OCTOBER TERM, 2002

															EWING v. CALIFORNIA

															CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT

															No. 01-6978. Argued November 5, 2002-Decided March 5, 2003

															JUSTICE O'CONNOR announced the judgment of the Court and
delivered an opinion, in which THE CHIEF JUSTICE and JUSTICE
KENNEDY join.

															In this case, we decide whether the Eighth Amendment prohibits
the State of California from sentencing a repeat felon to a prison
term of 25 years to life under the State's "Three Strikes and
You're Out" law.

															I

															A

															California's three strikes law reflects a shift in the State's
sentencing policies toward incapacitating and deterring repeat
offenders who threaten the public safety. The law was designed "to
ensure longer prison sentences and greater punishment for those who
commit a felony and have been previously convicted of serious
and/or violent felony offenses." Cal. Penal Code Ann. § 667(b)
(West 1999). On March 3, 1993, California Assemblymen Bill Jones
and Jim Costa introduced Assembly Bill 971, the legislative version
of what would later become the three strikes law. The Assembly
Committee on Public Safety defeated the bill only weeks later.
Public outrage over the defeat sparked a voter initiative to add
Proposition 184, based loosely on the bill, to the ballot in the
November 1994 general election.

															On October 1, 1993, while Proposition 184 was circulating,
12-year-old Polly Klaas was kidnaped from her home in Petaluma,
California. Her admitted killer, Richard Allen Davis, had a long
criminal history that included two prior kidnaping convictions.
Davis had served only half of his [15] most recent sentence (16 years for kidnaping, assault, and
burglary). Had Davis served his entire sentence, he would still
have been in prison on the day that Polly Klaas was kidnaped.

															Polly Klaas' murder galvanized support for the three strikes
initiative. Within days, Proposition 184 was on its way to becoming
the fastest qualifying initiative in California history. On January
3, 1994, the sponsors of Assembly Bill 971 resubmitted an amended
version of the bill that conformed to Proposition 184. On January
31, 1994, Assembly Bill 971 passed the Assembly by a 63 to 9
margin. The Senate passed it by a 29 to 7 margin on March 3, 1994.
Governor Pete Wilson signed the bill into law on March 7, 1994.
California voters approved Proposition 184 by a margin of 72 to 28
percent on November 8, 1994.

															California thus became the second State to enact a three strikes
law. In November 1993, the voters of Washington State approved
their own three strikes law, Initiative 593, by a margin of 3 to 1.
U. S. Dept. of Justice, National Institute of Justice, J. Clark, J.
Austin, & D. Henry, "Three Strikes and You're Out": A Review of
State Legislation 1 (Sept. 1997) (hereinafter Review of State
Legislation). Between 1993 and 1995, 24 States and the Federal
Government enacted three strikes laws. Ibid. Though the
three strikes laws vary from State to State, they share a common
goal of protecting the public safety by providing lengthy prison
terms for habitual felons.

															B

															California's current three strikes law consists of two virtually
identical statutory schemes "designed to increase the prison terms
of repeat felons." People v. Superior Court of San Diego Cty.
ex rel. Romero , 13 Cal. 4th 497, 504, 917 P. 2d 628, 630
(1996) (Romero). When a defendant is convicted of a
felony, and he has previously been convicted of one or more prior
felonies defined as "serious" or "violent" in Cal. Penal Code Ann.
§§ 667.5 and 1192.7 (West Supp. 2002), sentencing [16] is conducted pursuant to the three strikes law. Prior
convictions must be alleged in the charging document, and the
defendant has a right to a jury determination that the prosecution
has proved the prior convictions beyond a reasonable doubt. § 1025;
§ 1158 (West 1985).

															If the defendant has one prior "serious" or "violent" felony
conviction, he must be sentenced to "twice the term otherwise
provided as punishment for the current felony conviction." §
667(e)(1) (West 1999); § 1170.12(c)(1) (West Supp. 2002). If the
defendant has two or more prior "serious" or "violent" felony
convictions, he must receive "an indeterminate term of life
imprisonment." § 667(e)(2)(A) (West 1999); § 1170.12(c)(2)(A) (West
Supp. 2002). Defendants sentenced to life under the three strikes
law become eligible for parole on a date calculated by reference to
a "minimum term," which is the greater of (a) three times the term
otherwise provided for the current conviction, (b) 25 years, or (c)
the term determined by the court pursuant to § 1170 for the
underlying conviction, including any enhancements. §§
667(e)(2)(A)(i)-(iii) (West 1999); §§ 1170.12(c)(2)(A)(i)-(iii)
(West Supp. 2002).

															Under California law, certain offenses may be classified as
either felonies or misdemeanors. These crimes are known as
"wobblers." Some crimes that would otherwise be misdemeanors become
"wobblers" because of the defendant's prior record. For example,
petty theft, a misdemeanor, becomes a "wobbler" when the defendant
has previously served a prison term for committing specified
theft-related crimes. § 490 (West 1999); § 666 (West Supp. 2002).
Other crimes, such as grand theft, are "wobblers" regardless of the
defendant's prior record. See § 489(b) (West 1999). Both types of
"wobblers" are triggering offenses under the three strikes law only
when they are treated as felonies. Under California law, a
"wobbler" is presumptively a felony and "remains a felony except
when the discretion is actually exercised" to make the crime a
misdemeanor. People v. Wil- [17] liams , 27 Cal. 2d 220, 229, 163 P. 2d 692, 696 (1945)
(emphasis deleted and internal quotation marks omitted).

															In California, prosecutors may exercise their discretion to
charge a "wobbler" as either a felony or a misdemeanor. Likewise,
California trial courts have discretion to reduce a "wobbler"
charged as a felony to a misdemeanor either before preliminary
examination or at sentencing to avoid imposing a three strikes
sentence. Cal. Penal Code Ann. §§ 17(b)(5), 17(b)(1) (West 1999); People v. Superior Court of Los Angeles Cty. ex rel.
Alvarez , 14 Cal. 4th 968, 978, 928 P. 2d 1171, 1177-1178
(1997). In exercising this discretion, the court may consider
"those factors that direct similar sentencing decisions," such as
"the nature and circumstances of the offense, the defendant's
appreciation of and attitude toward the offense, . . .
[and] the general objectives of sentencing." Ibid. (internal quotation marks and citations omitted).

															California trial courts can also vacate allegations of prior
"serious" or "violent" felony convictions, either on motion by the
prosecution or sua sponte. Romero, supra , at 529-530, 917
P. 2d, at 647-648. In ruling whether to vacate allegations of prior
felony convictions, courts consider whether, "in light of the
nature and circumstances of [the defendant's] present felonies and
prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the
defendant may be deemed outside the [three strikes'] scheme's
spirit, in whole or in part." People v. Williams , 17 Cal.
4th 148, 161, 948 P. 2d 429, 437 (1998). Thus, trial courts may
avoid imposing a three strikes sentence in two ways: first, by
reducing "wobblers" to misdemeanors (which do not qualify as
triggering offenses), and second, by vacating allegations of prior
"serious" or "violent" felony convictions.

															C

															On parole from a 9-year prison term, petitioner Gary Ewing
walked into the pro shop of the EI Segundo Golf [18] Course in Los Angeles County on March 12, 2000. He walked out
with three golf clubs, priced at $399 apiece, concealed in his
pants leg. A shop employee, whose suspicions were aroused when he
observed Ewing limp out of the pro shop, telephoned the police. The
police apprehended Ewing in the parking lot.

															Ewing is no stranger to the criminal justice system. In 1984, at
the age of 22, he pleaded guilty to theft. The court sentenced him
to six months in jail (suspended), three years' probation, and a
$300 fine. In 1988, he was convicted of felony grand theft auto and
sentenced to one year in jail and three years' probation. After
Ewing completed probation, however, the sentencing court reduced
the crime to a misdemeanor, permitted Ewing to withdraw his guilty
plea, and dismissed the case. In 1990, he was convicted of petty
theft with a prior and sentenced to 60 days in the county jail and
three years' probation. In 1992, Ewing was convicted of battery and
sentenced to 30 days in the county jail and two years' summary
probation. One month later, he was convicted of theft and sentenced
to 10 days in the county jail and 12 months' probation. In January
1993, Ewing was convicted of burglary and sentenced to 60 days in
the county jail and one year's summary probation. In February 1993,
he was convicted of possessing drug paraphernalia and sentenced to
six months in the county jail and three years' probation. In July
1993, he was convicted of appropriating lost property and sentenced
to 10 days in the county jail and two years' summary probation. In
September 1993, he was convicted of unlawfully possessing a firearm
and trespassing and sentenced to 30 days in the county jail and one
year's probation.

															In October and November 1993, Ewing committed three burglaries
and one robbery at a Long Beach, California, apartment complex over
a 5-week period. He awakened one of his victims, asleep on her
living room sofa, as he tried to disconnect her video cassette
recorder from the television in [19] that room. When she screamed, Ewing ran out the front door. On
another occasion, Ewing accosted a victim in the mailroom of the
apartment complex. Ewing claimed to have a gun and ordered the
victim to hand over his wallet. When the victim resisted, Ewing
produced a knife and forced the victim back to the apartment
itself. While Ewing rifled through the bedroom, the victim fled the
apartment screaming for help. Ewing absconded with the victim's
money and credit cards.

															On December 9,1993, Ewing was arrested on the premises of the
apartment complex for trespassing and lying to a police officer.
The knife used in the robbery and a glass cocaine pipe were later
found in the back seat of the patrol car used to transport Ewing to
the police station. A jury convicted Ewing of first-degree robbery
and three counts of residential burglary. Sentenced to nine years
and eight months in prison, Ewing was paroled in 1999.

															Only 10 months later, Ewing stole the golf clubs at issue in
this case. He was charged with, and ultimately convicted of, one
count of felony grand theft of personal property in excess of $400.
See Cal. Penal Code Ann. § 484 (West Supp. 2002); § 489 (West
1999). As required by the three strikes law, the prosecutor
formally alleged, and the trial court later found, that Ewing had
been convicted previously of four serious or violent felonies for
the three burglaries and the robbery in the Long Beach apartment
complex. See § 667(g) (West 1999); § 1170.12(e) (West Supp.
2002).

															At the sentencing hearing, Ewing asked the court to reduce the
conviction for grand theft, a "wobbler" under California law, to a
misdemeanor so as to avoid a three strikes sentence. See §§ 17(b),
667(d)(1) (West 1999); § 1170.12(b)(1) (West Supp. 2002). Ewing
also asked the trial court to exercise its discretion to dismiss
the allegations of some or all of his prior serious or violent
felony convictions, again for purposes of avoiding a three strikes
sentence. See Romero , 13 Cal. 4th, at 529-531, 917 P. 2d,
at 647-648. Before sen- [20] tencing Ewing, the trial court took note of his entire criminal
history, including the fact that he was on parole when he committed
his latest offense. The court also heard arguments from defense
counsel and a plea from Ewing himself.

															In the end, the trial judge determined that the grand theft
should remain a felony. The court also ruled that the four prior
strikes for the three burglaries and the robbery in Long Beach
should stand. As a newly convicted felon with two or more "serious"
or "violent" felony convictions in his past, Ewing was sentenced
under the three strikes law to 25 years to life.

															The California Court of Appeal affirmed in an unpublished
opinion. No. B143745 (Apr. 25, 2001). Relying on our decision in Rummel v. Estelle , 445 U. S. 263 (1980), the
court rejected Ewing's claim that his sentence was grossly
disproportionate under the Eighth Amendment. Enhanced sentences
under recidivist statutes like the three strikes law, the court
reasoned, serve the "legitimate goal" of deterring and
incapacitating repeat offenders. The Supreme Court of California
denied Ewing's petition for review, and we granted certiorari, 535
U. S. 969 (2002). We now affirm.

															II A

															The Eighth Amendment, which forbids cruel and unusual
punishments, contains a "narrow proportionality principle" that
"applies to noncapital sentences." Harmelin v. Michigan , 501 U. S. 957 ,
996-997 (1991) (KENNEDY, J., concurring in part and concurring in
judgment); cf. Weems v. United States , 217 U. S. 349 , 371
(1910); Robinson v. California, 370 U. S. 660, 667 (1962)
(applying the Eighth Amendment to the States via the Fourteenth
Amendment). We have most recently addressed the proportionality
principle as applied to terms of years in a series of cases
beginning with Rummel v. Estelle, supra. [21] In Rummel , we held that it did not violate the Eighth
Amendment for a State to sentence a three-time offender to life in
prison with the possibility of parole. Id. , at 284-285.
Like Ewing, Rummel was sentenced to a lengthy prison term under a
recidivism statute. Rummel's two prior offenses were a 1964 felony
for "fraudulent use of a credit card to obtain $80 worth of goods
or services," and a 1969 felony conviction for "passing a forged
check in the amount of $28.36." Id. , at 265. His
triggering offense was a conviction for felony theft-"obtaining
$120.75 by false pretenses." Id. , at 266.

															This Court ruled that "[h]aving twice imprisoned him for
felonies, Texas was entitled to place upon Rummel the onus of one
who is simply unable to bring his conduct within the social norms
prescribed by the criminal law of the State." Id. , at 284.
The recidivism statute "is nothing more than a societal decision
that when such a person commits yet another felony, he should be
subjected to the admittedly serious penalty of incarceration for
life, subject only to the State's judgment as to whether to grant
him parole." Id. , at 278. We noted that this Court "has on
occasion stated that the Eighth Amendment prohibits imposition of a
sentence that is grossly disproportionate to the severity of the
crime." Id. , at 271. But "[o]utside the context of capital
punishment, successful challenges to the proportionality of
particular sentences have been exceedingly rare." Id. , at
272. Although we stated that the proportionality principle "would
. . . come into play in the extreme example
. . . if a legislature made overtime parking a felony
punishable by life imprisonment," id. , at 274, n. 11, we
held that "the mandatory life sentence imposed upon this petitioner
does not constitute cruel and unusual punishment under the Eighth
and Fourteenth Amendments," id. , at 285.

															In Hutto v. Davis , 454 U. S. 370 (1982) (per curiam) , the defendant was sentenced to two
consecutive terms of 20 years in prison for possession with intent
to distribute nine [22] ounces of marijuana and distribution of marijuana. We held that
such a sentence was constitutional: "In short, Rummel stands for the proposition that federal courts should be reluctant
to review legislatively mandated terms of imprisonment, and that
successful challenges to the proportionality of particular
sentences should be exceedingly rare." Id. , at 374
(citations and internal quotation marks omitted).

															Three years after Rummel , in Solem v. Helm , 463 U. S. 277 ,
279 (1983), we held that the Eighth Amendment prohibited "a life
sentence without possibility of parole for a seventh nonviolent
felony." The triggering offense in Solem was "uttering a
'no account' check for $100." Id. , at 281. We specifically
stated that the Eighth Amendment's ban on cruel and unusual
punishments "prohibits . . . sentences that are
disproportionate to the crime committed," and that the
"constitutional principle of proportionality has been recognized
explicitly in this Court for almost a century." Id. , at
284, 286. The Solem Court then explained that three
factors may be relevant to a determination of whether a sentence is
so disproportionate that it violates the Eighth Amendment: "(i) the
gravity of the offense and the harshness of the penalty; (ii) the
sentences imposed on other criminals in the same jurisdiction; and
(iii) the sentences imposed for commission of the same crime in
other jurisdictions." Id. , at 292.

															Applying these factors in Solem , we struck down the
defendant's sentence of life without parole. We specifically noted
the contrast between that sentence and the sentence in Rummel , pursuant to which the defendant was eligible for
parole. 463 U. S., at 297; see also id. , at 300 ("[T]he
South Dakota commutation system is fundamentally different from the
parole system that was before us in Rummel "). Indeed, we
explicitly declined to overrule Rummel : "[O]ur conclusion
today is not inconsistent with Rummel v. Estelle." 463 U.
S., at 303, n. 32; see also id. , at 288, n. 13 ("[O]ur
decision [23] is entirely consistent with this Court's prior cases-including Rummel v. Estelle ").

															Eight years after Solem , we grappled with the
proportionality issue again in Harmelin . Harmelin was not a recidivism case, but rather involved a first-time
offender convicted of possessing 672 grams of cocaine. He was
sentenced to life in prison without possibility of parole. A
majority of the Court rejected Harmelin's claim that his sentence
was so grossly disproportionate that it violated the Eighth
Amendment. The Court, however, could not agree on why his
proportionality argument failed. JUSTICE SCALIA, joined by THE
CHIEF JUSTICE, wrote that the proportionality principle was "an
aspect of our death penalty jurisprudence, rather than a
generalizable aspect of Eighth Amendment law." 501 U. S. at 994. He
would thus have declined to apply gross disproportionality
principles except in reviewing capital sentences. Ibid. JUSTICE KENNEDY, joined by two other Members of the Court,
concurred in part and concurred in the judgment. JUSTICE KENNEDY
specifically recognized that "[t]he Eighth Amendment
proportionality principle also applies to noncapital sentences." Id. , at 997. He then identified four principles of
proportionality review-"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" -that "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." Id. , at 1001
(citing Solem, supra , at 288). JUSTICE KENNEDY'S
concurrence also stated that Solem "did not mandate"
comparative analysis "within and between jurisdictions." 501 U. S.,
at 1004-1005.

															The proportionality principles in our cases distilled in JusTICE
KENNEDY'S concurrence guide our application of the [24] Eighth Amendment in the new context that we are called upon to
consider.

															B

															For many years, most States have had laws providing for enhanced
sentencing of repeat offenders. See, e. g. , U. S.
Dept. of Justice, Bureau of Justice Assistance, National Assessment
of Structured Sentencing (1996). Yet between 1993 and 1995, three
strikes laws effected a sea change in criminal sentencing
throughout the N ation.[ Footnote 1 ] These laws
responded to widespread public concerns about crime by targeting
the class of offenders who pose the greatest threat to public
safety: career criminals. As one of the chief architects of
California's three strikes law has explained: "Three Strikes was
intended to go beyond simply making sentences tougher. It was
intended to be a focused effort to create a sentencing policy that
would use the judicial system to reduce serious and violent crime."
Ardaiz, California's Three Strikes Law: History, Expectations,
Consequences, 32 McGeorge L. Rev. 1, 12 (2000) (hereinafter
Ardaiz).

															Throughout the States, legislatures enacting three strikes laws
made a deliberate policy choice that individuals who have
repeatedly engaged in serious or violent criminal behavior, and
whose conduct has not been deterred by more conventional approaches
to punishment, must be isolated from society in order to protect
the public safety. Though three strikes laws may be relatively new,
our tradition of deferring to state legislatures in making and
implementing such important policy decisions is longstanding. Weems , 217 U. S., at 379; Gore v. United States , 357 U. S. 386 ,
393 [25] (1958); Payne v. Tennessee , 501 U. S. 808 , 824
(1991); Rummel , 445 U. S., at 274; Solem , 463 U.
S., at 290; Harmelin , 501 U. S., at 998 (KENNEDY, J.,
concurring in part and concurring in judgment).

															Our traditional deference to legislative policy choices finds a
corollary in the principle that the Constitution "does not mandate
adoption of anyone penological theory." Id. , at 999
(KENNEDY, J., concurring in part and concurring in judgment). A
sentence can have a variety of justifications, such as
incapacitation, deterrence, retribution, or rehabilitation. See 1
W. LaFave & A. Scott, Substantive Criminal Law § 1.5, pp. 30-36
(1986) (explaining theories of punishment). Some or all of these
justifications may play a role in a State's sentencing scheme.
Selecting the sentencing rationales is generally a policy choice to
be made by state legislatures, not federal courts.

															When the California Legislature enacted the three strikes law,
it made a judgment that protecting the public safety requires
incapacitating criminals who have already been convicted of at
least one serious or violent crime. Nothing in the Eighth Amendment
prohibits California from making that choice. To the contrary, our
cases establish that "States have a valid interest in deterring and
segregating habitual criminals." Parke v. Raley , 506 U. S. 20 , 27 (1992); Oyler v. Boles , 368 U. S. 448 , 451 (1962)
("[T]he constitutionality of the practice of inflicting severer
criminal penalties upon habitual offenders is no longer open to
serious challenge"). Recidivism has long been recognized as a
legitimate basis for increased punishment. See AlmendarezTorres
v. United States , 523 U. S. 224 , 230 (1998)
(recidivism "is as typical a sentencing factor as one might
imagine"); Witte v. United States , 515 U. S. 389 , 400 (1995)
("In repeatedly upholding such recidivism statutes, we have
rejected double jeopardy challenges because the enhanced punishment
imposed for the later offense . . . [is] 'a stiffened
penalty for the latest crime, which is considered to be an
aggravated [26] offense because a repetitive one'" (quoting Gryger v.
Burke , 334 U. S.
728 , 732 (1948))).

															California's justification is no pretext. Recidivism is a
serious public safety concern in California and throughout the
Nation. According to a recent report, approximately 67 percent of
former inmates released from state prisons were charged with at
least one "serious" new crime within three years of their release.
See U. S. Dept. of Justice, Bureau of Justice Statistics, P. Langan
& D. Levin, Special Report:

															Recidivism of Prisoners Released in 1994, p. 1 (June 2002). In
particular, released property offenders like Ewing had higher
recidivism rates than those released after committing violent,
drug, or public-order offenses. Id. , at 8. Approximately
73 percent of the property offenders released in 1994 were arrested
again within three years, compared to approximately 61 percent of
the violent offenders, 62 percent of the public-order offenders,
and 66 percent of the drug offenders. Ibid. In 1996, when the Sacramento Bee studied 233 three strikes
offenders in California, it found that they had an aggregate of
1,165 prior felony convictions, an average of 5 apiece. See
Furillo, Three Strikes-The Verdict: Most Offenders Have Long
Criminal Histories, Sacramento Bee, Mar. 31, 1996, p. Al. The prior
convictions included 322 robberies and 262 burglaries. Ibid. About 84 percent of the 233 three strikes offenders
had been convicted of at least one violent crime. Ibid. In
all, they were responsible for 17 homicides, 7 attempted slayings,
and 91 sexual assaults and child molestations. Ibid. The
Sacramento Bee concluded, based on its investigation, that "[i]n
the vast majority of the cases, regardless of the third strike, the
[three strikes] law is snaring [the] long-term habitual offenders
with multiple felony convictions . . . . " Ibid. The State's interest in deterring crime also lends some support
to the three strikes law. We have long viewed both incapacitation
and deterrence as rationales for recidivism [27] statutes: "[A] recidivist statute['s] . . . primary
goals are to deter repeat offenders and, at some point in the life
of one who repeatedly commits criminal offenses serious enough to
be punished as felonies, to segregate that person from the rest of
society for an extended period of time." Rummel, supra , at
284. Four years after the passage of California's three strikes
law, the recidivism rate of parolees returned to prison for the
commission of a new crime dropped by nearly 25 percent. California
Dept. of Justice, Office of the Attorney General, "Three Strikes
and You're Out"-Its Impact on the California Criminal Justice
System After Four Years, p. 10 (1998). Even more dramatically: "An unintended but positive consequence of 'Three Strikes' has
been the impact on parolees leaving the state. More California
parolees are now leaving the state than parolees from other
jurisdictions entering California. This striking turnaround started
in 1994. It was the first time more parolees left the state than
entered since 1976. This trend has continued and in 1997 more than
1,000 net parolees left California." Ibid. See also Janiskee & Erler, Crime, Punishment, and Romero: An
Analysis of the Case Against California's Three Strikes Law, 39
Duquesne L. Rev. 43, 45-46 (2000) ("Prosecutors in Los Angeles
routinely report that 'felons tell them they are moving out of the
state because they fear getting a second or third strike for a
nonviolent offense'" (quoting Sanchez, A Movement Builds Against
"Three Strikes" Law, Washington Post, Feb. 18,2000, p. A3)).

															To be sure, California's three strikes law has sparked
controversy. Critics have doubted the law's wisdom, costefficiency,
and effectiveness in reaching its goals. See, e. g. ,
Zimring, Hawkins, & Kamin, Punishment and Democracy:

															Three Strikes and You're Out in California (2001); Vitiello,
Three Strikes: Can We Return to Rationality? 87 J. Crim. [28] L. & C. 395, 423 (1997). This criticism is appropriately
directed at the legislature, which has primary responsibility for
making the difficult policy choices that underlie any criminal
sentencing scheme. We do not sit as a "superlegislature" to
second-guess these policy choices. It is enough that the State of
California has a reasonable basis for believing that dramatically
enhanced sentences for habitual felons "advance[s] the goals of
[its] criminal justice system in any substantial way." See Solem , 463 U. S., at 297, n. 22.

															III

															Against this backdrop, we consider Ewing's claim that his three
strikes sentence of 25 years to life is unconstitutionally
disproportionate to his offense of "shoplifting three golf clubs."
Brief for Petitioner 6. We first address the gravity of the offense
compared to the harshness of the penalty. At the threshold, we note
that Ewing incorrectly frames the issue. The gravity of his offense
was not merely "shoplifting three golf clubs." Rather, Ewing was
convicted of felony grand theft for stealing nearly $1,200 worth of
merchandise after previously having been convicted of at least two
"violent" or "serious" felonies. Even standing alone, Ewing's theft
should not be taken lightly. His crime was certainly not "one of
the most passive felonies a person could commit." Solem,
supra , at 296 (internal quotation marks omitted). To the
contrary, the Supreme Court of California has noted the
"seriousness" of grand theft in the context of proportionality
review. See In re Lynch , 8 Cal. 3d 410, 432, n. 20, 503 P.
2d 921, 936, n. 20 (1972). Theft of $1,200 in property is a felony
under federal law, 18 U. S. C. § 641, and in the vast majority of
States. See App. B to Brief for Petitioner 21a.

															That grand theft is a "wobbler" under California law is of no
moment. Though California courts have discretion to reduce a felony
grand theft charge to a misdemeanor, it remains a felony for all
purposes "unless and until the trial [29] court imposes a misdemeanor sentence." In re Anderson ,
69 Cal. 2d 613, 626, 447 P. 2d 117, 126 (1968) (Tobriner, J.,
concurring); see generally 1 B. Witkin & N. Epstein, California
Criminal Law § 73 (3d ed. 2000). "The purpose of the trial judge's
sentencing discretion" to downgrade certain felonies is to "impose
a misdemeanor sentence in those cases in which the rehabilitation
of the convicted defendant either does not require, or would be
adversely affected by, incarceration in a state prison as a felon." Anderson, supra , at 664-665, 447 P. 2d, at 152 (Tobriner,
J., concurring). Under California law, the reduction is not based
on the notion that a "wobbler" is "conceptually a misdemeanor." Necochea v. Superior Court , 23 Cal. App. 3d 1012, 1016,
100 Cal. Rptr. 693, 695 (1972). Rather, it is "intended to extend
misdemeanant treatment to a potential felon." Ibid. In
Ewing's case, however, the trial judge justifiably exercised her
discretion not to extend such lenient treatment given Ewing's long
criminal history.

															In weighing the gravity of Ewing's offense, we must place on the
scales not only his current felony, but also his long history of
felony recidivism. Any other approach would fail to accord proper
deference to the policy judgments that find expression in the
legislature's choice of sanctions. In imposing a three strikes
sentence, the State's interest is not merely punishing the offense
of conviction, or the "triggering" offense: "[I]t is in addition
the interest . . . in dealing in a harsher manner with
those who by repeated criminal acts have shown that they are simply
incapable of conforming to the norms of society as established by
its criminal law." Rummel , 445 U. S., at 276; Solem,
supra , at 296. To give full effect to the State's choice of
this legitimate penological goal, our proportionality review of
Ewing's sentence must take that goal into account.

															Ewing's sentence is justified by the State's public-safety
interest in incapacitating and deterring recidivist felons, and [30] amply supported by his own long, serious criminal record.2 Ewing
has been convicted of numerous misdemeanor and felony offenses,
served nine separate terms of incarceration, and committed most of
his crimes while on probation or parole. His prior "strikes" were
serious felonies including robbery and three residential
burglaries. To be sure, Ewing's sentence is a long one. But it
reflects a rational legislative judgment, entitled to deference,
that offenders who have committed serious or violent felonies and
who continue to commit felonies must be incapacitated. The State of
California "was entitled to place upon [Ewing] the onus of one who
is simply unable to bring his conduct within the social norms
prescribed by the criminal law of the State." Rum mel,
supra, at 284. Ewing's is not "the rare case in which a threshold
comparison of the crime committed and the sentence imposed leads to
an inference of gross disproportionality." Harmelin , 501
U. S., at 1005 (KENNEDY, J., concurring in part and concurring in
judgment).

															We hold that Ewing's sentence of 25 years to life in prison,
imposed for the offense of felony grand theft under the three
strikes law, is not grossly disproportionate and therefore does not
violate the Eighth Amendment's prohibition on

															2JU8TICE BREYER argues that including Ewing's grand theft as a
triggering offense cannot be justified on "property-crime-related incapacitation grounds" because
such crimes do not count as prior strikes. Post , at 51.
But the State's interest in dealing with repeat felons like Ewing
is not so limited. As we have explained, the overarching objective
of the three strikes law is to prevent serious or violent offenders
like Ewing from repeating their criminal behavior. See Cal. Penal
Code Ann. § 667(b) (West 1999) ("It is the intent of the
Legislature . . . to ensure longer prison sentences and
greater punishment for those who commit a felony and have been
previously convicted of serious and/or violent felony offenses").
The California Legislature therefore made a "deliberate policy
decision . . . that the gravity of the new felony should
not be a determinative factor in 'triggering' the application of
the Three Strikes Law." Ardaiz 9. Neither the Eighth Amendment nor
this Court's precedent forecloses that legislative choice. [31] cruel and unusual punishments. The judgment of the California
Court of Appeal is affirmed.

															It is so ordered.

															JUSTICE SCALIA, concurring in the judgment.

															In my opinion in Harmelin v. Michigan , 501 U. S. 957 , 985
(1991), I concluded that the Eighth Amendment's prohibition of
"cruel and unusual punishments" was aimed at excluding only certain modes of punishment, and was not a "guarantee against
disproportionate sentences." Out of respect for the principle of stare decisis , I might nonetheless accept the contrary
holding of Solem v. Helm , 463 U. S. 277 (1983)-that
the Eighth Amendment contains a narrow proportionality principle-if
I felt I could intelligently apply it. This case demonstrates why I
cannot.

															Proportionality-the notion that the punishment should fit the
crime-is inherently a concept tied to the penological goal of
retribution. "[I]t becomes difficult even to speak intelligently of
'proportionality,' once deterrence and rehabilitation are given
significant weight," Harmelin, supra , at 989-not to
mention giving weight to the purpose of California's three strikes
law: incapacitation. In the present case, the game is up once the
plurality has acknowledged that "the Constitution does not mandate
adoption of anyone penological theory," and that a "sentence can
have a variety of justifications, such as incapacitation,
deterrence, retribution, or rehabilitation." Ante , at 25
(internal quotation marks omitted). That acknowledgment having been
made, it no longer suffices merely to assess "the gravity of the
offense compared to the harshness of the penalty," ante ,
at 28; that classic description of the proportionality principle
(alone and in itself quite resistant to policy-free, legal
analysis) now becomes merely the "first" step of the inquiry, ibid. Having completed that step (by a discussion which,
in all fairness, does not convincingly establish that
25-years-to-life is a "proportionate" punishment for stealing three
golf clubs), the [32] plurality must then add an analysis to show that
"Ewing's sentence is justified by the State's public-safety
interest in incapacitating and deterring recidivist felons." Ante , at 29.

															Which indeed it is-though why that has anything to do with the
principle of proportionality is a mystery. Perhaps the plurality
should revise its terminology, so that what it reads into the
Eighth Amendment is not the unstated proposition that all
punishment should be reasonably proportionate to the gravity of the
offense, but rather the unstated proposition that all punishment
should reasonably pursue the multiple purposes of the criminal law.
That formulation would make it clearer than ever, of course, that
the plurality is not applying law but evaluating policy.

															Because I agree that petitioner's sentence does not violate the
Eighth Amendment's prohibition against cruel and unusual
punishments, I concur in the judgment.

															JUSTICE THOMAS, concurring in the judgment.

															I agree with JUSTICE SCALIA'S view that the proportionality test
announced in Solem v. Helm , 463 U. S. 277 (1983), is
incapable of judicial application. Even were Solem's test
perfectly clear, however, I would not feel compelled by stare
decisis to apply it. In my view, the Cruel and Unusual
Punishments Clause of the Eighth Amendment contains no
proportionality principle. See Harmelin v. Michigan, 501 U. S. 957, 966-985 (1991) (opinion of SCALIA, J.).

															Because the plurality concludes that petitioner's sentence does
not violate the Eighth Amendment's prohibition on cruel and unusual
punishments, I concur in the judgment.

															JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.

															JUSTICE BREYER has cogently explained why the sentence imposed
in this case is both cruel and unusual.[ Footnote
1 ] The concur- [33] rences prompt this separate writing to emphasize that
proportionality review is not only capable of judicial application
but also required by the Eighth Amendment.

															"The Eighth Amendment succinctly prohibits 'excessive'
sanctions." Atkins v. Virginia , 536 U. S. 304 , 311
(2002); see also U. S. Const., Amdt. 8 ("Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted"). Faithful to the Amendment's text, this
Court has held that the Constitution directs judges to apply their
best judgment in determining the proportionality of fines, see, e. g., United States v. Bajakajian , 524 U. S. 321 , 334-336
(1998), bail, see, e. g., Stack v. Boyle , 342 U. S. 1 , 5 (1951), and
other forms of punishment, including the imposition of a death
sentence, see, e. g., Coker v. Georgia , 433 U. S. 584 , 592
(1977). It "would be anomalous indeed" to suggest that the Eighth
Amendment makes proportionality review applicable in the context of
bail and fines but not in the context of other forms of punishment,
such as imprisonment. Solem v. Helm , 463 U. S. 277 , 289
(1983). Rather, by broadly prohibiting excessive sanctions, the
Eighth Amendment directs judges to exercise their wise judgment in
assessing the proportionality of all forms of punishment.

															The absence of a black-letter rule does not disable judges from
exercising their discretion in construing the outer limits on
sentencing authority that the Eighth Amendment imposes. After all,
judges are "constantly called upon to draw . . . lines in
a variety of contexts," id. , at 294, and to exercise their
judgment to give meaning to the Constitution's broadly phrased
protections. For example, the Due Process Clause directs judges to
employ proportionality re-

															claim. I agree with JUSTICE BREYER that Ewing's sentence is
grossly disproportionate even under Harmelin 's narrow
proportionality framework. However, it is not clear that this case
is controlled by Harmelin , which considered the
proportionality of a life sentence imposed on a drug offender who
had no prior felony convictions. Rather, the three-factor
analysis established in Solem v. Helm , 463 U. S. 277 , 290-291
(1983), which specifically addressed recidivist sentencing, seems
more directly on point. [34] view in assessing the constitutionality of punitive damages
awards on a case-by-case basis. See, e. g. , BMW of
North America, Inc. v. Gore , 517 U. S. 559 , 562
(1996). Also, although the Sixth Amendment guarantees criminal
defendants the right to a speedy trial, the courts often are asked
to determine on a case-by-case basis whether a particular delay is
constitutionally permissible or not. See, e. g. , Doggett v. United States , 505 U. S. 647 (1992).[ Footnote 2 ]

															Throughout most of the Nation's history-before guideline
sentencing became so prevalent-federal and state trial judges
imposed specific sentences pursuant to grants of authority that
gave them uncabined discretion within broad ranges. See K. Stith
& J. Cabranes, Fear of Judging: Sentencing Guidelines in the
Federal Courts 9 (1998) (hereinafter Stith & Cabranes) ("From
the beginning of the Republic, federal judges were entrusted with
wide sentencing discretion"); see also Mistretta v. United
States , 488 U.
S. 361 , 364 (1989). It was not unheard of for a statute to
authorize a sentence ranging from one year to life, for example.
See, e. g. , State v. Perley , 86 Me. 427, 30 A.
74, 75 (1894) (citing Maine statute that made robbery punishable by
imprisonment for life or any term of years); In re
Southard , 298 Mich. 75, 77, 298 N. W. 457 (1941) ("The offense
of 'robbery armed' is punishable by imprisonment for life or any
term [35] of years"). In exercising their discretion, sentencing judges
wisely employed a proportionality principle that took into account
all of the justifications for punishment-namely, deterrence,
incapacitation, retribution, and rehabilitation. See Stith &
Cabranes 14. Likewise, I think it clear that the Eighth Amendment's
prohibition of "cruel and unusual punishments" expresses a broad
and basic proportionality principle that takes into account all of
the justifications for penal sanctions. It is this broad
proportionality principle that would preclude reliance on any of
the justifications for punishment to support, for example, a life
sentence for overtime parking. See Rummel v. Estelle , 445 U. S. 263 ,
274,

															Accordingly, I respectfully dissent.

															JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE SOUTER, and
JUSTICE GINSBURG join, dissenting.

															The constitutional question is whether the "three strikes"
sentence imposed by California upon repeat-offender Gary Ewing is
"grossly disproportionate" to his crime. Ante , at 14,
30-31 (plurality opinion). The sentence amounts to a real prison
term of at least 25 years. The sentencetriggering criminal conduct
consists of the theft of three golf clubs priced at a total of
$1,197. See ante , at 18. The offender has a criminal
history that includes four felony convictions arising out of three
separate burglaries (one armed). Ante , at 18-19. In Solem v. Helm , 463 U. S. 277 (1983), the
Court found grossly disproportionate a somewhat longer sentence
imposed on a recidivist offender for triggering criminal conduct
that was somewhat less severe. In my view, the differences are not
determinative, and the Court should reach the same ultimate
conclusion here.

															I

															This Court's precedent sets forth a framework for analyzing
Ewing's Eighth Amendment claim. The Eighth Amendment forbids, as
"cruel and unusual punishments," prison [36] terms (including terms of years) that are "grossly
disproportionate." Solem, supra , at 303; see Lockyer
v. Andrade, post , at 71. In applying the "gross
disproportionality" principle, courts must keep in mind that
"legislative policy" will primarily determine the appropriateness
of a punishment's "severity," and hence defer to such legislative
policy judgments. Gore v. United States , 357 U. S. 386 , 393
(1958); see Harmelin v. Michigan , 501 U. S. 957 , 998 (1991)
(KENNEDY, J., concurring in part and concurring in judgment); Solem, supra , at 289-290; Rummel v. Estelle , 445 U. S. 263 ,
274-276 (1980); Weems v. United States , 217 U. S. 349 , 373
(1910). If courts properly respect those judgments, they will find
that the sentence fails the test only in rare instances. Solem, supra , at 290, n. 16; Harmelin, supra , at
1004 (KENNEDY, J., concurring in part and concurring in judgment); Rummel, supra , at 272 ("[S]uccessful challenges to the
proportionality of particular sentences have been exceedingly
rare"). And they will only "'rarely''' find it necessary to
"'engage in extended analysis'" before rejecting a claim that a
sentence is "grossly disproportionate." Harmelin, supra ,
at 1004 (KENNEDY, J., concurring in part and concurring in
judgment) (quoting Solem, supra , at 290, n. 16).

															The plurality applies JUSTICE KENNEDY'S analytical framework in Harmelin, supra , at 1004-1005 (opinion concurring in part
and concurring in judgment). Ante , at 2324. And, for
present purposes, I will consider Ewing's Eighth Amendment claim on
those terms. But see ante , at 32-33, n. 1 (STEVENS, J.,
dissenting). To implement this approach, courts faced with a "gross
disproportionality" claim must first make "a threshold comparison
of the crime committed and the sentence imposed." Harmelin,
supra , at 1005 (KENNEDY, J., concurring in part and concurring
in judgment). If a claim crosses that threshold-itself a rare occurrence-then the court should compare the sentence
at issue to other sentences "imposed on other criminals" in the
same, or in other, jurisdictions. Solem, supra , at
290-291; [37] Harmelin , 501 U. S., at 1005 (KENNEDY, J., concurring
in part and concurring in judgment). The comparative analysis will
"validate" or invalidate "an initial judgment that a sentence is
grossly disproportionate to a crime." Ibid. I recognize the warnings implicit in the Court's frequent
repetition of words such as "rare." Nonetheless I believe that the
case before us is a "rare" case-one in which a court can say with
reasonable confidence that the punishment is "grossly
disproportionate" to the crime.

															II

															Ewing's claim crosses the gross disproportionality "threshold."
First, precedent makes clear that Ewing's sentence raises a serious
disproportionality question. Ewing is a recidivist. Hence the two
cases most directly in point are those in which the Court
considered the constitutionality of recidivist sentencing: Rummel and Solem . Ewing's claim falls between
these two cases. It is stronger than the claim presented in Rummel , where the Court upheld a recidivist's sentence as
constitutional. It is weaker than the claim presented in Solem , where the Court struck down a recidivist sentence
as unconstitutional.

															Three kinds of sentence-related characteristics define the
relevant comparative spectrum: (a) the length of the prison term in
real time, i. e. , the time that the offender is likely
actually to spend in prison; (b) the sentence-triggering criminal
conduct, i. e. , the offender's actual behavior or other
offense-related circumstances; and (c) the offender's criminal
history. See Rummel, supra , at 265-266, 269, 276, 278,
280281 (using these factors); Solem, supra , at 290-303
(same). Cf. United States Sentencing Commission, Guidelines Manual
ch. 1, pt. A, intro., n. 5 (Nov. 1987) (USSG) (empirical study of
"summary reports of some 40,000 convictions [and] a sample of
10,000 augmented presentence reports" leads to sentences based
primarily upon (a) offense characteristics and (b) offender's
criminal record); see id. , p. s. 3. [38] In Rummel , the Court held constitutional (a) a sentence
of life imprisonment with parole available within 10 to 12
years, (b) for the offense of obtaining $120 by false pretenses,
(c) committed by an offender with two prior felony convictions
(involving small amounts of money). 445 U. S. 263 ; ante , at 21. In Solem , the Court held
unconstitutional (a) a sentence of life imprisonment without
parole , (b) for the crime of writing a $100 check on a
nonexistent bank account, (c) committed by an offender with six
prior felony convictions (including three for burglary). 463 U. S. 277 ; ante , at 22-23. Which of the three pertinent comparative
factors made the constitutional difference?

															The third factor, prior record, cannot explain the difference.
The offender's prior record was worse in Solem ,
where the Court found the sentence too long, than in Rummel , where the Court upheld the sentence. The second
factor, offense conduct, cannot explain the difference. The nature
of the triggering offense-viewed in terms of the actual monetary
loss-in the two cases was about the same. The one critical factor
that explains the difference in the outcome is the length of the
likely prison term measured in real time. In Rummel , where
the Court upheld the sentence, the state sentencing statute
authorized parole for the offender, Rummel, after 10 or 12 years.
445 U. S., at 280; id. , at 293 (Powell, J., dissenting).
In Solem , where the Court struck down the sentence, the
sentence required the offender, Helm, to spend the rest of his life
in prison.

															Now consider the present case. The third factor, offender
characteristics-i. e. , prior record-does not differ
significantly here from that in Solem. Ewing's prior
record consists of four prior felony convictions (involving three
burglaries, one with a knife) contrasted with Helm's six prior
felony convictions (including three burglaries, though none with
weapons). The second factor, offense behavior , is worse
than that in Solem , but only to a degree. It would be
difficult to say that the actual behavior itself here (shop- [39] lifting) differs significantly from that at issue in Solem (passing a bad check) or in Rummel (obtaining money through false pretenses). Rather the difference
lies in the value of the goods obtained. That difference,
measured in terms of the most relevant feature (loss to the victim,
i. e. , wholesale value) and adjusted for the irrelevant
feature of inflation, comes down (in 1979 values) to about $379
here compared with $100 in Solem , or (in 1973 values) to
$232 here compared with $120.75 in Rummel. See USSG
§2B1.1, comment., n. 2(A)(i) (Nov. 2002) (loss to victim properly
measures value of goods unlawfully taken); U. S. Dept. of Labor,
Bureau of Labor Statistics, Inflation and Consumer Spending,
Inflation Calculator (Jan. 23, 2003), http://www.bls.gov
(hereinafter Inflation Calculator). Alternatively, if one measures
the inflation-adjusted value difference in terms of the golf clubs'
sticker price, it comes down to $505 here compared to $100 in Solem , or $309 here compared to $120.75 in Rummel . See Inflation Calculator.

															The difference in length of the real prison term-the
first, and critical, factor in Solem and Rummel-is considerably more important. Ewing's sentence
here amounts, in real terms, to at least 25 years without parole or
good-time credits. That sentence is considerably shorter than
Helm's sentence in Solem , which amounted, in real terms,
to life in prison. Nonetheless Ewing's real prison term is more
than twice as long as the term at issue in Rummel , which
amounted, in real terms, to at least 10 or 12 years. And, Ewing's
sentence, unlike Rummel's (but like Helm's sentence in Solem) , is long enough to consume the productive remainder
of almost any offender's life. (It means that Ewing himself,
seriously ill when sentenced at age 38, will likely die in
prison.)

															The upshot is that the length of the real prison term-the factor
that explains the Solem/Rummel difference in
outcome-places Ewing closer to Solem than to Rummel , though the greater value of the golf clubs that
Ewing stole [40] moves Ewing's case back slightly in Rummel's direction.
Overall, the comparison places Ewing's sentence well within the
twilight zone between Solem and Rummel-a zone
where the argument for unconstitutionality is substantial, where
the cases themselves cannot determine the constitutional
outcome.

															Second, Ewing's sentence on its face imposes one of the most
severe punishments available upon a recidivist who subsequently
engaged in one of the less serious forms of criminal conduct. See infra , at 44-45. I do not deny the seriousness of
shoplifting, which an amicus curiae tells us costs
retailers in the range of $30 billion annually. Brief for
California District Attorneys Association as Amicus Curiae 27. But consider that conduct in terms of the factors that this
Court mentioned in Solem-the "harm caused or threatened to
the victim or society," the "absolute magnitude of the crime," and
the offender's "culpability." 463 U. S., at 292-293. In respect to
all three criteria, the sentencetriggering behavior here ranks well
toward the bottom of the criminal conduct scale.

															The Solicitor General has urged us to consider three other
criteria: the "frequency" of the crime's commission, the "ease or
difficulty of detection," and "the degree to which the crime may be
deterred by differing amounts of punishment." Brief for United
States as Amicus Curiae 24-25. When considered in terms of
these criteria-or at least the latter two-the triggering conduct
also ranks toward the bottom of the scale. Unlike, say, drug
crimes, shoplifting often takes place in stores open to other
customers whose presence, along with that of store employees or
cameras, can help to detect the crime. Nor is there evidence
presented here that the law enforcement community believes lengthy
prison terms necessary adequately to deter shoplifting. To the
contrary, well-publicized instances of shoplifting suggest that the
offense is often punished without any prison sentence at all. On
the other hand, shoplifting is a frequently com- [41] mitted crime; but "frequency," standing alone, cannot make a
critical difference. Otherwise traffic offenses would warrant even
more serious punishment.

															This case, of course, involves shoplifting engaged in by a recidivist. One might argue that any crime
committed by a recidivist is a serious crime potentially warranting
a 25-year sentence. But this Court rejected that view in Solem , and in Harmelin , with the recognition that
"no penalty is per se constitutional." Solem,
supra , at 290; Harmelin , 501 U. S., at 1001 (KENNEDY,
J., concurring in part and concurring in judgment). Our cases make
clear that, in cases involving recidivist offenders, we must focus
upon "the [offense] that triggers the life sentence," with
recidivism playing a "relevant," but not necessarily determinative,
role. Solem, supra , at 296, n. 21; see Witte v. United
States , 515 U.
S. 389 , 402, 403 (1995) (the recidivist defendant is "punished
only for the offense of conviction," which "'is considered to be an
aggravated offense because a repetitive one'" (quoting Gryger
v. Burke , 334 U.
S. 728 , 732 (1948))). And here, as I have said, that offense is
among the less serious, while the punishment is among the most
serious. Cf. Rummel , 445 U. S., at 288 (Powell, J.,
dissenting) (overtime parking violation cannot trigger a life
sentence even for a serious recidivist).

															Third, some objective evidence suggests that many experienced
judges would consider Ewing's sentence disproportionately harsh.
The United States Sentencing Commission (having based the federal
Sentencing Guidelines primarily upon its review of how judges had
actually sentenced offenders) does not include shoplifting (or
similar theft-related offenses) among the crimes that might trigger
especially long sentences for recidivists, see USSG § 4B1.1 (Nov.
2002) (Guideline for sentencing "career offenders"); id. ,
ch. 1, pt. A, intro., n. 5 (sentences based in part upon
Commission's review of "summary reports of some 40,000 convictions
[and] a sample of 10,000 augmented presentence reports"); see
also [42] infra , at 45, nor did Congress include such offenses
among triggering crimes when it sought sentences "at or near the
statutory maximum" for certain recidivists, S. Rep. No. 98-225, p.
175 (1983); 28 u. S. C. § 994(h) (requiring sentence "at or near
the maximum" where triggering crime is crime of "violence" or drug
related); 18 U. S. C. § 3559(c) (grand theft not among triggering
or "strike" offenses under federal "three strikes" law); see infra , at 45-46. But see 28 U. S. C. § 994(i)(1)
(requiring "a substantial term of imprisonment" for those who have
"a history of two or more prior . . . felony
convictions").

															Taken together, these three circumstances make clear that
Ewing's "gross disproportionality" argument is a strong one. That
being so, his claim must pass the "threshold" test. If it
did not, what would be the function of the test? A threshold test
must permit arguably unconstitutional sentences, not only actually unconstitutional sentences, to pass the
threshold-at least where the arguments for unconstitutionality are
unusually strong ones. A threshold test that blocked every
ultimately invalid constitutional claim-even strong ones-would not
be a threshold test but a determinative test.
And, it would be a determinative test that failed to take
account of highly pertinent sentencing information, namely,
comparison with other sentences, Solem, supra , at 291-292,
298-300. Sentencing comparisons are particularly important because
they provide proportionality review with objective content. By way of contrast, a threshold test makes the assessment
of constitutionality highly subjective. And, of course, so to
transform that threshold test would violate this Court's
earlier precedent. See 463 U. S., at 290, 291-292; Harmelin, supra, at 1000, 1005 (KENNEDY, J., concurring in part and
concurring in judgment).

															III

															Believing Ewing's argument a strong one, sufficient to pass the
threshold, I turn to the comparative analysis. A [43] comparison of Ewing's sentence with other sentences requires
answers to two questions. First, how would other jurisdictions (or
California at other times, i. e. , without the three
strikes penalty) punish the same offense conduct? Second,
upon what other conduct would other jurisdictions (or California)
impose the same prison term? Moreover, since hypothetical
punishment is beside the point, the relevant prison time, for
comparative purposes, is real prison time, i. e. ,
the time that an offender must actually serve. Sentencing statutes often shed little light upon real prison
time. That is because sentencing laws normally set maximum sentences, giving the sentencing judge discretion to choose an
actual sentence within a broad range, and because many States
provide good-time credits and parole, often permitting release
after, say, one-third of the sentence has been served, see, e. g. , Alaska Stat. § 33.20.010(a) (2000); Conn.
Gen. Stat. § 18-7a (1998). Thus, the statutory maximum is rarely
the sentence imposed, and the sentence imposed is rarely the
sentence that is served. For the most part, the parties' briefs
discuss sentencing statutes. Nonetheless, that discussion, along
with other readily available information, validates my initial
belief that Ewing's sentence, comparatively speaking, is
extreme.

															As to California itself, we know the following: First, between
the end of World War II and 1994 (when California enacted the three
strikes law, ante , at 15), no one like Ewing could have
served more than 10 years in prison. We know that for
certain because the maximum sentence for Ewing's crime of
conviction, grand theft, was for most of that period 10 years. Cal.
Penal Code Ann. §§ 484, 489 (West 1970); see Cal. Dept. of
Corrections, Offender Information Services, Administrative Services
Division, Historical Data for Time Served by Male Felons Paroled
from Institutions: 1945 Through 1981, p. 11 (1982) (Table 10)
(hereinafter Historical Data for Time Served by California Felons),
Lodging of Petitioner. From 1976 to 1994 (and currently, absent
application [44] of the three strikes penalty), a Ewing-type offender would have
received a maximum sentence of four years. Cal. Penal Code Ann. §
489 (West 1999), § 667.5(b) (West Supp. 2002). And we know that
California's "habitual offender" laws did not apply to grand theft.
§§ 644(a), (b) (West 1970) (repealed 1977). We also know that the
time that any offender actually served was likely far less than 10
years. This is because statistical data show that the median time
actually served for grand theft (other than auto theft) was about
two years, and 90 percent of all those convicted of that crime
served less than three or four years. Historical Data for Time
Served by California Felons 11 (Table 10).

															Second, statistics suggest that recidivists of all
sorts convicted during that same time period in California
served a small fraction of Ewing's real-time sentence. On average,
recidivists served three to four additional (recidivist-related)
years in prison, with 90 percent serving less than an additional
real seven to eight years. Id. , at 22 (Table 21).

															Third, we know that California has reserved, and still reserves,
Ewing-type prison time, i. e. , at least 25 real years in
prison, for criminals convicted of crimes far worse than was
Ewing's. Statistics for the years 1945 to 1981, for example,
indicate that typical (nonrecidivist) male first-degree murderers
served between 10 and 15 real years in prison, with 90 percent of
all such murderers serving less than 20 real years. Id. ,
at 3 (Table 2). Moreover, California, which has moved toward a
real-time sentencing system (where the statutory punishment
approximates the time served), still punishes far less harshly
those who have engaged in far more serious conduct. It imposes, for
example, upon nonrecidivists guilty of arson causing great bodily
injury a maximum sentence of nine years in prison, Cal. Penal Code
Ann. § 451(a) (West 1999) (prison term of 5, 7, or 9 years for
arson that causes great bodily injury); it imposes upon those
guilty of voluntary manslaughter a maximum sentence of 11 years, §
193 (prison term of 3, 6, or 11 years for voluntary man- [45] slaughter). It reserves the sentence that it here imposes upon
(former-burglar-now-golf-club-thief) Ewing for nonrecidivist,
first-degree murderers. See § 190(a) (West Supp. 2003) (sentence of
25 years to life for first-degree murder).

															As to other jurisdictions, we know the following: The United
States, bound by the federal Sentencing Guidelines, would impose
upon a recidivist, such as Ewing, a sentence that, in any ordinary
case, would not exceed 18 months in prison. USSG § 2B1.1(a) (Nov.
1999) (assuming a base offense level of 6, a criminal history of
VI, and no mitigating or aggravating adjustments); id. ,
ch. 5, pt. A, Sentencing Table. The Guidelines, based in part upon
a study of some 40,000 actual federal sentences, see supra , at 37, 41, reserve a Ewing-type sentence for
Ewing-type recidivists who currently commit such crimes as
murder, § 2A1.2; air piracy, § 2A5.1; robbery (involving the
discharge of a firearm, serious bodily injury, and about $1
million), § 2B3.1; drug offenses involving more than, for example,
20 pounds of heroin, § 2D1.1; aggravated theft of more than $100
million, § 2B1.1; and other similar offenses. The Guidelines
reserve 10 years of real prison time (with good time)-less than 40
percent of Ewing's sentence-for Ewing-type recidivists who
go on to commit, for instance, voluntary manslaughter, § 2A1.3;
aggravated assault with a firearm (causing serious bodily injury
and motivated by money), § 2A2.2; kidnaping, § 2A4.1; residential
burglary involving more than $5 million, § 2B2.1; drug offenses
involving at least one pound of cocaine, § 2D1.1; and other similar
offenses. Ewing also would not have been subject to the federal
"three strikes" law, 18 U. S. c. § 3559(c), for which grand theft
is not a triggering offense.

															With three exceptions, see infra , at 46-47, we do not
have before us information about actual time served by Ewing-type
offenders in other States. We do know, however, that the law would
make it legally impossible for a Ewing-type offender to serve more
than 10 years in prison in 33 jurisdictions, as well as the federal
courts, see Appendix, [46] Part A, infra , more than 15 years in 4 other States,
see Appendix, Part B, infra , and more than 20 years in 4
additional States, see Appendix, Part C, infra. In nine
other States, the law might make it legally possible to
impose a sentence of 25 years or more, see Appendix, Part D, infra-though that fact by itself, of course, does not mean
that judges have actually done so. But see infra this
page. I say "might" because the law in five of the nine last
mentioned States restricts the sentencing judge's ability to impose
a term so long that, with parole, it would amount to at least 25
years of actual imprisonment. See Appendix, Part D, infra. We also know that California, the United States, and other
States supporting California in this case, despite every incentive
to find someone else like Ewing who will have to serve, or who has
actually served, a real prison term anywhere approaching that
imposed upon Ewing, have come up with precisely three examples.
Brief for United States as Amicus Curiae 28-29, n. 13. The
Government points to Ex parte Howington , 622 So. 2d 896
(Ala. 1993), where an Alabama court sentenced an offender with
three prior burglary convictions and two prior grand theft
convictions to "life" for the theft of a tractor-trailer. The
Government also points to State v. Heftel , 513 N. W. 2d
397 (S. D. 1994), where a South Dakota court sentenced an offender
with seven prior felony convictions to 50 years' imprisonment for
theft. And the Government cites Sims v. State , 107 Nev.
438, 814 P. 2d 63 (1991), where a Nevada court sentenced a
defendant with three prior felony convictions (including armed
robbery) and nine misdemeanor convictions to life without parole
for the theft of a purse and wallet containing $476.

															The first of these cases, Howington , is beside the
point, for the offender was eligible for parole after 10 years (as
in Rummel) , not 25 years (as here). Ala. Code §
15-22-28(e) (West 1982). The second case, Heftel , is
factually on point, but it is not legally on point, for the South
Dakota courts did not consider the constitutionality of the
sentence. 513 N. W. [47] 2d, at 401. The third case, Sims , is on point both
factually and legally, for the Nevada Supreme Court (by a vote of 3
to 2) found the sentence constitutional. I concede that example-a
single instance of a similar sentence imposed outside the context
of California's three strikes law, out of a prison population now
approaching two million individuals. U. S. Dept. of Justice, Office
of Justice Programs, Bureau of Justice Statistics, Prison
Statistics (Jan. 8, 2003), http://www.ojp.usdoj.gov/bjs/prisons.htm
(available in Clerk of Court's case file).

															The upshot is that comparison of other sentencing practices,
both in other jurisdictions and in California at other times (or in
respect to other crimes), validates what an initial threshold
examination suggested. Given the information available, given the
state and federal parties' ability to provide additional contrary
data, and given their failure to do so, we can assume for
constitutional purposes that the following statement is true:
Outside the California three strikes context, Ewing's recidivist
sentence is virtually unique in its harshness for his offense of
conviction, and by a considerable degree.

															IV

															This is not the end of the matter. California sentenced Ewing
pursuant to its "three strikes" law. That law represents a
deliberate effort to provide stricter punishments for recidivists.
Cal. Penal Code Ann. § 667(b) (West 1999) ("It is the intent of the
Legislature . . . to ensure longer prison sentences and
greater punishment for those who commit a felony and have been
previously convicted of serious and/or violent felony offenses"); ante , at 24. And, it is important to consider whether
special criminal justice concerns related to California's three
strikes policy might justify including Ewing's theft within the
class of triggering criminal conduct (thereby imposing a severe
punishment), even if Ewing's sentence would otherwise seem
disproportionately harsh. [48] Cf. Harmelin , 501 U. S., at 998-999, 1001 (noting "the
primacy of the legislature" in making sentencing policy).

															I can find no such special criminal justice concerns that might
justify this sentence. The most obvious potential justification for
bringing Ewing's theft within the ambit of the statute is
administrative. California must draw some kind of workable line
between conduct that will trigger, and conduct that will not
trigger, a "three strikes" sentence. "But the fact that a line has
to be drawn somewhere does not justify its being drawn anywhere." Pearce v. Commissioner , 315 U. S. 543 , 558 (1942)
(Frankfurter, J., dissenting). The statute's administrative
objective would seem to be one of separating more serious, from
less serious, triggering criminal conduct. Yet the statute does not
do that job particularly well.

															The administrative line that the statute draws separates
"felonies" from "misdemeanors." See Brief for Respondent 6 ("The
California statute relies, fundamentally, on traditional
classifications of certain crimes as felonies"). Those words
suggest a graduated difference in degree. But an examination of how
California applies these labels in practice to criminal conduct
suggests that the offenses do not necessarily reflect those
differences. See United States v. Watson , 423 U. S. 411 , 438-441
(1976) (Marshall, J., dissenting) (felony/misdemeanor distinction
often reflects history, not logic); Rummel , 445 U. S., at
284 ("The most casual review of the various criminal justice
systems now in force in the 50 States of the Union shows that the
line dividing felony theft from petty larceny, a line usually based
on the value of the property taken, varies markedly from one State
to another"). Indeed, California uses those words in a way
unrelated to the seriousness of offense conduct in a set of
criminal statutes called" 'wobblers,'" see ante , at 16,
one of which is at issue in this case.

															Most "wobbler" statutes classify the same criminal conduct
either as a felony or as a misdemeanor, depending upon [49] the actual punishment imposed, Cal. Penal Code Ann. §§ 17(a),
(b) (West 1999); ante , at 16-17, which in turn depends
primarily upon whether "the rehabilitation of the convicted
defendant" either does or does not "require" (or would or would not
"be adversely affected by") "incarceration in a state prison as a
felon." In re Anderson , 69 Cal. 2d 613, 664-665,447 P. 2d
117, 152 (1968) (Tobriner, J., concurring in part and dissenting in
part); ante , at 29. In such cases, the felony/misdemeanor
classification turns primarily upon the nature of the offender, not
the comparative seriousness of the offender's conduct.

															A subset of "wobbler" statutes, including the "petty theft with
a prior" statute, Cal. Penal Code Ann. § 666 (West Supp. 2002),
defining the crime in the companion case, Lockyer v. Andrade,
post , p. 63, authorizes the treatment of otherwise misdemeanor
conduct, see Cal. Penal Code Ann. § 490 (West 1999), as a felony
only when the offender has previously committed a property crime.
Again, the distinction turns upon characteristics of the offender,
not the specific offense conduct at issue.

															The result of importing this kind of distinction into
California's three strikes statute is a series of anomalies. One
anomaly concerns the seriousness of the triggering behavior.
"Wobbler" statutes cover a wide variety of criminal behavior,
ranging from assault with a deadly weapon, § 245, vehicular
manslaughter, § 193(c)(1), and money laundering, § 186.10(a), to
the defacement of property with graffiti, § 594(b)(2)(A) (West
Supp. 2002), or stealing more than $100 worth of chickens, nuts, or
avocados, § 487(b)(1)(A) (West Supp. 2003); § 489 (West 1999). Some
of this behavior is obviously less serious, even if engaged in
twice, than other criminal conduct that California statutes
classify as pure misdemeanors, such as reckless driving, Cal. Veh.
Code Ann. § 23103 (West Supp. 2003); § 23104(a) (West 2000)
(reckless driving causing bodily injury), the use of force or
threat of force to interfere with another's civil rights, Cal.
Penal Code [50] Ann. § 422.6 (West 1999), selling poisoned alcohol, § 347b,
child neglect, § 270, and manufacturing or selling false government
documents with the intent to conceal true citizenship, § 112(a)
(West Supp. 2002).

															Another anomaly concerns temporal order. An offender whose
triggering crime is his third crime likely will not fall
within the ambit of the three strikes statute provided that (a) his first crime was chicken theft worth more than $100, and
(b) he subsequently graduated to more serious crimes, say, crimes
of violence. That is because such chicken theft, when a first
offense, will likely be considered a misdemeanor. A similar
offender likely will fall within the scope of the three
strikes statute, however, if such chicken theft was his third crime. That is because such chicken theft, as a
third offense, will likely be treated as a felony.

															A further anomaly concerns the offender's criminal record.

															California's "wobbler" "petty theft with a prior" statute, at
issue in Lockyer v. Andrade, post , p. 63, classifies a
petty theft as a "felony" if, but only if, the offender has a prior
record that includes at least one conviction for certain
theftrelated offenses. Cal. Penal Code Ann. § 666 (West Supp.
2002). Thus a violent criminal who has committed two violent
offenses and then steals $200 will not fall within the
ambit of the three strikes statute, for his prior record reveals no
similar property crimes. A similar offender will fall within the scope of the three strikes statute, however, if
that offender, instead of having committed two previous violent
crimes, has committed one previous violent crime and one previous
petty theft. (Ewing's conduct would have brought him within the
realm of the petty theft statute prior to 1976 but for
inflation.)

															At the same time, it is difficult to find any strong need to
define the lower boundary as the State has done. The three strikes
statute itself, when defining prior "strikes," simply lists the
kinds of serious criminal conduct that falls within the definition
of a "strike." § 667.5(c) (listing "violent" felon- [51] ies); § 1192.7(c) (West Supp. 2003) (listing "serious"
felonies). There is no obvious reason why the statute could not
enumerate, consistent with its purposes, the relevant triggering
crimes. Given that possibility and given the anomalies that result
from California's chosen approach, I do not see how California can
justify on administrative grounds a sentence as seriously
disproportionate as Ewing's. See Parts II and III, supra. Neither do I see any other way in which inclusion of Ewing's
conduct (as a "triggering crime") would further a significant
criminal justice objective. One might argue that those who commit
several property crimes should receive long terms of
imprisonment in order to "incapacitate" them, i. e. , to
prevent them from committing further crimes in the future. But that
is not the object of this particular three strikes statute. Rather,
as the plurality says, California seeks "'to reduce serious and violent crime.'" Ante , at 24
(quoting Ardaiz, California's Three Strikes Law: History,
Expectations, Consequences, 32 McGeorge L. Rev. 1 (2000) (emphasis
added)). The statute's definitions of both kinds of crime include
crimes against the person, crimes that create danger of physical
harm, and drug crimes. See, e. g. , Cal. Penal Code Ann. §
667.5(c)(1) (West Supp. 2002), § 1192.7(c)(1) (West Supp. 2003)
(murder or voluntary manslaughter); § 667.5(c)(21) (West Supp.
2002), § 1192.7(c)(18) (West Supp. 2003) (first-degree burglary); §
1192.7(c)(24) (selling or giving or offering to sell or give heroin
or cocaine to a minor). They do not include even serious crimes
against property, such as obtaining large amounts of money, say,
through theft, embezzlement, or fraud. Given the omission of vast
categories of property crimes-including grand theft (unarmed)from
the "strike" definition, one cannot argue, on propertycrime-related incapacitation grounds , for
inclusion of Ewing's crime among the triggers.

															Nor do the remaining criminal law objectives seem relevant. No
one argues for Ewing's inclusion within the ambit [52] of the three strikes statute on grounds of "retribution." Cf.
Vitiello, Three Strikes: Can We Return to Rationality? 87 J. Crim.
L. & C. 395, 427 (1997) (California's three strikes law, like
other "[h]abitual offender statutes[, is] not retributive" because
the term of imprisonment is "imposed without regard to the
culpability of the offender or [the] degree of social harm caused
by the offender's behavior," and "has little to do with the gravity
of the offens[e]"). For reasons previously discussed, in terms of
"deterrence," Ewing's 25year term amounts to overkill. See Parts II
and III, supra. And "rehabilitation" is obviously beside
the point. The upshot is that, in my view, the State cannot find in
its three strikes law a special criminal justice need sufficient to
rescue a sentence that other relevant considerations indicate is
unconstitutional.

															V

															JUSTICE SCALIA and JUSTICE THOMAS argue that we should not
review for gross disproportionality a sentence to a term of years. Ante , at 31 (SCALIA, J., concurring in judgment); ante , at 32 (THOMAS, J., concurring in judgment).
Otherwise, we make it too difficult for legislators and sentencing
judges to determine just when their sentencing laws and practices
pass constitutional muster.

															I concede that a bright-line rule would give legislators and
sentencing judges more guidance. But application of the Eighth
Amendment to a sentence of a term of years requires a case-by-case
approach. And, in my view, like that of the plurality, meaningful
enforcement of the Eighth Amendment demands that application-even
if only at sentencing's outer bounds.

															A case-by-case approach can nonetheless offer guidance through
example. Ewing's sentence is, at a minimum, 2 to 3 times the length
of sentences that other jurisdictions would impose in similar
circumstances. That sentence itself is sufficiently long to require
a typical offender to spend virtually all the remainder of his
active life in prison. These and the [53] other factors that I have discussed, along with the questions
that I have asked along the way, should help to identify "gross
disproportionality" in a fairly objective way-at the outer bounds
of sentencing.

															In sum, even if I accept for present purposes the plurality's
analytical framework, Ewing's sentence (life imprisonment with a
minimum term of 25 years) is grossly disproportionate to the
triggering offense conduct-stealing three golf clubs-Ewing's
recidivism notwithstanding.

															For these reasons, I dissent.

															APPENDIX TO OPINION OF BREYER, J.

															A

															Thirty-three jurisdictions, as well as the federal courts, have
laws that would make it impossible to sentence a Ewing-type
offender to more than 10 years in prison:[ Footnote
1 ]

															Federal: 12 to 18 months. USSG § 2B1.1 (Nov. 1999); id. , ch. 5, pt. A, Sentencing Table.

															Alaska: three to five years; presumptive term of three years.
Alaska Stat. §§ 11.46.130(a)(1), (c), 12.55.125(e) (2000).

															Arizona: four to six years; presumptive sentence of five years.
Ariz. Rev. Stat. Ann. §§ 13-604(C), 13-1802(E) (West 2001).

															Connecticut: 1 to 10 years. Conn. Gen. Stat. §§ 53a35a(6),
53a-40(j), 53a-124(a)(2) (2001).

															Delaware: not more than two years. Del. Code Ann., Tit. 11, §
840(d) (Supp. 2000); § 4205(b)(7) (1995). Recidivist offender
penalty not applicable. See § 4214; Buckingham v. State ,
482 A. 2d 327 (Del. 1984).

															District of Columbia: not more than 10 years. D. C. Code Ann. §
22-3212(a) (West 2001). Recidivist offender penalty [54] not applicable. See § 22-1804a(c)(2) (West 2001) (amended
2001).

															Florida: not more than 10 years. Fla. Stat. Ann. §§
775.084(1)(a), (4)(a)(3) (West 2000) (amended 2002); §
812.014(c)(1) (West 2000).

															Georgia: 10 years. Ga. Code Ann. § 16-8-12(a)(1) (1996); §
17-10-7(a) (Supp. 1996).

															Hawaii: 20 months. Haw. Rev. Stat. §§ 708-831(1)(b),
706606.5(1)(a)(iv), (7)(a) (Supp. 2001).

															Idaho: 1 to 14 years. Idaho Code §§ 18-2403, 182407(b)(1),
18-2408(2)(a) (1948-1997). Recidivist/habitual offender penalty of
five years to life in prison, § 19-2514, likely not applicable.
Idaho has a general rule that" 'convictions entered the same day or
charged in the same information should count as a single conviction
for purposes of establishing habitual offender status.'" State
v. Harrington , 133 Idaho 563, 565, 990 P. 2d 144, 146 (App.
1999) (quoting State v. Brandt , 110 Idaho 341, 344, 715 P.
2d 1011, 1014 (App. 1986)). However, "the nature of the convictions
in any given situation must be examined to make certain that [this]
general rule is appropriate." Ibid. In this case, Ewing's
prior felony convictions stemmed from acts committed at the same
apartment complex, and three of the four felonies were committed
within a day of each other; the fourth offense was committed five
weeks earlier. See App. 6; Tr. 45-46 (Information, Case No.
NA018343-01 (Cal. Super. Ct.) (available in Clerk of Court's case
file)). A review of Idaho case law suggests that this case is
factually distinguishable from cases in which the Idaho courts have
declined to adhere to the general rule. See, e. g., Brandt,
supra , at 343, 344, 715 P. 2d, at 1013, 1014 (three separately
charged property offenses involving three separate homes and
different victims committed "during a two-month period"); State
v. Mace , 133 Idaho 903, 907, 994 P. 2d 1066, 1070 (App. 2000)
(unrelated crimes (grand theft and DUI) committed on different
dates in different counties); State v. Smith , 116 Idaho
553, 560, 777 [55] P. 2d 1226, 1233 (App. 1989) (separate and distinguishable
crimes committed on different victims in different counties).

															Illinois: two to five years. Ill. Compo Stat., ch. 730, § 51 5-8-1(a)(6) (Supp. 2001); ch. 720, § 5/16-1(b)(4). Recidivist offender penalty not applicable.
§ 5/33B-l(a) (2000). Indiana: 18 months (with not more than 18 months added for
aggravating circumstances). Ind. Code § 35-43-4-2(a) (1993); §
35-50-2-7(a). Recidivist offender penalty not applicable. See §
35-50-2-8 (amended 2001).

															Iowa: three to five years. Iowa Code Ann. §§ 714.2(2), 902.9(5)
(West Supp. 2002); § 902.8 (West 1994).

															Kansas: 9 to 11 months. Kan. Stat. Ann. §§ 21-3701(b)(2),
21-4704(a) (1995). Recidivist offender penalty not applicable. See
§ 21-4504(e)(3).

															Kentucky: 5 to 10 years. Ky. Rev. Stat. Ann. § 514.030(2) (Lexis
Supp. 2002); §§ 532.060(2)(c), (d), 532.080(2), (5) (Lexis
1999).

															Maine: less than one year. Me. Rev. Stat. Ann., Tit. 17-A, § 353
(West 1983); § 362(4)(B) (West Supp. 2000) (amended 2001); §
1252(2)(D) (West 1983 and Supp. 2002). Recidivist offender penalty
not applicable. See § 1252(4-A) (West Supp. 2000) (amended
2001).

															Massachusetts: not more than five years. Mass. Gen.

															Laws, ch. 266, § 30(1) (West 2000). Recidivist offender penalty
not applicable. See ch. 279, § 25 (West 1998); Common wealth v. Hall , 397 Mass. 466, 468, 492 N.
E. 2d 84, 85 (1986).

															Minnesota: not more than five years. Minn. Stat. § 609.52, subd.
3(3)(a) (2002). Recidivist offender penalty not applicable. See §
609.1095, subd. 2.

															Mississippi: not more than five years. Miss. Code Ann. §
97-17-41(1)(a) (Lexis 1973-2000). Recidivist offender penalty not
applicable. See § 99-19-81.

															Nebraska: not more than five years. Neb. Rev. Stat. § 28105(1)
(2000 Cum. Supp.); § 28-518(2) (1995). Recidivist offender penalty
not applicable. See § 29-2221(1). [56] New Jersey: Extended term of between 5 to 10 years (instead of
three to five years, N. J. Stat. Ann. § 2C:43-6 (1995)) , §
2C:43-7(a)(4) (Supp. 2002), whether offense is treated as theft, §
2C:20-2(b)(2)(a), or shoplifting, §§ 2C:20-11(b), (c)(2), because,
even if Ewing's felonies are regarded as one predicate crime, Ewing
has been separately convicted and sentenced for at least one other
crime for which at least a 6month sentence was authorized, §
2C:44-3(a); § 2C:44-4(c) (1995).

															New Mexico: 30 months. N. M. Stat. Ann. § 30-1620(B)(3) (1994);
§ 31-18-15(A)(6) (2000); § 31-18-17(B) (2000) (amended 2002).

															New York: three to four years. N. Y. Penal Law § 70.06(3)(e)
(West 1998); § 155.30 (West 1999).

															North Carolina: 4 to 25 months (with exact sentencing range
dependent on details of offender's criminal history). N. C. Gen.
Stat. §§ 15A-1340.14, 15A-1340.17(c), (d), 14-72(a) (2001).
Recidivist offender penalty not applicable. See §§ 14-7.1,
14-7.6.

															North Dakota: not more than 10 years. N. D. Cent. Code §
12.1-23-05(2)(a) (1997); §§ 12.1-32-09(1), (2)(c) (1997) (amended
2001).

															Ohio: 6 to 12 months. Ohio Rev. Code Ann. §§ 2913.02(B)(2),
2929.14(A)(5) (West Supp. 2002). No general recidivist statute.

															Oregon: not more than five years. Ore. Rev. Stat. § 161.605
(1997); Ore. Rev. Stat. Ann. §§ 164.055(1)(a), (3) (Supp. 1998). No
general recidivist statute.

															Pennsylvania: not more than five years (if no more than one
prior theft was "retail theft"); otherwise, not more than seven
years. Pa. Stat. Ann., Tit. 18, §§ 1103(3), 1104(1) (Purdon 1998);
§§ 3903(b), 3929(b)(1)(iii)-(iv) (Purdon Supp. 2002); § 3921
(Purdon 1983). Recidivist offender penalty not applicable. See 42
Pa. Cons. Stat. § 9714(a)(1) (1998). [57] Rhode Island: not more than 10 years. R. 1. Gen. Laws §
11-41-5(a) (2002). Recidivist offender penalty not applicable. See
§ 12-19-21(a).

															South Carolina: not more than five years. S. C. Code Ann. §§
16-13-30, 16-13-110(B)(2) (West 2001 Cum. Supp.). Recidivist
offender penalty not applicable. See § 17-25-45.

															Tennessee: four to eight years. Tenn. Code Ann. §§ 3914-105(3),
40-35-106(a)(1), (c), 40-35-112(b)(4) (1997).

															Utah: not more than five years. Utah Code Ann. § 76-3203(3)
(1999) (amended 2000); § 76-6-412(1)(b)(i) (1999). Recidivist
offender penalty not applicable. See § 76-3-203.5 (Supp. 2002).

															Washington: not more than 14 months (with exact sentencing range
dependent on details of offender score), Wash. Rev. Code §§
9A.56.040(1)(a), (2) (2000); §§ 9.94A.510(1), 9.94A.515, 9.94A.525
(2003 Supp. Pamphlet); maximum sentence of five years, §§
9A.56.040(1)(a), (2), 9A.20.021(1)(c) (2000). Recidivist offender
penalty not applicable. See §§ 9.94A.030(27), (31) (2000); §
9.94A.570 (2003 Supp. Pamphlet).

															Wyoming: not more than 10 years. Wyo. Stat. Ann. § 6-3404(a)(i)
(Michie 2001). Recidivist offender penalty not applicable. See §
6-10-201(a).

															B

															In four other States, a Ewing-type offender could not have
received a sentence of more than 15 years in prison:

															Colorado: 4 to 12 years for "extraordinary aggravating
circumstances" (e. g. , defendant on parole for another
felony at the time of commission of the triggering offense). Colo.
Rev. Stat. §§ 18-1-105(1)(a)(V)(A), 18-1-105(9)(a)(II),
18-4401(2)(c) (2002). Recidivist offender penalty not applicable.
See §§ 16-13-101(f)(1.5), (2) (2001).

															Maryland: not more than 15 years. Md. Ann. Code, Art. 27, §
342(f)(1) (1996) (repealed 2002). Recidivist offender penalty not
applicable. See § 643B. [58] New Hampshire: not more than 15 years. N. H. Stat.

															Ann. §§ 637:11(I)(a), 651:2(II)(a) (West Supp. 2002). Recidivist
offender penalty not applicable. See § 651:6(I)(c).

															Wisconsin: not more than 11 years (at the time of Ewing's
offense). Wis. Stat. Ann. § 939.50(3)(e) (West Supp. 2002); §§
939.62(1)(b), (2), 943.20(3)(b) (West 1996) (amended 2001).
Wisconsin subsequently amended the relevant statutes so that a
Ewing-type offender would only be eligible for a sentence of up to
three years. See §§ 939.51(3)(a), 943.20(3)(a), 939.62(1)(a) (West
Supp. 2003). And effective February 1, 2003, such an offender is
eligible for a sentence of only up to two years. See §§
939.51(3)(a), 943.20(3)(a), 939.62(1)(a).

															C

															In four additional States, a Ewing-type offender could not have
been sentenced to more than 20 years in prison:

															Arkansas: 3 to 20 years. Ark. Code Ann. § 5-36103(b)(2)(A)
(1997); §§ 5-4-501(a)(2)(D), (e)(l) (1997) (amended 2001). Eligible
for parole after serving one-third of the sentence. § 5-4-501
(1997); § 16-93-608 (1987).

															Missouri: not more than 20 years. Mo. Rev. Stat. § 558.016(7)(3)
(2000); § 570.030(3)(1) (2000) (amended 2002). Eligible for parole
after 15 years at the latest. § 558.011(4)(1)(c).

															Texas: 2 to 20 years. Tex. Penal Code Ann. §§ 12.33(a),
12.35(c)(2)(A) (1994); §§ 12.42(a)(3), 31.03(e)(4)(D) (Supp. 2003).
Eligible for parole after serving one-fourth of sentence. Tex.
Govt. Code Ann. § 508.145(f) (Supp. 2003).

															Virginia: statutory range of 1 to 20 years (or less than 12
months at the discretion of the jury or court following bench
trial), Va. Code Ann. § 18.2-95 (Supp. 2002), but discretionary
sentencing guideline ranges established by the Virginia Sentencing
Commission, §§ 17.1-805, 19.2-298.01 (2000), with a maximum of 6
years, 3 months, to 15 years, 7 months, see Virginia Criminal
Sentencing Commission, Virginia Sentencing Guidelines Manual,
Larceny-Section C Recommenda- [59] tion Table (6th ed. 2002) (with petitioner likely falling within
the discretionary guideline range of 2 years, 1 month, to 5 years,
3 months, see Brief for Petitioner 33, n. 25). Recidivist offender
penalty not applicable. See § 19.2-297.1 (2000).

															D

															In nine other States, the law might make it legally
possible to impose a sentence of 25 years or more upon a Ewing-type
offender. But in five of those nine States,[[ Footnote 2 ]] the offender would be parole-eligible
before 25 years:

															Alabama: "life or any term of not less than 20 years."

															Ala. Code § 13A-5-9(c)(2) (Lexis Supp. 2002); §§ 13A-8-3(a), (c)
(1994). Eligible for parole after the lesser of one-third of the
sentence or 10 years. § 15-22-28(e) (1995).

															Louisiana: Louisiana courts could have imposed a sentence of
life without the possibility of parole at the time of Ewing's
offense. La. Stat. Ann. §§ 14:67.10(B)(1), 14:2(4), (13)(y) (West
Supp. 2003); §§ 15:529.1(A)(1)(b)(ii) and (c)(i)-(ii) (West 1992)
(amended 2001). Petitioner argues that, despite the statutory
authority to impose such a sentence, Louisiana courts would have
carefully scrutinized his life sentence, as they had in other cases
involving recidivists charged with a nonviolent crime. Brief for
Petitioner 35-36, n. 29; see Brief for Families Against Mandatory
Minimums as Amicus Cu riae 24-25, and n. 21; State v.
Hayes , 98-1526, p. 4 (La. App. 6/25/99), 739 So. 2d 301,
303-304 (holding that a life sentence was impermissibly excessive
for a defendant convicted of theft of over $1,000, who had a prior
robbery conviction). But see Brief for Respondent 45-46, n. 12
(contesting petitioner's argument). Louisiana has amended its
recidivist statute to require that the triggering offense be a
violent felony, and that the offender have at least two prior
violent felony convictions to be eligible for a life sentence. La.
Stat. [60] Ann. § 15:529.1(A)(1)(b)(ii) (West Supp. 2003). Under current
law, a Ewing-type offender would face a sentence of 6% to 20 years.
§§ 14:67.10(B)(1), 15:529.1(A)(b)(i).

															Michigan: "imprisonment for life or for a lesser term," Mich.
Compo Laws Ann. § 769.12(1)(a) (West 2000) (instead of "not more
than 15 years," § 769.12(1)(b), as petitioner contends, see Brief
for Petitioner 34, n. 26; Brief for Families Against Mandatory
Minimums as Amicus Curiae 16-17 , n. 15,22-23, n. 20),
because the triggering offense is "punishable upon a first
conviction by imprisonment for a maximum term of 5 years or more,"
§ 769.12(1)(a) (West 2000). The larceny for which Ewing was
convicted was, under Michigan law, "a felony punishable by
imprisonment for not more than 5 years." § 750.356(3)(a) (West
Supp. 2002). Eligible for parole following minimum term set by
sentencing judge. § 769.12(4) (West 2000).

															Montana: 5 to 100 years. Mont. Code Ann. § 45-6301(7)(b) (1999);
§§ 46-18-501, 46-18-502(1) (2001). A Ewing-type offender would not
have been subject to a minimum term of 10 years in prison (as the
State suggests, Brief for Respondent 44) because Ewing does not
meet the requirements of § 46-18-502(2) (must be a "persistent
felony offender," as defined in § 46-18-501, at the time of the
offender's previous felony conviction). See Reply Brief for
Petitioner 18, n. 14. Eligible for parole after one-fourth of the
term. § 46-23-201(2).

															Nevada: "life without the possibility of parole," or "life with
the possibility of parole [after serving] 10 years," or "a definite
term of 25 years, with eligibility for parole [after serving] 10
years." Nev. Rev. Stat. §§ 207.010(1)(b)(1)-(3) (1995).

															Oklahoma: not less than 20 years (at the time of Ewing's
offense). Okla. Stat., Tit. 21, § 51.1(B) (West Supp. 2000)
(amended in 2001 to four years to life, § 51.1(C) (West
2001)); § 1704 (West 1991) (amended 2001). Eligible for parole
after serving one-third of sentence. Tit. 57, § 332.7(B) (West [61] 2001). Thus, assuming a sentence to a term of years of up to 100
years (as in Montana, see supra , at 60), parole
eligibility could arise as late as after 33 years.

															South Dakota: maximum penalty of life imprisonment, with no
minimum term. S. D. Codified Laws § 22-7-8 (1998); § 22-30A-17(1)
(Supp. 2002). Eligible for parole after serving one-half of
sentence. § 24-15-5(3) (1998). Thus, assuming a sentence to a term
of years of up to 100 years (as in Montana, see supra , at
60), parole eligibility could arise as late as after 50 years.

															Vermont: "up to and including life," Vt. Stat. Ann., Tit. 13, §
11 (1998), or not more than 10 years, § 2501; State v.
Angelucci , 137 Vt. 272, 289-290, 405 A. 2d 33, 42 (1979)
(court has discretion to sentence habitual offender to the sentence
that is specified for grand larceny alone). Eligible for parole
after six months. Tit. 28, § 501 (2000) (amended 2001).

															West Virginia: Petitioner contends that he would only have been
subject to a misdemeanor sentence of not more than 60 days for
shoplifting, W. Va. Code §§ 61-3A-1, 61-3A-3(a)(2) (2000); Brief
for Petitioner 31, n. 19, 33-34, n. 25. However, a Ewing-type
offender could have been charged with grand larceny, see State
ex rel. Chadwell v. Duncil , 196 W. Va. 643, 647-648, 474 S. E.
2d 573, 577-578 (1996) (prosecutor has discretion to charge
defendant with either shoplifting or grand larceny), a felony
punishable by imprisonment in the state penitentiary for 1 to 10
years (or, at the discretion of the trial court, not more than 1
year in jail). § 61-3-13(a). Under West Virginia's habitual
offender statute, a felon "twice before convicted . . .
of a crime punishable by confinement in a penitentiary
. . . shall be sentenced to . . . life
[imprison-ment]," § 61-11-18(c), with parole eligibility after 15
years, § 62-12-13(c). Amicus curiae on behalf of
petitioner notes that, in light of existing state-law precedents,
West Virginia courts "would not countenance a sentence of life
without the possibility of parole for 25 years for shoplifting golf
clubs." Brief for Families Against Mandatory Minimums as Amicus [62] Curiae 25-26 (citing State v. Barker , 186 W.
Va. 73, 74-75, 410 S. E. 2d 712, 713-714 (1991) (per
curiam); and State v. Deal , 178 W. Va. 142, 146-147,
358 S. E. 2d 226, 230-231 (1987)). But see Brief for Respondent 45,
n. 11 (contesting that argument). Notes [ Footnote 1 ]

															It is hardly surprising that the statistics relied upon by
JUSTICE BREYER show that prior to the enactment of the three
strikes law, "no one like Ewing could have served more
than 10 years in prison." Post , at 43 (dissenting
opinion) (emphasis added). Profound disappointment with the
perceived lenity of criminal sentencing (especially for repeat
felons) led to passage of three strikes laws in the first place.
See, e. g. , Review of State Legislation 1.

															[ Footnote 1 ]

															For "present purposes," post , at 36, 53 (dissenting
opinion), JUSTICE BREYER applies the framework established by Harmelin v. Michigan, 501 U. S. 957, 1004-1005 (1991), in
analyzing Ewing's Eighth Amendment

															[ Footnote 2 ]

															Numerous other examples could be given of situations in which
courts-faced with imprecise commands-must make difficult decisions.
See, e. g. , Kyles v. Whitley , 514 U. S. 419 (1995)
(reviewing whether undisclosed evidence was material); Arizona
v. Fulminante , 499 U. S. 279 (1991)
(considering whether confession was coerced and, if so, whether
admission of the coerced confession was harmless error); Strickland v. Washington , 466 U. S. 668 (1984)
(addressing whether defense counsel's performance was deficient and
whether any deficiency was prejudicial); Darden v.
Wainwright , 477
U. S. 168 (1986) (assessing whether prosecutorial misconduct
deprived defendant of a fair trial); Christensen v. Harris
County , 529 U.
S. 576 , 589 (2000) (SCALIA, J., concurring in part and
concurring in judgment) (addressing whether an agency's
construction of a statute was "reasonable").

															[ Footnote 1 ]

															Throughout Appendix, Parts A-D, the penalties listed for each
jurisdiction are those pertaining to imprisonment and do not
reflect any possible fines or other forms of penalties applicable
under the laws of the jurisdiction.

															[ Footnote 2 ]

															But see discussion of relevant sentencing and parole-eligibility
provisions in Louisiana, Michigan, Oklahoma, and South Dakota, infra this page and 60-61.