# Harmelin v. Michigan/Concurrence Kennedy

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Kennedy
* Dissenting Opinions White Marshall Stevens
* Wikipedia article
Justice KENNEDY, with whom Justice O'CONNOR and Justice SOUTER join, concurring in part and concurring in the judgment.
I concur in Part V 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 the dissent 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, they can be reconciled, and they require us to uphold petitioner's sentence.
* A.
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, 30 S.Ct. 544, 550, 54 L.Ed. 793 (1910), quoting O'Neil v. Vermont, 144 U.S. 323, 340, 12 S.Ct. 693, 699, 36 L.Ed. 450 (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, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (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, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (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, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987).
The Eighth Amendment proportionality principle also applies to noncapital sentences. In Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), we acknowledged the existence of the proportionality rule for both capital and noncapital cases, id., at 271-274, and n. 11, 100 S.Ct., at 1139, 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, 102 S.Ct. 703, 705, and n. 3, 70 L.Ed.2d 556 (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, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). There we held that a sentence of life imprisonment without possibility of parole violated the Eighth Amendment because it was "grossly disproportionate" to the crime of recidivism based on seven underlying nonviolent felonies. The dissent in Solem disagreed with the Court's application of the proportionality principle but observed that in extreme cases it could apply to invalidate a punishment for a term of years. Id., at 280, n. 3, 103 S.Ct., at 3004, n. 3. See also Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 2570, 57 L.Ed.2d 522 (1978) (dicta); Ingraham v. Wright, 430 U.S. 651, 667, 97 S.Ct. 1401, 1410, 51 L.Ed.2d 711 (1977) (dicta).
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, 463 U.S., at 288, n. 13, 303, n. 32, 103 S.Ct., at 3008, n. 13, 3017, 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, 445 U.S., at 275-276, 100 S.Ct., at 1140. 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, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958) ("Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, . . . these are peculiarly questions of legislative policy"). Thus, "[r]eviewing courts . . . should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes." Solem, supra, 463 U.S., at 290, 103 S.Ct., at 3009. See also Rummel, supra, 445 U.S., at 274, 100 S.Ct., at 1139 (acknowledging "reluctance to review legislatively mandated terms of imprisonment"); Weems, supra, 217 U.S., at 379, 30 S.Ct., at 554 ("The function of the legislature is primary, its exercises fortified by presumptions of right and legality, and is not to be interfered with lightly, nor by any judicial conception of their wisdom or propriety").
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, --- U.S. ----, ----, 111 S.Ct. 2597, 2605, --- L.Ed.2d ----. 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, 109 S.Ct. 647, 650-652, 102 L.Ed.2d 714 (1989), with Williams v. New York, 337 U.S. 241, 248, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (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, 98 S.Ct. 2610, 2613-2614, 57 L.Ed.2d 582 (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, 463 U.S., at 291, n. 17, 103 S.Ct., at 3010, n. 17, ("[t]he 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. ----, ----, 111 S.Ct. 1454, 1469, 113 L.Ed.2d 517 (1991). State sentencing schemes may embody different penological assumptions, making interstate comparison of sentences a difficult and imperfect enterprise. See Rummel, supra, 445 U.S., at 281, 100 S.Ct., at 1143. See also Solem, 463 U.S., at 294-295, 103 S.Ct., at 3012 (comparison of different terms of years for imprisonment "troubling" but not "unique to this area"). And even assuming identical philosophies, differing attitudes and perceptions of local conditions may yield different, yet rational, conclusions regarding the appropriate length of prison terms for particular crimes. Thus, the circumstance that a State has the most severe punishment for a particular crime does not by itself render the punishment grossly disproportionate. Rummel, 445 U.S., at 281, 100 S.Ct., at 1143. "[O]ur Constitution 'is made for people of fundamentally differing views.' . . . Absent a constitutionally imposed uniformity inimical to traditional notions of federalism, some State will always bear the distinction of treating particular offenders more severely than any other State." Id., at 282, 100 S.Ct., at 1143, quoting Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 547, 49 L.Ed. 937 (1905) (Holmes, J., dissenting). See also Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912).
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, 445 U.S., at 274-275, 100 S.Ct., at 1139, quoting Coker, 433 U.S., at 592, 97 S.Ct., at 2866 (plurality opinion). See also Solem, supra, 463 U.S., at 290, 103 S.Ct., at 3009. 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, 100 S.Ct., at 1140. In a similar fashion, because " '[t]he penalty of death differs from all other forms of criminal punishment,' " id., at 272, 100 S.Ct., at 1138, quoting Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct. 2726, 2760, 33 L.Ed.2d 346 (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, 463 U.S., at 294, 103 S.Ct., at 3012 ("The easiest comparison [of different sentences] is between capital punishment and noncapital punishment"). By contrast, our decisions recognize that we lack clear objective standards to distinguish between sentences for different terms of years. Rummel, supra, 445 U.S., at 275, 100 S.Ct., at 1139. See also Solem, 463 U.S., at 294, 103 S.Ct., at 3012 ("It is clear that a 25-year sentence generally is more severe than a 15-year sentence, but in most cases it would be difficult to decide that the former violates the Eighth Amendment while the latter does not") (footnote omitted). Although "no penalty is per se constitutional," id., at 290, 103 S.Ct., at 3009, the relative lack of objective standards concerning terms of imprisonment has meant that " '[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences [are] exceedingly rare.' " Id., at 289-290, 103 S.Ct., at 3009, quoting Rummel, supra, 445 U.S., at 272, 100 S.Ct., at 1138.
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, 463 U.S., at 288, 303, 103 S.Ct., at 3008, 3016. See also Weems, 217 U.S., at 371, 30 S.Ct., at 550 (Eighth Amendment prohibits "greatly disproportioned" sentences); Coker, supra, 433 U.S., at 592, 97 S.Ct., at 2866 (Eighth Amendment prohibits "grossly disproportionate" sentences); Rummel, supra, 445 U.S., at 271, 100 S.Ct., at 1138 (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. The crime of uttering a no account check at issue in Solem was " 'one of the most passive felonies a person could commit.' " Solem, 463 U.S., at 296, 103 S.Ct., at 3012 (citation omitted). It "involved neither violence nor threat of violence to any person," and was "viewed by society as among the less serious offenses." Ibid. The felonies underlying the defendant's recidivism conviction, moreover, were "all relatively minor." Id., at 296-297, 103 S.Ct., at 3013. The Solem Court contrasted these "minor" offenses with "very serious offenses" such as "a third offense of heroin dealing," and stated that "[n]o one suggests that [a statute providing for life imprisonment without parole] may not be applied constitutionally to fourth-time heroin dealers or other violent criminals." Id., at 299, and n. 26, 103 S.Ct., at 3014, and n. 26.
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 represents "one of the greatest problems affecting the health and welfare of our population." Treasury Employees v. Von Raab, 489 U.S. 656, 668, 109 S.Ct. 1384, 1392, 103 L.Ed.2d 685 (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 16, 24-36 (N. Weiner, M. Wolfgang eds., 1989). Studies bear out these possibilities, and demonstrate a direct nexus between illegal drugs and crimes of violence. See generally id., at 16-48. To mention but a few examples, 57 percent of a national sample of males arrested in 1989 for homicide tested positive for illegal drugs. National Institute of Justice, 1989 Drug Use Forecasting Annual Report 9 (June 1990). The comparable statistics for assault, robbery, and weapons arrests were 55, 73 and 63 percent, respectively. Ibid. In Detroit, Michigan in 1988, 68 percent of a sample of male arrestees and 81 percent of a sample of female arrestees tested positive for illegal drugs. National Institute of Justice, 1988 Drug Use Forecasting Annual Report 4 (Mar.1990). Fifty-one percent of males and seventy-one percent of females tested positive for cocaine. Id., at 7. And last year an estimated 60 percent of the homicides in Detroit were drug-related, primarily cocaine-related. U.S. Department of Health and Human Services, Epidemiologic Trends in Drug Abuse 107 (Dec.1990).
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, 100 S.Ct. 1870, 1880, 64 L.Ed.2d 497 (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, 103 S.Ct. 1319, 1332, 75 L.Ed.2d 229 (1983) (BLACKMUN, J., dissenting) (same). See also Terrebonne v. Butler, 848 F.2d 500, 504 (CA5 1988) (en banc).
The severity of petitioner's crime brings his sentence within the constitutional boundaries established by our prior decisions. In Hutto v. Davis, 454 U.S., 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982), we upheld against proportionality attack a sentence of 40 years' imprisonment for possession with intent to distribute nine ounces of marijuana. Here, Michigan could with good reason conclude that petitioner's crime is more serious than the crime in Davis. Similarly, a rational basis exists for Michigan to conclude that petitioner's crime is as serious and violent as the crime of felony murder without specific intent to kill, a crime for which "no sentence of imprisonment would be disproportionate," Solem, 463 U.S., at 290, n. 15, 103 S.Ct., at 3009, n. 15. Cf. Rummel, 445 U.S., at 296, n. 12, 100 S.Ct., at 1150, n. 12 (Powell, J., dissenting) ("A professional seller of addictive drugs may inflict greater bodily harm upon members of society than the person who commits a single assault").
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, 103 S.Ct., at 3010, 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, 103 S.Ct., at 3010, 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, 103 S.Ct., at 3009 n. 16, Solem is best understood as holding that comparative analysis within and between jurisdictions is not always relevant to proportionality review. The Court stated that "it may be helpful to compare sentences imposed on other criminals in the same jurisdiction," and that "courts may find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions." Id., at 291-92, 103 S.Ct., at 3010 (emphasis added). It did not mandate such inquiries.
A better reading of our cases leads to the conclusion that intra- and inter-jurisdictional 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, 463 U.S., at 298-300, 103 S.Ct., at 3013-3015; Weems, 217 U.S., at 377-381, 30 S.Ct., at 553-554. 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, 445 U.S., at 281, 100 S.Ct., at 1143.
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, 103 S.Ct., at 3005-3006, 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, 103 S.Ct., at 3014, 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. ----, ----, 111 S.Ct. 1919, 1929, --- L.Ed.2d ---- (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, 109 S.Ct., at 650; United States v. Grayson, 438 U.S., at 45-46, 98 S.Ct., at 2613-2614; Ex Parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (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 length of sentence, and, especially with a crime as severe as this one, we should do so only in the most extreme circumstance. Cf. Rummel, 445 U.S., at 274, 100 S.Ct., at 1139.
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 (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 a most serious contemporary social problem. The scheme provides clear notice of the severe consequences that attach to possession of drugs in wholesale amounts, thereby giving force to one of the first purposes of criminal law-deterrence. In this sense, the Michigan scheme may be as fair, if not more so, than other sentencing systems in which the sentencer's discretion or the complexity of the scheme obscures the possible sanction for a crime, resulting in a shock to the offender who learns the severity of his sentence only after he commits the crime.
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 $3500 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 bounds. Michigan may use its criminal law to address the issue of drug possession in wholesale amounts in the manner that it has in this sentencing scheme. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting). For the foregoing reasons, I conclude that petitioner's sentence of life imprisonment without parole for his crime of possession of more than 650 grams of cocaine does not violate the Eighth Amendment.
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, 103 S.Ct. 3001, 77 L.Ed.2d 637 (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, 100 S.Ct. 1133, 1139, n. 11, 63 L.Ed.2d 382 (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, ante, at 981, observed with respect to the Eighth Amendment:
"No express restriction is laid in the constitution, upon the power of imprisoning for crimes. But, as it is forbidden to demand unreasonable bail, which merely exposes the individual concerned, to imprisonment in case he cannot procure it; as it is forbidden to impose unreasonable fines, on account of the difficulty the person fined would have of paying them, the default of which would be punished by imprisonment only, it would seem, that imprisonment for an unreasonable length of time, is also contrary to the spirit of the constitution. Thus in cases where the courts have a discretionary power to fine and imprison, shall it be supposed, that the power to fine is restrained, but the power to imprison is wholly unrestricted by it? In the absence of all express regulations on the subject, it would surely be absurd to imprison an individual for a term of years, for some inconsiderable offence, and consequently it would seem, that a law imposing so severe a punishment must be contrary to the intention of the framers of the constitution." B. Oliver, The Rights of an American Citizen 185-186 (1832).
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 the people of the new Nation had been living under the criminal law regimes of the States, and there would have been no lack of benchmarks for determining unusualness. Furthermore, this argument would deprive this part of the Amendment of any meaning at all.
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.
In any event, the Amendment as ratified contained the words "cruel and unusual," and there can be no doubt that prior decisions of this Court have construed these words to include a proportionality principle. In 1910, in the course of holding unconstitutional a sentence imposed by the Philippine courts, the Court stated:
"Such penalties for such offenses amaze those who . . . believe that it is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense.
[T]he inhibition [of the cruel and unusual punishments clause] was directed, not only against punishments which inflict torture, 'but against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged.' " Weems v. United States, 217 U.S. 349, 366-367, 371, 30 S.Ct. 544, 548-549, 550, 54 L.Ed. 793 (1910), quoting O'Neil v. Vermont, 144 U.S. 323, 339-340, 12 S.Ct. 693, 699-700, 36 L.Ed. 450 (1892) (Field, J., dissenting.)
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, 30 S.Ct., at 553-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, 96 S.Ct. 2909, 2924, 49 L.Ed.2d 859 (1976), observed, was the focus of the Court's holding.
Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (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, 82 S.Ct., at 1420-1421. The plurality opinion in Gregg, supra, 428 U.S., at 173, 96 S.Ct., at 2925, observed that the Eighth Amendment's proscription of cruel and unusual punishment is an evolving concept and announced that punishment would violate the Amendment if it "involve[d] the unnecessary and wanton infliction of paid" or if it was "grossly out of proportion to the severity of the crime." Under this test, the death penalty was not cruel and unusual in all cases. Following Gregg, Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977), held that the Amendment bars not only a barbaric punishment but also a punishment that is excessive, i.e., a punishment that "(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime." We went on to hold that the punishment of death for the crime of rape was unconstitutional for lack of proportionality. Ibid. Similarly, in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), we invalidated a death sentence for felony murder, on disproportionality grounds, where there had been no proof of an intent to murder. Finally, Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), invalidated a prison sentence on the ground that it was too severe in relation to the crime that had been committed.
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, 100 S.Ct. 1133, 63 L.Ed.2d 382 (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., 445 U.S., at 272, 274, and n. 11, 100 S.Ct., at 1138, 1139, 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 that the Amendment does indeed insist on proportional punishments in a particular class of cases, those that involve sentences of death. His fallback position is that outside the capital cases, proportionality review is not required by the Amendment. With the exception of capital cases, the severity of the sentence for any crime is a matter that the Amendment leaves to the discretion of legislators. Any prison sentence, however severe, for any crime, however petty, will be beyond review under the Eighth Amendment. This position restricts the reach of the Eighth Amendment far more than did Rummel. It also ignores the generality of the Court's several pronouncements about the Eighth Amendment's proportionality component. And it fails to explain why the words "cruel and unusual" include a proportionality requirement in some cases but not in others. Surely, it is no explanation to say only that such a requirement in death penalty cases is part of our capital punishment jurisprudence. That is true but the decisions requiring proportionality do so because of the Eighth Amendment's prohibition against cruel and unusual punishments. The Court's capital punishment cases requiring proportionality reject Justice SCALIA's notion that the Amendment bars only cruel and unusual modes or methods of punishment. Under that view, capital punishment-a mode of punishment-would either be completely barred or left to the discretion of the legislature. Yet neither is true. The death penalty is appropriate in some cases and not in others. The same should be true of punishment by imprisonment.
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, 78 S.Ct. 590, 597-598, 2 L.Ed.2d 630 (1958) (plurality opinion); Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 264, n. 4, 109 S.Ct. 2909, 2914, n. 4, 106 L.Ed.2d 219 (1989). Thus, "this Court has 'not confined the prohibition embodied in the Eighth Amendment to "barbarous" methods that were generally outlawed in the 18th century,' but instead has interpreted the Amendment 'in a flexible and dynamic manner.' " Stanford v. Kentucky, 492 U.S. 361, 369, 109 S.Ct. 2969, 2974, 106 L.Ed.2d 306 (1989), quoting Gregg v. Georgia, 428 U.S., at 171, 96 S.Ct., at 2924 (opinion of Stewart, Powell, and STEVENS, JJ.). In so doing, the Court has borne in mind Justice McKenna's admonition in Weems v. United States, 217 U.S., at 373, 30 S.Ct., at 551, that "[t]ime works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions." See also Browning-Ferris, supra, 492 U.S., at 273, 109 S.Ct., at 2919 (quoting Weems ).
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, 356 U.S., at 101, 78 S.Ct., at 598. See Stanford, supra, 492 U.S., at 369, 109 S.Ct., at 2974, 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, 492 U.S., at 369, 109 S.Ct., at 2974, and thus have focused not on "the subjective views of individual Justices," but on "objective factors to the maximum possible extent," Coker, supra, 433 U.S., at 592, 97 S.Ct., at 2866 (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. Thus, it is clear that reviewing courts have not baldly substituted their own subjective moral values for those of the legislature. Instead, courts have demonstrated that they are "capable of applying the Eighth Amendment to disproportionate noncapital sentences with a high degree of sensitivity to principles of federalism and state autonomy." Rummel, 445 U.S., at 306, 100 S.Ct., at 1156 (Powell, J., dissenting). Solem is wholly consistent with this approach, and when properly applied, its analysis affords "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," 463 U.S., at 290, 103 S.Ct., at 3009 (footnote omitted), and will only rarely result in a sentence failing constitutional muster. The fact that this is one of those rare instances is no reason to abandon the analysis.
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 has been legislatively mandated does not automatically render it "legal" or "usual" in the constitutional sense. Indeed, as noted above, if this were the case, then the prohibition against cruel and unusual punishments would be devoid of any meaning. He asserts that when "[w]renched out of its common-law context, and applied to the actions of a legislature, the word 'unusual' could hardly mean 'contrary to law,' " because "[t]here were no common-law punishments in the federal system." Id., at 975 ,976. But if this is so, then neither could the term "unusual" mean "contrary to custom," for until Congress passed the first penal law, there were no "customary" federal punishments either. Moreover, the suggestion that a legislatively mandated punishment is necessarily "legal" is the antithesis of the principles established in Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), for "[i]t is emphatically the province and duty of the judicial department to say what the law is," id., at 177, and to determine whether a legislative enactment is consistent with the Constitution. This Court's decision in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), in which the prohibition against cruel and unusual punishments was made applicable to the States through the Fourteenth Amendment, removed any doubt that it is as much our duty to assess the constitutionality of punishments enacted by state legislative bodies as it is our obligation to review congressional enactments. Indeed, the Court's prior decisions have recognized that legislatively mandated sentences may violate the Eighth Amendment. See Rummel, supra, 445 U.S., at 274, n. 11, 100 S.Ct., at 1139, n. 11; Hutto v. Davis, 454 U.S. 370, 374, n. 3, 102 S.Ct. 703, 705, n. 3, 70 L.Ed.2d 556 (1982). This Court has long scrutinized legislative enactments concerning punishment without fear that it was unduly invading the legislative prerogative of the States. See, e.g., Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). That such scrutiny requires sensitivity to federalism concerns and involves analysis that may at times be difficult affords no justification for this Court's abrogation of its responsibility to uphold constitutional principles.
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, 103 S.Ct., at 3009-3010; "the sentences imposed on other criminals in the same jurisdiction," id., at 291, 103 S.Ct., at 3010; and "the sentences imposed for commission of the same crime in other jurisdictions," id., at 291-292, 103 S.Ct., at 3010. Justice KENNEDY, however, maintains that "one factor may be sufficient to determine the constitutionality of a particular sentence," and that there is no need to consider the second and third factors unless "a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Ante, at 1004,1005. Solem is directly to the contrary, for there the Court made clear that "no one factor will be dispositive in a given case," and "no single criterion can identify when a sentence is so grossly disproportionate that it violates the Eighth Amendment," "[b]ut a combination of objective factors can make such analysis possible." 463 U.S., at 291, n. 17, 103 S.Ct., at 3010, n. 17.
Moreover, as Justice KENNEDY concedes, see ante, at 1005, the use of an intra- and inter-jurisdictional 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, 458 U.S., at 788, 102 S.Ct., at 3372. See also Stanford, 492 U.S., at 369-371, 109 S.Ct., at 2974-2975; McCleskey v. Kemp, 481 U.S. 279, 300, 107 S.Ct. 1756, 1771, 95 L.Ed.2d 262 (1987).
Thus, in Weems, 217 U.S., at 380-381, 30 S.Ct., at 554-555, 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, 78 S.Ct., at 598-599, 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, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), 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, 97 S.Ct., at 2866, 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 suitable penalty," id., at 596, 97 S.Ct., at 2868. And in Enmund, we again reviewed the laws of the States before concluding that the death penalty is unconstitutional when inflicted upon one who merely participates in a felony during which a murder occurs. 458 U.S., at 797, 102 S.Ct., at 3376. That in some of these cases the comparisons were made after the Court had considered the severity of the crime in no way suggests that this part of the analysis was any less essential to an assessment of a given punishment's proportionality.
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, 433 U.S., at 592, 97 S.Ct., at 2866 (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
"[f]or sentences of imprisonment, the problem is not so much one of ordering, but one of line-drawing. It is clear that a 25-year sentence generally is more severe than a 15-year sentence, but in most cases it would be difficult to decide that the former violates the Eighth Amendment while the latter does not. Decisions of this kind, although troubling, are not unique to this area. The courts are constantly called upon to draw similar lines in a variety of contexts." 463 U.S., at 294, 103 S.Ct., at 3012 (footnote omitted).
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, 103 S.Ct., at 3012. 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, supra, 433 U.S., at 592, 97 S.Ct., at 2866.
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 § 333.7403(2)(a)(i) (1980), 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 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[1](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 to manufacture or deliver," 650 grams or more of a narcotic mixture. There is no room for judicial discretion in the imposition of the life sentence upon conviction. The asserted purpose of the legislative enactment of these statutes was to " 'stem drug traffic' " and reach " 'drug dealers.' " See Brief for Respondent 7, quoting House Legislative Analysis of Mich.House Bill 4190 of 1977 (May 17, 1978).
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, 103 S.Ct., at 3010. 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, 103 S.Ct., at 3013, for Michigan has no death penalty.
Although these factors are "by no means exhaustive," id., at 294, 103 S.Ct., at 3011, 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, 103 S.Ct., at 3010-3011.
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, is often not the direct consequence of possession, but of the resulting addiction, something which this Court held in Robinson v. California, 370 U.S., at 660-667, 82 S.Ct., at 1417-1420, cannot be made a crime.
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, 102 S.Ct., at 3378. 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 Department of State Police v. Sitz, 496 U.S. ----, ----, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (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. ----, ----, 110 S.Ct. 2084, 2095, 109 L.Ed.2d 548 (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, 496 U.S., at ----, 110 S.Ct., at 2485. 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 who possesses large quantities of alcohol in a manner similar to that in which Michigan has chosen to punish petitioner for cocaine possession, because of the tangential effects which might ultimately be traced to the alcohol at issue. "Unfortunately, grave evils such as the narcotics traffic can too easily cause threats to our basic liberties by making attractive the adoption of constitutionally forbidden shortcuts that might suppress and blot out more quickly the unpopular and dangerous conduct." Turner v. United States, 396 U.S. 398, 427, 90 S.Ct. 642, 658, 24 L.Ed.2d 610 (1970) (Black, J., dissenting). That is precisely the course Justice KENNEDY advocates here.
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, 463 U.S., at 293, 103 S.Ct., at 3011. 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. Although "[i]ntent to deliver can be inferred from the amount of a controlled substance possessed by the accused," People v. Abrego, 72 Mich.App. 176, 181, 249 N.W.2d 345, 347 (1976), the inference is one to be drawn by the jury, see People v. Kirchoff, 74 Mich.App. 641, 647-649, 254 N.W.2d 793, 796-797 (1977). In addition, while there is usually a pecuniary motive when someone possesses a drug with intent to deliver it, such a motive need not exist in the case of mere possession. Cf. Solem, supra, 463 U.S., at 293-294, 103 S.Ct., at 3011. Finally, this statute applies equally to first-time offenders, such as petitioner, and recidivists. Consequently, the particular concerns reflected in recidivist statutes such as those in Rummel and Solem are not at issue here.
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. Because the statutory punishment for the two crimes is the same, the State succeeded in punishing Harmelin as if he had been convicted of the more serious crime without being put to the test of proving his guilt on those charges.
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, 103 S.Ct., at 3011. As noted above, there is no death penalty in Michigan; consequently, life without parole, the punishment mandated here, is the harshest penalty available. It is reserved for three crimes: first-degree murder, see Mich.Comp.Laws § 750.316 (1991); manufacture, distribution, or possession with intent to manufacture or distribute 650 grams or more of narcotics; and possession of 650 grams or more of narcotics. Crimes directed against the persons and property of others-such as second-degree murder, § 750.317; rape, § 750.520b; and armed robbery, § 750.529-do not carry such a harsh mandatory sentence, although they do provide for the possibility of a life sentence in the exercise of judicial discretion. It is clear that petitioner "has been treated in the same manner as, or more severely than, criminals who have committed far more serious crimes." 463 U.S., at 299, 103 S.Ct., at 3014.
The third factor set forth in Solem examines "the sentences imposed for commission of the same crime in other jurisdictions." Id., at 291-292, 103 S.Ct., at 3010. 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 ten 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). Even under the Federal Sentencing Guidelines, with all relevant enhancements, petitioner's sentence would barely exceed ten years. See United States Sentencing Commission Guidelines Manual, § 2D1.1 (1990). Thus, "[i]t appears that [petitioner] was treated more severely than he would have been in any other State." Solem, supra, 463 U.S., at 300, 103 S.Ct., at 3015. Indeed, the fact that no other jurisdiction provides such a severe, mandatory penalty for possession of this quantity of drugs is enough to establish "the degree of national consensus this Court has previously thought sufficient to label a particular punishment cruel and unusual." Stanford, 492 U.S., at 371, 109 S.Ct., at 2975. Cf. Coker, 433 U.S., at 596, 97 S.Ct., at 2868; Ford v. Wainwright, 477 U.S. 399, 408, 106 S.Ct. 2595, 2601, 91 L.Ed.2d 335 (1986).
Application of Solem § proportionality analysis leaves no doubt that the Michigan statute at issue fails constitutional muster. The statutorily mandated penalty of life without possibility of parole for possession of narcotics is unconstitutionally disproportionate in that it violates the Eighth Amendment's prohibition against cruel and unusual punishment. Consequently, I would reverse the decision of the Michigan Court of Appeals.
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, 96 S.Ct. 2909, 2973, 49 L.Ed.2d 859 (1976) (MARSHALL, J., dissenting). I also believe that, "[b]ecause of the uniqueness of the death penalty," id., at 188, 96 S.Ct., at 2932 (opinion of Stewart, Powell, and STEVENS, JJ.,), the Eighth Amendment requires comparative proportionality review of capital sentences. See Turner v. California, 498 U.S. ----, ----, 111 S.Ct. 768, 769, 112 L.Ed.2d 787 (1991) (MARSHALL, J., dissenting from denial of certiorari). However, my view that capital punishment is especially proscribed and, where not proscribed, especially restricted by the Eighth Amendment is not inconsistent with Justice WHITE's central conclusion, ante, at 1012-1015, that the Eighth Amendment also imposes a general proportionality requirement. As Justice WHITE notes, this Court has recognized and applied that requirement in both capital and noncapital cases, and had it done so properly here it would have concluded that Michigan's law mandating life sentences with no possibility of parole even for first-time drug possession offenders is unconstitutional.
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, 92 S.Ct. 2726, 2760, 33 L.Ed.2d 346 (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, 92 S.Ct., at 2761. 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 struck by lightning is cruel and unusual." Id., at 309, 92 S.Ct., at 2762. In my opinion the imposition of a life sentence without possibility of parole on this petitioner is equally capricious. As Justice WHITE has pointed out, under the Federal Sentencing Guidelines, with all relevant enhancements, petitioner's sentence would barely exceed 10 years. Ante, at 1026-1027. In most States, the period of incarceration for a first offender like petitioner would be substantially shorter. No jurisdiction except Michigan has concluded that the offense belongs in a category where reform and rehabilitation are considered totally unattainable. Accordingly, the notion that this sentence satisfies any meaningful requirement of proportionality is itself both cruel and unusual.
I respectfully dissent.

## Notes

* ↑ As Justice SCALIA notes, ante, at 966, the text of the Eighth Amendment is taken almost verbatim from the English Declaration of Rights of 1689. He argues that if the Amendment was intended to adopt whatever meaning the Declaration was understood in England to have, the Amendment does not contain a proportionality component because the Declaration did not include the proportionality principle. Justice SCALIA labors to demonstrate as much, but concedes that there are scholars who disagree and have the view that the the Declaration forbade both illegal and disproportionate punishments. Ante, at 974-975. One such scholar, after covering much the same ground as does Justice SCALIA, concluded that "[t]he English evidence shows that the cruel and unusual punishments clause of the Bill of Rights of 1689 was first, an objection to the imposition of punishments which were unauthorized by statute and outside the jurisdiction of the sentencing court, and second, a reiteration of the English policy against disproportionate penalties." Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Calif.L.Rev. 839, 860 (1969). Justice SCALIA goes on to argue that whatever the Declaration meant to Englishmen, the almost identical language of the Eighth Amendment should not be interpreted to forbid excessive punishments. As indicated in the text, I disagree.
* ↑ Indeed, the parties have cited only four cases decided in the years since Solem in which sentences have been reversed on the basis of a proportionality analysis. See Clowers v. State, 522 So.2d 762 (Miss.1988) (holding that trial court had discretion to reduce a mandatory sentence of fifteen years without parole under a recidivist statute for a defendant who uttered a forged check); Ashley v. State, 538 So.2d 1181 (Miss.1989) (reaching a similar result for a defendant who burgled a home to get $4.00 to pay a grocer for food eaten in the store); State v. Gilham, 48 Ohio App.3d 293, 549 N.E.2d 555 (1988). In addition, in Naovarath v. State, 105 Nev. 525, 779 P.2d 944 (1989), the court relied on both State and Federal Constitutions to strike a sentence of life without parole imposed on an adolescent who killed and then robbed an individual who had repeatedly molested him.
* ↑ Nor are appellate courts forced to expend undue resources to evaluate prison sentences under Solem. In each case cited by respondent in which an appellate court had to review a sentence under Solem, the court quickly disposed of the constitutional challenge. See United States v. Sullivan, 895 F.2d 1030, 1031-1032 (CA5), cert. denied, 498 U.S. ----, 111 S.Ct. 207, 112 L.Ed.2d 168 (1990); United States v. Benefield, 889 F.2d 1061, 1063-1065 (CA11 1989); United States v. Savage, 888 F.2d 528 (CA7 1989), cert. denied, 495 U.S. ----, 110 S.Ct. 2567, 109 L.Ed.2d 750 (1990); State v. Elbert, 125 N.H. 1, 15-16, 480 A.2d 854, 862 (1984) (Souter, J.).
* ↑ The two statutes also set forth penalties for those convicted based on lesser quantities of drugs. They provide for parallel penalties for all amounts greater than 50 grams, but below that point the penalties under the two statutes diverge.
* ↑ The Court of Appeals for the Sixth Circuit has applied the Solem factors to uphold the mandatory life sentence imposed by the Michigan statute concerning possession with intent to deliver 650 or more grams of narcotics. See Young v. Miller, 883 F.2d 1276 (CA6 1989), cert. pending, No. 89-6960 (Jan. 29, 1990). In so doing, the court recognized that the sentence was particularly harsh, especially in light of the lack of opportunity for the exercise of judicial discretion, but found that it was not so disproportionate to other sentences for drug trafficking as to violate the Eighth Amendment. Id., at 1284-1285. Because the statute at issue here concerns only drug possession, the Sixth Circuit's analysis has little relevance.
* ↑ Both the State and Justice KENNEDY, see ante, at 1008, point to the fact that the amount and purity of the drugs, and Harmelin's possession of a beeper, coded phone book, and gun all were noted in the presentence report and provided circumstantial evidence of an intent to distribute. None of this information, however, was relevant to a prosecution under the possession statute. Indeed, because the sentence is statutorily mandated for mere possession, there was no reason for defense counsel to challenge the presence of this information in the presentence report. See Tr. of Oral Arg. 10. It would likewise be inappropriate to consider petitioner's characteristics in assessing the constitutionality of the penalty.
* ↑ The Alabama statute is entitled "Trafficking in cannabis, cocaine, etc.," and punishes "[a]ny person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of" specified amounts of various drugs. See Ala.Code § 13A-12-231(1) (Supp.1990). The mandatory minimum sentences vary depending on the particular drug involved and the amount of the drug at issue.
* ↑ Because the statute under which petitioner was convicted is unconstitutional under Solem, there is no need to reach his remaining argument that imposition of a life sentence without the possibility of parole necessitates the sort of individualized sentencing determination heretofore reserved for defendants subject to the death penalty.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse