Petitioner was convicted of possessing 672 grams of cocaine and sentenced to a mandatory term of life in prison without possibility of parole.
Petitioner claims that his sentence is unconstitutionally "cruel and unusual" for two reasons: first, because it is "significantly disproportionate" to the crime he committed; second, because the sentencing judge was statutorily required to
The Eighth Amendment, which applies against the States by virtue of the Fourteenth Amendment, see Robinson v. California, 370 U.S. 660 (1962), provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." In Rummel v. Estelle, 445 U.S. 263 (1980), we held that it did not constitute "cruel and unusual punishment" to impose a life sentence, under a recidivist statute, upon a defendant who had been convicted, successively, of fraudulent use of a credit card to obtain $80 worth of goods or services, passing a forged check in the amount of $28.36, and obtaining $120.75 by false pretenses. We said that "one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative." Id., at 274. We specifically rejected the proposition asserted by the dissent, id., at 295 (opinion of Powell, J.), that unconstitutional disproportionality could be established by weighing three factors: (1) gravity of the offense compared to severity of the penalty, (2) penalties imposed within the same jurisdiction for similar crimes, and (3) penalties imposed in other jurisdictions for the same offense. Id., at 281-282, and n. 27. A footnote in the opinion, however, said: "This is not to say that a proportionality principle would not come into play in the extreme example mentioned by the dissent, . . . if a legislature made overtime parking a felony punishable by life imprisonment." Id., at 274, n. 11.
Two years later, in Hutto v. Davis, 454 U.S. 370 (1982), we similarly rejected an Eighth Amendment challenge to a
A year and a half after Davis we uttered what has been our last word on this subject to date. Solem v. Helm, 463 U.S. 277 (1983), set aside under the Eighth Amendment, because it was disproportionate, a sentence of life imprisonment without possibility of parole, imposed under a South Dakota recividist statute for successive offenses that included three convictions of third-degree burglary, one of obtaining money by false pretenses, one of grand larceny, one of third-offense driving while intoxicated, and one of writing a "no account" check with intent to defraud. In the Solem account, Weems no longer involved punishment of a "unique nature," Rummel, supra, at 274, but was the "leading case," Solem, 463 U. S., at 287, exemplifying the "general principle of proportionality," id., at 288, which was "deeply rooted and frequently repeated in common-law jurisprudence," id., at 284, had been embodied in the English Bill of Rights "in language that was later adopted in the Eighth Amendment," id., at 285, and had been "recognized explicitly in this Court for almost a century," id., at 286. The most recent of those "recognitions" were the "overtime parking" footnotes in Rummel and Davis, 463 U. S., at 288. As for the statement in Rummel that "one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies . . . the length of the sentence actually imposed is purely a matter of legislative prerogative," Rummel, supra, at 274: according to Solem, the really important words in that passage were "`one could argue,'" 463 U. S., at 288, n. 14 (emphasis added in Solem). "The Court [in Rummel] . . . merely recognized that the argument was possible. To the extent that the State . . . makes this argument here, we find it meritless." Id., at 289,
It should be apparent from the above discussion that our 5-to-4 decision eight years ago in Solem was scarcely the expression of clear and well accepted constitutional law. We have long recognized, of course, that the doctrine of stare decisis is less rigid in its application to constitutional precedents, see Payne v. Tennessee, ante, at 828; Smith v. Allwright, 321 U.S. 649, 665, and n. 10 (1944); Mitchell v. W. T. Grant Co., 416 U.S. 600, 627-628 (1974) (Powell, J., concurring); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-408 (1932) (Brandeis, J., dissenting), and we think that to be especially true of a constitutional precedent that is both recent and in apparent tension with other decisions. Accordingly, we have addressed anew, and in greater detail, the question whether the Eighth Amendment contains a proportionality guarantee — with particular attention to the background of the Eighth Amendment (which Solem discussed in only two pages, see 463 U. S., at 284-286) and to the understanding of the Eighth Amendment before the end of the 19th century (which Solem discussed not at all). We conclude from this examination that Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee.
Solem based its conclusion principally upon the proposition that a right to be free from disproportionate punishments was embodied within the "cruell and unusuall Punishments" provision of the English Declaration of Rights of 1689, and was incorporated, with that language, in the Eighth Amendment. There is no doubt that the Declaration of Rights is the antecedent of our constitutional text. (This document was promulgated in February 1689 and was enacted into law as the Bill of Rights, 1 Wm. & Mary, Sess. 2, ch. 2, in December 1689. See Sources of Our Liberties 222-223 (R. Perry & J. Cooper eds. 1959); L. Schwoerer, Declaration of Rights, 1689, pp. 279, 295-298 (1981).) In 1791, five State Constitutions prohibited "cruel or unusual punishments," see Del. Declaration of Rights, § 16 (1776); Md. Declaration of Rights, § XXII (1776); Mass. Declaration of Rights, Art. XXVI (1780); N. C. Declaration of Rights, § X (1776); N. H. Bill of Rights, Art. XXXIII (1784), and two prohibited "cruel" punishments, Pa. Const., Art. IX, § 13 (1790); S. C. Const., Art. IX, § 4 (1790). The new Federal Bill of Rights, however, tracked Virginia's prohibition of "cruel and unusual punishments," see Va. Declaration of Rights, § 9 (1776), which most closely followed the English provision. In fact, the entire text of the Eighth Amendment is taken almost verbatim from the English Declaration of Rights, which provided "[t]hat excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted."
Perhaps the Americans of 1791 understood the Declaration's language precisely as the Englishmen of 1689 did — though as we shall discuss later, that seems unlikely. Or perhaps the colonists meant to incorporate the content of that antecedent by reference, whatever the content might have been. Solem suggested something like this, arguing that since Americans claimed "all the rights of English subjects," "their use of the language of the English Bill of Rights is convincing
As Solem observed, 463 U. S., at 284-285, the principle of proportionality was familiar to English law at the time the Declaration of Rights was drafted. The Magna Carta provided that "[a] free man shall not be fined for a small offence, except in proportion to the measure of the offense; and for a great offence he shall be fined in proportion to the magnitude of the offence, saving his freehold. . . ." Art. 20 (translated in Sources of Our Liberties, supra, at 15). When imprisonment supplemented fines as a method of punishment, courts apparently applied the proportionality principle while sentencing. Hodges v. Humkin, 2 Bulst. 139, 140, 80 Eng. Rep. 1015, 1016 (K. B. 1615) (Croke, J.) ("[I]mprisonment ought always to be according to the quality of the offence"). Despite this familiarity, the drafters of the Declaration of Rights did not explicitly prohibit "disproportionate" or "excessive" punishments. Instead, they prohibited punishments that were "cruell and unusuall." The Solem Court simply assumed, with no analysis, that the one included the other. 463 U. S., at 285. As a textual matter, of course, it does not: a disproportionate punishment can perhaps always be considered "cruel," but it will not always be (as the text also requires) "unusual." The error of Solem's assumption is confirmed by the historical context and contemporaneous understanding of the English guarantee.
Most historians agree that the "cruell and unusuall Punishments" provision of the English Declaration of Rights was prompted by the abuses attributed to the infamous Lord Chief Justice Jeffreys of the King's Bench during the Stuart reign of James II. See, e. g., Schwoerer, supra, at 93; 4 W. Blackstone, Commentaries *372. They do not agree, however,
But the vicious punishments for treason decreed in the Bloody Assizes (drawing and quartering, burning of women felons, beheading, disembowling, etc.) were common in that period — indeed, they were specifically authorized by law and remained so for many years afterwards. See Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Calif. L. Rev. 839, 855-856 (1969); 4 Blackstone, supra, at *369-*370. Thus, recently historians have argued, and the best historical evidence suggests, that it was not Jeffreys' management of the Bloody Assizes that led to the Declaration of Rights provision, but rather the arbitrary sentencing power he had exercised in administering justice from the King's Bench, particularly when punishing a notorious perjurer. See Granucci, supra, at 855-860; Schwoerer, supra, at 92-93. Accord, 1 J. Stephen, A History of the Criminal Law of England 490 (1883); 1 J. Chitty, Criminal Law 712 (5th Am. ed. 1847) (hereinafter Chitty). Jeffreys was widely accused of "inventing" special penalties for the King's enemies, penalties that were not authorized by common-law precedent or statute. Letter to a Gentleman at Brussels,
The preamble to the Declaration of Rights, a sort of indictment of James II that calls to mind the preface to our own Declaration of Independence, specifically referred to illegal sentences and King's Bench proceedings.
The only recorded contemporaneous interpretation of the "cruell and unusuall Punishments" clause confirms the focus upon Jeffreys' King's Bench activities, and upon the illegality, rather than the disproportionality, of his sentences. In 1685 Titus Oates, a Protestant cleric whose false accusations had caused the execution of 15 prominent Catholics for allegedly organizing a "Popish Plot" to overthrow King Charles II in 1679, was tried and convicted before the King's Bench for perjury. Oates' crime, "bearing false witness against another, with an express premeditated design to take away his
"The judges, as they believed, sentenced Oates to be scourged to death." 2 T. Macaulay, History of England 204 (1899) (hereinafter Macaulay). Accord, D. Ogg, England In The Reigns of James II and William III, pp. 154-155 (1984). Oates would not die, however. Four years later, and several months after the Declaration of Rights, he petitioned the House of Lords to set aside his sentence as illegal. 6 Macaulay 138-141. "Not a single peer ventured to affirm that the judgment was legal: but much was said about the odious character of the appellant," and the Lords affirmed the judgment. 6 id., at 140-141. A minority of the Lords dissented, however, and their statement sheds light on the meaning of the "cruell and unusuall Punishments" clause:
Oates' cause then aroused support in the House of Commons, whose members proceeded to pass a bill to annul the sentence. A "free conference" was ultimately convened in which representatives of the House of Commons attempted to persuade the Lords to reverse their position. See 6 Macaulay 143-145. Though this attempt was not successful, the Commons' report of the conference confirms that the "cruell and unusuall Punishments" clause was directed at the Oates case (among others) in particular, and at illegality, rather than disproportionality, of punishment in general.
In all these contemporaneous discussions, as in the prologue of the Declaration, a punishment is not considered objectionable because it is disproportionate,
In sum, we think it most unlikely that the English Cruell and Unusuall Punishments Clause was meant to forbid "disproportionate" punishments. There is even less likelihood that proportionality of punishment was one of the traditional "rights and privileges of Englishmen" apart from the Declaration of Rights, which happened to be included in the Eighth Amendment. Indeed, even those scholars who believe the principle to have been included within the Declaration of Rights do not contend that such a prohibition was reflected in English practice — nor could they. See Granucci,
Unless one accepts the notion of a blind incorporation, however, the ultimate question is not what "cruell and unusuall punishments" meant in the Declaration of Rights, but what its meaning was to the Americans who adopted the Eighth Amendment. Even if one assumes that the Founders knew the precise meaning of that English antecedent, but see Granucci, supra, at 860-865, a direct transplant of the English meaning to the soil of American constitutionalism would in any case have been impossible. There were no common-law punishments in the federal system, see United States v. Hudson, 7 Cranch 32 (1812), so that the provision must have been meant as a check not upon judges but upon
Wrenched out of its common-law context, and applied to the actions of a legislature, the word "unusual" could hardly mean "contrary to law." But it continued to mean (as it continues to mean today) "such as [does not] occu[r] in ordinary practice," Webster's American Dictionary (1828), "[s]uch as is [not] in common use," Webster's Second International Dictionary 2807 (1954). According to its terms, then, by forbidding "cruel and unusual punishments," see Stanford v. Kentucky, 492 U.S. 361, 378 (1989) (plurality opinion); In re Kemmler, supra, at 446-447, the Clause disables the Legislature from authorizing particular forms or "modes" of punishment — specifically, cruel methods of punishment that are not regularly or customarily employed. E. g., Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) (plurality opinion); In re Kemmler, supra, at 446-447. See also United States v. Collins, 25 F. Cas. 545 (No. 14,836) (CC R. I. 1854) (Curtis, J.).
The language bears the construction, however — and here we come to the point crucial to resolution of the present case — that "cruelty and unusualness" are to be determined not solely with reference to the punishment at issue ("Is life imprisonment a cruel and unusual punishment?") but with reference to the crime for which it is imposed as well ("Is life imprisonment cruel and unusual punishment for possession of unlawful drugs?"). The latter interpretation would make the provision a form of proportionality guarantee.
Secondly, it would seem quite peculiar to refer to cruelty and unusualness for the offense in question, in a provision having application only to a new government that had never before defined offenses, and that would be defining new and peculiarly national ones. Finally, and most conclusively, as we proceed to discuss, the fact that what was "cruel and unusual" under the Eighth Amendment was to be determined without reference to the particular offense is confirmed by all available evidence of contemporary understanding.
In the January 1788 Massachusetts Convention, for example, the objection was raised that Congress was
The actions of the First Congress, which are of course persuasive evidence of what the Constitution means, Marsh v. Chambers, 463 U.S. 783, 788-790 (1983); Carroll v. United States, 267 U.S. 132, 150-152 (1925); cf. McCulloch v. Maryland, 4 Wheat. 316, 401-402 (1819), belie any doctrine of proportionality. Shortly after this Congress proposed the Bill of Rights, it promulgated the Nation's first Penal Code. See 1 Stat. 112-119 (1790). As the then-extant New Hampshire Constitution's proportionality provision didactically observed, "[n]o wise legislature" — that is, no legislature attuned to the principle of proportionality — "will afix the same punishment to the crimes of theft, forgery and the like, which they do to those of murder and treason," N. H. Const., Pt. I, Art. XVIII (1784). Jefferson's Bill For Proportioning Crimes and Punishments punished murder and treason by death; counterfeiting of public securities by forfeiture of property plus six years at hard labor, and "run[ning] away with any sea-vessel or goods laden on board thereof" by treble damages to the victim and five years at hard labor. See 1 Writings of Thomas Jefferson, at 220-222, 229-231 (footnote omitted). Shortly after proposing the Bill of Rights, the First Congress ignored these teachings. It punished forgery of United States securities, "run[ning] away with [a] ship or vessel, or any goods or merchandise to the value
The early commentary on the Clause contains no reference to disproportionate or excessive sentences, and again indicates that it was designed to outlaw particular modes of punishment. One commentator wrote:
Another commentator, after explaining (in somewhat convoluted fashion) that the "spirit" of the Excessive Bail and Excessive Fines Clauses forbade excessive imprisonments, went on to add:
Many other Americans apparently agreed that the Clause only outlawed certain modes of punishment: During the 19th century several States ratified constitutions that prohibited "cruel and unusual," "cruel or unusual," or simply "cruel" punishments and required all punishments to be proportioned to the offense. Ohio Const., Art. VIII, §§ 13, 14 (1802); Ind. Const., Art. I, §§ 15-16 (1816); Me. Const., Art. I, § 9 (1819); R. I. Const., Art. I, § 8 (1842); W. Va. Const., Art. II, §2 (1861-1863); Ga. Const., Art. I, §§ 16, 21 (1868).
Perhaps the most persuasive evidence of what "cruel and unusual" meant, however, is found in early judicial constructions of the Eighth Amendment and its state counterparts. An early (perhaps the earliest) judicial construction of the federal provision is illustrative. In Barker v. People, 20 Johns. *457 (N. Y. Sup. Ct. 1823), aff'd, 3 Cow. 686 (N. Y. 1824), the defendant, upon conviction of challenging another to a duel, had been disenfranchised. Chief Justice Spencer
Throughout the 19th century, state courts interpreting state constitutional provisions with identical or more expansive wording (i. e., "cruel or unusual") concluded that these provisions did not proscribe disproportionality but only certain modes of punishment. For example, in Aldridge v. Commonwealth, 4 Va. 447 (1824), the General Court of Virginia had occasion to interpret the cruel and unusual punishments clause that was the direct ancestor of our federal provision, see supra, at 966. In rejecting the defendant's claim that a sentence of so many as 39 stripes violated the Virginia Constitution, the court said:
Accord, Commonwealth v. Hitchings, 71 Mass. 482, 486 (1855); Garcia v. Territory, 1 N.M. 415, 417-419 (1869);
We think it enough that those who framed and approved the Federal Constitution chose, for whatever reason, not to include within it the guarantee against disproportionate sentences that some State Constitutions contained. It is worth noting, however, that there was good reason for that choice — a reason that reinforces the necessity of overruling Solem. While there are relatively clear historical guidelines and accepted practices that enable judges to determine which modes of punishment are "cruel and unusual," proportionality does not lend itself to such analysis. Neither Congress nor any state legislature has ever set out with the objective of crafting a penalty that is "disproportionate"; yet as some of the examples mentioned above indicate, many enacted dispositions seem to be so — because they were made for other times or other places, with different social attitudes, different criminal epidemics, different public fears, and different prevailing theories of penology. This is not to say that there are no absolutes; one can imagine extreme examples that no rational person, in no time or place, could accept. But for the same reason these examples are easy to decide, they are
This becomes clear, we think, from a consideration of the three factors that Solem found relevant to the proportionality determination: (1) the inherent gravity of the offense, (2) the
The difficulty of assessing gravity is demonstrated in the very context of the present case: Petitioner acknowledges that a mandatory life sentence might not be "grossly excessive" for possession of cocaine with intent to distribute, see Hutto v. Davis, 454 U.S. 370 (1982). But surely whether it is a "grave" offense merely to possess a significant quantity of drugs — thereby facilitating distribution, subjecting the holder to the temptation of distribution, and raising the possibility of theft by others who might distribute — depends entirely upon how odious and socially threatening one believes drug use to be. Would it be "grossly excessive" to provide life imprisonment for "mere possession" of a certain quantity of heavy weaponry? If not, then the only issue is whether the possible dissemination of drugs can be as "grave" as the possible dissemination of heavy weapons. Who are we to say no? The members of the Michigan Legislature, and not we, know the situation on the streets of Detroit.
The second factor suggested in Solem fails for the same reason. One cannot compare the sentences imposed by the jurisdiction for "similarly grave" offenses if there is no objective standard of gravity. Judges will be comparing what they consider comparable. Or, to put the same point differently: When it happens that two offenses judicially determined to be "similarly grave" receive significantly dissimilar penalties, what follows is not that the harsher penalty is unconstitutional, but merely that the legislature does not
As for the third factor mentioned by Solem — the character of the sentences imposed by other States for the same crime — it must be acknowledged that that can be applied with clarity and ease. The only difficulty is that it has no conceivable relevance to the Eighth Amendment. That a State is entitled to treat with stern disapproval an act that other States punish with the mildest of sanctions follows a fortiori from the undoubted fact that a State may criminalize an act that other States do not criminalize at all. Indeed, a State may criminalize an act that other States choose to reward — punishing, for example, the killing of endangered wild animals for which other States are offering a bounty. What
Our 20th-century jurisprudence has not remained entirely in accord with the proposition that there is no proportionality requirement in the Eighth Amendment, but neither has it departed to the extent that Solem suggests. In Weems v. United States, 217 U.S. 349 (1910), a government disbursing officer convicted of making false entries of small sums in his account book was sentenced by Philippine courts to 15 years of cadena temporal. That punishment, based upon the Spanish Penal Code, called for incarceration at "`hard and painful labor'" with chains fastened to the wrists and ankles at all times. Several "accessor[ies]" were superadded, including permanent disqualification from holding any position of public trust, subjection to "[government] surveillance" for life, and "civil interdiction," which consisted of deprivation of "`the rights of parental authority, guardianship of person or property, participation in the family council[, etc.]'" Weems, supra, at 364.
As to the latter:
Other portions of the opinion, however, suggest that mere disproportionality, by itself, might make a punishment cruel and unusual:
Since it contains language that will support either theory, our later opinions have used Weems, as the occasion required, to represent either the principle that "the Eighth Amendment bars not only those punishments that are `barbaric' but also those that are `excessive' in relation to the crime committed," Coker v. Georgia, 433 U.S. 584, 592 (1977), or the principle that only a "unique . . . punishmen[t]," a form of imprisonment different from the "more traditional forms . . . imposed under the Anglo-Saxon system," can violate the Eighth Amendment, Rummel, supra, at 274-275. If the proof of the pudding is in the eating, however, it is hard to view Weems as announcing a constitutional requirement of proportionality, given that it did not produce a decision implementing such a requirement, either here or in the lower federal courts, for six decades. In Graham v. West Virginia, 224 U.S. 616 (1912), for instance, we evaluated (and rejected) a claim that life imprisonment for a third offense of horse theft was "cruel and unusual." We made no mention of Weems, although the petitioner had relied upon that case.
Opinions in the Federal Courts of Appeals were equally devoid of evidence that this Court had announced a general proportionality principle. Some evaluated "cruel and unusual punishment" claims without reference to Weems. See, e. g., Bailey v. United States, 284 F. 126 (CA7 1922); Tincher v. United States, 11 F.2d 18, 21 (CA4 1926). Others continued to echo (in dictum) variants of the dictum in State v. Becker, 3 S. D. 29, 51 N. W. 1018 (1892), to the effect that courts will not interfere with punishment unless it is "manifestly cruel
The first holding of this Court unqualifiedly applying a requirement of proportionality to criminal penalties was issued 185 years after the Eighth Amendment was adopted.
Petitioner claims that his sentence violates the Eighth Amendment for a reason in addition to its alleged disproportionality. He argues that it is "cruel and unusual" to impose a mandatory sentence of such severity, without any consideration of so-called mitigating factors such as, in his case, the fact that he had no prior felony convictions. He apparently contends that the Eighth Amendment requires Michigan to create a sentencing scheme whereby life in prison without possibility of parole is simply the most severe of a range of available penalties that the sentencer may impose after hearing evidence in mitigation and aggravation.
As our earlier discussion should make clear, this claim has no support in the text and history of the Eighth Amendment. Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in
Petitioner's "required mitigation" claim, like his proportionality claim, does find support in our death penalty jurisprudence. We have held that a capital sentence is cruel and unusual under the Eighth Amendment if it is imposed without an individualized determination that that punishment is "appropriate" — whether or not the sentence is "grossly disproportionate." See Woodson v. North Carolina, supra; Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, supra; Hitchcock v. Dugger, 481 U.S. 393 (1987). Petitioner asks us to extend this so-called "individualized capital-sentencing doctrine," Sumner v. Shuman, 483 U.S. 66, 73 (1987), to an "individualized mandatory life in prison without parole sentencing doctrine." We refuse to do so.
Our cases creating and clarifying the "individualized capital sentencing doctrine" have repeatedly suggested that there is no comparable requirement outside the capital context, because of the qualitative difference between death and all other penalties. See Eddings v. Oklahoma, 455 U. S., at 110-112; id., at 117-118 (O'CONNOR, J., concurring); Lockett v. Ohio, supra, at 602-605; Woodson v. North Carolina, supra, at 303-305; Rummel v. Estelle, supra, at 272.
It is true that petitioner's sentence is unique in that it is the second most severe known to the law; but life imprisonment with possibility of parole is also unique in that it is the third most severe. And if petitioner's sentence forecloses some "flexible techniques" for later reducing his sentence, see Lockett, supra, at 605 (Burger, C. J.) (plurality opinion), it does not foreclose all of them, since there remain the possibilities of retroactive legislative reduction and executive clemency. In some cases, moreover, there will be negligible difference between life without parole and other sentences of imprisonment — for example, a life sentence with eligibility for parole after 20 years, or even a lengthy term sentence without eligibility for parole, given to a 65-year-old man. But even where the difference is the greatest, it cannot be compared with death. We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further.
The judgment of the Michigan Court of Appeals is
JUSTICE KENNEDY, with whom JUSTICE O'CONNOR and JUSTICE SOUTER join, concurring in part and concurring in the judgment.
I concur in Part IV of the Court's opinion and in the judgment. I write this separate opinion because my approach to the Eighth Amendment proportionality analysis differs from JUSTICE SCALIA'S. Regardless of whether JUSTICE SCALIA or JUSTICE WHITE has the best of the historical argument, compare ante, at 966-985, with post, at 1009-1011, and n. 1, stare decisis counsels our adherence to the narrow proportionality principle that has existed in our Eighth Amendment jurisprudence for 80 years. Although our proportionality decisions have not been clear or consistent in all respects,
Our decisions recognize that the Cruel and Unusual Punishments Clause encompasses a narrow proportionality principle. We first interpreted the Eighth Amendment to prohibit "`greatly disproportioned'" sentences in Weems v. United States, 217 U.S. 349, 371 (1910), quoting O'Neil v. Vermont, 144 U.S. 323, 340 (1892) (Field, J., dissenting). Since Weems, we have applied the principle in different Eighth Amendment contexts. Its most extensive application has been in death penalty cases. In Coker v. Georgia, 433 U.S. 584, 592 (1977), we held that "a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment." We applied like reasoning in Enmund v. Florida, 458 U.S. 782 (1982), to strike down a capital sentence imposed for a felony-murder conviction in which the defendant had not committed the actual murder and lacked intent to kill. Cf. Tison v. Arizona, 481 U.S. 137 (1987).
The Eighth Amendment proportionality principle also applies to noncapital sentences. In Rummel v. Estelle, 445 U.S. 263 (1980), we acknowledged the existence of the proportionality rule for both capital and noncapital cases, id., at 271-274, and n. 11, but we refused to strike down a sentence of life imprisonment, with possibility of parole, for recidivism based on three underlying felonies. In Hutto v. Davis, 454 U.S. 370, 374, and n. 3 (1982), we recognized the possibility of proportionality review but held it inapplicable to a 40-year prison sentence for possession with intent to distribute nine ounces of marijuana. Our most recent decision discussing the subject is Solem v. Helm, 463 U.S. 277 (1983). There we held that a sentence of life imprisonment without possibility of parole violated the Eighth Amendment because it was
Though our decisions recognize a proportionality principle, its precise contours are unclear. This is so in part because we have applied the rule in few cases and even then to sentences of different types. Our most recent pronouncement on the subject in Solem, furthermore, appeared to apply a different analysis than in Rummel and Davis. Solem twice stated, however, that its decision was consistent with Rummel and thus did not overrule it. Solem, supra, at 288, n. 13, 303, n. 32. Despite these tensions, close analysis of our decisions yields some common principles that give content to the uses and limits of proportionality review.
The first of these principles is that the fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is "properly within the province of legislatures, not courts." Rummel, supra, at 275-276. Determinations about the nature and purposes of punishment for criminal acts implicate difficult and enduring questions respecting the sanctity of the individual, the nature of law, and the relation between law and the social order. "As a moral or political issue [the punishment of offenders] provokes intemperate emotions, deeply conflicting interests, and intractable disagreements." D. Garland, Punishment and Modern Society 1 (1990). The efficacy of any sentencing system cannot be assessed absent agreement on the purposes and objectives of the penal system. And the responsibility for making these fundamental choices and implementing them lies with the legislature. See Gore v. United States,
The second principle is that the Eighth Amendment does not mandate adoption of any one penological theory. "The principles which have guided criminal sentencing . . . have varied with the times." Payne v. Tennessee, ante, at 819. The federal and state criminal systems have accorded different weights at different times to the penological goals of retribution, deterrence, incapacitation, and rehabilitation. Compare Mistretta v. United States, 488 U.S. 361, 363-366 (1989), with Williams v. New York, 337 U.S. 241, 248 (1949). And competing theories of mandatory and discretionary sentencing have been in varying degrees of ascendancy or decline since the beginning of the Republic. See United States v. Grayson, 438 U.S. 41, 45-47 (1978).
Third, marked divergences both in underlying theories of sentencing and in the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure. See Solem, supra, at 291, n. 17 ("The inherent nature of our federal system" may result in "a wide range of constitutional sentences"). "Our federal system recognizes the independent power of a State to articulate societal norms through criminal law." McCleskey v. Zant, 499 U.S. 467, 491 (1991). State sentencing schemes may embody different penological assumptions, making interstate comparison of
The fourth principle at work in our cases is that proportionality review by federal courts should be informed by "`objective factors to the maximum possible extent.'" Rummel, supra, at 274-275, quoting Coker, 433 U. S., at 592 (plurality opinion). See also Solem, supra, at 290. The most prominent objective factor is the type of punishment imposed. In Weems, "the Court could differentiate in an objective fashion between the highly unusual cadena temporal and more traditional forms of imprisonment imposed under the Anglo-Saxon system." Rummel, 445 U. S., at 275. In a similar fashion, because "`[t]he penalty of death differs from all other forms of criminal punishment,'" id., at 272, quoting Furman v. Georgia, 408 U.S. 238, 306 (1972) (opinion of Stewart, J.), the objective line between capital punishment and imprisonment for a term of years finds frequent mention in our Eighth Amendment jurisprudence. See Solem, supra, at 294 ("The easiest comparison [of different sentences] is between capital punishment and noncapital punishment").
All of these principles—the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors—inform the final one: The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are "grossly disproportionate" to the crime. Solem, supra, at 288, 303. See also Weems, 217 U. S., at 371 (Eighth Amendment prohibits "greatly disproportioned" sentences); Coker, supra, at 592 (Eighth Amendment prohibits "grossly disproportionate" sentences); Rummel, supra, at 271 (same).
With these considerations stated, it is necessary to examine the challenged aspects of petitioner's sentence: its severe length and its mandatory operation.
Petitioner's life sentence without parole is the second most severe penalty permitted by law. It is the same sentence received by the petitioner in Solem. Petitioner's crime, however, was far more grave than the crime at issue in Solem.
Petitioner was convicted of possession of more than 650 grams (over 1.5 pounds) of cocaine. This amount of pure cocaine has a potential yield of between 32,500 and 65,000 doses. A. Washton, Cocaine Addiction: Treatment, Recovery, and Relapse Prevention 18 (1989). From any standpoint, this crime falls in a different category from the relatively minor, nonviolent crime at issue in Solem. Possession, use, and distribution of illegal drugs represent "one of the greatest problems affecting the health and welfare of our population." Treasury Employees v. Von Raab, 489 U.S. 656, 668 (1989). Petitioner's suggestion that his crime was nonviolent and victimless, echoed by the dissent, see post, at 1022-1023, is false to the point of absurdity. To the contrary, petitioner's crime threatened to cause grave harm to society.
Quite apart from the pernicious effects on the individual who consumes illegal drugs, such drugs relate to crime in at least three ways: (1) A drug user may commit crime because of drug-induced changes in physiological functions, cognitive ability, and mood; (2) A drug user may commit crime in order to obtain money to buy drugs; and (3) A violent crime may occur as part of the drug business or culture. See Goldstein, Drugs and Violent Crime, in Pathways to Criminal Violence
These and other facts and reports detailing the pernicious effects of the drug epidemic in this country do not establish that Michigan's penalty scheme is correct or the most just in any abstract sense. But they do demonstrate that the Michigan Legislature could with reason conclude that the threat posed to the individual and society by possession of this large an amount of cocaine—in terms of violence, crime, and social displacement—is momentous enough to warrant the deterrence and retribution of a life sentence without parole. See United States v. Mendenhall, 446 U.S. 544, 561 (1980) (Powell, J., concurring in part and concurring in judgment) ("Few problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances"); Florida v. Royer, 460 U.S. 491, 513 (1983) (BLACKMUN, J., dissenting) (same). See also Terrebonne v. Butler, 848 F.2d 500, 504 (CA5 1988) (en banc).
Petitioner and amici contend that our proportionality decisions require a comparative analysis between petitioner's sentence and sentences imposed for other crimes in Michigan and sentences imposed for the same crime in other jurisdictions. Given the serious nature of petitioner's crime, no such comparative analysis is necessary. Although Solem considered these comparative factors after analyzing "the gravity of the offense and the harshness of the penalty," 463 U. S., at 290-291, it did not announce a rigid three-part test. In fact, Solem stated that in determining unconstitutional disproportionality, "no one factor will be dispositive in a given case." Id., at 291, n. 17. See also ibid. ("[N]o single criterion can identify when a sentence is so grossly disproportionate that it violates the Eighth Amendment").
On the other hand, one factor may be sufficient to determine the constitutionality of a particular sentence. Consistent with its admonition that "a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate," id., at 290, n. 16, Solem is best understood as holding that comparative
A better reading of our cases leads to the conclusion that intrajurisdictional and interjurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality. In Solem and Weems, decisions in which the Court invalidated sentences as disproportionate, we performed a comparative analysis of sentences after determining that the sentence imposed was grossly excessive punishment for the crime committed. Solem, supra, at 298-300; Weems, 217 U. S., at 377-381. By contrast, Rummel and Davis, decisions in which the Court upheld sentences against proportionality attacks, did not credit such comparative analyses. In rejecting this form of argument, Rummel noted that "[e]ven were we to assume that the statute employed against Rummel was the most stringent found in the 50 States, that severity hardly would render Rummel's punishment `grossly disproportionate' to his offenses." Rummel, supra, at 281.
The proper role for comparative analysis of sentences, then, is to validate an initial judgment that a sentence is grossly disproportionate to a crime. This conclusion neither "eviscerate[s]" Solem, nor "abandon[s]" its second and third factors, as the dissent charges, post, at 1018, 1020, and it takes full account of Rummel and Davis, cases ignored by the dissent. In light of the gravity of petitioner's offense, a comparison of his crime with his sentence does not give rise to an inference of gross disproportionality, and comparative analysis of his sentence with others in Michigan and across the Nation need not be performed.
Petitioner also attacks his sentence because of its mandatory nature. Petitioner would have us hold that any severe penalty scheme requires individualized sentencing so that a judicial official may consider mitigating circumstances. Our precedents do not support this proposition, and petitioner presents no convincing reason to fashion an exception or adopt a new rule in the case before us. The Court demonstrates that our Eighth Amendment capital decisions reject any requirement of individualized sentencing in noncapital cases. Ante, at 994-996.
The mandatory nature of this sentence comports with our noncapital proportionality decisions as well. The statute at issue in Solem made the offender liable to a maximum, not a mandatory, sentence of life imprisonment without parole. Solem, 463 U. S., at 281-282, n. 6. Because a "lesser sentence. . . could have been entirely consistent with both the statute and the Eighth Amendment," the Court's decision "d[id] not question the legislature's judgment," but rather challenged the sentencing court's selection of a penalty at the top of the authorized sentencing range. Id., at 299, n. 26. Here, by contrast, the Michigan Legislature has mandated the penalty and has given the state judge no discretion in implementing it. It is beyond question that the legislature "has the power to define criminal punishments without giving the courts any sentencing discretion," Chapman v. United States, 500 U.S. 453, 467 (1991). Since the beginning of the Republic, Congress and the States have enacted mandatory sentencing schemes. See Mistretta v. United States, 488 U. S., at 363; United States v. Grayson, 438 U. S., at 45-46; Ex parte United States, 242 U.S. 27 (1916). To set aside petitioner's mandatory sentence would require rejection not of the judgment of a single jurist, as in Solem, but rather the collective wisdom of the Michigan Legislature and, as a consequence, the Michigan citizenry. We have never invalidated a penalty mandated by a legislature based only on the
In asserting the constitutionality of this mandatory sentence, I offer no judgment on its wisdom. Mandatory sentencing schemes can be criticized for depriving judges of the power to exercise individual discretion when remorse and acknowledgment of guilt, or other extenuating facts, present what might seem a compelling case for departure from the maximum. On the other hand, broad and unreviewed discretion exercised by sentencing judges leads to the perception that no clear standards are being applied, and that the rule of law is imperiled by sentences imposed for no discernible reason other than the subjective reactions of the sentencing judge. The debate illustrates that, as noted at the outset, arguments for and against particular sentencing schemes are for legislatures to resolve.
Michigan's sentencing scheme establishes graduated punishment for offenses involving varying amounts of mixtures containing controlled substances. Possession of controlled substances in schedule 1 or 2 in an amount less than 50 grams results in a sentence of up to 20 years' imprisonment; possession of more than 50 but less than 225 grams results in a mandatory minimum prison sentence of 10 years with a maximum sentence of 20 years; possession of more than 225 but less than 650 grams results in a mandatory minimum prison sentence of 20 years with a maximum sentence of 30 years; and possession of 650 grams or more results in a mandatory life sentence. Mich. Comp. Laws Ann. § 333.7401 (West Supp. 1990-1991). Sentencing courts may depart from the minimum terms specified for all amounts, except those exceeding 650 grams, "if the court finds on the record that there are substantial and compelling reasons to do so." §§ 333.7401(4), 333.7403(3). This system is not an ancient one revived in a sudden or surprising way; it is, rather, a recent enactment calibrated with care, clarity, and much deliberation to address
The Michigan scheme does possess mechanisms for consideration of individual circumstances. Prosecutorial discretion before sentence and executive or legislative clemency afterwards provide means for the State to avert or correct unjust sentences. Here the prosecutor may have chosen to seek the maximum penalty because petitioner possessed 672.5 grams of undiluted cocaine and several other trappings of a drug trafficker, including marijuana cigarettes, four brass cocaine straws, a cocaine spoon, 12 Percodan tablets, 25 tablets of Phendimetrazine Tartrate, a Motorola beeper, plastic bags containing cocaine, a coded address book, and $3,500 in cash.
A penalty as severe and unforgiving as the one imposed here would make this a most difficult and troubling case for any judicial officer. Reasonable minds may differ about the efficacy of Michigan's sentencing scheme, and it is far from certain that Michigan's bold experiment will succeed. The accounts of pickpockets at Tyburn hangings are a reminder of the limits of the law's deterrent force, but we cannot say the law before us has no chance of success and is on that account so disproportionate as to be cruel and unusual punishment. The dangers flowing from drug offenses and the circumstances of the crime committed here demonstrate that the Michigan penalty scheme does not surpass constitutional
JUSTICE WHITE, with whom JUSTICE BLACKMUN and JUSTICE STEVENS join, dissenting.
The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." JUSTICE SCALIA concludes that "the Eighth Amendment contains no proportionality guarantee." Ante, at 965. Accordingly, he says Solem v. Helm, 463 U.S. 277 (1983), "was simply wrong" in holding otherwise, as would be the Court's other cases interpreting the Amendment to contain a proportionality principle. JUSTICE KENNEDY, on the other hand, asserts that the Eighth Amendment's proportionality principle is so "narrow," ante, at 996, that Solem's analysis should be reduced from three factors to one. With all due respect, I dissent.
The language of the Amendment does not refer to proportionality in so many words, but it does forbid "excessive" fines, a restraint that suggests that a determination of excessiveness should be based at least in part on whether the fine imposed is disproportionate to the crime committed. Nor would it be unreasonable to conclude that it would be both cruel and unusual to punish overtime parking by life imprisonment, see Rummel v. Estelle, 445 U.S. 263, 274, n. 11 (1980), or, more generally, to impose any punishment that is grossly disproportionate to the offense for which the defendant has been convicted. Thus, Benjamin Oliver, cited by
JUSTICE SCALIA concedes that the language of the Amendment bears such a construction. See ante, at 976. His reasons for claiming that it should not be so construed are weak. First, he asserts that if proportionality was an aspect of the restraint, it could have been said more clearly—as plain-talking Americans would have expressed themselves (as for instance, I suppose, in the Fifth Amendment's Due Process Clause or the Fourth Amendment's prohibition against unreasonable searches and seizures).
Second, JUSTICE SCALIA claims that it would be difficult or impossible to label as "unusual" any punishment imposed by the Federal Government, which had just come into existence and had no track record with respect to criminal law. But
Third, JUSTICE SCALIA argues that all of the available evidence of the day indicated that those who drafted and approved the Amendment "chose . . . not to include within it the guarantee against disproportionate sentences that some State Constitutions contained." Ante, at 985. Even if one were to accept the argument that the First Congress did not have in mind the proportionality issue, the evidence would hardly be strong enough to come close to proving an affirmative decision against the proportionality component. Had there been an intention to exclude it from the reach of the words that otherwise could reasonably be construed to include it, perhaps as plain-speaking Americans, the Members of the First Congress would have said so. And who can say with confidence what the members of the state ratifying conventions had in mind when they voted in favor of the Amendment? Surely, subsequent state-court decisions do not answer that question.
That the punishment imposed in Weems was also unknown to Anglo-American tradition—"It has no fellow in American legislation," 217 U. S., at 377—was just another reason to set aside the sentence and did not in the least detract from the holding with respect to proportionality, which, as Gregg v. Georgia, 428 U.S. 153, 171-172 (1976), observed, was the focus of the Court's holding.
Robinson v. California, 370 U.S. 660 (1962), held for the first time that the Eighth Amendment was applicable to punishment imposed by state courts; it also held it to be cruel and unusual to impose even one day of imprisonment for the status of drug addiction, id., at 667. The principal opinion in Gregg, supra, at 173, observed that the Eighth Amendment's proscription of cruel and unusual punishment is an evolving
Not only is it undeniable that our cases have construed the Eighth Amendment to embody a proportionality component, but it is also evident that none of the Court's cases suggest that such a construction is impermissible. Indeed, Rummel v. Estelle, 445 U.S. 263 (1980), the holding of which JUSTICE SCALIA does not question, itself recognized that the Eighth Amendment contains a proportionality requirement, for it did not question Coker and indicated that the proportionality principle would come into play in some extreme, nonfelony cases. Id., at 272, 274, and n. 11.
If JUSTICE SCALIA really means what he says—"the Eighth Amendment contains no proportionality guarantee," ante, at 965, it is difficult to see how any of the above holdings and declarations about the proportionality requirement of the Amendment could survive. Later in his opinion, however, ante, at 994, JUSTICE SCALIA backtracks and appears to accept
What is more, the Court's jurisprudence concerning the scope of the prohibition against cruel and unusual punishments has long understood the limitations of a purely historical analysis. See Trop v. Dulles, 356 U.S. 86, 100-101 (1958) (plurality opinion); Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 264, n. 4 (1989). Thus, "this Court has `not confined the prohibition embodied in the Eighth Amendment to "barbarous" methods that were
The Court therefore has recognized that a punishment may violate the Eighth Amendment if it is contrary to the "evolving standards of decency that mark the progress of a maturing society." Trop, supra, at 101. See Stanford, supra, at 369 (quoting Trop). In evaluating a punishment under this test, "we have looked not to our own conceptions of decency, but to those of modern American society as a whole" in determining what standards have "evolved," Stanford, supra, at 369, and thus have focused not on "the subjective views of individual Justices," but on "objective factors to the maximum possible extent," Coker, supra, at 592 (plurality opinion). It is this type of objective factor which forms the basis for the tripartite proportionality analysis set forth in Solem.
Contrary to JUSTICE SCALIA'S suggestion, ante, at 985-986, the Solem analysis has worked well in practice. Courts appear to have had little difficulty applying the analysis to a given sentence, and application of the test by numerous state and federal appellate courts has resulted in a mere handful of sentences being declared unconstitutional.
Nor does the fact that this case involves judicial review of a legislatively mandated sentence, rather than a sentence imposed in the exercise of judicial discretion, warrant abandonment of Solem. First, the quote from Solem in the preceding paragraph makes clear that the analysis is intended to apply to both types of sentences. Second, contrary to JUSTICE SCALIA'S suggestion, ante, at 976, the fact that a punishment
Two dangers lurk in JUSTICE SCALIA'S analysis. First, he provides no mechanism for addressing a situation such as that proposed in Rummel, in which a legislature makes overtime parking a felony punishable by life imprisonment. He concedes that "one can imagine extreme examples"—perhaps such as the one described in Rummel—"that no rational person, in no time or place, could accept," but attempts to offer reassurance by claiming that "for the same reason these examples are easy to decide, they are certain never to occur." Ante, at 985-986. This is cold comfort indeed, for absent a proportionality guarantee, there would be no basis for deciding such cases should they arise.
Second, as I have indicated, JUSTICE SCALIA'S position that the Eighth Amendment addresses only modes or methods of punishment is quite inconsistent with our capital punishment cases, which do not outlaw death as a mode or method of punishment, but instead put limits on its application. If the concept of proportionality is downgraded in the Eighth Amendment calculus, much of this Court's capital penalty jurisprudence will rest on quicksand.
While JUSTICE SCALIA seeks to deliver a swift death sentence to Solem, JUSTICE KENNEDY prefers to eviscerate it, leaving only an empty shell. The analysis JUSTICE KENNEDY proffers is contradicted by the language of Solem itself and by our other cases interpreting the Eighth Amendment.
In Solem, the Court identified three major factors to consider in assessing whether a punishment violates the Eighth Amendment: "the gravity of the offense and the harshness of the penalty," 463 U. S., at 290-291; "the sentences imposed on other criminals in the same jurisdiction," id., at 291; and "the sentences imposed for commission of the same crime in other jurisdictions," id., at 291-292. JUSTICE KENNEDY, however, maintains that "one factor may be sufficient to determine the constitutionality of a particular sentence," and
Moreover, as JUSTICE KENNEDY concedes, see ante, at 1005, the use of an intrajurisdictional and interjurisdictional comparison of punishments and crimes has long been an integral part of our Eighth Amendment jurisprudence. Numerous cases have recognized that a proper proportionality analysis must include the consideration of such objective factors as "the historical development of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions juries have made." Enmund, supra, at 788. See also Stanford, 492 U. S., at 369-371; McCleskey v. Kemp, 481 U.S. 279, 300 (1987).
Thus, in Weems, 217 U. S., at 380-381, the Court noted the great disparity between the crime at issue and those within the same jurisdiction for which less severe punishments were imposed. In Trop, 356 U. S., at 102-103, the Court surveyed international law before determining that forfeiture of citizenship as a punishment for wartime desertion violated the Eighth Amendment. In Coker v. Georgia, supra, we sought "guidance in history and from the objective evidence of the country's present judgment concerning the acceptability of death as a penalty for rape of an adult woman," id., at 593 (plurality opinion), and surveyed the laws of the States before concluding that "[t]he current judgment with respect to the death penalty for rape," though "not wholly unanimous among state legislatures, . . . weigh[ed] very heavily on the side of rejecting capital punishment as a
JUSTICE KENNEDY'S abandonment of the second and third factors set forth in Solem makes any attempt at an objective proportionality analysis futile. The first prong of Solem requires a court to consider two discrete factors—the gravity of the offense and the severity of the punishment. A court is not expected to consider the interaction of these two elements and determine whether "the sentence imposed was grossly excessive punishment for the crime committed." See ante, at 1005. Were a court to attempt such an assessment, it would have no basis for its determination that a sentence was—or was not—disproportionate, other than the "subjective views of individual [judges]," Coker, supra, at 592 (plurality opinion), which is the very sort of analysis our Eighth Amendment jurisprudence has shunned. JUSTICE KENNEDY asserts that "our decisions recognize that we lack clear objective standards to distinguish between sentences for different terms of years," citing Rummel and Solem as support. Ante, at 1001. But Solem recognized that
The Court compared line-drawing in the Eighth Amendment context to that regarding the Sixth Amendment right to a speedy trial and right to a jury before concluding that "courts properly may look to the practices in other jurisdictions in deciding where lines between sentences should be drawn." Id., at 295. Indeed, only when a comparison is made with penalties for other crimes and in other jurisdictions can a court begin to make an objective assessment about a given sentence's constitutional proportionality, giving due deference to "public attitudes concerning a particular sentence." Coker, 433 U. S., at 592 (plurality opinion).
Because there is no justification for overruling or limiting Solem, it remains to apply that case's proportionality analysis to the sentence imposed on petitioner. Application of the Solem factors to the statutorily mandated punishment at issue here reveals that the punishment fails muster under Solem and, consequently, under the Eighth Amendment to the Constitution.
Petitioner, a first-time offender, was convicted of possession of 672 grams of cocaine. The statute under which he was convicted, Mich. Comp. Laws Ann. § 333.7403(2)(a)(i) (West Supp. 1990-1991), provides that a person who knowingly or intentionally possesses any of various narcotics, including cocaine, "[w]hich is in an amount of 650 grams or more of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for life." No particular degree of drug purity is required for a conviction. Other statutes make clear that an individual convicted of possessing this quantity of drugs is not eligible for parole. See §§ 791.233b (b), 791.234(4). A related statute, § 333.7401(2)(a)(i), which was enacted at the same time as the statute under which petitioner was convicted, mandates the same penalty of life imprisonment without possibility of parole for someone who "manufacture[s], deliver[s], or possess[es] with intent
The first Solem factor requires a reviewing court to assess the gravity of the offense and the harshness of the penalty. 463 U. S., at 292. The mandatory sentence of life imprisonment without possibility of parole "is the most severe punishment that the State could have imposed on any criminal for any crime," id., at 297, for Michigan has no death penalty.
Although these factors are "by no means exhaustive," id., at 294, in evaluating the gravity of the offense, it is appropriate to consider "the harm caused or threatened to the victim or society," based on such things as the degree of violence involved in the crime and "[t]he absolute magnitude of the crime," and "the culpability of the offender," including the degree of requisite intent and the offender's motive in committing the crime, id., at 292-293.
Drugs are without doubt a serious societal problem. To justify such a harsh mandatory penalty as that imposed here, however, the offense should be one which will always warrant that punishment. Mere possession of drugs—even in such a large quantity — is not so serious an offense that it will always warrant, much less mandate, life imprisonment without possibility of parole. Unlike crimes directed against the persons and property of others, possession of drugs affects the criminal who uses the drugs most directly. The ripple effect on society caused by possession of drugs, through related crimes, lost productivity, health problems, and the like,
To be constitutionally proportionate, punishment must be tailored to a defendant's personal responsibility and moral guilt. See Enmund v. Florida, 458 U. S., at 801. JUSTICE KENNEDY attempts to justify the harsh mandatory sentence imposed on petitioner by focusing on the subsidiary effects of drug use, and thereby ignores this aspect of our Eighth Amendment jurisprudence. While the collateral consequences of drugs such as cocaine are indisputably severe, they are not unlike those which flow from the misuse of other, legal substances. For example, in considering the effects of alcohol on society, the Court has stressed that "[n]o one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it," Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451 (1990), but at the same time has recognized that the severity of the problem "cannot excuse the need for scrupulous adherence to our constitutional principles," Grady v. Corbin, 495 U.S. 508, 524 (1990). Thus, the Court has held that a drunken driver who has been prosecuted for traffic offenses arising from an accident cannot, consistent with the Double Jeopardy Clause, subsequently be prosecuted for the death of the accident victim. Ibid. Likewise, the Court scrutinized closely a state program of vehicle checkpoints designed to detect drunken drivers before holding that the brief intrusion upon motorists is consistent with the Fourth Amendment. Sitz, supra, at 451. It is one thing to uphold a checkpoint designed to detect drivers then under the influence of a drug that creates a present risk that they will harm others. It is quite something else to uphold petitioner's sentence because of the collateral consequences which might issue, however indirectly, from the drugs he possessed. Indeed, it is inconceivable that a State could rationally choose to penalize one
The "absolute magnitude" of petitioner's crime is not exceptionally serious. Because possession is necessarily a lesser included offense of possession with intent to distribute, it is odd to punish the former as severely as the latter. Cf. Solem, supra, at 293. Nor is the requisite intent for the crime sufficient to render it particularly grave. To convict someone under the possession statute, it is only necessary to prove that the defendant knowingly possessed a mixture containing narcotics which weighs at least 650 grams. There is no mens rea requirement of intent to distribute the drugs, as there is in the parallel statute. Indeed, the presence of a separate statute which reaches manufacture, delivery, or possession with intent to do either undermines the State's position that the purpose of the possession statute was to reach drug dealers.
There is an additional concern present here. The State has conceded that it chose not to prosecute Harmelin under the statute prohibiting possession with intent to deliver, because it was "not necessary and not prudent to make it more difficult for us to win a prosecution." Tr. of Oral Arg. 30-31. The State thus aimed to avoid having to establish Harmelin's intent to distribute by prosecuting him instead under the possession statute.
The second prong of the Solem analysis is an examination of "the sentences imposed on other criminals in the same jurisdiction." 463 U. S., at 292. As noted above, there is no death penalty in Michigan; consequently, life without parole,
The third factor set forth in Solem examines "the sentences imposed for commission of the same crime in other jurisdictions." Id., at 291-292. No other jurisdiction imposes a punishment nearly as severe as Michigan's for possession of the amount of drugs at issue here. Of the remaining 49 States, only Alabama provides for a mandatory sentence of life imprisonment without possibility of parole for a first-time drug offender, and then only when a defendant possesses 10 kilograms or more of cocaine. Ala. Code § 13A-12-231(2)(d) (Supp. 1990). Possession of the amount of cocaine at issue here would subject an Alabama defendant to a mandatory minimum sentence of only five years in prison. § 13A-12-231(2)(b).
Application of Solem's proportionality analysis leaves no doubt that the Michigan statute at issue fails constitutional muster.
JUSTICE MARSHALL, dissenting.
I agree with JUSTICE WHITE'S dissenting opinion, except insofar as it asserts that the Eighth Amendment's Cruel and Unusual Punishments Clause does not proscribe the death penalty. I adhere to my view that capital punishment is in all instances unconstitutional. See Gregg v. Georgia, 428 U.S. 153, 231 (1976) (MARSHALL, J., dissenting). I also believe that, "[b]ecause of the uniqueness of the death penalty," id., at 188 (opinion of Stewart, Powell, and STEVENS, JJ.), the Eighth Amendment requires comparative proportionality review of capital sentences. See Turner v. California, 498 U.S. 1053, 1054 (1991) (MARSHALL, J., dissenting from denial of certiorari). However, my view that capital punishment
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting.
While I agree wholeheartedly with JUSTICE WHITE'S dissenting opinion, I believe an additional comment is appropriate.
The severity of the sentence that Michigan has mandated for the crime of possession of more than 650 grams of cocaine, whether diluted or undiluted, does not place the sentence in the same category as capital punishment. I remain convinced that Justice Stewart correctly characterized the penalty of death as "unique" because of "its absolute renunciation of all that is embodied in our concept of humanity." Furman v. Georgia, 408 U.S. 238, 306 (1972) (Stewart, J., concurring). Nevertheless, a mandatory sentence of life imprisonment without the possibility of parole does share one important characteristic of a death sentence: The offender will never regain his freedom. Because such a sentence does not even purport to serve a rehabilitative function, the sentence must rest on a rational determination that the punished "criminal conduct is so atrocious that society's interest in deterrence and retribution wholly outweighs any considerations of reform or rehabilitation of the perpetrator." Id., at 307. Serious as this defendant's crime was, I believe it is irrational to conclude that every similar offender is wholly incorrigible.
The death sentences that were at issue and invalidated in Furman were "cruel and unusual in the same way that being
I respectfully dissent.
Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Starr, Acting Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and James A. Feldman; for the State of Arizona by Robert K. Corbin, Attorney General, Jessica Gifford Funkhouser, and Vicki Gotkin Adler, Assistant Attorney General; for the State of Michigan by Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, and K. Davison Hunter and Thomas C. Nelson, Assistant Attorneys General; for the National District Attorneys Association by Richard P. Ieyoub, Jack E. Yelverton, and James P. Manak; for the Prosecuting Attorneys Association of Michigan by Robert Weiss, John D. O'Hair, and Timothy A. Baughman; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Paul D. Kamenar.
The Ohio provision copied that of New Hampshire.
But, it might be argued, why would any rational person be careful to forbid the disproportionality of fines but provide no protection against the disproportionality of more severe punishments? Does not the one suggest the existence of the other? Not at all. There is good reason to be concerned that fines, uniquely of all punishments, will be imposed in a measure out of accord with the penal goals of retribution and deterrence. Imprisonment, corporal punishment, and even capital punishment cost a State money; fines are a source of revenue. As we have recognized in the context of other constitutional provisions, it makes sense to scrutinize governmental action more closely when the State stands to benefit. See United States Trust Co. of N. Y. v. New Jersey, 431 U.S. 1, 25-26 (1977); Perry v. United States, 294 U.S. 330, 350-351 (1935). (We relied upon precisely the lack of this incentive for abuse in holding that "punitive damages" were not "fines" within the meaning of the Eighth Amendment. Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 271-276 (1989)). Thus, some early State Constitutions prohibited excessive fines without placing any restrictions on other modes of punishment. E. g., Conn. Declaration of Rights, Art. I, § 13 (1818) (prohibiting excessive fines only); Ga. Const., Art. LIX (1777) (same).
In Garvey, the defendants were sentenced to nearly six years in jail for trespassing on public property. The sentence prescribed by the relevant city ordinance was 30 days, but the defendants' 1-hour 40-minute occupation had been made the subject of 72 separate counts, "each offence embracing only one and one-half minutes and one offence following after the other immediately and consecutively," 48 La., at 533, 19 So., at 459. The Louisiana Supreme Court found the sentence to have been cruel and unusual "considering the offence to have been a continuing one," ibid. We think it a fair reading of the case that the sentence was cruel and unusual because it was illegal.