JUSTICE POWELL delivered the opinion of the Court.
The issue presented is whether the Eighth Amendment proscribes a life sentence without possibility of parole for a seventh nonviolent felony.
By 1975 the State of South Dakota had convicted respondent Jerry Helm of six nonviolent felonies. In 1964, 1966, and 1969 Helm was convicted of third-degree burglary.
After offering this explanation, Helm pleaded guilty.
Ordinarily the maximum punishment for uttering a "no account" check would have been five years' imprisonment in the state penitentiary and a $5,000 fine. See S. D. Comp. Laws Ann. § 22-6-1(6) (1967 ed., Supp. 1978) (now codified at S. D. Codified Laws § 22-6-1(7) (Supp. 1982)). As a result of his criminal record, however, Helm was subject to South Dakota's recidivist statute:
The maximum penalty for a "Class 1 felony" was life imprisonment in the state penitentiary and a $25,000 fine.
Immediately after accepting Helm's guilty plea, the South Dakota Circuit Court sentenced Helm to life imprisonment under § 22-7-8. The court explained:
The South Dakota Supreme Court, in a 3-2 decision, affirmed the sentence despite Helm's argument that it violated the Eighth Amendment. State v. Helm, supra.
After Helm had served two years in the state penitentiary, he requested the Governor to commute his sentence to a fixed term of years. Such a commutation would have had the effect of making Helm eligible to be considered for parole when he had served three-fourths of his new sentence. See S. D. Codified Laws § 24-15-5(3) (1979). The Governor denied Helm's request in May 1981. App. 26.
In November 1981, Helm sought habeas relief in the United States District Court for the District of South Dakota. Helm argued, among other things, that his sentence constituted cruel and unusual punishment under the Eighth and Fourteenth Amendments. Although the District Court recognized that the sentence was harsh, it concluded that this Court's recent decision in Rummel v. Estelle, 445 U.S. 263 (1980), was dispositive. It therefore denied the writ.
The United States Court of Appeals for the Eighth Circuit reversed. 684 F.2d 582 (1982). The Court of Appeals noted that Rummel v. Estelle was distinguishable. Helm's sentence of life without parole was qualitatively different from Rummel's life sentence with the prospect of parole because South Dakota has rejected rehabilitation as a goal of
We granted certiorari to consider the Eighth Amendment question presented by this case. 459 U.S. 986 (1982). We now affirm.
The Eighth Amendment declares: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The final clause prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.
The principle that a punishment should be proportionate to the crime is deeply rooted and frequently repeated in common-law jurisprudence. In 1215 three chapters of Magna Carta were devoted to the rule that "amercements"
The English Bill of Rights repeated the principle of proportionality in language that was later adopted in the Eighth Amendment: "excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted." 1 Wm. & Mary, sess. 2, ch. 2 (1689). Although the precise scope of this provision is uncertain, it at least incorporated "the longstanding principle of English law that the punishment . . . should not be, by reason of its excessive length or severity, greatly disproportionate to the offense charged." R. Perry, Sources of Our Liberties 236 (1959); see 4 W. Blackstone), Commentaries *16-*19 (1769) (hereafter Blackstone); see also id., at *16-*17 (in condemning "punishments of unreasonable severity," uses "cruel" to mean severe or excessive). Indeed, barely three months after the Bill of Rights was adopted, the House of Lords declared that a "fine of thirty thousand pounds, imposed by the court of King's Bench upon the earl of Devon was excessive and exorbitant, against magna charta, the common right of the subject, and the law of the land." Earl of Devon's Case, 11 State Tr. 133, 136 (1689).
When the Framers of the Eighth Amendment adopted the language of the English Bill of Rights,
The constitutional principle of proportionality has been recognized explicitly in this Court for almost a century.
The Court next applied the principle to invalidate a criminal sentence in Robinson v. California, 370 U.S. 660 (1962).
There is no basis for the State's assertion that the general principle of proportionality does not apply to felony prison sentences.
When we have applied the proportionality principle in capital cases, we have drawn no distinction with cases of imprisonment. See Gregg v. Georgia, supra, at 176 (opinion of Stewart, POWELL, and STEVENS, JJ.). It is true that the "penalty of death differs from all other forms of criminal punishment, not in degree but in kind." Furman v. Georgia, 408 U.S. 238, 306 (1972) (Stewart, J., concurring). As a result, "our decisions [in] capital cases are of limited assistance in deciding the constitutionality of the punishment" in a noncapital case. Rummel v. Estelle, 445 U. S., at 272. We agree, therefore, that, "[o]utside the context of capital punishment, successful challenges to the proportionality of particular
In sum, we hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted. Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals.
When sentences are reviewed under the Eighth Amendment, courts should be guided by objective factors that our cases have recognized.
Second, it may be helpful to compare the sentences imposed on other criminals in the same jurisdiction. If more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive. Thus in Enmund the Court noted that all of the other felony murderers on death row in Florida were more culpable than the petitioner there. 458 U. S., at 795-796. The Weems Court identified an impressive list of more serious crimes that were subject to less serious penalties. 217 U. S., at 380-381.
Third, courts may find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions.
In sum, a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.
Application of these factors assumes that courts are competent to judge the gravity of an offense, at least on a relative scale. In a broad sense this assumption is justified, and courts traditionally have made these judgments — just as legislatures must make them in the first instance. Comparisons can be made in light of the harm caused or threatened to the victim or society, and the culpability of the offender. Thus in Enmund the Court determined that the petitioner's conduct was not as serious as his accomplices' conduct. Indeed, there are widely shared views as to the relative seriousness of crimes. See Rossi, Waite, Bose, & Berk, The Seriousness of Crimes: Normative Structure and Individual Differences, 39 Am. Sociological Rev. 224, 237 (1974) (hereafter Rossi et al.). For example, as the criminal laws make clear, nonviolent crimes are less serious than crimes marked by violence
There are other accepted principles that courts may apply in measuring the harm caused or threatened to the victim or society. The absolute magnitude of the crime may be relevant. Stealing a million dollars is viewed as more serious than stealing a hundred dollars — a point recognized in statutes distinguishing petty theft from grand theft. See, e. g., S. D. Codified Laws § 22-30A-17 (Supp. 1982). Few would dispute that a lesser included offense should not be punished more severely than the greater offense. Thus a court is justified in viewing assault with intent to murder as more serious than simple assault. See Roberts v. Collins, 544 F.2d 168, 169-170 (CA4 1976) (per curiam), cert. denied, 430 U.S. 973 (1977). Cf. Dembowski v. State, 251 Ind. 250, 252, 240 N.E.2d 815, 817 (1968) (armed robbery more serious than robbery); Cannon v. Gladden, 203 Or. 629, 632, 281 P.2d 233, 235 (1955) (rape more serious than assault with intent to commit rape). It also is generally recognized that attempts are less serious than completed crimes. See, e. g., S. D. Codified Laws § 22-4-1 (1979); 4 Blackstone *15. Similarly, an accessory after the fact should not be subject to a higher penalty than the principal. See, e. g., 18 U. S. C. § 3.
Turning to the culpability of the offender, there are again clear distinctions that courts may recognize and apply. In Enmund the Court looked at the petitioner's lack of intent to kill in determining that he was less culpable than his accomplices. 458 U. S., at 798. Most would agree that negligent conduct is less serious than intentional conduct. South Dakota, for example, ranks criminal acts in ascending order of seriousness as follows: negligent acts, reckless acts, knowing acts, intentional acts, and malicious acts. S. D. Codified Laws § 22-1-2(1)(f) (Supp. 1982). A court, of course, is entitled to look at a defendant's motive in committing a crime. Thus a murder may be viewed as more serious when committed
This list is by no means exhaustive. It simply illustrates that there are generally accepted criteria for comparing the severity of different crimes on a broad scale, despite the difficulties courts face in attempting to draw distinctions between similar crimes.
Application of the factors that we identify also assumes that courts are able to compare different sentences. This assumption, too, is justified. The easiest comparison, of course, is between capital punishment and noncapital punishments, for the death penalty is different from other punishments in kind rather than degree.
The Sixth Amendment offers two good examples. A State is constitutionally required to provide an accused with a speedy trial, Klopfer v. North Carolina, 386 U.S. 213 (1967), but the delay that is permissible must be determined on a case-by-case basis. "[A]ny inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case . . . ." Barker v. Wingo, 407 U.S. 514, 522 (1972) (unanimous opinion). In Barker, we identified
The right to a jury trial is another example. Baldwin v. New York, 399 U.S. 66 (1970), in particular, illustrates the line-drawing function of the judiciary, and offers guidance on the method by which some lines may be drawn. There the Court determined that a defendant has a right to a jury trial "where imprisonment for more than six months is authorized." Id., at 69 (plurality opinion). In choosing the 6-month standard, the plurality relied almost exclusively on the fact that only New York City denied the right to a jury trial for an offense punishable by more than six months. As JUSTICE WHITE explained:
In short, Baldwin clearly demonstrates that a court properly may distinguish one sentence of imprisonment from another. It also supports our holding that courts properly may look to the practices in other jurisdictions in deciding where lines between sentences should be drawn.
It remains to apply the analytical framework established by our prior decisions to the case before us. We first consider
Helm's crime was "one of the most passive felonies a person could commit." State v. Helm, 287 N. W. 2d, at 501 (Henderson, J., dissenting). It involved neither violence nor threat of violence to any person. The $100 face value of Helm's "no account" check was not trivial, but neither was it a large amount. One hundred dollars was less than half the amount South Dakota required for a felonious theft.
Helm, of course, was not charged simply with uttering a "no account" check, but also with being a habitual offender.
Helm's present sentence is life imprisonment without possibility of parole.
Helm's habitual offender status complicates our analysis, but relevant comparisons are still possible. Under § 22-7-7, the penalty for a second or third felony is increased by one class. Thus a life sentence was mandatory when a second or third conviction was for treason, first-degree manslaughter, first-degree arson, or kidnaping, and a life sentence would have been authorized when a second or third conviction was for such crimes as attempted murder, placing an explosive device on an aircraft, or first-degree rape. Finally, § 22-7-8, under which Helm was sentenced, authorized life imprisonment after three prior convictions, regardless of the crimes.
In sum, there were a handful of crimes that were necessarily punished by life imprisonment: murder, and, on a second or third offense, treason, first-degree manslaughter, first-degree arson, and kidnaping. There was a larger group for which life imprisonment was authorized in the discretion of the sentencing judge, including: treason, first-degree manslaughter, first-degree arson, and kidnaping; attempted murder, placing an explosive device on an aircraft, and first-degree
Criminals committing any of these offenses ordinarily would be thought more deserving of punishment than one uttering a "no account" check — even when the bad-check writer had already committed six minor felonies. Moreover, there is no indication in the record that any habitual offender other than Helm has ever been given the maximum sentence on the basis of comparable crimes. It is more likely that the possibility of life imprisonment under § 22-7-8 generally is reserved for criminals such as fourth-time heroin dealers, while habitual bad-check writers receive more lenient treatment.
Finally, we compare the sentences imposed for commission of the same crime in other jurisdictions. The Court of Appeals found that "Helm could have received a life sentence without parole for his offense in only one other state, Nevada," 684 F. 2d, at 586, and we have no reason to doubt this finding. See Tr. of Oral Arg. 21. At the very least, therefore, it is clear that Helm could not have received such a severe sentence in 48 of the 50 States. But even under Nevada law, a life sentence without possibility of parole is
The State argues that the present case is essentially the same as Rummel v. Estelle, for the possibility of parole in that case is matched by the possibility of executive clemency here. The State reasons that the Governor could commute Helm's sentence to a term of years. We conclude, however, that the South Dakota commutation system is fundamentally different from the parole system that was before us in Rummel.
As a matter of law, parole and commutation are different concepts, despite some surface similarities. Parole is a regular part of the rehabilitative process. Assuming good behavior, it is the normal expectation in the vast majority of cases. The law generally specifies when a prisoner will be eligible to be considered for parole, and details the standards and procedures applicable at that time. See, e. g., Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979) (detailing Nebraska parole procedures); Morrissey v. Brewer, 408 U.S. 471, 477 (1972) ("the practice of releasing prisoners on parole
We explicitly have recognized the distinction between parole and commutation in our prior cases.
The Texas and South Dakota systems in particular are very different. In Rummel, the Court did not rely simply on the existence of some system of parole. Rather it looked to the provisions of the system presented, including the fact that Texas had "a relatively liberal policy of granting `good time' credits to its prisoners, a policy that historically has allowed a prisoner serving a life sentence to become eligible for parole in as little as 12 years." 445 U. S., at 280. A Texas prisoner became eligible for parole when his calendar time
In South Dakota commutation is more difficult to obtain than parole. For example, the Board of Pardons and Paroles is authorized to make commutation recommendations to the Governor, see n. 7, supra, but § 24-13-4 provides that "no recommendation for the commutation of . . . a life sentence, or for a pardon . . . , shall be made by less than the unanimous vote of all members of the board." In fact, no life sentence has been commuted in over eight years,
The possibility of commutation is nothing more than a hope for "an ad hoc exercise of clemency." It is little different from the possibility of executive clemency that exists in every case in which a defendant challenges his sentence under the Eighth Amendment. Recognition of such a bare possibility would make judicial review under the Eighth Amendment meaningless.
The Constitution requires us to examine Helm's sentence to determine if it is proportionate to his crime. Applying objective criteria, we find that Helm has received the penultimate sentence for relatively minor criminal conduct. He has been treated more harshly than other criminals in the State who have committed more serious crimes. He has been treated more harshly than he would have been in any other jurisdiction, with the possible exception of a single State. We conclude that his sentence is significantly disproportionate to his crime, and is therefore prohibited by the Eighth Amendment.
The controlling law governing this case is crystal clear, but today the Court blithely discards any concept of stare decisis, trespasses gravely on the authority of the states, and distorts the concept of proportionality of punishment by tearing it from its moorings in capital cases. Only three Terms ago, we held in Rummel v. Estelle, 445 U.S. 263 (1980), that a life sentence imposed after only a third nonviolent felony conviction did not constitute cruel and unusual punishment under the Eighth Amendment. Today, the Court ignores its recent precedent and holds that a life sentence imposed after a seventh felony conviction constitutes cruel and unusual punishment under the Eighth Amendment. Moreover, I reject the fiction that all Helm's crimes were innocuous or nonviolent. Among his felonies were three burglaries and a third conviction for drunken driving. By comparison Rummel was a relatively "model citizen." Although today's holding cannot rationally be reconciled with Rummel, the Court does not purport to overrule Rummel. I therefore dissent.
The Court's starting premise is that the Eighth Amendment's Cruel and Unusual Punishments Clause "prohibits not
The Court then sets forth three assertedly "objective" factors to guide the determination of whether a given sentence of imprisonment is constitutionally excessive: (1) the "gravity of the offense and the harshness of the penalty," ante, at 290-291; (2) a comparison of the sentence imposed with "sentences imposed on other criminals in the same jurisdiction," ante, at 291 (emphasis added); (3) and a comparison of "the sentences imposed for commission of the same crime in other jurisdictions." Ante, at 291-292 (emphasis added). In applying this analysis, the Court determines that respondent
Therefore, the Court concludes, respondent's sentence is "significantly disproportionate to his crime, and is . . . prohibited by the Eighth Amendment." This analysis is completely at odds with the reasoning of our recent holding in Rummel, in which, of course, JUSTICE POWELL dissented.
The facts in Rummel bear repeating. Rummel was convicted in 1964 of fraudulent use of a credit card; in 1969, he was convicted of passing a forged check; finally, in 1973 Rummel was charged with obtaining money by false pretenses, which is also a felony under Texas law. These three offenses were indeed nonviolent. Under Texas' recidivist
Rummel, in this Court, advanced precisely the same arguments that respondent advances here; we rejected those arguments notwithstanding that his case was stronger than respondent's. The test in Rummel which we rejected would have required us to determine on an abstract moral scale whether Rummel had received his "just deserts" for his crimes. We declined that invitation; today the Court accepts it. Will the Court now recall Rummel's case so five Justices will not be parties to "disproportionate" criminal justice?
It is true, as we acknowledged in Rummel, that the "Court has on occasion stated that the Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime." 445 U. S., at 271. But even a cursory review of our cases shows that this type of proportionality review has been carried out only in a very limited category of cases, and never before in a case involving solely a sentence of imprisonment. In Rummel, we said that the proportionality concept of the capital punishment cases was inapposite because of the "unique nature of the death penalty. . . ." Id., at 272. "Because a sentence of death differs in kind from any sentence of imprisonment, no matter how long, our decisions applying the prohibition of cruel and unusual punishments to capital cases are of limited assistance in deciding the constitutionality of the punishment meted out to Rummel." Ibid.
The Rummel Court also rejected the claim that Weems v. United States, 217 U.S. 349 (1910), required it to determine whether Rummel's punishment was "disproportionate" to his crime. In Weems, the Court had struck down as cruel and unusual punishment a sentence of cadena temporal imposed by a Philippine Court. This bizarre penalty, which was unknown
The lesson the Rummel Court drew from Weems and from the capital punishment cases was that the Eighth Amendment did not authorize courts to review sentences of imprisonment to determine whether they were "proportional" to the crime. In language quoted incompletely by the Court, ante, at 288-289, n. 14, the Rummel Court stated:
Five Justices joined this clear and precise limiting language.
In context it is clear that the Rummel Court was not merely summarizing an argument, as the Court suggests, ante, at 288-289, n. 14, but was stating affirmatively the rule of law laid down. This passage from Rummel is followed by an explanation of why it is permissible for courts to review sentences of death or bizarre physically cruel punishments as in Weems, but not sentences of imprisonment. 445 U. S., at 274-275. The Rummel Court emphasized, as has every
The Rummel Court categorically rejected the very analysis adopted by the Court today. Rummel had argued that various objective criteria existed by which the Court could determine whether his life sentence was proportional to his crimes. In rejecting Rummel's contentions, the Court explained why each was insufficient to allow it to determine in an objective manner whether a given sentence of imprisonment is proportionate to the crime for which it is imposed.
First, it rejected the distinctions Rummel tried to draw between violent and nonviolent offenses, noting that "the absence of violence does not always affect the strength of society's interest in deterring a particular crime or in punishing a particular criminal." Ibid. Similarly, distinctions based on the amount of money stolen are purely "subjective" matters of line drawing. Id., at 275-276.
Second, the Court squarely rejected Rummel's attempt to compare his sentence with the sentence he would have received in other States — an argument that the Court today accepts. The Rummel Court explained that such comparisons are flawed for several reasons. For one, the recidivist laws of the various states vary widely. "It is one thing for a court to compare those States that impose capital punishment for a
Finally, we flatly rejected Rummel's suggestion that we measure his sentence against the sentences imposed by Texas for other crimes:
Rather, we held that the severity of punishment to be accorded different crimes was peculiarly a matter of legislative policy. Ibid.
In short, Rummel held that the length of a sentence of imprisonment is a matter of legislative discretion; this is so particularly for recidivist statutes. I simply cannot understand how the Court can square Rummel with its holding that "a criminal sentence must be proportionate to the crime for which the defendant has been convicted." Ante, at 290.
If there were any doubts as to the meaning of Rummel, they were laid to rest last Term in Hutto v. Davis, 454 U.S. 370 (1982) (per curiam). There a United States District Court held that a 40-year sentence for the possession of nine ounces of marihuana violated the Eighth Amendment. The District Court applied almost exactly the same analysis adopted today by the Court. Specifically, the District Court stated:
The Court of Appeals sitting en banc affirmed. Davis v. Davis, 646 F.2d 123 (CA4 1981) (per curiam). We reversed in a brief per curiam opinion, holding that Rummel had disapproved each of the "objective" factors on which the District Court and en banc Court of Appeals purported to rely. 454 U. S., at 373. It was therefore clear error for the District Court to have been guided by these factors, which, paradoxically, the Court adopts today.
Contrary to the Court's interpretation of Hutto, see ante, at 289-290, and n. 17, and 303-304, n. 32, the Hutto Court did not hold that the District Court miscalculated in finding Davis' sentence disproportionate to his crime. It did not hold that the District Court improperly weighed the relevant factors. Rather, it held that the District Court clearly erred in even embarking on a determination whether the sentence was "disproportionate" to the crime. Hutto makes crystal clear that under Rummel it is error for appellate courts to second-guess legislatures as to whether a given sentence of imprisonment is excessive in relation to the crime,
I agree with what the Court stated only days ago, that "the doctrine of stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law." City of Akron v. Akron Center for Reproductive Health,
Although historians and scholars have disagreed about the Framers' original intentions, the more common view seems to be that the Framers viewed the Cruel and Unusual Punishments Clause as prohibiting the kind of torture meted out during the reign of the Stuarts.
This Court has applied a proportionality test only in extraordinary cases, Weems being one example and the line of capital cases another. See, e. g., Coker v. Georgia, 433 U.S. 584 (1977); Enmund v. Florida, 458 U.S. 782 (1982). The Court's reading of the Eighth Amendment as restricting legislatures' authority to choose which crimes to punish by death rests on the finality of the death sentence. Such scrutiny is not required where a sentence of imprisonment is imposed after the State has identified a criminal offender whose record shows he will not conform to societal standards.
The simple truth is that "[n]o neutral principle of adjudication permits a federal court to hold that in a given situation individual crimes are too trivial in relation to the punishment imposed." Rummel v. Estelle, 568 F.2d 1193, 1201-1202 (CA5) (Thornberry, J., dissenting), vacated, 587 F.2d 651 (1978) (en banc), aff'd, 445 U.S. 263 (1980). The apportionment of punishment entails, in Justice Frankfurter's words, "peculiarly questions of legislative policy." Gore v. United States, 357 U.S. 386, 393 (1958). Legislatures are far better equipped than we are to balance the competing penal and public interests and to draw the essentially arbitrary lines between appropriate sentences for different crimes.
By asserting the power to review sentences of imprisonment for excessiveness the Court launches into uncharted and unchartable waters. Today it holds that a sentence of life imprisonment, without the possibility of parole, is excessive punishment for a seventh allegedly "nonviolent" felony. How about the eighth "nonviolent" felony? The ninth? The twelfth? Suppose one offense was a simple assault? Or selling liquor to a minor? Or statutory rape? Or price fixing? The permutations are endless and the Court's opinion is bankrupt of realistic guiding principles. Instead, it casually lists several allegedly "objective" factors and arbitrarily asserts that they show respondent's sentence to be "significantly
There is a real risk that this holding will flood the appellate courts with cases in which equally arbitrary lines must be drawn. It is no answer to say that appellate courts must review criminal convictions in any event; up to now, that review has been on the validity of the judgment, not the sentence. The vast majority of criminal cases are disposed of by pleas of guilty,
Even if I agreed that the Eighth Amendment prohibits imprisonment "disproportionate to the crime committed," ante, at 284, I reject the notion that respondent's sentence is disproportionate to his crimes for, if we are to have a system of laws, not men, Rummel is controlling.
The differences between this case and Rummel are insubstantial. First, Rummel committed three truly nonviolent felonies, while respondent, as noted at the outset, committed seven felonies, four of which cannot fairly be characterized as "nonviolent." At the very least, respondent's burglaries and his third-offense drunken driving posed real risk of serious
The Court's opinion necessarily reduces to the proposition that a sentence of life imprisonment with the possibility of commutation, but without possibility of parole, is so much more severe than a life sentence with the possibility of parole that one is excessive while the other is not. This distinction does not withstand scrutiny; a well-behaved "lifer" in respondent's position is most unlikely to serve for life.
It is inaccurate to say, as the Court does, ante, at 301-302, that the Rummel holding relied on the fact that Texas had a relatively liberal parole policy. In context, it is clear that the Rummel Court's discussion of parole merely illustrated the difficulty of comparing sentences between different jurisdictions. 445 U. S., at 280-281. However, accepting the Court's characterization of Rummel as accurate, the Court today misses the point. Parole was relevant to an evaluation of Rummel's life sentence because in the "real world," he was unlikely to spend his entire life behind bars. Only a fraction of "lifers" are not released within a relatively few years. In Texas, the historical evidence showed that a prisoner serving a life sentence could become eligible for parole in as little as 12 years. In South Dakota, the historical evidence shows that since 1964, 22 life sentences have been commuted to
In short, there is a significant probability that respondent will experience what so many "lifers" experience. Even assuming that at the time of sentencing respondent was likely to spend more time in prison than Rummel,
It is indeed a curious business for this Court to so far intrude into the administration of criminal justice to say that a state legislature is barred by the Constitution from identifying its habitual criminals and removing them from the streets. Surely seven felony convictions warrant the conclusion that respondent is incorrigible. It is even more curious that the Court should brush aside controlling precedents that are barely in the bound volumes of the United States Reports. The Court would do well to heed Justice Black's comments about judges overruling the considered actions of legislatures under the guise of constitutional interpretation:
"A person breaking into any dwelling house in the nighttime with intent to commit a crime but under such circumstances as do not constitute burglary in the first degree, is guilty of burglary in the third degree." S. D. Comp. Laws Ann. § 22-32-8 (1967) (repealed 1976).
"A person breaking or entering at any time any building within the curtilage of a dwelling house but not forming a part thereof, or any building or part of any building, booth, tent, railroad car, vessel, vehicle as defined in § 32-14-1, or any structure or erection in which any property is kept, with intent to commit larceny or any felony, is guilty of burglary in the third degree." S. D. Comp. Laws Ann. § 22-32-9 (1967) (repealed 1976).
In 1964 and 1966 the third-degree burglary definition was essentially the same. See S. D. Code § 13.3703 (1939 ed., Supp. 1960); 1965 S. D. Laws, ch. 32. Third-degree burglary was punishable by "imprisonment in the state penitentiary for any term not exceeding fifteen years." S. D. Comp. Laws Ann. § 22-32-10 (1967) (previously codified at S. D. Code § 13.3705(3) (1939)) (repealed 1976).
"Every person who designedly, by color or aid of any false token or writing, or other false pretense, . . . obtains from any person any money or property . . . is punishable by imprisonment in the state penitentiary not exceeding three years or in a county jail not exceeding one year, or by a fine not exceeding three times the value of the money or property so obtained, or by both such fine and imprisonment." S. D. Comp. Laws Ann. § 22-41-4 (1967) (repealed 1976).
"Grand larceny is larceny committed in any of the following cases:
"(1) When the property taken is of a value exceeding fifty dollars;
"(2) When such property, although not of a value exceeding fifty dollars, is taken from the person of another;
"(3) When such property is livestock.
"Larceny in other cases is petit larceny." S. D. Comp. Laws Ann. § 22-37-2 (1967) (repealed 1976).
Grand larceny was then punishable by "imprisonment in the state penitentiary not exceeding ten years or by imprisonment in the county jail not exceeding one year." S. D. Comp. Laws Ann. § 22-37-3 (1967) (repealed 1976).
"Any person who, for himself or as an agent or representative of another for present consideration with intent to defraud, passes a check drawn on a financial institution knowing at the time of such passing that he or his principal does not have an account with such financial institution, is guilty of a Class 5 felony." S. D. Codified Laws § 22-41-1.2 (1979).
"Except as otherwise provided by law, felonies are divided into the following seven classes which are distinguished from each other by the respective maximum penalties hereinafter set forth which are authorized upon conviction:
"(1) Class A felony: life imprisonment in the state penitentiary. A lesser sentence may not be given for a Class A felony;
"(2) Class 1 felony: life imprisonment in the state penitentiary. In addition, a fine of twenty-five thousand dollars may be imposed;
"(3) Class 2 felony: twenty-five years imprisonment in the state penitentiary. In addition, a fine of twenty-five thousand dollars may be imposed;
"(4) Class 3 felony: fifteen years imprisonment in the state penitentiary. In addition, a fine of fifteen thousand dollars may be imposed;
"(5) Class 4 felony: ten years imprisonment in the state penitentiary. In addition, a fine of ten thousand dollars may be imposed;
"(6) Class 5 felony: five years imprisonment in the state penitentiary. In addition, a fine of five thousand dollars may be imposed; and
"(7) Class 6 felony: two years imprisonment in the state penitentiary or a fine of two thousand dollars, or both.
"Nothing in this section shall limit increased sentences for habitual criminals. . . .
"Except in cases where punishment is prescribed by law, every offense declared to be a felony and not otherwise classified is a Class 6 felony." S. D. Comp. Laws Ann. § 22-6-1 (1967 ed., Supp. 1978) (amended 1979 and 1980).
"[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case."
The greater need for reliability in death penalty cases cannot support a distinction between a sentence of life imprisonment with possibility of parole and a sentence of life imprisonment without possibility of parole, especially when an executive commutation is permitted as in South Dakota.