Construing the Outer Limits of Sentencing Authority: A Proposed Bright-Line Rule for Noncapital Proportionality Review

I. INTRODUCTION The Eighth Amendment to the Constitution declares that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."1 The plain intent of this provision is to secure for individuals convicted of crimes a measure of protection from the government authority imposing punishment upon them. However, distinguishing which punishments are "cruel and unusual" from those diat are not is sometimes a difficult task. Unfortunately, the language of die Amendment offers litde guidance on whedier a particular punishment is constitutionally precluded. Nonetheless, the Supreme Court's jurisprudence in this area has indicated that at least a basic feature of the prohibition on cruel and unusual punishments is that punishments should, in some relative sense, be proportionate to the crimes committed.2 In other words, punishment should not be significantly more severe than the seriousness of the offense committed.3 Altiiough the Court has formulated substantive rules to guide proportionality review in the context of capital crimes,4 the Court's jurisprudence in the noncapital-crimes context has been vague, inconsistent, and difficult to apply. This is because in applying proportionality review to the length of prison terms, die Court has been unable to articulate any bright-line rules.5 As a result of the absence of concrete rules,6 and perhaps as a contributing factor to it, the Supreme Court has given significant deference to Congress and state legislatures in determining the constitutionality of their own sentencing legislation. This deference has amounted to an almost unbridled discretion that renders the Eighth Amendment meaningless in the noncapital crimes context.7 Consequendy, both Congress and state legislatures have mandated increasingly severe sentencing requirements for criminal offenders,8 whether first-time or recidivist.9 One particular statute of this kind, 21 U.S.C. § 841, requires that individuals convicted under the statute who have already been convicted of two previous drug felonies must serve a mandatory term of life imprisonment without the possibility of parole.10 This Comment provides a review, analysis, and critique of the Court's noncapital proportionality jurisprudence and proposes a bright-line rule that is specifically applicable to 21 U.S.C. § 841. Although the Court's legal precedent in this field is far from uniform, much of the Court's past language indicates that a brightline rule can be derived from existing case law. This Comment argues that imposing a life sentence without any possibility of parole for nonviolent11 criminal offenders is unconstitutionally disproportionate. Therefore, the rule proposed here would invalidate as unconstitutional the language in 21 U.S.C. § 841(b) that mandates life imprisonment without an opportunity for parole for nonviolent repeat offenders. Overall, this rule would provide needed clarity to a body of law that - because it has little, if any, substantive criteria for courts to apply - is highly vulnerable to constitutional violations by politically motivated legislatures. Part II provides a foundational review of the Court's precedent dealing with noncapital proportionality challenges. Part III examines the effects of the Court's unsatisfactory approach by reviewing, as a case study, the Eight Circuit's approach to 21 U.S.C. § 841. Part IV provides an analysis of the Court's jurisprudence, primarily by demonstrating the Court's consistent use of the principles that form the basis for the proposed bright-line rule. This Part also shows, however, why the authoritative rationale from Harmelin v. Michigan is highly problematic.12 Part V concludes by outlining the implications of the proposed rule for 21 U.S.C. § 841, as well as the likely benefits for noncapital proportionality jurisprudence. II. SUPREME COURT NONCAPITAL PROPORTIONALITY JURISPRUDENCE The current utility of the Court's precedent in noncapital proportionality review is severely limited due to the lack of substantive rules and clear principles. …