Blake J. Delaney, A Cruel and Unusual Application of The Proportionality Principle in Eighth Amendment Analysis

56 Fla. L. Rev. 459 (2004) | | | |

TEXT :: Petitioner, Gary Ewing, while on parole, stole three golf clubs valued at approximately $ 1200 from a pro shop. Respondent, the State of California, charged Petitioner with felony grand theft of personal property. The Los Angeles County Superior Court convicted Petitioner of the charged offense, triggering Respondent’s “three strikes law.” The recidivist statute required the trial judge to impose a prison term of twenty-five years to life because Petitioner had been convicted of four previous felonies. Petitioner appealed, arguing that the sentence violated his constitutional right to be protected from cruel and unusual punishment. However, the California Second District Court of Appeal affirmed the sentence. The United States Supreme Court granted certiorari and, in affirming the appellate court’s decision, HELD that Respondent’s three strikes law did not constitute cruel and unusual punishment with respect to Petitioner’s sentence.

In the criminal law system, states have a generally recognized right to legislate their own punishments. Nevertheless, the Eighth Amendment allows for some judicial intervention by proscribing the infliction of “cruel and unusual punishments.” How courts should evaluate whether a punishment is cruel and unusual, however, has been a source of controversy for nearly 100 years. Some argue that the Eighth Amendment is applicable only to cruel and unusual modes of punishment, while others maintain that the Eighth Amendment requires, regardless of the form of punishment, proportionality between the harshness of the penalty and the gravity of the offense.


This debate is due largely to the Supreme Court’s decision in Weems v. United States, in which the Court espoused a proportionality principle in the context of corporal punishment. In Weems, the defendant, while in the Philippines, falsified official records of the United States Coast Guard, resulting in the defraudation of the United States government of 612 pesos. Upon conviction, the defendant was sentenced to fifteen years of cadena temporal, a form of punishment unique to the Philippines that required the defendant to carry out hard and painful labor for the benefit of the state while being chained by the wrists and ankles.

In addition, the defendant lost all political rights during imprisonment, was subject to permanent surveillance after his release, and was fined 4,000 pesetas. In finding the punishment unconstitutional, the Court adopted as a “precept of justice” the principle that “punishment for [a] crime should be graduated and proportioned to [the] offense.” Because the punishment, including the accompanying fine and “accessories,” was excessive in penalty and unfamiliar in character, the Court found it both cruel and unusual.

After the Weems Court interpreted the Cruel and Unusual Clause to include a proportionality principle, courts disagreed about whether all criminal punishments should be subject to the principle. In Rummel v. Estelle, the Supreme Court considered the applicability of the proportionality principle in the context of an enhanced prison sentence under a recidivist statute. In Rummel, the defendant was convicted of felony theft for the third time in nine years. Although in isolation the latest felony would have been punishable by a prison term of between two and ten years, the state’s recidivist statute imposed upon the defendant a life sentence, with parole not available for ten to twelve years. In upholding the sentence, the Court refused to review whether the harshness of the punishment was proportional to the gravity of the offense, recognizing that the proportionality principle was traditionally reserved for cases involving capital punishment. Because the defendant probably “would be eligible for parole within 12 years of his initial confinement,” the Court found that this punishment was not one of the “exceedingly rare” non-capital punishment cases where the application of a proportionality principle would be appropriate.

Only three years later, however, in Solem v. Helm, the Supreme Court significantly expanded the applicability of the proportionality principle in the context of a recidivist statute. In Solem, the defendant, convicted of six prior felonies, pleaded guilty to felonious “uttering of a ‘no account’ check.” Because of the defendant’s criminal record, the state’s recidivist statute mandated a life sentence with no opportunity for parole. The Court, however, held the statute to be unconstitutional as applied to the defendant. Following the principle that the Eighth Amendment prohibits “sentences that are disproportionate to the crime committed,” the Court found that the proportionality principle should apply equally to both capital punishments and felony prison sentences. The Court further outlined three objective factors that should be reviewed when testing the proportionality of a punishment: the gravity of the offense, as weighed against the harshness of the penalty; a comparison of sentences imposed for other crimes in the same jurisdiction; and a comparison of sentences imposed for the same crime in other jurisdictions.

The instant Court inherited this uncertainty regarding the applicability of a proportionality principle in the context of a recidivist statute. Although the Court, by a five-to-four margin, upheld Petitioner’s prison sentence of twenty-five years to life, it could not reach a majority opinion as to why the punishment was constitutional. The five Justices constituting the majority espoused two distinct justifications for Respondent’s three strikes law.

Justice O’Connor, delivering the plurality opinion in which Chief Justice Rehnquist and Justice Kennedy joined, found that the prison sentence did not violate the narrow proportionality principle established in Solem. Whereas in Solem the Court outlined three factors to consider in determining the proportionality of a penalty, the O’Connor plurality employed a modified test which converted the first consideration-the gravity of the offense and the harshness of the penalty-into a threshold issue. Only if the penalty is found “‘grossly disproportionate’” to the offense should the Court then consider the penalties for other crimes within the same jurisdiction and the penalties for the same crime within other jurisdictions. The plurality concluded that Petitioner’s punishment was constitutional because the harshness of Respondent’s sentence was not grossly disproportionate to the gravity of Petitioner’s offense. Because the threshold issue of gross disproportionality was not met, the plurality did not need to evaluate the last two steps of the test.

Although Justice Scalia and Justice Thomas concurred separately that Respondent’s punishment was constitutional, they grounded their opinions in reasoning different than that of the plurality. However, they outlined two reasons why a proportionality principle, whether narrow or broad, should never be used to analyze the constitutionality of a term-of-years sentence. First, Justice Scalia noted that a test of proportionality cannot be judicially applied because the harshness of the penalty cannot be weighed against the gravity of the offense without considering the penological goals and policy choices “inherently . . . tied” to both the punishment and the crime. Second, Petitioner’s sentence should not be evaluated with a proportionality principle because the Cruel and Unusual Clause only proscribes cruel and unusual modes of punishment, which, by definition, incarceration is not.

Because seven Justices (the plurality and the dissent) found that the Eighth Amendment requires some level of proportionality between the harshness of a penalty and the gravity of an offense in the context of a recidivist statute, the Court’s guidance as to how to apply the proportionality principle is significant for the future of constitutional law. While the plurality provided a detailed framework for evaluating the harshness of a penalty and the gravity of an offense, its actual application of the proportionality principle is problematic. In concluding that Petitioner’s punishment was constitutional, the plurality erroneously characterized both sides of the proportionality principle: the harshness of the penalty and the gravity of the offense.

First, the plurality misconstrued Respondent’s recidivist statute by placing significant weight on the premise that Respondent had an interest in “incapacitating and deterring recidivist felons.” The plurality maintained that enhanced prison sentences are justified because repeat offenders have shown an inability to bring their conduct “‘within the social norms prescribed by the criminal law of the State.’” The plurality analogized the instant case to Rummel, where a recidivist statute was found to be constitutional, partly because the State had already imprisoned the defendant twice without success. Thus, a repeat offender, in the plurality’s view, could be punished more severely because he has failed to reform his conduct despite being previously incarcerated multiple times.

In the instant case, however, Petitioner’s situation is not analogous to that of the defendant in Rummel. Petitioner’s previous “strikes” all stemmed from the same series of crimes within a five-week period, during which Petitioner committed three burglaries and one robbery. When he was finally arrested and convicted, Petitioner was sentenced to a prison term of nearly ten years in satisfaction of all four felonies. Thus, when he was paroled five and a half years into his sentence, he had only served one prior prison term despite having four “strikes” on his record. While that is certainly no excuse for avoiding punishment altogether, Petitioner’s situation fails to satisfy the policy reasons underlying an enhanced prison sentence under Respondent’s three strikes law.

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