecedent constitutional text document promulgated february enacted law bill rights wm mary sess ch december see sources liberties perry cooper eds schwoerer declaration rights pp five state constitutions prohibited cruel unusual punishments see del declaration rights md declaration rights xxii mass declaration rights art xxvi declaration rights bill rights art xxxiii two prohibited cruel punishments pa art ix art ix new federal bill rights however tracked virginia prohibition cruel unusual punishments see va declaration rights closely followed english provision fact entire text eighth amendment taken almost verbatim english declaration rights provided hat excessive baile required excessive fines imposed cruell unusuall punishments inflicted perhaps americans understood declaration language precisely englishmen though shall discuss later seems unlikely perhaps colonists meant incorporate content antecedent reference whatever content might solem suggested something like arguing since americans claimed rights english subjects use language english bill rights convincing proof intended provide least protection thus original meaning declaration rights relevant also circumstances enactment insofar display particular rights english subjects designed vindicate solem observed principle proportionality familiar english law time declaration rights drafted magna carta provided free man shall fined small offence except proportion measure offense great offence shall fined proportion magnitude offence saving freehold art translated sources liberties supra imprisonment supplemented fines method punishment courts apparently applied proportionality principle sentencing hodges humkin bulst eng croke mprisonment always according quality offence despite familiarity drafters declaration rights explicitly prohibit disproportionate excessive punishments instead prohibited punishments cruell unusuall solem simply assumed analysis one included textual matter course disproportionate punishment perhaps always considered cruel always text also requires unusual error solem assumption confirmed historical context contemporaneous understanding english guarantee historians agree cruell unusuall punishments provision english declaration rights prompted abuses attributed infamous lord chief justice jeffreys king bench stuart reign james ii see schwoerer supra blackstone commentaries agree however abuses see ingraham wright furman georgia marshall concurring jeffreys best known presiding bloody assizes following duke monmouth abortive rebellion special commission led jeffreys tried convicted executed hundreds suspected insurgents attributed declaration rights provision popular outrage proceedings sources liberties supra note cruel unusual punishment harv rev see also story commentaries constitution vicious punishments treason decreed bloody assizes drawing quartering burning women felons beheading disemboweling etc common period indeed specifically authorized law remained many years afterwards see granucci cruel unusual punishments inflicted original meaning calif rev blackstone supra thus recently historians argued best historical evidence suggests jeffreys management bloody assizes led declaration rights provision rather arbitrary sentencing power exercised administering justice king bench particularly punishing notorious perjurer see granucci supra schwoerer supra accord stephen history criminal law england chitty criminal law ed hereinafter chitty jeffreys widely accused inventing special penalties king enemies penalties authorized precedent statute letter gentleman brussels giving account people revolt windsor cited schwoerer declaration rights preamble declaration rights sort indictment james ii calls mind preface declaration independence specifically referred illegal sentences king bench proceedings whereas late king james second assistance diverse evill councellors judges ministers imployed endeavour subvert extirpate protestant religion lawes liberties kingdome prosecutions kings bench matters causes cognizable onely parlyament diverse arbitrary illegall courses xcessive baile hath beene required persons committed criminall cases elude benefit lawes made liberty subjects excessive fines imposed illegall cruell punishments inflicted utterly directly contrary knowne lawes statutes freedome realme wm mary sess ch judges believed sentenced oates scourged death macaulay history england hereinafter macaulay accord ogg england reigns james ii william iii pp oates die however four years later several months declaration rights petitioned house lords set aside sentence illegal macaulay single peer ventured affirm judgment legal much said odious character appellant lords affirmed judgment minority lords dissented however statement sheds light meaning cruell unusuall punishments clause king bench temporal made part judgment titus oates clerk said perjuries divested canonical priestly habit matter wholly power belonging ecclesiastical courts aid judgments barbarous inhuman unchristian precedent warrant punishments whipping committing prison life crime perjury yet part punishments inflicted upon encouragement allowance giving like cruel barbarous illegal judgments hereafter unless judgment reversed hat said judgments contrary law ancient practice therefore erroneous reversed contrary declaration twelfth february last excessive bail required excessive fines imposed cruel unusual punishments afflicted journals house lords may quoted second trial titus oates supra commons hoped declaration rights presented majesties upon accepting crown wherein lordships joined commons complaining cruel illegal punishments last reign asserting ancient right people england subjected cruel unusual punishments judgments prejudice people kind wise drawn consequence example declaration lately renewed part bill rights lords agreed seen judgments nature affirmed put necessity sending bill reversing since declarations useless pernicious consequence people soon judgments stand affirmed taken cruel illegal within meaning declarations commons particular regard judgments amongst others declaration first made must insist upon erroneous cruel illegal ill example future ages seemed less plain judgments cruel ill example future ages surely ill example temporal give judgment clerk divested canonical habits continue divested life ill example illegal judgment perpetual imprisonment given case express law warrant ill example unusual englishman exposed upon pillory many times year life illegal cruel dangerous example freeman whipped barbarous manner probability determine death avowed judgments sic given lord chief justice king bench declared judges met unanimously agreed subject prosecuted common law misdemeanor discretion inflict punishment pleased extending life member soon set pretence discretionary power observable put practice cases offences inflicting cruel ignominious punishments agreed far worse death man sense honour shame journal house commons emphasis added sum think unlikely english cruell unusuall punishments clause meant forbid disproportionate punishments even less likelihood proportionality punishment one traditional rights privileges englishmen apart declaration rights happened included eighth amendment indeed even scholars believe principle included within declaration rights contend prohibition reflected english practice see granucci supra observed woodson north carolina england punished crimes death see also stephen supra felonies except mayhem petty larceny punishable death class offenses punishable death narrowed include murder attempts murder poisoning stabbing shooting etc administering poison procure abortion sodomy rape statutory rape certain classes forgery see stephen supra notable discussion english capital punishment reform stephen mention cruell unusuall punishments clause though certainly aware see stephen supra likewise discussion suitability punishments blackstone mention declaration see blackstone supra unless one accepts notion blind incorporation however ultimate question cruell unusuall punishments meant declaration rights meaning americans adopted eighth amendment even one assumes founders knew precise meaning english antecedent see granucci supra direct transplant english meaning soil american constitutionalism case impossible punishments federal system see hudson cranch provision must meant check upon judges upon legislature see kemmler wrenched context applied actions legislature word unusual hardly mean contrary law continued mean continues mean today occu ordinary practice webster american dictionary uch common use webster second international dictionary according terms forbidding cruel unusual punishments see stanford kentucky plurality opinion kemmler supra clause disables legislature authorizing particular forms modes punishment specifically cruel methods punishment regularly customarily employed louisiana ex rel francis resweber plurality opinion kemmler supra see also collins cas cc curtis language bears construction however come point crucial resolution present case cruelty unusualness determined solely reference punishment issue life imprisonment cruel unusual punishment reference crime imposed well life imprisonment cruel unusual punishment possession unlawful drugs latter interpretation make provision form proportionality guarantee arguments however seem us conclusive first use phrase cruel unusual punishment describe requirement proportionality exceedingly vague oblique way saying americans well accustomed saying directly notion proportionality novelty though little agreement entailed example virginia legislature narrowly rejected comprehensive bill proportioning punishments introduced thomas jefferson see blackstone commentaries tucker ed discussing efforts reform writings thomas jefferson lipscomb ed proportionality provisions included several state constitutions see pa punishments general proportionate crimes art xl bill rights art xviii penalties proportioned nature offence little doubt framed proposed ratified bill rights aware provisions yet chose replicate new hampshire constitution adopted years ratification eighth amendment ohio constitution adopted years contain separate provisions prohibition cruel unusual punishments cruel unusual new hampshire case requirement penalties proportioned nature offence bill rights arts xviii xxxiii ohio art viii secondly seem quite peculiar refer cruelty unusualness offense question provision application new government never defined offenses defining new peculiarly national ones finally conclusively proceed discuss fact cruel unusual eighth amendment determined without reference particular offense confirmed available evidence contemporary understanding eighth amendment received little attention proposal adoption federal bill rights however evidence exists debates state ratifying conventions prompted bill rights well floor debates first congress proposed confirm view cruel unusual punishments clause directed prohibiting certain methods punishment granucci emphasis added see schwartz eighth amendment proportionality analysis compelling case william rummel crim criminology welling hipfner cruel unusual capital punishment canada toronto january massachusetts convention example objection raised congress nowhere restrained inventing cruel punishments annexing crimes constitutional check racks gibbets may amongst mild instruments discipline elliot debates federal constitution ed emphasis added says virginia bill rights excessive bail required excessive fines imposed cruel unusual punishments inflicted business legislation members congress loose restriction imposing excessive fines demanding excessive bail inflicting cruel unusual punishments prohibited declaration rights distinguished ancestors admit tortures cruel barbarous punishment early commentary clause contains reference disproportionate excessive sentences indicates designed outlaw particular modes punishment one commentator wrote prohibition cruel unusual punishments marks improved spirit age tolerate use rack stake horrid modes torture devised human ingenuity gratification fiendish passion bayard brief exposition constitution ed eighth amendment infliction cruel unusual punishments also prohibited various barbarous cruel punishments inflicted laws countries profess behind enlightened nations earth civilization refinement furnish sufficient reasons express prohibition breaking wheel flaying alive rending assunder horses various species horrible tortures inflicted inquisition maiming mutilating scourging death wholly alien spirit humane general constitution oliver rights american citizen provision eighth amendment seem wholly unnecessary free government since scarcely possible department government authorize justify atrocious conduct however adopted admonition departments national government warn violent proceedings taken place england arbitrary reigns stuarts story commentaries constitution perhaps persuasive evidence cruel unusual meant however found early judicial constructions eighth amendment state counterparts early perhaps earliest judicial construction federal provision illustrative barker people johns sup aff cow defendant upon conviction challenging another duel disenfranchised chief justice spencer assumed eighth amendment applied finding violated considered proportionality punishment irrelevant disenfranchisement citizen said unusual punishment consequence treason infamous crimes altogether discretionary legislature extend punishment offences barker people supra throughout century state courts interpreting state constitutional provisions identical expansive wording cruel unusual concluded provisions proscribe disproportionality certain modes punishment example aldridge commonwealth general virginia occasion interpret cruel unusual punishments clause direct ancestor federal provision see supra rejecting defendant claim sentence many stripes violated virginia constitution said ninth section bill rights denouncing cruel unusual punishments notion bearing case provision never designed control legislative right determine ad libitum upon adequacy punishment merely applicable modes punishment best heads hearts land ancestors long loudly declaimed wanton cruelty many punishments practised countries section bill rights framed effectually exclude future legislature moment perhaps great general excitement tempted disgrace code introduction odious modes punishment emphasis original ii think enough framed approved federal constitution chose whatever reason include within guarantee disproportionate sentences state constitutions contained worth noting however good reason choice reason reinforces necessity overruling solem relatively clear historical guidelines accepted practices enable judges determine modes punishment cruel unusual proportionality lend analysis neither congress state legislature ever set objective crafting penalty disproportionate yet examples mentioned indicate many enacted dispositions seem made times places different social attitudes different criminal epidemics different public fears different prevailing theories penology say absolutes one imagine extreme examples rational person time place accept reason examples easy decide certain never occur real function constitutional proportionality principle exists enable judges evaluate penalty assemblage men women considered proportionate say enterprise standards seem inadequate proportionality principle becomes invitation imposition subjective values becomes clear think consideration three factors solem found relevant proportionality determination inherent gravity offense sentences imposed similarly grave offenses jurisdiction sentences imposed crime jurisdictions first factor course offenses involving violent harm human beings always everywhere regarded serious half equation issue else regarded serious offenses even serious point judging statutes americans enacted enormous variation even within given age mention across many generations ruled bill rights state massachusetts punishes sodomy severely assault battery compare mass laws twenty years prison sodomy two one half years prison assault battery whereas several sodomy unlawful louisiana one assaults another dangerous weapon faces maximum prison term one removes shopping basket parking area grounds store without authorization la rev stat ann west battery results protracted obvious disfigurement merits imprisonment five years one half maximum penalty theft livestock oilfield seismograph may think first congress punished clear disproportionality provided seven years prison fine cut ting ear ears cut ting disabl ing tongue put ting eye cut ting limb member person intention maim disfigure provided death penalty run ning away ship vessel goods merchandise value fifty dollars act apr ch stat perhaps citizens think today congress punishes clear disproportionality sanctions assault wounding six months prison unauthorized reproduction smokey bear character name penalty offering barter migratory bird two years prison purloining key suited lock adopted post office department prison term years perhaps right point textual historical standards saying difficulty assessing gravity demonstrated context present case petitioner acknowledges mandatory life sentence might grossly excessive possession cocaine intent distribute see hutto davis surely whether grave offense merely possess significant quantity drugs thereby facilitating distribution subjecting holder temptation distribution raising possibility theft others might distribute depends entirely upon odious socially threatening one believes drug use grossly excessive provide life imprisonment mere possession certain quantity heavy weaponry issue whether possible dissemination drugs grave possible dissemination heavy weapons say members michigan legislature know situation streets detroit second factor suggested solem fails reason one compare sentences imposed jurisdiction similarly grave offenses objective standard gravity judges comparing consider comparable put point differently happens two offenses judicially determined similarly grave receive significantly dissimilar penalties follows harsher penalty unconstitutional merely legislature share judges view offenses similarly grave moreover even similarly grave crimes identified penalties necessarily comparable since many justifications difference example since deterrent effect depends upon amount penalty upon certainty crimes less grave significantly difficult detect may warrant substantially higher penalties grave crimes sort deterred penalty may warrant substantially lower penalties may grave crimes sort normally committed lifetime otherwise citizens profit rehabilitation whether differences occur extent depends course upon weight society accords deterrence rehabilitation rather retribution objective criminal punishment eminently legislative judgment fact becomes difficult even speak intelligently proportionality deterrence rehabilitation given significant weight proportionality inherently retributive concept perfect proportionality talionic law cf bill proportioning punishments writings thomas jefferson hoever shall maim another shall disfigure shall maimed disfigured like sort third factor mentioned solem character sentences imposed crime must acknowledged applied clarity ease difficulty conceivable relevance eighth amendment state entitled treat stern disapproval act punish mildest sanctions follows fortiori undoubted fact state may criminalize act criminalize indeed state may criminalize act choose reward punishing example killing endangered wild animals offering bounty greater disproportion absent constitutionally imposed uniformity inimical traditional notions federalism state always bear distinction treating particular offenders severely state rummel diversity policy means implementing policy raison federal system though different needs concerns may induce treat simple possession grams cocaine relatively minor offense see wyo stat months code months nothing constitution requires michigan follow suit eighth amendment ratchet whereby temporary consensus leniency particular crime fixes permanent constitutional maximum disabling giving effect altered beliefs responding changed social conditions iii jurisprudence remained entirely accord proposition proportionality requirement eighth amendment neither departed extent solem suggests weems government disbursing officer convicted making false entries small sums account book sentenced philippine courts years cadena temporal punishment based upon spanish penal code called incarceration hard painful labor chains fastened wrists ankles times several accessor ies superadded including permanent disqualification holding position public trust subjection government surveillance life civil interdiction consisted deprivation rights parental authority guardianship person property participation family council etc weems supra justice mckenna writing three others held imposition cadena temporal cruel unusual punishment justice white joined justice holmes dissented holding reasoning upon based accord traditional understanding provision described punishment severe unknown tradition former justice mckenna wrote circumstance degradation omitted may even cruelty pain omitted must bear chain night day condemned painful well hard labor painful labor may mean exact measure must something hard labor may hard labor pressed point pain fellow american legislation let us remember come us government different form genius cruel excess imprisonment accompanies follows imprisonment unusual character penalties offenses amaze believe precept justice punishment crime graduated proportioned offense inhibition cruel unusual punishments clause directed punishments inflict torture punishments excessive length severity greatly disproportioned offenses charged quoting vermont field dissenting opinions federal courts appeals equally devoid evidence announced general proportionality principle evaluated cruel unusual punishment claims without reference weems see bailey tincher others continued echo dictum variants dictum state becker effect courts interfere punishment unless manifestly cruel unusual cited weems proposition sentences imposed within limits statute ordinarily regarded cruel unusual see sansone zerbst bailey half century weems circuit courts begin performing proportionality analysis hart coiner even continued state sentence within statutory limits cruel unusual punishment page accord rener beto anthony first holding unqualifiedly applying requirement proportionality criminal penalties issued years eighth amendment adopted coker georgia supra held disproportionality violation cruel unusual punishments clause impose capital punishment rape adult woman five years later enmund florida held violates eighth amendment disproportionality impose death penalty upon participant felony results murder without inquiry participant intent kill rummel treated line authority aspect death penalty jurisprudence rather generalizable aspect eighth amendment law think accurate explanation reassert proportionality review one several respects held death different imposed protections constitution nowhere else provides see turner murray eddings oklahoma concurring beck alabama leave extend iv petitioner claims sentence violates eighth amendment reason addition alleged disproportionality argues cruel unusual impose mandatory sentence severity without consideration mitigating factors case fact prior felony convictions apparently contends eighth amendment requires michigan create sentencing scheme whereby life prison without possibility parole simply severe range available penalties sentencer may impose hearing evidence mitigation aggravation earlier discussion make clear claim support text history eighth amendment severe mandatory penalties may cruel unusual constitutional sense employed various forms throughout nation history noted earlier mandatory death sentences abounded first penal code also common several time founding throughout century see woodson north carolina serious contention sentence otherwise cruel unusual becomes simply mandatory see chapman petitioner required mitigation claim like proportionality claim find support death penalty jurisprudence held capital sentence cruel unusual eighth amendment imposed without individualized determination punishment appropriate whether sentence grossly disproportionate see woodson north carolina supra lockett ohio eddings oklahoma supra hitchcock dugger petitioner asks us extend individualized doctrine sumner shuman individualized mandatory life prison without parole sentencing doctrine refuse cases creating clarifying individualized capital sentencing doctrine repeatedly suggested comparable requirement outside capital context qualitative difference death penalties see eddings oklahoma concurring lockett ohio supra woodson north carolina supra rummel estelle supra penalty death differs forms criminal punishment degree kind unique total irrevocability unique rejection rehabilitation convict basic purpose criminal justice unique finally absolute renunciation embodied concept humanity furman georgia stewart concurring judgment michigan appeals affirmed footnotes specifically rejected detail test promulgated fourth circuit hart coiner test included three factors relied upon rummel dissent see hart supra solem helm apparently adopted interpretation quoting one sources see quoting sources liberties perry cooper eds indeed clear standards age oates sentence disproportionate given perjuries resulted deaths innocents granucci suggests see granucci cruel unusual punishments inflicted original meaning rev macaulay observed oates sufferings great might seem trifling compared crimes macaulay see also contrary justice white suggestion post granucci provides little direct evidence declaration rights embodied proportionality principle simply reasons english law concerned proportionality declaration rights must embodied principle granucci supra justice white apparently agrees clause outlaws particular modes punishment goes suggest however founders specifically exclude proportionality component words reasonably construed include eighth amendment must prohibit disproportionate punishments well post surely extraordinary method determining restrictions upon democratic constitution contains seems us task merely identify various meanings text reasonably bear impose one policy standpoint pleases us best rather strive best select among various reasonable possibilities plausible meaning bear burden proving affirmative decision proportionality component ibid rather justice white bears burden proving affirmative decision favor constitution affirmatively contain restriction matter proportionality left state constitutions democratic process printed collections state constitutions available founders see federalist rossiter ed hamilton see also pp madison comparing constitutions new hampshire proportionality provision far detailed genre read penalties proportioned nature offence wise legislature affix punishment crimes theft forgery like murder treason undistinguishing severity exerted offences people led forget real distinction crimes commit flagrant little compunction lightest dye reason multitude sanguinary laws impolitic unjust true design punishments reform exterminate mankind pt art xviii ohio provision copied new hampshire justice white suggests framers prohibited excessive fines asserts assume sake argument means disproportionate fines must meant prohibit excessive punishments well post argument apparently impress state courts century good reason logic matter quite opposite cruel unusual punishments included disproportionate punishments separate prohibition disproportionate fines certainly punishments entirely superfluous two parts provision eighth amendment use different language address similar subject matter difference meaning assumed see walton arizona scalia concurring part concurring judgment might argued rational person careful forbid disproportionality fines provide protection disproportionality severe punishments one suggest existence good reason concerned fines uniquely punishments imposed measure accord penal goals retribution deterrence imprisonment corporal punishment even capital punishment cost state money fines source revenue recognized context constitutional provisions makes sense scrutinize governmental action closely state stands benefit see trust new jersey perry relied upon precisely lack incentive abuse holding punitive damages fines within meaning eighth amendment industries kelco disposal thus early state constitutions prohibited excessive fines without placing restrictions modes punishment conn declaration rights art prohibiting excessive fines ga art lix neither state driver state ex rel garvey whitaker la contrary examples applying proportionality principle rather principle curiously accord original meaning phrase english declaration rights discussed punishment cruel unusual illegal sanctioned common law statute driver imposed sentence five years county jail offense assault battery statutory penalty established north carolina held sentence violate state cruel unusual punishment provision county jail close prison life soon jeopardy prisoner ever imprisoned five years county jail crime however aggravated subsequent north carolina case makes clear legislature prescribed penalty traditional mode penalty severity offense question violate state cruel unusual punishment clause state blake garvey defendants sentenced nearly six years jail trespassing public property sentence prescribed relevant city ordinance days defendants occupation made subject separate counts offence embracing one minutes one offence following immediately consecutively louisiana found sentence cruel unusual considering offence continuing one ibid think fair reading case sentence cruel unusual illegal justice white argues eighth amendment must contain proportionality principle otherwise legislatures mak overtime parking felony punishable life imprisonment post principle oppose parade horribles form argumentation see scalia assorted canards contemporary legal analysis case res rev strength direct proportion certitude provision question meant exclude evil represented imagined parade probability parade fact materialize reasons discussed cause believe provision meant exclude evil disproportionate punishment justice white argument force believe constitution prohibited everything intensely undesirable obvious fallacy see art implicitly permitting slavery monaghan perfect constitution rev likely horrible example imagined ever fact occur unless course overtime parking one day become arguably major threat common good need deter arguably critical time members probably disagree whether punishment really disproportionate even disagree regarding punishment possession cocaine today justice frankfurter reminded us process constitutional adjudication thrive conjuring horrible possibilities never happen real world devising doctrines sufficiently comprehensive detail cover remotest contingency new york seems us reasonable hold eighth amendment forbids disproportionate punishment otherwise state impose life imprisonment parking offense hold takings clause forbids disproportionate taxation otherwise state tax away income subsistence level time decided graham clear eighth amendment applicable opinion obviously assumed see rummel estelle state courts reacted weems various ways virginia suggested since four justices joined majority opinion proportionality question may fairly said still open question far authority concerned hart commonwealth cf north georgia finishing blackmun dissenting indiana apparently thought weems accord traditional view expressed hobbs state ind see kistler state ind north carolina stating weems contained interesting historical review went hold north carolina similar provision punishment fixed legislature excessive state blake robinson california invalidated prison sentence crime addicted use narcotics opinion cite weems rests upon proposition ven one day prison cruel unusual punishment crime common cold despite statement contrary solem helm reason believe decision application principle proportionality see ingraham wright justice kennedy justice justice souter join concurring part concurring judgment concur part iv opinion judgment write separate opinion approach eighth amendment proportionality analysis differs justice scalia regardless whether justice scalia justice white best historical argument compare ante post stare decisis counsels adherence narrow proportionality principle existed eighth amendment jurisprudence years although proportionality decisions clear consistent respects reconciled require us uphold petitioner sentence decisions recognize cruel unusual punishments clause encompasses narrow proportionality principle first interpreted eighth amendment prohibit greatly disproportioned sentences weems quoting vermont field dissenting since weems applied principle different eighth amendment contexts extensive application death penalty cases coker georgia held sentence death grossly disproportionate excessive punishment crime rape therefore forbidden eighth amendment cruel unusual punishment applied like reasoning enmund florida strike capital sentence imposed conviction defendant committed actual murder lacked intent kill cf tison arizona eighth amendment proportionality principle also applies noncapital sentences rummel estelle acknowledged existence proportionality rule capital noncapital cases refused strike sentence life imprisonment possibility parole recidivism based three underlying felonies hutto davis recognized possibility proportionality review held inapplicable prison sentence possession intent distribute nine ounces marijuana recent decision discussing subject solem helm held sentence life imprisonment without possibility parole violated eighth amendment grossly disproportionate crime recidivism based seven underlying nonviolent felonies dissent solem disagreed application proportionality principle observed extreme cases apply invalidate punishment term years see also hutto finney dicta ingraham wright dicta though decisions recognize proportionality principle precise contours unclear part applied rule cases even sentences different types recent pronouncement subject solem furthermore appeared apply different analysis rummel davis solem twice stated however decision consistent rummel thus overrule solem supra despite tensions close analysis decisions yields common principles give content uses limits proportionality review first principles fixing prison terms specific crimes involves substantive penological judgment general matter properly within province legislatures courts rummel supra determinations nature purposes punishment criminal acts implicate difficult enduring questions respecting sanctity individual nature law relation law social order moral political issue punishment offenders provokes intemperate emotions deeply conflicting interests intractable disagreements garland punishment modern society efficacy sentencing system assessed absent agreement purposes objectives penal system responsibility making fundamental choices implementing lies legislature see gore whatever views may entertained regarding severity punishment whether one believes efficacy futility peculiarly questions legislative policy thus eviewing courts grant substantial deference broad authority legislatures necessarily possess determining types limits punishments crimes solem supra see also rummel supra acknowledging reluctance review legislatively mandated terms imprisonment weems supra function legislature primary exercises fortified presumptions right legality interfered lightly judicial conception wisdom propriety second principle eighth amendment mandate adoption one penological theory principles guided criminal sentencing varied times payne tennessee ante federal state criminal systems accorded different weights different times penological goals retribution deterrence incapacitation rehabilitation compare mistretta williams new york competing theories mandatory discretionary sentencing varying degrees ascendancy decline since beginning republic see grayson third marked divergences underlying theories sentencing length prescribed prison terms inevitable often beneficial result federal structure see solem supra inherent nature federal system may result wide range constitutional sentences federal system recognizes independent power state articulate societal norms criminal law mccleskey zant state sentencing schemes may embody different penological assumptions making interstate comparison sentences difficult imperfect enterprise see rummel see also solem comparison different terms years imprisonment troubling unique area even assuming identical philosophies differing attitudes perceptions local conditions may yield different yet rational conclusions regarding appropriate length prison terms particular crimes thus circumstance state severe punishment particular crime render punishment grossly disproportionate rummel ur constitution made people fundamentally differing views absent constitutionally imposed uniformity inimical traditional notions federalism state always bear distinction treating particular offenders severely state quoting lochner new york holmes dissenting see also graham west virginia fourth principle work cases proportionality review federal courts informed objective factors maximum possible extent rummel supra quoting coker plurality opinion see also solem supra prominent objective factor type punishment imposed weems differentiate objective fashion highly unusual cadena temporal traditional forms imprisonment imposed system rummel similar fashion penalty death differs forms criminal punishment quoting furman georgia opinion stewart objective line capital punishment imprisonment term years finds frequent mention eighth amendment jurisprudence see solem supra easiest comparison different sentences capital punishment noncapital punishment contrast decisions recognize lack clear objective standards distinguish sentences different terms years rummel supra see also solem clear sentence generally severe sentence cases difficult decide former violates eighth amendment latter omitted although penalty per se constitutional relative lack objective standards concerning terms imprisonment meant utside context capital punishment successful challenges proportionality particular sentences exceedingly rare quoting rummel supra principles 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 grossly disproportionate crime solem supra see also weems eighth amendment prohibits greatly disproportioned sentences coker supra eighth amendment prohibits grossly disproportionate sentences rummel supra ii considerations stated necessary examine challenged aspects petitioner sentence severe length mandatory operation petitioner life sentence without parole second severe penalty permitted law sentence received petitioner solem petitioner crime however far grave crime issue solem crime uttering account check issue solem one passive felonies person commit solem citation omitted involved neither violence threat violence person viewed society among less serious offenses ibid felonies underlying defendant recidivism conviction moreover relatively minor solem contrasted minor offenses serious offenses third offense heroin dealing stated one suggests statute providing life imprisonment without parole may applied constitutionally heroin dealers violent criminals petitioner convicted possession grams pounds cocaine amount pure cocaine potential yield doses washton cocaine addiction treatment recovery relapse prevention standpoint crime falls different category relatively minor nonviolent crime issue solem possession use distribution illegal drugs represent one greatest problems affecting health welfare population treasury employees von raab petitioner suggestion crime nonviolent victimless echoed dissent see post false point absurdity contrary petitioner crime threatened cause grave harm society quite apart pernicious effects individual consumes illegal drugs drugs relate crime least three ways drug user may commit crime changes physiological functions cognitive ability mood drug user may commit crime order obtain money buy drugs violent crime may occur part drug business culture see goldstein drugs violent crime pathways criminal violence weiner wolfgang eds studies bear possibilities demonstrate direct nexus illegal drugs crimes violence see generally mention examples percent national sample males arrested homicide tested positive illegal drugs national institute justice drug use forecasting annual report june comparable statistics assault robbery weapons arrests percent respectively ibid detroit michigan percent sample male arrestees percent sample female arrestees tested positive illegal drugs national institute justice drug use forecasting annual report mar percent males percent females tested positive cocaine last year estimated percent homicides detroit drug related primarily cocaine related department health human services epidemiologic trends drug abuse facts reports detailing pernicious effects drug epidemic country establish michigan penalty scheme correct abstract sense demonstrate michigan legislature reason conclude threat posed individual society possession large amount cocaine terms violence crime social displacement momentous enough warrant deterrence retribution life sentence without parole see mendenhall powell concurring part concurring judgment problems affecting health welfare population particularly young cause greater concern escalating use controlled substances florida royer blackmun dissenting see also terrebonne butler en banc severity petitioner crime brings sentence within constitutional boundaries established prior decisions hutto davis upheld proportionality attack sentence years imprisonment possession intent distribute nine ounces marijuana michigan good reason conclude petitioner crime serious crime davis similarly rational basis exists michigan conclude petitioner crime serious violent crime felony murder without specific intent kill crime sentence imprisonment disproportionate solem cf rummel powell dissenting professional seller addictive drugs may inflict greater bodily harm upon members society person commits single assault petitioner amici contend proportionality decisions require comparative analysis petitioner sentence sentences imposed crimes michigan sentences imposed crime jurisdictions given serious nature petitioner crime comparative analysis necessary although solem considered comparative factors analyzing gravity offense harshness penalty announce rigid test fact solem stated determining unconstitutional disproportionality one factor dispositive given case see also ibid single criterion identify sentence grossly disproportionate violates eighth amendment hand one factor may sufficient determine constitutionality particular sentence consistent admonition reviewing rarely required engage extended analysis determine sentence constitutionally disproportionate solem best understood holding comparative analysis within jurisdictions always relevant proportionality review stated may helpful compare sentences imposed criminals jurisdiction courts may find useful compare sentences imposed commission crime jurisdictions emphasis added mandate inquiries better reading cases leads conclusion intrajurisdictional interjurisdictional analyses appropriate rare case threshold comparison crime committed sentence imposed leads inference gross disproportionality solem weems decisions invalidated sentences disproportionate performed comparative analysis sentences determining sentence imposed grossly excessive punishment crime committed solem supra weems contrast rummel davis decisions upheld sentences proportionality attacks credit comparative analyses rejecting form argument rummel noted ven assume statute employed rummel stringent found severity hardly render rummel punishment grossly disproportionate offenses rummel supra proper role comparative analysis sentences validate initial judgment sentence grossly disproportionate crime conclusion neither eviscerate solem abandon second third factors dissent charges post takes full account rummel davis cases ignored dissent light gravity petitioner offense comparison crime sentence give rise inference gross disproportionality comparative analysis sentence others michigan across nation need performed petitioner also attacks sentence mandatory nature petitioner us hold severe penalty scheme requires individualized sentencing judicial official may consider mitigating circumstances precedents support proposition petitioner presents convincing reason fashion exception adopt new rule case us demonstrates eighth amendment capital decisions reject requirement individualized sentencing noncapital cases ante mandatory nature sentence comports noncapital proportionality decisions well statute issue solem made offender liable maximum mandatory sentence life imprisonment without parole solem lesser sentence entirely consistent statute eighth amendment decision id question legislature judgment rather challenged sentencing selection penalty top authorized sentencing range contrast michigan legislature mandated penalty given state judge discretion implementing beyond question legislature power define criminal punishments without giving courts sentencing discretion chapman since beginning republic congress enacted mandatory sentencing schemes see mistretta grayson ex parte set aside petitioner mandatory sentence require rejection judgment single jurist solem rather collective wisdom michigan legislature consequence michigan citizenry never invalidated penalty mandated legislature based length sentence especially crime severe one extreme circumstance cf rummel asserting constitutionality mandatory sentence offer judgment wisdom mandatory sentencing schemes criticized depriving judges power exercise individual discretion remorse acknowledgment guilt extenuating facts present might seem compelling case departure maximum hand broad unreviewed discretion exercised sentencing judges leads perception clear standards applied rule law imperiled sentences imposed discernible reason subjective reactions sentencing judge debate illustrates noted outset arguments particular sentencing schemes legislatures resolve michigan sentencing scheme establishes graduated punishment offenses involving varying amounts mixtures containing controlled substances possession controlled substances schedule amount less grams results sentence years imprisonment possession less grams results mandatory minimum prison sentence years maximum sentence years possession less grams results mandatory minimum prison sentence years maximum sentence years possession grams results mandatory life sentence comp laws ann west supp sentencing courts may depart minimum terms specified amounts except exceeding grams finds record substantial compelling reasons system ancient one revived sudden surprising way rather recent enactment calibrated care clarity much deliberation address serious contemporary social problem scheme provides clear notice severe consequences attach possession drugs wholesale amounts thereby giving force one first purposes criminal law deterrence sense michigan scheme may fair sentencing systems sentencer discretion complexity scheme obscures possible sanction crime resulting shock offender learns severity sentence commits crime michigan scheme possess mechanisms consideration individual circumstances prosecutorial discretion sentence executive legislative clemency afterwards provide means state avert correct unjust sentences prosecutor may chosen seek maximum penalty petitioner possessed grams undiluted cocaine several trappings drug trafficker including marijuana cigarettes four brass cocaine straws cocaine spoon percodan tablets tablets phendimetrazine tartrate motorola beeper plastic bags containing cocaine coded address book cash iii penalty severe unforgiving one imposed make difficult troubling case judicial officer reasonable minds may differ efficacy michigan sentencing scheme far certain michigan bold experiment succeed accounts pickpockets tyburn hangings reminder limits law deterrent force say law us chance success account disproportionate cruel unusual punishment dangers flowing drug offenses circumstances crime committed demonstrate michigan penalty scheme surpass constitutional bounds michigan may use criminal law address issue drug possession wholesale amounts manner sentencing scheme see new state ice liebmann brandeis dissenting foregoing reasons conclude petitioner sentence life imprisonment without parole crime possession grams cocaine violate eighth amendment justice white justice blackmun justice stevens join dissenting eighth amendment provides xcessive bail shall required excessive fines imposed cruel unusual punishments inflicted justice scalia concludes eighth amendment contains proportionality guarantee ante accordingly says solem helm simply wrong holding otherwise cases interpreting amendment contain proportionality principle justice kennedy hand asserts eighth amendment proportionality principle narrow ante solem analysis reduced three factors one due respect dissent language amendment refer proportionality many words forbid excessive fines restraint suggests determination excessiveness based least part whether fine imposed disproportionate crime committed unreasonable conclude cruel unusual punish overtime parking life imprisonment see rummel estelle generally impose punishment grossly disproportionate offense defendant convicted thus benjamin oliver cited justice scalia ante observed respect eighth amendment express restriction laid constitution upon power imprisoning crimes forbidden demand unreasonable bail merely exposes individual concerned imprisonment case procure forbidden impose unreasonable fines account difficulty person fined paying default punished imprisonment seem imprisonment unreasonable length time also contrary spirit constitution thus cases courts discretionary power fine imprison shall supposed power fine restrained power imprison wholly unrestricted absence express regulations subject surely absurd imprison individual term years inconsiderable offence consequently seem law imposing severe punishment must contrary intention framers constitution oliver rights american citizen second justice scalia claims difficult impossible label unusual punishment imposed federal government come existence track record respect criminal law people new nation living criminal law regimes lack benchmarks determining unusualness furthermore argument deprive part amendment meaning third justice scalia argues available evidence day indicated drafted approved amendment chose include within guarantee disproportionate sentences state constitutions contained ante even one accept argument first congress mind proportionality issue evidence hardly strong enough come close proving affirmative decision proportionality component intention exclude reach words otherwise reasonably construed include perhaps americans members first congress said say confidence members state ratifying conventions mind voted favor amendment surely subsequent decisions answer question event amendment ratified contained words cruel unusual doubt prior decisions construed words include proportionality principle course holding unconstitutional sentence imposed philippine courts stated penalties offenses amaze believe precept justice punishment crime graduated proportioned offense weems inhibition cruel unusual punishments clause directed punishments inflict torture punishments excessive length severity greatly disproportioned offenses charged quoting vermont field dissenting robinson california held first time eighth amendment applicable punishment imposed state courts also held cruel unusual impose even one day imprisonment status drug addiction principal opinion gregg supra observed eighth amendment proscription cruel unusual punishment evolving concept announced punishment violate amendment involve unnecessary wanton infliction pain grossly proportion severity crime test death penalty cruel unusual cases following gregg coker georgia held amendment bars barbaric punishment also punishment excessive punishment makes measurable contribution acceptable goals punishment hence nothing purposeless needless imposition pain suffering grossly proportion severity crime went hold punishment death crime rape unconstitutional lack proportionality ibid similarly enmund florida invalidated death sentence felony murder disproportionality grounds proof intent murder finally solem helm invalidated prison sentence ground severe relation crime committed undeniable cases construed eighth amendment embody proportionality component also evident none cases suggest construction impermissible indeed rummel estelle holding justice scalia question recognized eighth amendment contains proportionality requirement question coker indicated proportionality principle come play extreme nonfelony cases justice scalia really means says eighth amendment contains proportionality guarantee ante difficult see holdings declarations proportionality requirement amendment survive later opinion however ante justice scalia backtracks appears accept amendment indeed insist proportional punishments particular class cases involve sentences death fallback position outside capital cases proportionality review required amendment exception capital cases severity sentence crime matter amendment leaves discretion legislators prison sentence however severe crime however petty beyond review eighth amendment position restricts reach eighth amendment far rummel also ignores generality several pronouncements eighth amendment proportionality component fails explain words cruel unusual include proportionality requirement cases others surely explanation say requirement death penalty cases part capital punishment jurisprudence true decisions requiring proportionality eighth amendment prohibition cruel unusual punishments capital punishment cases requiring proportionality reject justice scalia notion amendment bars cruel unusual modes methods punishment view capital punishment mode punishment either completely barred left discretion legislature yet neither true death penalty appropriate cases others true punishment imprisonment jurisprudence concerning scope prohibition cruel unusual punishments long understood limitations purely historical analysis see trop dulles plurality opinion industries kelco disposal thus confined prohibition embodied eighth amendment barbarous methods generally outlawed century instead interpreted amendment flexible dynamic manner stanford kentucky quoting gregg georgia opinion stewart powell stevens borne mind justice mckenna admonition weems ime works changes brings existence new conditions purposes therefore principle vital must capable wider application mischief gave birth peculiarly true constitutions see also supra quoting weems therefore recognized punishment may violate eighth amendment contrary evolving standards decency mark progress maturing society trop supra see stanford supra quoting trop evaluating punishment test looked conceptions decency modern american society whole determining standards evolved stanford supra thus focused subjective views individual justices objective factors maximum possible extent coker supra plurality opinion type objective factor forms basis tripartite proportionality analysis set forth solem contrary justice scalia suggestion ante solem analysis worked well practice courts appear little difficulty applying analysis given sentence application test numerous state federal appellate courts resulted mere handful sentences declared unconstitutional thus clear reviewing courts baldly substituted subjective moral values legislature instead courts demonstrated capable applying eighth amendment disproportionate noncapital sentences high degree sensitivity principles federalism state autonomy rummel powell dissenting solem wholly consistent approach properly applied analysis affords substantial deference broad authority legislatures necessarily possess determining types limits punishments crimes well discretion trial courts possess sentencing convicted criminals omitted rarely result sentence failing constitutional muster fact one rare instances reason abandon analysis fact case involves judicial review legislatively mandated sentence rather sentence imposed exercise judicial discretion warrant abandonment solem first quote solem preceding paragraph makes clear analysis intended apply types sentences second contrary justice scalia suggestion ante fact punishment legislatively mandated automatically render legal usual constitutional sense indeed noted case prohibition cruel unusual punishments devoid meaning asserts renched context applied actions legislature word unusual hardly mean contrary law punishments federal system ante neither term unusual mean contrary custom congress passed first penal law customary federal punishments either moreover suggestion legislatively mandated punishment necessarily legal antithesis principles established marbury madison cranch emphatically province duty judicial department say law determine whether legislative enactment consistent constitution decision robinson california prohibition cruel unusual punishments made applicable fourteenth amendment removed doubt much duty assess constitutionality punishments enacted state legislative bodies obligation review congressional enactments indeed prior decisions recognized legislatively mandated sentences may violate eighth amendment see rummel supra hutto davis long scrutinized legislative enactments concerning punishment without fear unduly invading legislative prerogative see coker georgia enmund florida scrutiny requires sensitivity federalism concerns involves analysis may times difficult affords justification abrogation responsibility uphold constitutional principles two dangers lurk justice scalia analysis first provides mechanism addressing situation proposed rummel legislature makes overtime parking felony punishable life imprisonment concedes one imagine extreme examples perhaps one described rummel rational person time place accept attempts offer reassurance claiming reason examples easy decide certain never occur ante cold comfort indeed absent proportionality guarantee basis deciding cases arise second indicated justice scalia position eighth amendment addresses modes methods punishment quite inconsistent capital punishment cases outlaw death mode method punishment instead put limits application concept proportionality downgraded eighth amendment calculus much capital penalty jurisprudence rest quicksand justice scalia seeks deliver swift death sentence solem justice kennedy prefers eviscerate leaving empty shell analysis justice kennedy proffers contradicted language solem cases interpreting eighth amendment solem identified three major factors consider assessing whether punishment violates eighth amendment gravity offense harshness penalty sentences imposed criminals jurisdiction sentences imposed commission crime jurisdictions justice kennedy however maintains one factor may sufficient determine constitutionality particular sentence need consider second third factors unless threshold comparison crime committed sentence imposed leads inference gross disproportionality ante solem directly contrary made clear one factor dispositive given case single criterion identify sentence grossly disproportionate violates eighth amendment ut combination objective factors make analysis possible moreover justice kennedy concedes see ante use intrajurisdictional interjurisdictional comparison punishments crimes long integral part eighth amendment jurisprudence numerous cases recognized proper proportionality analysis must include consideration objective factors historical development punishment issue legislative judgments international opinion sentencing decisions juries made enmund supra see also stanford mccleskey kemp thus weems noted great disparity crime issue within jurisdiction less severe punishments imposed trop surveyed international law determining forfeiture citizenship punishment wartime desertion violated eighth amendment coker georgia supra sought guidance history objective evidence country present judgment concerning acceptability death penalty rape adult woman plurality opinion surveyed laws concluding current judgment respect death penalty rape though wholly unanimous among state legislatures weigh ed heavily side rejecting capital punishment suitable penalty plurality opinion enmund reviewed laws concluding death penalty unconstitutional inflicted upon one merely participates felony murder occurs cases comparisons made considered severity crime way suggests part analysis less essential assessment given punishment proportionality justice kennedy abandonment second third factors set forth solem makes attempt objective proportionality analysis futile first prong solem requires consider two discrete factors gravity offense severity punishment expected consider interaction two elements determine whether sentence imposed grossly excessive punishment crime committed see ante attempt assessment basis determination sentence disproportionate subjective views individual judges coker supra plurality opinion sort analysis eighth amendment jurisprudence shunned justice kennedy asserts decisions recognize lack clear objective standards distinguish sentences different terms years citing rummel solem support ante solem recognized sentences imprisonment problem much one ordering one clear sentence generally severe sentence cases difficult decide former violates eighth amendment latter decisions kind although troubling unique area courts constantly called upon draw similar lines variety contexts omitted justification overruling limiting solem remains apply case proportionality analysis sentence imposed petitioner application solem factors statutorily mandated punishment issue reveals punishment fails muster solem consequently eighth amendment constitution petitioner offender convicted possession grams cocaine statute convicted comp laws ann west supp provides person knowingly intentionally possesses various narcotics including cocaine hich amount grams mixture containing controlled substance guilty felony shall imprisoned life particular degree drug purity required conviction statutes make clear individual convicted possessing quantity drugs eligible parole see related statute enacted time statute petitioner convicted mandates penalty life imprisonment without possibility parole someone manufacture deliver possess es intent manufacture deliver grams narcotic mixture room judicial discretion imposition life sentence upon conviction asserted purpose legislative enactment statutes stem drug traffic reach drug dealers see brief respondent quoting house legislative analysis house bill may first solem factor requires reviewing assess gravity offense harshness penalty mandatory sentence life imprisonment without possibility parole severe punishment state imposed criminal crime michigan death penalty although factors means exhaustive evaluating gravity offense appropriate consider harm caused threatened victim society based things degree violence involved crime absolute magnitude crime culpability offender including degree requisite intent offender motive committing crime drugs without doubt serious societal problem justify harsh mandatory penalty imposed however offense one always warrant punishment mere possession drugs even large quantity serious offense always warrant much less mandate life imprisonment without possibility parole unlike crimes directed persons property others possession drugs affects criminal uses drugs directly ripple effect society caused possession drugs related crimes lost productivity health problems like often direct consequence possession resulting addiction something held robinson california made crime constitutionally proportionate punishment must tailored defendant personal responsibility moral guilt see enmund florida justice kennedy attempts justify harsh mandatory sentence imposed petitioner focusing subsidiary effects drug use thereby ignores aspect eighth amendment jurisprudence collateral consequences drugs cocaine indisputably severe unlike flow misuse legal substances example considering effects alcohol society stressed one seriously dispute magnitude drunken driving problem interest eradicating michigan dept state police sitz time recognized severity problem excuse need scrupulous adherence constitutional principles grady corbin thus held drunken driver prosecuted traffic offenses arising accident consistent double jeopardy clause subsequently prosecuted death accident victim ibid likewise scrutinized closely state program vehicle checkpoints designed detect drunken drivers holding brief intrusion upon motorists consistent fourth amendment sitz supra one thing uphold checkpoint designed detect drivers influence drug creates present risk harm others quite something else uphold petitioner sentence collateral consequences might issue however indirectly drugs possessed indeed inconceivable state rationally choose penalize one possesses large quantities alcohol manner similar michigan chosen punish petitioner cocaine possession tangential effects might ultimately traced alcohol issue unfortunately grave evils narcotics traffic easily cause threats basic liberties making attractive adoption constitutionally forbidden shortcuts might suppress blot quickly unpopular dangerous conduct turner black dissenting precisely course justice kennedy advocates absolute magnitude petitioner crime exceptionally serious possession necessarily lesser included offense possession intent distribute odd punish former severely latter cf solem supra requisite intent crime sufficient render particularly grave convict someone possession statute necessary prove defendant knowingly possessed mixture containing narcotics weighs least grams mens rea requirement intent distribute drugs parallel statute indeed presence separate statute reaches manufacture delivery possession intent either undermines state position purpose possession statute reach drug dealers although ntent deliver inferred amount controlled substance possessed accused people abrego app inference one drawn jury see people kirchoff app addition usually pecuniary motive someone possesses drug intent deliver motive need exist case mere possession cf solem finally statute applies equally offenders petitioner recidivists consequently particular concerns reflected recidivist statutes rummel solem issue additional concern present state conceded chose prosecute harmelin statute prohibiting possession intent deliver necessary prudent make difficult us win prosecution tr oral arg state thus aimed avoid establish harmelin intent distribute prosecuting instead possession statute statutory punishment two crimes state succeeded punishing harmelin convicted serious crime without put test proving guilt charges second prong solem analysis examination sentences imposed criminals jurisdiction noted death penalty michigan consequently life without parole punishment mandated harshest penalty available reserved three crimes murder see comp laws ann west manufacture distribution possession intent manufacture distribute grams narcotics possession grams narcotics crimes directed persons property others murder rape armed robbery carry harsh mandatory sentence although provide possibility life sentence exercise judicial discretion clear petitioner treated manner severely criminals committed far serious crimes third factor set forth solem examines sentences imposed commission crime jurisdictions jurisdiction imposes punishment nearly severe michigan possession amount drugs issue remaining alabama provides mandatory sentence life imprisonment without possibility parole drug offender defendant possesses kilograms cocaine code supp possession amount cocaine issue subject alabama defendant mandatory minimum sentence five years prison even federal sentencing guidelines relevant enhancements petitioner sentence barely exceed years see sentencing commission guidelines manual thus appears petitioner treated severely state solem supra indeed fact jurisdiction provides severe mandatory penalty possession quantity drugs enough establish degree national consensus previously thought sufficient label particular punishment cruel unusual stanford cf coker ford wainwright application solem proportionality analysis leaves doubt michigan statute issue fails constitutional muster statutorily mandated penalty life without possibility parole possession narcotics unconstitutionally disproportionate violates eighth amendment prohibition cruel unusual punishment consequently reverse decision michigan appeals justice scalia notes ante text eighth amendment taken almost verbatim english declaration rights argues amendment intended adopt whatever meaning declaration understood england amendment contain proportionality component declaration include proportionality principle justice scalia labors demonstrate much concedes scholars disagree view declaration forbade illegal disproportionate punishments ante one scholar covering much ground justice scalia concluded english evidence shows cruel unusual punishments clause bill rights first objection imposition punishments unauthorized statute outside jurisdiction sentencing second reiteration english policy disproportionate penalties granucci cruel unusual punishments inflicted original meaning rev justice scalia goes argue whatever declaration meant englishmen almost identical language eighth amendment interpreted forbid excessive punishments indicated text disagree indeed parties cited four cases decided years since solem sentences reversed basis proportionality analysis see clowers state miss holding trial discretion reduce mandatory sentence years without parole recidivist statute defendant uttered forged check ashley state miss reaching similar result defendant burgled home get pay grocer food eaten store state gilham ohio app addition naovarath state relied state federal constitutions strike sentence life without parole imposed adolescent killed robbed individual repeatedly molested appellate courts forced expend undue resources evaluate prison sentences solem case cited respondent appellate review sentence solem quickly disposed constitutional challenge see sullivan cert denied benefield savage cert denied state elbert souter two statutes also set forth penalties convicted based lesser quantities drugs provide parallel penalties amounts greater grams point penalties two statutes diverge appeals sixth circuit applied solem factors uphold mandatory life sentence imposed michigan statute concerning possession intent deliver grams narcotics see young miller cert pending recognized sentence particularly harsh especially light lack opportunity exercise judicial discretion found disproportionate sentences drug tracking violate eighth amendment statute issue concerns drug possession sixth circuit analysis little relevance state justice kennedy see ante point fact amount purity drugs harmelin possession beeper coded phone book gun noted presentence report provided circumstantial evidence intent distribute none information however relevant prosecution possession statute indeed sentence statutorily mandated mere possession reason defense counsel challenge presence information presentence report see tr oral arg likewise inappropriate consider petitioner characteristics assessing constitutionality penalty alabama statute entitled trafficking cannabis cocaine punishes ny person knowingly sells manufactures delivers brings state knowingly actual constructive possession specified amounts various drugs see code supp mandatory minimum sentences vary depending particular drug involved amount drug issue statute petitioner convicted unconstitutional solem need reach remaining argument imposition life sentence without possibility parole necessitates sort individualized sentencing determination heretofore reserved defendants subject death penalty justice marshall dissenting agree justice white dissenting opinion except insofar asserts eighth amendment cruel unusual punishments clause proscribe death penalty adhere view capital punishment instances unconstitutional see gregg georgia marshall dissenting also believe ecause uniqueness death penalty opinion stewart powell stevens jj eighth amendment requires comparative proportionality review capital sentences see turner california marshall dissenting denial certiorari however view capital punishment especially proscribed proscribed especially restricted eighth amendment inconsistent justice white central conclusion ante eighth amendment also imposes general proportionality requirement justice white notes recognized applied requirement capital noncapital cases done properly concluded michigan law mandating life sentences possibility parole even drug possession offenders unconstitutional justice stevens justice blackmun joins dissenting agree wholeheartedly justice white dissenting opinion believe additional comment appropriate severity sentence michigan mandated crime possession grams cocaine whether diluted undiluted place sentence category capital punishment remain convinced justice stewart correctly characterized penalty death unique absolute renunciation embodied concept humanity furman georgia stewart concurring nevertheless mandatory sentence life imprisonment without possibility parole share one important characteristic death sentence offender never regain freedom sentence even purport serve rehabilitative function sentence must rest rational determination punished criminal conduct atrocious society interest deterrence retribution wholly outweighs considerations reform rehabilitation perpetrator serious defendant crime believe irrational conclude every similar offender wholly incorrigible death sentences issue invalidated furman cruel unusual way struck lightning cruel unusual opinion imposition life sentence without possibility parole petitioner equally capricious justice white pointed federal sentencing guidelines relevant enhancements petitioner sentence barely exceed years ante period incarceration first offender like petitioner substantially shorter jurisdiction except michigan concluded offense belongs category reform rehabilitation considered totally unattainable accordingly notion sentence satisfies meaningful requirement proportionality cruel unusual respectfully dissent