# Harmelin v. Michigan/Dissent White

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Kennedy
* Dissenting Opinions White Marshall Stevens
* Wikipedia article
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.

## Notes

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