24

Since the 1970s, death penalty jurisprudence has garnered the majority of media attention when it comes to Eighth Amendment rulings. Despite this, the Court has also made important rulings outside the death penalty realm, particularly during the 1990s, when a surge in crime led to harsh punishments for drug possession and repeat offenders. These cases highlight that while the Court is willing to strike down bizarre and grossly disproportionate punishments such as the cadena temporal seen in Weems, it is less likely to intervene when the legal question centers on whether a particular prison sentence is too long. These later cases involve harder questions of line drawing than did the earlier, foundational cases. The Burger, Rehnquist, and Roberts courts have also been more conservative in their legal views, and in this policy area, conservative beliefs mean more support for legislatures that wish to levy harsh punishments. Combined, this has meant that more often than not the Court has deferred to legislatures on what length of sentence is appropriate for a particular crime.

The “War on Drugs”

Surging crime rates in the late 1980s and early 1990s (peaking in 1991) were associated in the media and the public mind with illegal drug use and drug-related crimes. A prevailing mindset among politicians and much of the public at the time was that tougher punishment was needed to discourage drug use, sales, or trafficking. This dynamic drove politicians to outbid one another in being seen as “tough on crime,” leading to harsh punishments for drug possession or possession with intent to distribute (i.e. you are caught with so much of a particular drug that the state assumes you are a dealer or distributor, not just a user).

Some of the more severe punishments of the time were challenged as violations of the Eighth Amendment’s proportionality principle, as seen in Weems or Robinson. The Supreme Court took up such a case involving Harmelin, a Michigan man who was convicted for possessing more than 650 grams of cocaine (over 10,000 lines or doses, depending on purity and how much one routinely consumes). For this crime, Harmelin was sentenced to life in prison without the possibility of parole, the most severe such sentence in the nation for this type of crime. He challenged his sentence as cruel and unusual under the Eighth Amendment.

Harmelin lost his appeal on a 5-4 vote, with the Court breaking into three camps. One camp, containing Justices Scalia and Rehnquist, rejected the argument that the Eighth Amendment contained a proportionality principle outside of death penalty cases (effectively rejecting that Weems had established such a principle). Three justices, led by Justice Kennedy, argued that the Eighth Amendment did contain a proportionality principle, but that the Court should use it sparingly and that Harmelin’s sentence did not qualify as grossly disproportionate. Together, these five justices create a majority that ruled in favor of Michigan. Finally, four justices, in dissent, argued the Eighth Amendment did contain a proportionality principle as well as that the punishment here was grossly disproportionate.

---

Harmelin v. Michigan

---

501 US 957 (1991)

Facts: Harmelin was convicted of possession of more than 650 grams of cocaine and sentenced to life without the possibility of parole. He challenged his sentence as cruel and unusual, both as being disproportionate and mandated without allowing consideration for his lack of a felony record.

Question: Did Harmelin’s sentence violate the Eighth Amendment?

Vote: No, 5-4

For the Court: Justice Scalia

Concurring in part and concurring in the judgment: Justice Kennedy

Dissenting opinion: Justice White

Dissenting opinion: Justice Marshall

Dissenting opinion: Justice Stevens

JUSTICE SCALIA announced the judgment of the Court and delivered the opinion of the Court with respect to Part V, and an opinion with respect to Parts I, II, III, and IV, in which THE CHIEF JUSTICE joins.

Petitioner was convicted of possessing 672 grams of cocaine and sentenced to a mandatory term of life in prison without possibility of parole. The Michigan Court of Appeals initially reversed his conviction because evidence supporting it had been obtained in violation of the Michigan Constitution. On petition for rehearing, the Court of Appeals vacated its prior decision and affirmed petitioner’s sentence, rejecting his argument that the sentence was “cruel and unusual” within the meaning of the Eighth Amendment.  The Michigan Supreme Court denied leave to appeal, and we granted certiorari.

Petitioner claims that his sentence is unconstitutionally “cruel and unusual” for two reasons. First, because it is “significantly disproportionate” to the crime he committed. Second, because the sentencing judge was statutorily required to impose it, without taking into account the particularized circumstances of the crime and of the criminal.

I

A

… Accordingly, we have addressed anew, and in greater detail, the question whether the Eighth Amendment contains a proportionality guarantee — with particular attention to the background of the Eighth Amendment… We conclude from this examination that … the Eighth Amendment contains no proportionality guarantee.

B

… There is no doubt that the [1689] Declaration of Rights is the antecedent of our constitutional text…

… the principle of proportionality was familiar to English law at the time the Declaration of Rights was drafted. The Magna Carta provided that “[a] free man shall not be fined for a small offence, except in proportion to the measure of the offense; and for a great offence he shall be fined in proportion to the magnitude of the offence, saving his freehold…” When imprisonment supplemented fines as a method of punishment, courts apparently applied the proportionality principle while sentencing. Despite this familiarity, the drafters of the Declaration of Rights did not explicitly prohibit “disproportionate” or “excessive” punishments. Instead, they prohibited punishments that were “cruell and unusuall.” …

Most historians agree that the “cruell and unusuall Punishments” provision of the English Declaration of Rights was prompted by the abuses attributed to the infamous Lord Chief Justice Jeffreys of the King’s Bench during the Stuart reign of James II. They do not agree, however, on which abuses…

But the vicious punishments for treason decreed in the Bloody Assizes (drawing and quartering, burning of women felons, beheading, disembowling, etc.) were common in that period — indeed, they were specifically authorized by law… Thus, recently historians have argued, and the best historical evidence suggests, that it was not Jeffreys’ management of the Bloody Assizes that led to the Declaration of Rights provision, but rather the arbitrary sentencing power he had exercised Jeffreys was widely accused of “inventing” special penalties for the King’s enemies, penalties that were not authorized by common-law precedent or statute…

C

Unless one accepts the notion of a blind incorporation, however, the ultimate question is not what “cruell and unusuall punishments” meant in the Declaration of Rights, but what its meaning was to the Americans who adopted the Eighth Amendment…

… Wrenched out of its common-law context, and applied to the actions of a legislature, the word “unusual” could hardly mean “contrary to law.” But it continued to mean (as it continues to mean today) “such as [does not] occu[r] in ordinary practice…” According to its terms, then, by forbidding “cruel and unusual punishments,” the Clause disables the Legislature from authorizing particular forms or “modes” of punishment — specifically, cruel methods of punishment that are not regularly or customarily employed…

The Eighth Amendment received little attention during the proposal and adoption of the Federal Bill of Rights. However, what evidence exists from debates at the state ratifying conventions that prompted the Bill of Rights as well as the Floor debates in the First Congress which proposed it “confirm[s] the view that the cruel and unusual punishments clause was directed at prohibiting certain methods of punishment” …

III

We think it enough that those who framed and approved the Federal Constitution chose, for whatever reason, not to include within it the guarantee against disproportionate sentences that some State Constitutions contained. It is worth noting, however, that there was good reason for that choice… While there are relatively clear historical guidelines and accepted practices that enable judges to determine which modes of punishment are “cruel and unusual,” proportionality does not lend itself to such analysis. Neither Congress nor any state legislature has ever set out with the objective of crafting a penalty that is “disproportionate,” yet as some of the examples mentioned above indicate, many enacted dispositions seem to be so — because they were made for other times or other places, with different social attitudes, different criminal epidemics, different public fears, and different prevailing theories of penology. This is not to say that there are no absolutes; one can imagine extreme examples that no rational person, in no time or place, could accept. But for the same reason these examples are easy to decide, they are certain never to occur… The real function of a constitutional proportionality principle, if it exists, is to enable judges to evaluate a penalty that some assemblage of men and women has considered proportionate — and to say that it is not. For that real-world enterprise, the standards seem so inadequate that the proportionality principle becomes an invitation to imposition of subjective values…

The difficulty of assessing gravity is demonstrated in the very context of the present case… surely whether it is a “grave” offense merely to possess a significant quantity of drugs — thereby facilitating distribution, subjecting the holder to the temptation of distribution, and raising the possibility of theft by others who might distribute — depends entirely upon how odious and socially threatening one believes drug use to be. Would it be “grossly excessive” to provide life imprisonment for “mere possession” of a certain quantity of heavy weaponry? If not, then the only issue is whether the possible dissemination of drugs can be as “grave” as the possible dissemination of heavy weapons. Who are we to say no? The Members of the Michigan Legislature, and not we, know the situation on the streets of Detroit…

As for … the character of the sentences imposed by other States for the same crime — it must be acknowledged that that can be applied with clarity and ease. The only difficulty is that it has no conceivable relevance to the Eighth Amendment. That a State is entitled to treat with stern disapproval an act that other States punish with the mildest of sanctions follows … from the undoubted fact that a State may criminalize an act that other States do not criminalize at all. Indeed, a State may criminalize an act that other States choose to reward — punishing, for example, the killing of endangered wild animals for which other States are offering a bounty. What greater disproportion could there be than that? “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.” …

IV

Our 20th-century jurisprudence has not remained entirely in accord with the proposition that there is no proportionality requirement in the Eighth Amendment, but neither has it departed [it] … In Weems v. United States, (1910), a government disbursing officer convicted of making false entries of small sums in his account book was sentenced by Philippine courts to 15 years of cadena temporal…

Justice McKenna, writing for himself and three others, held that the imposition of cadena temporal was “Cruel and Unusual Punishment.” That holding, and some of the reasoning upon which it was based, was not at all out of accord with the traditional understanding of the provision we have described above. The punishment was both (1) severe and (2) unknown to Anglo-American tradition…

Other portions of the opinion, however, suggest that mere disproportionality, by itself, might make a punishment cruel and unusual…

Since it contains language that will support either theory, our later opinions have used Weems, as the occasion required, to represent either the principle that “the Eighth Amendment bars not only those punishments that are `barbaric’ but also those that are `excessive’ in relation to the crime committed”… If the proof of the pudding is in the eating, however, it is hard to view Weems as announcing a constitutional requirement of proportionality, given that it did not produce a decision implementing such a requirement, either here or in the lower federal courts, for six decades…

In Coker v. Georgia (1977), the Court held that, because of the disproportionality, it was a violation of the Cruel and Unusual Punishments Clause to impose capital punishment for rape of an adult woman… [we have] treated this line of authority as an aspect of our death penalty jurisprudence, rather than a generalizable aspect of Eighth Amendment law. We think that is an accurate explanation, and we reassert it. Proportionality review is one of several respects in which we have held that “death is different,” and have imposed protections that the Constitution nowhere else provides…

V

Petitioner claims that his sentence violates the Eighth Amendment for a reason in addition to its alleged disproportionality. He argues that it is “cruel and unusual” to impose a mandatory sentence of such severity, without any consideration of so-called mitigating factors such as, in his case, the fact that he had no prior felony convictions…

As our earlier discussion should make clear, this claim has no support in the text and history of the Eighth Amendment…

We have held that a capital sentence is cruel and unusual under the Eighth Amendment if it is imposed without an individualized determination that that punishment is “appropriate” … Petitioner asks us to extend this so-called “individualized capital sentencing doctrine,” to an “individualized mandatory life in prison without parole sentencing doctrine.” We refuse to do so…

We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further…

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… stare decisis counsels our adherence to the narrow proportionality principle that has existed in our Eighth Amendment jurisprudence for 80 years…

I

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… Since Weems, we have applied the principle in different Eighth Amendment contexts. Its most extensive application has been in death penalty cases…

The Eighth Amendment proportionality principle also applies to noncapital sentences…

B

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… 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.” 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… the responsibility for making these fundamental choices and implementing them lies with the legislature…

The second principle is that the Eighth Amendment does not mandate adoption of any one penological theory… The federal and state criminal systems have accorded different weights at different times to the penological goals of retribution, deterrence, incapacitation, and rehabilitation… And competing theories of mandatory and discretionary sentencing have been in varying degrees of ascendancy or decline since the beginning of the Republic.

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… State sentencing schemes may embody different penological assumptions, making interstate comparison of sentences a difficult and imperfect enterprise… Thus, the circumstance that a State has the most severe punishment for a particular crime does not by itself render the punishment grossly disproportionate…

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.'” 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.” … By contrast, our decisions recognize that we lack clear objective standards to distinguish between sentences for different terms of years…

All of these principles … 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…

II

With these considerations stated, it is necessary to examine the challenged aspects of petitioner’s sentence: its severe length and its mandatory operation.

A

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 ushering a no-account check at issue in Solem was “‘one of the most passive felonies a person could commit.’” …The felonies underlying the defendant’s recidivism conviction, moreover, were “all relatively minor.” …

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… From any stand point, 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.” Petitioner’s suggestion that his crime was nonviolent and victimless, echoed by the dissent, is false to the point of absurdity. To the contrary, petitioner’s crime threatened to cause grave harm to society.

… A drug user may commit crime because of drug-induced changes in physiological functions, cognitive ability, and mood; a drug user may commit crime in order to obtain money to buy drugs; and a violent crime may occur as part of the drug business or culture… Studies bear out these possibilities, and demonstrate a direct nexus between illegal drugs and crimes of violence…

These and other facts and reports detailing the pernicious effects of the drug epidemic in this country do not establish that Michigan’s penalty scheme is correct or the most just in any abstract sense. But they do demonstrate that the Michigan Legislature could with reason conclude that the threat posed to the individual and society by possession of this large an amount of cocaine — in terms of violence, crime, and social displacement — is momentous enough to warrant the deterrence and retribution of a life sentence without parole…

… 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” …

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…

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…

B

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 dangers flowing from drug offenses and the circumstances of the crime committed here demonstrate that the Michigan penalty scheme does not surpass constitutional bounds…

JUSTICE WHITE, with whom JUSTICE BLACKMUN and JUSTICE STEVENS join, dissenting.

… Justice Scalia concludes that “the Eighth Amendment contains no proportionality guarantee.” … Justice Kennedy, on the other hand, asserts that the Eighth Amendment’s proportionality principle is … “narrow” …  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, or, more generally, to impose any punishment that is grossly disproportionate to the offense for which the defendant has been convicted… Thus, Benjamin Oliver observed with respect to the Eighth Amendment:

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?”

Justice Scalia concedes that the language of the Amendment bears such a construction. 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…

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.” … Had there been an intention to exclude it from the reach of the words that otherwise could reasonably be construed to include it… the Members of the First Congress would have said so…

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…

That the punishment imposed in Weems was also unknown to Anglo-American tradition — “It has no fellow in American legislation,” was just another reason to set aside the sentence and did not in the least detract from the holding with respect to proportionality…

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…

… Later in his opinion, however, 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… 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… 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 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.”

Contrary to Justice Scalia‘s suggestion… [c]ourts 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…

Two dangers lurk in Justice Scalia‘s analysis. First, he provides no mechanism for addressing a situation … in which a legislature makes overtime parking a felony punishable by life imprisonment. He … attempts to offer reassurance by claiming that “for the same reason these examples are easy to decide, they are certain never to occur.” 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 [proportionality analysis], Justice Kennedy prefers to eviscerate it, leaving only an empty shell…

… as Justice Kennedy concedes, 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.”

Thus, in Weems, 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, the Court surveyed international law before determining that forfeiture of citizenship as a punishment for wartime desertion violated the Eighth Amendment…

… 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….

… 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,” for Michigan has no death penalty…

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…

To be constitutionally proportionate, punishment must be tailored to a defendant’s personal responsibility and moral guilt. 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,” but at the same time has recognized that the severity of the problem “cannot excuse the need for scrupulous adherence to our constitutional principles” … 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…

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… Indeed, the presence of a separate statute which reaches manufacture, delivery, or possession with intent to do either, undermines the State’s position that the purpose of the possession statute was to reach drug dealers…

There is an additional concern present here. The State has conceded that it chose not to prosecute Harmelin under the statute prohibiting possession with intent to deliver, because it was “not necessary and not prudent to make it more difficult for us to win a prosecution.” … 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.

… 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; 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, rape, and armed robbery— 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…

… 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… 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.”  …

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…

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.

… 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.”  Serious as this defendant’s crime was, I believe it is irrational to conclude that every similar offender is wholly incorrigible.

… As Justice White has pointed out, under the Federal Sentencing Guidelines, with all relevant enhancements, petitioner’s sentence would barely exceed 10 years. 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…