rummel estelle argued january decided march petitioner previously two separate occasions convicted texas state courts sentenced prison felonies fraudulent use credit card obtain worth goods services passing forged check amount convicted third felony obtaining false pretenses received mandatory life sentence pursuant texas recidivist statute texas appellate courts rejected direct appeal well subsequent collateral attacks imprisonment petitioner sought writ habeas corpus federal district claiming life sentence disproportionate crimes committed constitute cruel unusual punishment violation eighth fourteenth amendments district rejected claim appeals affirmed attaching particular importance probability petitioner eligible parole within years initial confinement held mandatory life sentence imposed upon petitioner constitute cruel unusual punishment eighth fourteenth amendments pp texas interest simply making criminal unlawful acquisition another person property addition interest expressed recidivist statutes dealing harsher manner repeated criminal acts shown incapable conforming norms society established criminal law texas recidivist statute thus nothing societal decision person petitioner commits yet another felony subjected serious penalty life imprisonment subject state judgment whether grant parole pp petitioner inability enforce right parole precludes treating life sentence equivalent years sentence nevertheless parole established variation imprisonment proper assessment texas treatment petitioner ignore possibility actually imprisoned rest life pp texas entitled make judgment line dividing felony theft petty larceny subject strictures eighth amendment informed objective factors moreover given petitioner record texas required treat manner might treat first petty property offense pp rehnquist delivered opinion burger stewart white blackmun joined stewart filed concurring opinion post powell filed dissenting opinion brennan marshall stevens joined post scott atlas appointment argued cause petitioner briefs charles alan wright douglas becker assistant attorney general texas argued cause respondent brief mark white attorney general john fainter first assistant attorney general ted hartley executive assistant attorney general gilbert pena assistant attorney general barton boling briefs amici curiae urging affirmance filed keith burris criminal district attorney bexar county texas michael kuhn district attorney harris county texas justice rehnquist delivered opinion petitioner william james rummel presently serving life sentence imposed state texas recidivist statute formerly art penal code provided hoever shall three times convicted felony less capital shall third conviction imprisoned life penitentiary january rummel sought writ habeas corpus district western district texas arguing life imprisonment grossly disproportionate three felonies formed predicate sentence therefore sentence violated ban cruel unusual punishments eighth fourteenth amendments district appeals fifth circuit rejected rummel claim finding unconstitutional disproportionality granted certiorari affirm state texas charged rummel fraudulent use credit card obtain worth goods services amount question greater charged offense felony punishable minimum years maximum years texas department corrections rummel eventually pleaded guilty charge sentenced three years confinement state penitentiary state texas charged rummel passing forged check amount crime punishable imprisonment penitentiary less two five years rummel pleaded guilty offense sentenced four years imprisonment rummel charged obtaining false pretenses amount obtained greater charged offense designated felony theft punishable confinement penitentiary less years prosecution chose however proceed rummel texas recidivist statute cited indictment convictions requiring imposition life sentence rummel convicted charged offense jury convicted rummel felony theft also found true allegation convicted two prior felonies result april trial imposed upon rummel life sentence mandated art texas appellate courts rejected rummel direct appeal well subsequent collateral attacks imprisonment rummel filed petition writ habeas corpus district western district texas petition claimed inter alia life sentence disproportionate crimes committed constitute cruel unusual punishment district rejected claim first noting already rejected constitutional attack upon art see spencer texas crediting argument respondent rummel sentence viewed life imprisonment eligible parole approximately years divided panel appeals reversed majority relied upon decision weems decision appeals fourth circuit hart coiner cert denied holding rummel life sentence grossly disproportionate offenses constitute cruel unusual punishment dissenting judge argued neutral principle adjudication permits federal hold given situation individual crimes trivial relation punishment imposed rummel case reheard appeals sitting en banc vacated panel opinion affirmed district denial habeas corpus relief rummel eighth amendment claim particular importance majority appeals en banc probability rummel eligible parole within years initial confinement six members appeals dissented arguing rummel enforceable right parole weems hart compelled finding rummel life sentence unconstitutional ii initially believe important set forth two propositions rummel contest first rummel challenge constitutionality texas recidivist statute general proposition spencer texas supra upheld statute employed noting course opinion similar statutes sustained contentions violated constitutional strictures dealing double jeopardy ex post facto laws cruel unusual punishment due process equal protection privileges immunities rummel attacks result applying concededly valid statute facts case second rummel challenge texas authority punish offenses felonies imprisoning state penitentiary cf robinson california statute making crime addicted use narcotics violates eighth fourteenth amendments see also ingraham wright eighth amendment imposes substantive limits made criminal punished texas law rummel concededly received sentences totaling years prison refers petty property offenses indeed rummel obtained false pretenses committed crime punishable felony least district columbia similarly large number authorized significant terms imprisonment rummel offenses times committed rummel challenge thus focuses state authority impose sentence life imprisonment opposed substantial term years third felony occasion stated eighth amendment prohibits imposition sentence grossly disproportionate severity crime see weems ingraham wright dictum trop dulles plurality opinion recent years proposition appeared frequently opinions dealing death penalty see coker georgia plurality opinion gregg georgia opinion stewart powell stevens jj furman georgia powell dissenting rummel cites latter opinions dealing capital punishment compelling conclusion sentence disproportionate offenses justice stewart noted furman 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 outside context capital punishment successful challenges proportionality particular sentences exceedingly rare weems supra case coming philippine islands petitioner successfully attacked imposition punishment known cadena temporal crime falsifying public record although weems invalidated sentence weighing mischief remedy finding disproportionality wrenched extreme facts case mischief weems convicted falsifying public document crime apparently complete upon knowing entry single item false information public record though one injured though fraud purpose gain desire mandatory remedy offense cadena temporal punishment described graphically minimum degree confinement penal institution twelve years one day chain ankle wrist offender hard painful labor assistance friend relative marital authority parental rights rights property participation even family council parts penalty endure term imprisonment parts intermission prison bars chains removed true twelve years goes perpetual limitation liberty forever kept shadow crime forever kept within voice view criminal magistrate able change domicil without giving notice authority immediately charge surveillance without permission writing given unique nature punishments considered weems death penalty cases 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 six years weems example justice holmes wrote unanimous brushing aside proportionality challenge concurrent sentences five years imprisonment cumulative fines seven counts mail fraud see badders according simply ground declaring punishment unconstitutional reluctance review legislatively mandated terms imprisonment implicit recent decisions well noted justice white writing plurality coker georgia supra eighth amendment judgments appear merely subjective views individual justices judgment informed objective factors maximum possible extent since coker involved imposition capital punishment rape adult female draw bright line punishment death various permutations commutations punishments short ultimate sanction reasons stated justice stewart furman see supra line considerably clearer constitutional distinction one term years shorter longer term years similarly weems differentiate objective fashion highly unusual cadena temporal traditional forms imprisonment imposed system extensive intrusion basic process province legislature makes act criminal difficult square view expressed coker eighth amendment judgments neither appear merely subjective views individual justices attempt provide us objective criteria might measure proportionality life sentence rummel points certain characteristics offenses allegedly render petty cites example absence violence crimes presence absence violence always affect strength society interest deterring particular crime punishing particular criminal high official large corporation commit undeniably serious crimes area antitrust bribery clean air water standards without coming close engaging violent behavior additionally rummel cites small amount money taken crimes recognize state texas imprisoned rummel life stolen rather jury convicted stealing virtually concede lines drawn indeed subjective therefore properly within province legislatures courts moreover rummel attempted defraud victim failed money whatsoever changed hands yet rummel less blameworthy less skillful succeeded case however need decide whether texas impose life sentence upon rummel merely obtaining false pretenses rummel committed crime law enacted texas legislature imprisoned years fact time obtained false pretenses already committed imprisoned two felonies crimes texas felt serious enough warrant significant terms imprisonment even absence prior offenses thus interest state texas simply making criminal unlawful acquisition another person property addition interest expressed recidivist statutes dealing harsher manner repeated criminal acts shown simply incapable conforming norms society established criminal law conceding validity recidivist statutes generally rummel concedes state texas state valid interest dealing class persons nearly years ago years weems rejected eighth amendment claim seems factually indistinguishable advanced rummel present case graham west virginia considered case apparently incorrigible horsethief sentenced life imprisonment west virginia recidivist statute graham convicted stealing one bay mare valued convicted feloniously burglariously entering stable order steal one brown horse named harry value finally convicted stealing one red roan horse valued various tack accessories valued upon conviction last crime graham received life sentence mandated west virginia recidivist statute tarry long graham eighth amendment claim noting maintained cruel unusual punishment inflicted undaunted earlier cases like graham badders rummel attempts ground proportionality attack alleged nationwide trend away mandatory life sentences toward lighter discretionary sentences brief petitioner according rummel jurisdiction free world punishes habitual offenders harshly texas support proposition rummel offers detailed charts tables documenting history recidivist statutes since evaluating evidence believe important examine exact operation art interpreted texas courts order qualify mandatory life sentence statute rummel satisfy number requirements first convicted felony actually sentenced prison second time subsequent first conviction rummel convicted another felony sentenced imprisonment finally sent prison second time rummel convicted third felony thus art felon receives mandatory life sentence possibility parole commission conviction succeeding felony followed conviction preceding one prior conviction followed actual imprisonment given necessary sequence recidivist must twice demonstrate conviction actual imprisonment deter returning crime released one rummel position graphically informed consequences lawlessness given opportunity reform avail article thus nothing societal decision person commits yet another felony subjected admittedly serious penalty incarceration life subject state judgment whether grant parole comparing recidivist program presently employed rummel creates complex hierarchy statutes places texas recidivist scheme alone top rung isolation entirely convincing west virginia washington example impose mandatory life sentences upon commission third felony rummel distinguish texas washington appeals fourth circuit includes west virginia indicated willingness review proportionality sentences eighth amendment see state lee dictum hart coiner must ultimately decide meaning eighth amendment disagree decisions washington appeals fourth circuit point washington west virginia practical purposes indistinguishable texas agree courts course sentences imposed texas well washington west virginia subject review proportionality eighth amendment either case legislative judgment punishment washington west virginia texas rummel charts tables appear indicate might received lenient treatment almost state texas west virginia washington distinctions however subtle rather gross number impose mandatory life sentence upon conviction four felonies rather three require one felonies violent support life sentence still leave imposition life sentence three felonies within discretion judge jury one thing compare impose capital punishment specific offense see coker georgia quite another thing attempt evaluate position particular recidivist scheme within rummel complex matrix rummel extensive charts even begin reflect complexity comparison asks make texas told relatively liberal policy granting good time credits prisoners policy historically allowed prisoner serving life sentence become eligible parole little years see brief respondent agree rummel inability enforce right parole precludes us treating life sentence equivalent sentence years nevertheless parole established variation imprisonment convicted criminals morrissey brewer proper assessment texas treatment rummel hardly ignore possibility actually imprisoned rest life nothing else possibility parole however slim serves distinguish rummel person sentenced recidivist statute like mississippi provides sentence life without parole upon conviction three felonies including least one violent felony see miss code ann supp another variable complicating calculus role prosecutorial discretion recidivist scheme matter common knowledge prosecutors often exercise discretion invoking recidivist statutes plea bargaining screen truly petty offenders fall within literal terms statutes see oyler boles upholding west virginia recidivist scheme contention placed unconstitutional discretion hands prosecutor indeed present case state texas asked event find rummel sentence unconstitutionally disproportionate remand case sentencing state might introduce rummel entire criminal record remand sentencing discover rummel convicted one felonies addition pleaded original indictment one reasonably might wonder whether sentence rummel life imprisonment even though recidivist status based three felonies held cruel unusual punishment offer additional considerations inherent flaws rummel suggested interjurisdictional analysis illustrations complexities confronting attempt comparison even assume statute employed rummel stringent found severity hardly render rummel punishment grossly disproportionate offenses punishment received justice holmes noted dissenting opinion lochner new york constitution made people fundamentally differing views quite recently arizona punished felony theft neat horned animal regardless value california considers theft avocados olives citrus deciduous fruits nuts artichokes particularly reprehensible one state theft earn offender fine short term jail another state earn sentence years imprisonment absent constitutionally imposed uniformity inimical traditional notions federalism state always bear distinction treating particular offenders severely state perhaps asserted weems time works changes upon eighth amendment bringing existence new conditions purposes course like think moving road toward human decency furman georgia blackmun dissenting within confines judicial proceeding however way knowing direction road lies penologists unable agree whether sentences light heavy discretionary determinate uncertainty reinforces conviction nationwide trend toward lighter discretionary sentences must find source sustaining force legislatures federal courts iii 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 believe texas entitled make judgment lines lie subject strictures eighth amendment informed objective factors see coker georgia moreover given rummel record texas required treat manner might treat first petty property offense twice imprisoned felonies texas entitled place upon rummel onus one simply unable bring conduct within social norms prescribed criminal law state purpose recidivist statute involved simplify task prosecutors judges juries primary goals deter repeat offenders point life one repeatedly commits criminal offenses serious enough punished felonies segregate person rest society extended period time segregation duration based merely person recent offense also propensities demonstrated period time convicted sentenced crimes like line dividing felony theft petty larceny point recidivist deemed demonstrated necessary propensities amount time recidivist isolated society matters largely within discretion punishing jurisdiction therefore hold mandatory life sentence imposed upon petitioner constitute cruel unusual punishment eighth fourteenth amendments judgment appeals affirmed footnotes texas penal code art provided section shall unlawful person present credit card alleged credit card intent defraud obtain attempt obtain item value service type present credit card alleged credit card intent defraud pay items value services rendered app tex penal code texas penal code art provided violation act event amount credit obtained value items services fifty dollars punishment shall confinement penitentiary less two ten years app tex penal code texas penal code art provided person shall knowingly pass true attempt pass true forged instrument writing mentioned defined preceding articles chapter shall confined penitentiary less two five years app tex penal code texas penal code art provided theft fraudulent taking corporeal personal property belonging another possession possession person holding without consent intent deprive owner value appropriate use benefit person taking app tex penal code taking must wrongful property came possession person accused theft lawful means subsequent appropriation theft taking though originally lawful obtained false pretext intent deprive owner value thereof appropriate property use benefit person taking appropriated offense theft complete app tex penal code texas penal code provided theft property value fifty dollars shall punished confinement penitentiary less two ten years app tex penal code preliminarily respondent argues rummel claim barred wainwright sykes object punishment stage trial imposition mandatory life sentence respondent raised claim first time petition appeals rehearing en banc filed shortly wainwright decided appeals rejected argument believe texas requirement extended challenge like raised rummell see deferring appeals interpretation texas law decline hold wainwright bars rummel presenting claim texas like defines felonies offenses may must punishable death confinement penitentiary tex penal code art vernon recodified without substantive change tex penal code ann see also lafave scott handbook criminal law see code years alaska stat ann years rev stat ann supp years ark stat ann years rev stat fine years del code tit fine years code years stat fine years code ann fine years ind code ann supp fine years stat ann years rev stat years la rev stat ann west years rev stat tit fine years md ann code art fine years mass laws ch west fine years comp laws fine years stat supp fine years miss code ann fine years mont rev code ann years rev stat fine years rev stat ann ii fine years stat fine months years cent code fine years ohio rev code ann supp years committee comment following ohio rev stat ann okla tit supp fine years comp laws ann years code ann years tex penal code arts vernon years utah code ann accompanying compiler note years stat tit years code fine years rev code ann years code years stat ann fine years wyo stat years rummel passing forged check punishable imprisonment district columbia even though amount question see code tit years rev stat ann supp years ark stat ann years cal penal code ann west years rev stat years stat years del code tit fine years code years stat fine years code ann years haw rev stat fine years hard labor idaho code years rev ch fine years ind code years plus fine iowa code fine years stat ann years hard labor rev stat years la rev stat ann west fine years hard labor rev stat tit years md ann code art years mass laws ch west years comp laws fine years stat fine years miss code ann years mo rev stat fine years mont rev code ann years neb rev stat years plus fine rev stat years rev stat ann years stat ann west fine years stat ann supp fine years penal law mckinney years stat months years cent code years ohio rev code ann years okla tit years rev stat supp years stat tit purdon fine years laws fine years code years plus fine comp laws ann fine years code ann supp years tex penal code art vernon years utah code ann years stat tit fine years code years rev code ann years code years stat ann fine years wyo stat years least five specific statutes covering fraud authorized terms imprisonment crime like rummel see cal penal code ann deering supp deering years stat ann years hard labor laws ch years tex penal code art vernon supp years code supp years number lacking specific statutes dealing fraud apparently authorized equivalent degree punishment crime general fraud provisions see code tit supp years mont rev code ann years rev stat ann fine years stat fine years cent code fine years code ann supp years stat tit fine years least two adopted specific statutes dealing fraud authorizing imprisonment crimes like rummel see idaho code fine years rev code ann years say proportionality principle come play extreme example mentioned dissent post legislature made overtime parking felony punishable life imprisonment see transcript record graham west virginia pp time decided graham eighth amendment proscription cruel unusual punishments held applicable fourteenth amendment see louisiana ex rel francis resweber plurality opinion earlier cases assumed without deciding inflict cruel unusual punishments see howard fleming mcdonald massachusetts graham reference howard mcdonald cases indicates followed similar course see rummel characterizes graham case petitioner argued imposition life sentence west virginia recidivist statute per se violation eighth amendment see brief petitioner share reading brief submitted graham behalf clearly attacked alleged disproportionality sentence see brief plaintiff error graham west virginia pp brief behalf state west virginia moreover expressly assumed graham arguing sentence case disproportionate offense cruel unusual brief defendant error graham west virginia supra texas courts interpreted recidivist statute requiring merely defendant convicted two prior felonies also actually serve time prison offenses see cromeans state tex crim statute interpreted state must prove succeeding conviction subsequent commission conviction prior offense see tyra state tex crim app rogers state tex crim thus true dissent claims texas scheme subjects person life imprisonment merely felon post contrary art mandates sentence shorter terms actual imprisonment proved ineffective see rev code code see rev stat supp rev stat comp laws ann supp wyo stat see miss code ann supp see code idaho code okla tit supp another sort objective evidence found coker furman declared unconstitutional death penalty statutes applied majority death penalty killings done rape coker plurality found fact importance see watershed comparable furman spencer texas confirmed rather undercut constitutionality recidivist statutes thus comparable occasion contemporary expression legislative public opinion question sort penalties applied recidivists committed crimes property see rev stat ann supp repealed see cal penal code ann west see idaho code see rev stat dissent draws support belief rummel sentence unconstitutional comparing punishments imposed texas crimes committed rummel crimes course implicate societal interests making comparison inherently speculative embezzlement dealing hard drugs forgery name three offenses denominated property related offenses yet viewed assault unique set societal values defined political process notions embodied dissent crime involved violence see post severe penalty warranted objective standards simply wash whether taken matter morals history law caesar death hands brutus fellow conspirators undoubtedly violent death hamlet father hands brother claudius poison yet punish severely murder poison attempted murder poison murder attempted murder stabbing highly placed executive embezzles huge sums state savings loan association causing many shareholders limited means lose substantial parts savings committed crime different man takes smaller amount money savings loan point gun yet rational people disagree criminal merits harsher punishment token state required treat persons committed three minor offenses less severely persons committed one two serious offenses nothing else offender conduct supports inferences ability conform social norms quite different possible inferences first offenders short seriousness offense pattern offenses modern society line plane death penalty punishments different kind fine imprisonment put one side remains little way objective standards judging whether life sentence imposed recidivist statute several separate felony convictions involving violence violates prohibition eighth amendment justice frankfurter noted gore hatever views may entertained regarding severity punishment whether one believes efficacy futility peculiarly questions legislative policy compare von hirsch justice choice punishments report committee study incarceration yeager mandatory prison sentences handgun offenders curb violent crime technical report conference mayors van den haag punishing criminals concerning old painful question see generally zimring hawkins deterrence legal threat crime control compare mckay time rehabilitate sentencing process occasional paper aspen institute humanistic studies von hirsch supra dawson sentencing decision type length conditions sentence report american bar foundation survey administration criminal justice yeager supra see generally dept justice determinate sentencing reform regression proceedings special conference determinate sentencing june justice stewart concurring moved repeat substance say another occasion recidivist legislation texas constitution gave roving commission impose upon criminal courts texas notions enlightened policy join opinion clear recidivist procedures adopted recent years many far superior utilized question decision whether applaud even whether personally approve procedures followed case question whether procedures fall minimum level constitution tolerate upon question constrained join opinion judgment spencer texas concurring opinion mr question case whether petitioner subjected cruel unusual punishment contravention eighth amendment made applicable fourteenth amendment received mandatory life sentence upon conviction third felony today holds petitioner punished unconstitutionally dissent facts simply stated petitioner convicted felony presenting credit card intent defraud another approximately convicted felony passing forged check face value petitioner accepted payment return promise repair air conditioner air conditioner never repaired petitioner indicted felony offense obtaining false pretenses also charged habitual offender texas habitual offender statute provides mandatory life sentence person convicted three felonies see tex penal code art vernon amended recodified tex penal code ann petitioner convicted third felony state proved existence two earlier felony convictions sentenced mandatory life imprisonment exhausting state remedies petitioner sought writ habeas corpus federal district western district texas petitioner contended sentence constituted cruel unusual punishment violation eighth amendment petitioner suggest method punishment life imprisonment constitutionally invalid rather argued punishment unconstitutional disproportionate severity three felonies panel appeals fifth circuit accepted petitioner view en banc vacated decision affirmed district denial writ habeas corpus today affirms fifth circuit decision dissent believe penalty noncapital offense may unconstitutionally disproportionate ii possibility parole considered assessing nature punishment iii mandatory life sentence grossly disproportionate applied petitioner iv conclusion petitioner suffered violation eighth amendment rights compatible principles judicial restraint federalism ii eighth amendment prohibits cruel unusual punishments language came art virginia declaration rights provided excessive bail required excessive fines imposed cruel unusual punishments inflicted words virginia declaration taken english bill rights see granucci cruel unusual punishments inflicted original meaning rev although legislative history eighth amendment extensive certain framers intended proscribe inhumane methods punishment see furman georgia marshall concurring granucci supra virginia delegates met consider federal constitution example patrick henry specifically noted absence provisions contained within virginia declaration henry feared without cruel unusual punishments clause congress may introduce practice torturing extort confession crime indeed debate first congress adoption bill rights one congressman objected adoption eighth amendment precisely villains often deserve whipping perhaps ears cut two cases considered constitutional challenges forms capital punishment wilkerson utah held death shooting constitute cruel unusual punishment emphasized however torturous methods execution burning live offender violate eighth amendment kemmler provided second opportunity review methods carrying death penalty case involved constitutional challenge new york use electrocution although apply eighth amendment state action conclude electrocution deprive petitioner due process law see also louisiana ex rel francis resweber scope cruel unusual punishments clause extends barbarous methods punishment also punishments grossly disproportionate disproportionality analysis measures relationship nature number offenses committed severity punishment inflicted upon offender inquiry focuses whether person deserves punishment simply whether punishment serve utilitarian goal statute levied mandatory life sentence overtime parking might well deter vehicular lawlessness offend felt sense justice concedes today principle disproportionality plays role review sentences imposing death penalty suggests principle may less applicable noncapital sentence challenged limitation finds support history eighth amendment jurisprudence principle disproportionality rooted deeply english constitutional law magna carta insured free man shall fined trivial offence except accordance degree offence serious offence shall fined according gravity english common law embraced principle always followed practice punishment excessive either severity length one commentator survey english law demonstrates cruel unusual punishments clause english bill rights first objection imposition punishments unauthorized statute outside jurisdiction sentencing second reiteration english policy disproportionate penalties granucci supra see gregg georgia opinion stewart powell stevens weems public official convicted falsifying public record claimed suffered cruel unusual punishment sentenced serve years imprisonment hard labor chains sentence also subjected weems loss civil rights perpetual surveillance release agreed punishment cruel unusual attentive methods punishment conclusion rest solely upon nature punishment relied explicitly upon relationship crime committed punishment imposed penalties offenses amaze formed conception relation state even offending citizens practice american commonwealths believe precept justice punishment crime graduated proportioned offense order resolve constitutional issue weems measured relationship punishment offense noted weems punished severely persons jurisdiction committed serious crimes persons committed similar crime american jurisdictions robinson california established cruel unusual punishments clause applies operation fourteenth amendment held imprisonment crime drug addict cruel unusual based holding upon method punishment nature crime drug addiction illness may contracted involuntarily said imprisonment ninety days abstract punishment either cruel unusual question considered abstract even one day prison cruel unusual punishment crime common cold ibid furman georgia supra held death penalty may constitute cruel unusual punishment circumstances special relevance furman case lies general acceptance members two basic principles first eighth amendment prohibits grossly excessive punishment second scope eighth amendment measured evolving standards decency see trop dulles opinion warren coker georgia supra held rape adult woman may punished death penalty plurality opinion justice white stated punishment unconstitutionally excessive makes measurable contribution acceptable goals punishment hence nothing purposeless needless imposition pain suffering grossly proportion severity crime plurality concluded death penalty grossly disproportionate punishment crime rape plurality recognized eighth amendment judgments appear merely subjective views individual justices judgment informed objective factors maximum possible extent ibid end plurality examined nature crime attitudes state legislatures sentencing juries toward use death penalty rape cases separate opinion concurred plurality reasoning death ordinarily disproportionate punishment crime raping adult woman nothing coker analysis suggests principles disproportionality applicable capital cases indeed questions posed coker case whether punishment imposed one offense grossly disproportionate imposed another sum basic principles emerge history eighth amendment barbarous forms punishment grossly excessive punishments cruel unusual sentence may excessive serves acceptable social purpose grossly disproportionate seriousness crime principle disproportionality acknowledged apply capital noncapital sentences iii texas law petitioner sentenced mandatory life sentence even appeals rejected petitioner eighth amendment claim primarily concluded petitioner probably serve life sentence en banc view goodtime credits available texas system concluded rummel might serve years ibid thus appeals equated petitioner sentence years imprisonment without possibility parole true imposition texas mandatory life sentence necessarily mean petitioner spend rest life behind prison walls petitioner attains sufficient credits may eligible parole within years begins serving life sentence petitioner right early release merely eligible parole parole simply act executive grace last term greenholtz nebraska penal inmates held criminal conviction extinguishes whatever liberty interest prisoner securing freedom end lawful sentence stated unequivocally convicted person constitutional inherent right conditionally released expiration valid sentence course state may create legitimate expectations entitled procedural protection due process clause fourteenth amendment texas chosen create cognizable interest parole appeals fifth circuit held texas prisoner constitutionally enforceable interest freed expiration sentence see johnson wells craft texas board pardons paroles holding possibility parole discounts prisoner sentence purposes eighth amendment cruelly ironic combined effect holdings due process clause fourteenth amendment eighth amendment allow state defend eighth amendment claim contending parole probable even though prisoner enforce expectation approach inconsistent eighth amendment never failed examine prisoner eighth amendment claim speculation might pardoned sentence carried recent events texas demonstrate parole remains matter executive grace june governor texas refused grant parole state prisoners parole board recommended release state chief executive acted well within rights declining follow board actions emphasize speculative nature appeals reasoning case comes us petitioner deprived operation state law right freedom imprisonment rest life judge case accordingly iv eighth amendment commands enforce constitutional limitation cruel unusual punishments clause discharging responsibility minimize risk constitutionalizing personal predilictions federal judges relying upon certain objective factors among nature offense see coker georgia powell concurring judgment part dissenting part ii sentence imposed commission crime jurisdictions see gregg georgia weems cf trop dulles iii sentence imposed upon criminals jurisdiction weems supra crimes underlies petitioner conviction habitual offender involves use fraud obtain small sums money ranging total three crimes involved slightly less none crimes involved injury one person threat injury one person violence threat violence use weapon commission crimes ordinarily involve threat violent action another person property difficult imagine felonies pose less danger peace good order civilized society three crimes committed petitioner indeed state legislature recodification criminal law supports conclusion since petitioner convicted habitual offender state reclassified third offense theft false pretext misdemeanor tex penal code ann supp apparently ever enacted habitual offender statutes imposing mandatory life sentence commission two three nonviolent felonies texas washington west virginia retained statute thus experimented texas scheme appear decided imposition mandatory life sentence upon persons committed three felonies represents excess punishment kentucky example replaced mandatory life sentence flexible scheme judgment circumstances life imprisonment habitual criminal justified example offender committed three class felonies none involving injury person commentary following criminal law kentucky annotated penal code state kansas abolished statute mandating life sentence commission three felonies state legislative commission concluded legislative policy expressed habitual criminal law bears particular resemblance enforcement policy prosecutors judges kansas legislative council operation kansas habitual criminal law pub eight years following enactment kansas statute defendants committed third felony sentenced life imprisonment statistic strongly supports belief prosecutors judges thought habitual offender statute severe washington retains texas rule state suggested application statute persons like petitioner might constitute cruel unusual punishment see state lee american jurisdictions never adopted habitual offender statute commit petitioner mandatory life imprisonment jurisdictions currently employ habitual offender statutes either require commission three offenses ii require commission least one violent crime iii limit mandatory penalty less life iv grant discretion sentencing authority none jurisdictions petitioner received mandatory life sentence merely upon showing committed three nonviolent offenses federal habitual offender statute also differs materially texas statute title provides increased sentences dangerous special offenders convicted felony defendant dangerous special offender committed two previous felonies one within last five years current felony arose pattern conduct constituted substantial source income manifested special skill expertise felony involved criminal conspiracy defendant played supervisory role federal courts may sentence persons imprisonment appropriate term exceed years disproportionate severity maximum term otherwise authorized law felony thus congress overwhelming number state legislatures adopted texas scheme legislative decisions lend credence view mandatory life sentence commission three nonviolent felonies unconstitutionally disproportionate finally necessary examine punishment texas provides criminals first second offenders commit serious crimes petitioner may receive markedly less severe sentences offender subject mandatory life sentence person convicted capital murder tex penal code person commits felony including murder aggravated kidnaping aggravated rape may imprisoned years supp persons commit felony including voluntary manslaughter rape robbery may punished sentence years person commits second felony punished committed felony next higher degree thus person rapes twice may receive sentence also may need receive sentence functionally equivalent life imprisonment state argues comparisons illuminating recidivist may sentenced harshly offender course state may mandate extra punishment recidivist see oyler boles texas person convicted twice unauthorized use vehicle receives greater sentence person convicted crime receive sentence great person rapes twice compare supp statutory scheme demonstrates state legislature attempted choose punishment proportion nature number offenses committed texas recognizes sentences offenders amount punishment vary severity offenses committed felons receive sentence view imposition punishment upon persons committed completely different types crimes raises serious doubts proportionality sentence applied least harmful offender course constitution bar mandatory sentences merely note operation texas habitual offender system raises question extent mandatory life sentence doubt suitable sentence person committed three violent crimes also proportionate punishment person committed three crimes involved case examination objective factors traditionally employed assess proportionality sentence demonstrates petitioner suffers cruel unusual punishment petitioner sentenced penultimate criminal penalty committed three offenses defrauding others nature crimes suggest petitioner ever engaged conduct threatened another person involved trespass endangered way peace society comparison sentence petitioner received sentences provided habitual offender statutes american jurisdictions demonstrates two authorize punishment comparison petitioner criminals sentenced texas shows punished three offenses harsher sentence given offenders offenders convicted far serious offenses texas system assumes offenders deserve punishment whether commit three murders cash three fraudulent checks petitioner committed criminal acts may punished given sentence inherently barbarous relationship criminal acts sentence grossly disproportionate defrauded others state texas deprived petitioner freedom rest life state attempted justify sentence necessary either deter persons isolate potentially violent individual petitioner status habitual offender shown justify mandatory life sentence view informed examination objective indicia reflect public attitude toward given sanction gregg georgia punishment violates principle proportionality contained within cruel unusual punishments clause today agrees state arguments decision petitioner favor violate principles federalism difficulty formulating standards guide decision federal courts lead excessive interference state sentencing decisions neither contention convincing state sovereign responsibilities promulgate enforce criminal law federal system never forget constitution recognizes preserves autonomy independence independence legislative independence judicial departments erie tompkins quoting baltimore ohio baugh field dissenting even constitution recognizes sphere state activity free federal interference explicitly compels follow certain constitutional commands apply cruel unusual punishments clause merely enforce obligation constitution created justice rehnquist stated ourts exercising judicial function conferred upon art iii constitution assess case whether particular legislative enactment within authority granted constitution enacting body whether runs afoul limitation placed constitution authority body furman georgia dissenting opinion see weems state believes federal courts formulate practicable standard identify grossly disproportionate sentences fears courts intervene state criminal justice systems floodgates argument easy make difficult rebut case identify apply objective criteria reflect constitutional standards punishment minimize risk judicial subjectivity moreover rely upon experience appeals fourth circuit applying criteria similar believe govern case fourth circuit considered claim west virginia prisoner alleged imposition mandatory life sentence three nonviolent crimes violated eighth amendment hart coiner cert denied held mandatory sentence unconstitutional applied prisoner noted none offenses involved violence danger violence apply sentence west virginia gave less severe sentences offenders committed serious offenses holding hart coiner holding state contends undercut ability exercise independent sentencing authority yet fourth circuit subsequently found twice noncapital sentences violate eighth amendment davis davis en banc held sentence possession distribution less nine ounces marihuana cruel unusual roberts collins held person receive longer sentence lesser included offense assault received greater offense assault intent murder significant cases fourth circuit held principles hart coiner inapplicable case decided day hart coiner appeals held sentence given two obscene telephone calls violate cruel unusual punishments clause stated hatever may subjective view matter fail discern objective factors establishing disproportionality violation eighth amendment wood south carolina griffin warden refused hold west virginia statute unconstitutionally applied person convicted breaking entering gasoline grocery store burglary residence grand larceny distinguished hart coiner ground griffin offenses clearly involve potentiality violence danger life well property similarly fourth circuit turned aside eighth amendment challenge imposition sentence statutory rape female hall mckenzie emphasized sentence less severe mandatory life sentence petitioner received similar sentence american jurisdictions crime involved violation personal integrity potential physical injury fourth circuit also rejected eighth amendment challenges brought persons sentenced years possession distribution heroin atkinson years unlawful possession firearm wooten years assault intent commit murder robinson warden years kidnaping martell suggest decisions appeals fourth circuit applied hart coiner necessarily correct believe body eighth amendment law developed circuit constitutes impressive empirical evidence federal courts capable applying eighth amendment disproportionate noncapital sentences high degree sensitivity principles federalism state autonomy vi recognize difference petitioner grossly disproportionate sentence prisoners constitutionally valid sentences separated clear distinction separates capital noncapital punishment fact line drawn somewhere justify drawn anywhere pearce commissioner frankfurter dissenting view chosen easiest line rather best also true heretofore invalidated mandatory life sentence eighth amendment yet precedents establish duty review disproportionality sentences extends noncapital cases supra reach eighth amendment restricted claims previously adjudicated cruel unusual punishments clause time works changes brings existence new conditions purposes therefore principle vital must capable wider application mischief gave birth particularly true constitutions ephemeral enactments designed meet passing occasions use words chief justice marshall designed approach immortality nearly human institutions approach weems construing living constitution sentence imposed upon petitioner viewed grossly unjust virtually every layman lawyer view objective criteria clearly establish mandatory life sentence defrauding persons crosses rationally drawn line separating punishment lawfully may imposed proscribed eighth amendment reverse decision appeals elliot debates federal constitution annals cong livermore holt magna carta perry sources liberties principle grossly disproportionate sentences violate eighth amendment first enunciated justice field vermont case defendant convicted offenses selling alcoholic beverages vermont sentenced years prison reach question whether sentence violated eighth amendment issue raised properly eighth amendment yet applied justice field dissented asserting cruel unusual punishment clause directed punishments excessive length severity greatly disproportioned offences charged see also jeffries stephan defenses presumptions burden proof criminal law yale note disproportionality sentences imprisonment colum rev notes graham west virginia rejected eighth amendment claim brought person sentenced west virginia statute mandatory life imprisonment commission three felonies graham entire discussion claim consists one sentence maintained cruel unusual punishment inflicted cited six cases support statement first case kemmler declined apply eighth amendment state action graham opinion also cited oil texas recognized claim made eighth amendment controlled state action stated interfere legislation judicial action enforcing fines imposed grossly excessive amount deprivation property without due process law eighth amendment applied prohibition state action decision robinson california holding preincorporation decision hardly relevant determination case us today badders also adds little knowledge scope cruel unusual language furman georgia marshall concurring badders rejected claim concurrent sentences fine seven courts mail fraud violated eighth amendment badders merely teaches believe sentence commission seven crimes cruel unusual furman georgia brennan concurring white concurring marshall concurring powell dissenting joined burger blackmun rehnquist brennan concurring marshall concurring burger dissenting joined blackmun powell rehnquist jj blackmun dissenting powell dissenting joined burger blackmun rehnquist coker standard derived joint opinion gregg georgia opinion stewart powell stevens jj stated inquiry excessiveness two aspects first punishment must involve unnecessary wanton infliction pain second punishment must grossly proportion severity crime austin newspaper reported period including june governor rejected parole board recommendations prisoners released ibid suggests inquiry nature offense issue case inevitably involves identifying subjective distinctions beyond province judiciary ante yet distinction forging check committing violent crime one threatens violence surely difficult judiciary perceive distinction gravity murder rape see coker georgia powell concurring judgment part dissenting part suggest criminal acts may separated precisely identifiable compartments professional seller addictive drugs may inflict greater bodily harm upon members society person commits single assault difficulties might presented cases need obscure vision nine previously enforced laws include california cal ch repealed cal ch ch see cal penal code ann west supp habitual offender statute allows three years additional sentence commission previous felony indiana ind acts ch repealed ind acts see ind code supp years additional sentence upon conviction third felony kansas sess laws ch repealed sess laws ch see sess laws ch treble maximum penalty may given upon commission third felony kentucky acts ch art repealed acts ch see rev stat supp persistent felony offender may receive discretionary life sentence upon conviction class felony massachusetts mass acts ch repealed mass acts ch see mass laws ch west person convicted three specified felonies receives maximum penalty provided third offense new york laws ch repealed laws ch see penal code mckinney supp mandatory life imprisonment upon conviction third violent felony ohio ohio leg acts repealed ohio leg acts see ohio rev code ann supp mandatory habitual offender penalties oregon laws ch repealed laws ch see rev stat life sentence upon conviction fourth armed felony attempted felony virginia acts ch repealed acts chs pp see acts ch habitual offender statute addition texas washington see rev code west virginia see code continue provide mandatory life imprisonment upon commission third nonviolent felony see note kansas habitual criminal act washburn see also state lee rosellini dissenting state thomas app commentary following criminal law kentucky annotated penal code four impose mandatory life sentence upon commission fourth felony see rev stat rev stat comp laws ann wyo stat thus even line texas west virginia washington subtle rather gross ante one say punish commission four fewer felonies mandatory life sentence see del code tit supp mandatory life sentence one committed two felonies commits third specified felony involving violence threat violence miss code ann supp mandatory life sentence one commits three felonies least one violent see stat ann supp persons committed two felonies punishable least one year prison receive four years additional sentence upon commission third felony eight years upon commission fourth felony stat persons committed one felony within years may sentenced years additional sentence upon commission offense punishable term greater years see code persons commit three felonies may sentenced life idaho code persons committed three felonies may receive sentence ranging five years life statutes permit imposition discretionary life sentence commission three felonies fundamentally different statute review case discretionary jurisdiction question sentencing whether felon engaged behavior commission three felonies justifies imposition maximum permissible sentence jurisdiction therefore evidence dangerousness may justify imposition life sentence texas person receives mandatory life sentence merely felon state choice sentence course never unconstitutional simply penalty harsher sentence imposed crime rule inconsistent principles federalism eighth amendment prohibits grossly disproportionate punishment require local sentencing decisions controlled majority vote nevertheless comparison texas standard sentencing statutes one method assess ing contemporary values concerning infliction challenged sanction gregg georgia opinion stewart powell stevens relevant objective factors considered together although weight assigned may vary single factor ever controlling proportionality principle incorporated bill senate judiciary committee heard testimony sentencing authority considering punishment due dangerous special offender examine substantive offense make determination based upon gravity offense ultimate maximum seems wise hearings subcommittee criminal laws procedures senate committee judiciary testimony professor peter low university virginia school law see katkin habitual offender laws reconsideration buffalo rev american law institute proposes felon sentenced extended term punishment persistent offender professional criminal dangerous mentally abnormal person whose extended commitment necessary protection public multiple offender whose criminality extensive sentence imprisonment extended term warranted ali model penal code prop draft term multiple offender may exceed longest sentences imprisonment authorized offender crimes ran consecutively ibid proposal petitioner sentenced years ante american bar association proposed habitual offenders sentenced years ny increased term imposed prior criminality related severity sentence otherwise provided new offense choice sentence left discretion sentencing aba project standards criminal justice sentencing alternatives procedures app draft ralph warden fourth circuit also applied eighth amendment hold rape may punished death reached result seven years later coker georgia fourth circuit also held sentence eight years possessing firearm convicted felon given felon previously convicted manslaughter breaking entering disproportionate williamson see supra accompanying text district courts fourth circuit also applied eighth amendment carefully although one district held sentence years safecracking constitutionally disproportionate see thacker garrison supp wdnc district courts found constitutional infirmity disenfranchisement convicted persons thiess state board supp md sentence distributing marihuana queen leeke supp sc sentence possession marihuana intent distribute suspended years condition payment fine nine months jail wolkind selph supp ed va courts two within fourth circuit upheld constitutional sentence person convicted burglary prior conviction armed robbery martin leverette life sentence murder simmons state concedes must mandatory life sentence may constitutionally disproportionate severity offense ante yet opinion suggests basis principle distinguishing permissible grossly disproportionate life imprisonment