U.S. Supreme Court Harmelin v. Michigan, 501
U.S. 957 (1991) Harmelin v. Michigan No. 89-7272 Argued November 5,
1990 Decided June 27, 1991 501
U.S. 957 CERTIORARI TO THE COURT OF APPEALS
OF MICHIGAN Syllabus Petitioner Harmelin was convicted under Michigan law of
possessing more than 650 grams of cocaine and sentenced to a
mandatory term of life in prison without possibility of parole. The
State Court of Appeals affirmed, rejecting his argument that the
sentence was "cruel and unusual" within the meaning of the Eighth
Amendment. He claims here that the sentence is cruel and unusual
because it is "significantly disproportionate" to the crime he
committed, and because the sentencing judge was statutorily
required to impose it, without taking into account the
particularized circumstances of the crime and of the criminal. Held: The judgment is affirmed.

															176 Mich. App. 524, 440 N.W.2d 75, affirmed.

															JUSTICE SCALIA delivered the opinion of the Court with respect
to Part IV, concluding that Harmelin's claim that his sentence is
unconstitutional because it is mandatory in nature, allowing the
sentencer no opportunity to consider "mitigating factors," has no
support in the Eighth Amendment's text and history. Severe,
mandatory penalties may be cruel, but they are not unusual in the
constitutional sense, having been employed in various forms
throughout the Nation's history. Although Harmelin's claim finds
some support in the so-called "individualized capital sentencing
doctrine" of this Court's death penalty jurisprudence, see,
e.g., Woodson v. North Carolina, 428 U.
S. 280 , that doctrine may not be extended outside the
capital context, because of the qualitative differences between
death and all other penalties, see, e.g., id. at 428 U. S.
303 -305. Pp. 501 U. S.
994 -996.

															JUSTICE SCALIA, joined by THE CHIEF JUSTICE, concluded in Parts
I, II, and III that, because the Eighth Amendment contains no
proportionality guarantee, Harmelin's sentence cannot be considered
unconstitutionally disproportional. Pp. 501 U. S.
962 -994.

															(a) For crimes concededly classified and classifiable as
felonies -- i.e., as punishable by significant terms of
imprisonment in a state penitentiary -- the length of the sentence
actually imposed is purely a matter of legislative prerogative. Rummel v. Estelle, 445 U. S. 263 , 445 U. S. 274 . Solem v. Helm, 463 U. S. 277 ,
which decreed a "general principle of proportionality," id. at 463 U. S. 288 ,
and used as the criterion for its application a three-factor test
that had been explicitly rejected in Rummel, supra, at Page 501 U. S. 958 445 U. S.
281 -282, and n. 27, and Hutto v. Davis, 454 U. S. 370 , 454 U. S.
373 -374, was wrong, and should be overruled. Pp. 501 U. S.
962 -965.

															(b) Although Solem, supra at 463 U. S. 285 ,
correctly discerned that the Eighth Amendment prohibition was
derived from the "cruell and unusuall Punishments" provision of the
English Declaration of Rights of 1689, Solem's conclusion
that the latter provision embodied a right to be free from
disproportionate punishments is refuted by the circumstances of the
declaration's enactment and the contemporaneous understanding of
the English guarantee. The guarantee was directed at the arbitrary
use of the sentencing power by the King's Bench in particular
cases, and at the illegality, rather than the disproportionality,
of punishments thereby imposed. Pp. 501 U. S.
966 -975.

															(c) That the Americans who adopted the Eighth Amendment intended
its Cruel and Unusual Punishments Clause as a check on the ability
of the Legislature to authorize particular modes of punishment -- i.e., cruel methods of punishment that are not regularly
or customarily employed -- rather than as a guarantee against
disproportionate sentences is demonstrated by the available
evidence of contemporary understanding, including the context of
adoption, the debates of the state ratifying conventions and the
First Congress, and early commentary and judicial decisions. It is
particularly telling that those who framed and approved the Federal
Constitution chose not to include within it the explicit guarantee
against disproportionate sentences that some State Constitutions
contained. Pp. 501 U. S.
975 -985.

															(d) There are no adequate textual or historical standards to
enable judges to determine whether a particular penalty is
disproportional. The first two of the factors that Solem found relevant -- the inherent gravity of the defendant's offense
and the sentences imposed for similarly grave offenses in some
jurisdictions -- fail for lack of an objective standard of gravity.
Since, as the statutes Americans have enacted in different times
and places demonstrate, there is enormous variation of opinion as
to what offenses are serious, the proportionality principle is an
invitation for judges to impose their own subjective values.
Moreover, although the third Solem factor -- the character
of the sentences imposed by other States for the same crime -- can
be applied with clarity and ease, it is irrelevant to the Eighth
Amendment. Traditional notions of federalism entitle States to
treat like situations differently in light of local needs,
concerns, and social conditions. Pp. 501 U. S.
985 -990.

															(e) Although this Court's 20th-century jurisprudence has not
remained entirely in accord with the proposition that there is no
Eighth Amendment proportionality requirement, it has not departed
to the extent that Solem suggests. While Weems v.
United States, 217 U. S. 349 --
which was cited by Solem, supra at 463 U. S. 287 ,
as the "leading case" -- did contain language suggesting that mere
disproportionality might make a Page 501 U. S. 959 punishment cruel and unusual, 217 U.S. at 217 U. S.
366 -367, it also contained statements indicating that
the unique punishment there at issue was unconstitutional because
it was unknown to Anglo-American tradition, id. at 217 U. S. 377 .
It is hard to view Weems as announcing a constitutional
proportionality requirement, given that it did not produce a
decision implementing such a requirement, either in this Court or
the lower federal courts, for six decades. This Court's first such
opinion, Coker v. Georgia, 433 U.
S. 584 , 433 U. S. 592 ,
was a death penalty case. The Coker line of authority
should not be treated as a generalized aspect of Eighth Amendment
law, since proportionality review is one of several respects in
which "death is different," requiring protections that the
Constitution nowhere else provides. Pp. 501 U. S.
990 -994.

															JUSTICE KENNEDY, joined by JUSTICE O'CONNOR and JUSTICE SOUTER,
concluded:

															1. This Court's decisions recognize that the Eighth Amendment's
Cruel and Unusual Punishments Clause encompasses a narrow
proportionality principle that applies to noncapital sentences. See, e.g., Weems v. United States, 217 U.
S. 349 , 217 U. S. 371 ; Rummel v. Estelle, 445 U. S. 263 , 445 U. S.
271 -274, and n. 11; Hutto v. Davis, 454 U. S. 370 , 454 U. S. 374 ,
and n. 3; Solem v. Helm, 463 U. S. 277 .
Although these decisions have not been totally clear or consistent,
close analysis yields some common principles that give content to
the uses and limits of proportionality review. First, the fixing of
prison terms for specific crimes involves a substantial penological
judgment that, as a general matter, is properly within the province
of the legislature, and reviewing courts should grant substantial
deference to legislative determinations. Second, there are a
variety of legitimate penological schemes based on theories of
retribution, deterrence, incapacitation, and rehabilitation, and
the Eighth Amendment does not mandate adoption of any one such
scheme. Third, marked divergences both in sentencing theories and
the length of prescribed prison terms are the inevitable, often
beneficial, result of the federal structure, and differing
attitudes and perceptions of local conditions may yield different,
yet rational, conclusions regarding the appropriate length of terms
for particular crimes. Fourth, proportionality review by federal
courts should be informed by objective factors to the maximum
extent possible, and the relative lack of objective standards
concerning length, as opposed to type, of sentence has resulted in
few successful proportionality challenges outside the capital
punishment context. Finally, the Eighth Amendment does not require
strict proportionality between crime and sentence, but rather
forbids only extreme sentences that are grossly disproportionate to
the crime. Pp. 501 U. S.
996 -1001.

															2. Tn light of the foregoing principles, Harmelin's sentence
does not violate the Cruel and Unusual Punishments Clause. Although
a sentence Page 501 U. S. 960 of life imprisonment without parole is the second most severe
penalty permitted by law, it is not grossly disproportionate to
Harmelin's crime of possessing more than 650 grams of cocaine. His
suggestion that the crime was nonviolent and victimless is false to
the point of absurdity. Studies demonstrate the grave threat that
illegal drugs, and particularly cocaine, pose to society in terms
of violence, crime, and social displacement. The amount of cocaine
Harmelin possessed has a potential yield of between 32,500 and
65,000 doses, and the Michigan Legislature could with reason
conclude that possession of this large an amount is momentous
enough to warrant the deterrence and retribution of a life sentence
without parole. Given the severity of Harmelin's crime, there is no
need to conduct a comparative analysis between his sentence and
sentences imposed for other crimes in Michigan and for the same
crime in other jurisdictions. This Court's decisions indicate that
such an analysis is appropriate in the rare case in which a
threshold comparison of the crime committed and the sentence
imposed leads to an inference of gross disproportionality, see
Solem, supra at 463 U. S.
293 -300; Weems, supra at 217 U. S.
377 -381, but not in the usual case where no such
inference arises, see, e.g., Rummel, supra at 445 U. S. 281 .
Pp. 501 U. S.
1001 -1005.

															SCALIA, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Part IV, in which
REHNQUIST C.J., and O'CONNOR, KENNEDY, and SOUTER, JJ., joined, and
an opinion with respect to Parts I, II, and III, in which
REHNQUIST, C.J., joined. KENNEDY, J., filed an opinion concurring
in part and concurring in the judgment, in which O'CONNOR and
SOUTER, JJ., joined, post, p. 501 U. S. 996 .
WHITE, J., filed a dissenting opinion, in which BLACKMUN and
STEVENS, JJ., joined, post, p. 501 U. S.
1009 . MARSHALL, J., filed a dissenting opinion, post, p. 501 U. S.
1027 . STEVENS, J., filed a dissenting opinion, in which
BLACKMUN, J., joined, post, p. 501 U. S.
1028 . Page 501 U. S. 961 JUSTICE SCALIA announced the judgment of the Court and delivered
the opinion of the Court with respect to Part IV, and an opinion
with respect to Parts I, II, and III, in which THE CHIEF JUSTICE
joins.

															Petitioner was convicted of possessing 672 grams of cocaine and
sentenced to a mandatory term of life in prison without possibility
of parole. [ Footnote 1 ] The
Michigan Court of Appeals initially reversed his conviction because
evidence supporting it had been obtained in violation of the
Michigan Constitution. 176 Mich.App. 524, 440 N.W.2d 75 (1989). On
petition for rehearing, the Court of Appeals vacated its prior
decision and affirmed petitioner's sentence, rejecting his argument
that the sentence was "cruel and unusual" within the meaning of the
Eighth Amendment. Id. at 535, 440 N.W.2d at 80. The
Michigan Supreme Court denied leave to appeal, 434 Mich. 863
(1990), and we granted certiorari. 495 U.S. 956 (1990).

															Petitioner claims that his sentence is unconstitutionally "cruel
and unusual" for two reasons: first, because it is "significantly
disproportionate" to the crime he committed; second, because the
sentencing judge was statutorily required to Page 501 U. S. 962 impose it, without taking into account the particularized
circumstances of the crime and of the criminal.

															The Eighth Amendment, which applies against the States by virtue
of the Fourteenth Amendment, see Robinson v. California, 370 U. S. 660 (1962), provides: "Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted." In Rummel v. Estelle, 445 U.
S. 263 (1980), we held that it did not constitute "cruel
and unusual punishment" to impose a life sentence, under a
recidivist statute, upon a defendant who had been convicted,
successively, of fraudulent use of a credit card to obtain $80
worth of goods or services, passing a forged check in the amount of
$28.36, and obtaining $120.75 by false pretenses. We said that

															"one could argue without fear of contradiction by any decision
of this Court that, for crimes concededly classified and
classifiable as felonies, that is, as punishable by significant
terms of imprisonment in a state penitentiary, the length of the
sentence actually imposed is purely a matter of legislative
prerogative." Id. at 445 U. S. 274 .
We specifically rejected the proposition asserted by the dissent, id. at 445 U. S. 295 (opinion of Powell, J.), that unconstitutional disproportionality
could be established by weighing three factors: (1) gravity of the
offense compared to severity of the penalty, (2) penalties imposed
within the same jurisdiction for similar crimes, and (3) penalties
imposed in other jurisdictions for the same offense. Id. at 445 U. S.
281 -282, and n. 27. A footnote in the opinion, however,
said:

															"This is not to say that a proportionality principle would not
come into play in the extreme example mentioned by the dissent, . .
. if a legislature made overtime parking a felony punishable by
life imprisonment." Id. at 445 U. S. 274 ,
n. 11.

															Two years later, in Hutto v. Davis, 454 U.
S. 370 (1982), we similarly rejected an Eighth Amendment
challenge to a Page 501 U. S. 963 prison term of 40 years and fine of $20,000 for possession and
distribution of approximately nine ounces of marijuana. We thought
that result so clear in light of Rummel that our per
curiam opinion said the Fourth Circuit, in sustaining the
constitutional challenge, "could be viewed as having ignored,
consciously or unconsciously, the hierarchy of the federal court
system," which could not be tolerated "unless we wish anarchy to
prevail," 454 U.S. at 454 U. S.
374 -375. And we again explicitly rejected application of
the three factors discussed in the Rummel dissent.
[ Footnote 2 ] See 454
U.S. at 454 U. S.
373 -374, and n. 2. However, whereas in Rummel we had said that successful proportionality challenges outside the
context of capital punishment "have been exceedingly rare," 445
U.S. at 445 U. S. 272 (discussing as the solitary example Weems v. United
States, 217 U. S. 349 (1910), which we explained as involving punishment of a "unique
nature," 445 U.S. at 445 U. S.
274 ), in Davis we misdescribed Rummel as having said that " successful challenges . . .' should
be `exceedingly rare,'" 454 U.S. at 454 U. S. 374 (emphasis added), and at that point inserted a reference to, and
description of, the Rummel "overtime parking" footnote,
454 U.S. at 454 U. S. 374 ,
n. 3. The content of that footnote was imperceptibly (but, in the
event, ominously) expanded: Rummel's "not [saying] that a
proportionality principle would not come into play" in the fanciful
parking example, 445 U.S. at 445 U. S. 274 ,
n. 11, became "not[ing] . . . that there could be situations in
which the proportionality principle would come into play, such
as " the fanciful parking example, Davis, supra at 454 U. S. 374 ,
n. 3 (emphasis added). This combination of expanded text plus
expanded footnote permitted the inference that gross
disproportionality was an example of the "exceedingly rare"
situations in which Eighth Amendment challenges "should be"
successful. Indeed, one might say Page 501 U. S. 964 that it positively invited that inference, were that not
incompatible with the sharp per curiam reversal of the Fourth
Circuit's finding that 40 years for possession and distribution of
nine ounces of marijuana was grossly disproportionate, and
therefore unconstitutional.

															A year and a half after Davis, we uttered what has been
our last word on this subject to date. Solem v. Helm, 463 U. S. 277 (1983), set aside under the Eighth Amendment, because it was
disproportionate, a sentence of life imprisonment without
possibility of parole, imposed under a South Dakota recividist
statute for successive offenses that included three convictions of
third-degree burglary, one of obtaining money by false pretenses,
one of grand larceny, one of third-offense driving while
intoxicated, and one of writing a "no account" check with intent to
defraud. In the Solem account, Weems no longer
involved punishment of a "unique nature," Rummel, supra at 445 U. S. 274 ,
but was the "leading case," Solem, 463 U.S. at 463 U. S. 287 ,
exemplifying the "general principle of proportionality," id. at 463 U. S. 288 ,
which was "deeply rooted and frequently repeated in common law
jurisprudence," id. at 463 U. S. 284 ,
had been embodied in the English Bill of Rights "in language that
was later adopted in the Eighth Amendment," id. at 463 U. S. 285 ,
and had been "recognized explicitly in this Court for almost a
century," id. at 463 U. S. 286 .
The most recent of those "recognitions" were the "overtime parking"
footnotes in Rummel and Davis, 463 U.S. at 463 U. S. 288 .
As for the statement in Rummel that

															"one could argue without fear of contradiction by any decision
of this Court that, for crimes concededly classified and
classifiable as felonies . . . the length of the sentence actually
imposed is purely a matter of legislative prerogative," Rummel, supra at 445 U. S. 274 :
according to Solem, the really important words in that
passage were " one could argue, '" 463 U.S. at 463 U. S. 288 ,
n. 14 (emphasis added in Solem ). "The Court [in Rummel ] . . . merely recognized that the
argument was possible. To the extent that the State . . . makes
this argument here, we find it meritless." Id. at 463 U. S.
289 , Page 501 U. S. 965 n. 14. (Of course Rummel had not said merely "one could
argue," but "one could argue without fear of contradiction by
any decision of this Court. " (Emphasis added.)) Having decreed
that a general principle of disproportionality exists, the Court
used as the criterion for its application the three-factor test
that had been explicitly rejected in both Rummel and Davis. 463 U.S. at 463 U. S.
291 -292. Those cases, the Court said, merely "indicated
[that] no one factor will be dispositive in a given case," id. at 463 U. S. 291 ,
n. 17 -- though Davis had expressly, approvingly, and
quite correctly described Rummel as having "disapproved each of [the] objective factors," 454 U.S. at 454 U. S. 373 (emphasis added). See Rummel, 445 U.S. at 445 U. S.
281 -282, and n. 27.

															It should be apparent from the above discussion that our 5-to-4
decision eight years ago in Solem was scarcely the
expression of clear and well accepted constitutional law. We have
long recognized, of course, that the doctrine of stare
decisis is less rigid in its application to constitutional
precedents, see Payne v. Tennessee, ante at 501 U. S. 828 ; Smith v. Allwright, 321 U. S. 649 , 321 U. S. 665 ,
and n. 10 (1944); Mitchell v. W. T. Grant Co., 416 U. S. 600 , 416 U. S.
627 -628 (1974) (Powell, J., concurring); Burnet v.
Coronado Oil & Gas Co., 285 U. S. 393 , 285 U. S.
406 -408 (1932) (Brandeis, J., dissenting), and we think
that to be especially true of a constitutional precedent that is
both recent and in apparent tension with other decisions.
Accordingly, we have addressed anew, and in greater detail, the
question whether the Eighth Amendment contains a proportionality
guarantee -- with particular attention to the background of the
Eighth Amendment (which Solem discussed in only two pages, see 463 U.S. at 463 U. S.
284 -286) and to the understanding of the Eighth
Amendment before the end of the 19th century (which Solem discussed not at all). We conclude from this examination that Solem was simply wrong; the Eighth Amendment contains no
proportionality guarantee. Page 501 U. S. 966 B Solem based its conclusion principally upon the
proposition that a right to be free from disproportionate
punishments was embodied within the "cruell and unusuall
Punishments" provision of the English Declaration of Rights of
1689, and was incorporated, with that language, in the Eighth
Amendment. There is no doubt that the Declaration of Rights is the
antecedent of our constitutional text. (This document was
promulgated in February, 1689, and was enacted into law as the Bill
of Rights, 1 Wm. & Mary, Sess. 2, ch. 2, in December, 1689. See Sources of Our Liberties 222-223 (R. Perry & J.
Cooper eds.1959); L. Schwoerer, Declaration of Rights, 1689, pp.
279, 295-298 (1981).) In 1791, five State Constitutions prohibited
"cruel or unusual punishments," see Del. Declaration of
Rights, § 16 (1776); Md.Declaration of Rights, § XXII (1776);
Mass.Declaration of Rights, Art. XXVI (1780); N.C.Declaration of
Rights, §X (1776); N.H.Bill of Rights, Art. XXXIII (1784), and two
prohibited "cruel" punishments, Pa.Const., Art. IX, § 13 (1790);
S.C.Const., Art. IX, § 4 (1790). The new Federal Bill of Rights,
however, tracked Virginia's prohibition of "cruel and unusual punishments," see Va.Declaration of Rights, § 9
(1776), which most closely followed the English provision. In fact,
the entire text of the Eighth Amendment is taken almost verbatim
from the English Declaration of Rights, which provided "[t]hat
excessive Baile ought not to be required nor excessive Fines
imposed nor cruell and unusuall Punishments inflicted."

															Perhaps the Americans of 1791 understood the Declaration's
language precisely as the Englishmen of 1689 did -- though, as we
shall discuss later, that seems unlikely. Or perhaps the colonists
meant to incorporate the content of that antecedent by reference, whatever the content might have been. Solem suggested something like this, arguing that, since Americans
claimed "all the rights of English subjects," "their use of the
language of the English Bill of Rights is convincing Page 501 U. S. 967 proof that they intended to provide at least the same
protection," 463 U.S. at 463 U. S. 286 .
Thus, not only is the original meaning of the 1689 Declaration of
Rights relevant, but also the circumstances of its enactment,
insofar as they display the particular "rights of English subjects"
it was designed to vindicate.

															As Solem observed, 463 U.S. at 463 U. S.
284 -285, the principle of proportionality was familiar
to English law at the time the Declaration of Rights was drafted.
The Magna Carta provided that

															"[a] free man shall not be fined for a small offence, except in
proportion to the measure of the offense; and for a great offence
he shall be fined in proportion to the magnitude of the offence,
saving his freehold. . . ."

															Art. 20 (translated in Sources of Our Liberties, supra at 15). When imprisonment supplemented fines as a method of
punishment, courts apparently applied the proportionality principle
while sentencing. Hodges v. Humkin, 2 Bulst. 139, 140, 80
Eng.Rep. 1015, 1016 (K.B. 1615) (Croke, J.) ("[I]mprisonment ought
always to be according to the quality of the offence"). Despite
this familiarity, the drafters of the Declaration of Rights did not
explicitly prohibit "disproportionate" or "excessive" punishments.
Instead, they prohibited punishments that were "cruell and
unusuall." The Solem Court simply assumed, with no
analysis, that the one included the other. 463 U.S. at 463 U. S. 285 .
As a textual matter, of course, it does not: a disproportionate
punishment can perhaps always be considered "cruel," but it will
not always be (as the text also requires) "unusual." The error of Solem's assumption is confirmed by the historical context
and contemporaneous understanding of the English guarantee.

															Most historians agree that the "cruell and unusuall Punishments"
provision of the English Declaration of Rights was prompted by the
abuses attributed to the infamous Lord Chief Justice Jeffreys of
the King's Bench during the Stuart reign of James II. See,
e.g., Schwoerer, supra, at 93; 4 W. Blackstone, Commentaries
*372. They do not agree, however, Page 501 U. S. 968 on which abuses. See Ingraham v. Wright, 430 U.
S. 651 , 430 U. S.
664 -665 (1977); Furman v. Georgia, 408 U.
S. 238 , 408 U. S.
317 -319 (1972) (MARSHALL, J., concurring). Jeffreys is
best known for presiding over the "Bloody Assizes" following the
Duke of Monmouth's abortive rebellion in 1685; a special commission
led by Jeffreys tried, convicted, and executed hundreds of
suspected insurgents. Some have attributed the Declaration of
Rights provision to popular outrage against those proceedings. E.g., Sources of Our Liberties, supra at 236, n.
103; Note, What Is Cruel and Unusual Punishment, 24 Harv.L.Rev. 54,
55, n. 2 (1910); see also 3 J. Story, Commentaries on the
Constitution of the United States § 1896 (1833). [ Footnote 3 ]

															But the vicious punishments for treason decreed in the Bloody
Assizes (drawing and quartering, burning of women felons,
beheading, disembowling, etc.) were common in that period --
indeed, they were specifically authorized by law, and remained so
for many years afterwards. See Granucci, "Nor Cruel and
Unusual Punishments Inflicted:" The Original Meaning, 57
Calif.L.Rev. 839, 855-856 (1969); 4 Blackstone, supra at
*369-*370. Thus, recently historians have argued, and the best
historical evidence suggests, that it was not Jeffreys' management
of the Bloody Assizes that led to the Declaration of Rights
provision, but rather the arbitrary sentencing power he had
exercised in administering justice from the King's Bench,
particularly when punishing a notorious perjurer. See Granucci, supra, at 855-860; Schwoerer, supra at
92-93. Accord, 1 J. Stephen, A History of the Criminal Law
of England 490 (1883); 1 J. Chitty, Criminal Law 712 (5th Am. ed.
1847) (hereinafter Chitty). Jeffreys was widely accused of
"inventing" special penalties for the King's enemies, penalties
that were not authorized by common law precedent or statute. Letter
to a Gentleman at Brussels, Page 501 U. S. 969 giving an account of the people's revolt (Windsor, Dec. 2,
1688), cited in L. Schwoerer, The Declaration of Rights, 1689, p.
93, n. 207 (1981).

															The preamble to the Declaration of Rights, a sort of indictment
of James II that calls to mind the preface to our own Declaration
of Independence, specifically referred to illegal sentences and
King's Bench proceedings.

															"Whereas the late King James the Second, by the Assistance of
diverse evill Councellors Judges and Ministers imployed by him did
endeavour to subvert and extirpate the Protestant Religion, and the
Lawes and Liberties of this Kingdome."

															" * * * *" "By Prosecutions in the Court of Kings Bench for Matters and
Causes cognizable onely in Parlyament and by diverse other
Arbitrary and Illegall Courses."

															" * * * *" "[E]xcessive Baile hath beene required of Persons committed in
Criminall Cases to elude the Benefit of the Lawes made for the
Liberty of the Subjects."

															"And excessive Fines have been imposed."

															"And illegall and cruell Punishments inflicted."

															" * * * *" "All which are utterly and directly contrary to the knowne Lawes
and Statutes and Freedome of this Realme."

															1 Wm. & Mary, Sess. 2, ch. 2 (1689).

															The only recorded contemporaneous interpretation of the "cruell
and unusuall Punishments" clause confirms the focus upon Jeffreys'
King's Bench activities, and upon the illegality, rather than the
disproportionality, of his sentences. In 1685, Titus Oates, a
Protestant cleric whose false accusations had caused the execution
of 15 prominent Catholics for allegedly organizing a "Popish Plot"
to overthrow King Charles II in 1679, was tried and convicted
before the King's Bench for perjury. Oates' crime,

															"bearing false witness against another, with an express
premeditated design to take away his Page 501 U. S. 970 life, so as the innocent person be condemned and executed,"

															had, at one time, been treated as a species of murder, and
punished with death. 4 Blackstone, supra at *196. At
sentencing, Jeffreys complained that death was no longer available
as a penalty, and lamented that "a proportionable punishment of
that crime can scarce by our law, as it now stands, be inflicted
upon him." Second Trial of Titus Oates, 10 How.St.Tr.
1227, 1314 (K.B. 1685). The law would not stand in the way,
however. The judges met, and, according to Jeffreys, were in
unanimous agreement that "crimes of this nature are left to be
punished according to the discretion of this court, so far as that
the judgment extend not to life or member." Ibid. Another
justice taunted Oates that "we have taken special care of you," id. at 1316. The court then decreed that he should pay a
fine of "1000 marks upon each Indictment," that he should be
"stript of [his] Canonical Habits," that he should stand in the
pillory annually at certain specified times and places, that, on
May 20, he should be whipped by "the common hangman" "from Aldgate
to Newgate," that he should be similarly whipped on May 22 "from
Newgate to Tyburn," and that he should be imprisoned for life. Ibid. "The judges, as they believed, sentenced Oates to be scourged to
death." 2 T. Macaulay, History of England 204 (1899) (hereinafter
Macaulay). Accord, D. Ogg, England In The Reigns of James
II and William III pp. 154-155 (1984). Oates would not die,
however. Four years later, and several months after the Declaration
of Rights, he petitioned the House of Lords to set aside his
sentence as illegal. 6 Macaulay 138-141. "Not a single peer
ventured to affirm that the judgment was legal: but much was said
about the odious character of the appellant," and the Lords
affirmed the judgment. 6 id. at 140-141. A minority of the
Lords dissented, however, and their statement sheds light on the
meaning of the "cruell and unusuall Punishments" clause: Page 501 U. S. 971 "1st, [T]he King's Bench, being a Temporal Court, made it a Part
of the Judgment, That Titus Oates, being a Clerk, should, for his
said Perjuries, be divested of his canonical and priestly Habit . .
. ; which is a Matter wholly out of their Power, belonging to the
Ecclesiastical Courts only."

															"2dly, [S]aid Judgments are barbarous, inhuman, and unchristian;
and there is no Precedent to warrant the Punishments of whipping
and committing to Prison for Life, for the Crime of Perjury; which
yet were but Part of the Punishments inflicted upon him."

															" * * * *" "4thly, [T]his will be an Encouragement and Allowance for giving
the like cruel, barbarous and illegal Judgments hereafter, unless
this Judgment be reversed."

															"5thly, . . . [T]hat the said Judgments were contrary to Law and
ancient Practice, and therefore erroneous, and ought to be
reversed."

															"6thly, Because it is contrary to the Declaration, on the
Twelfth of February last, . . . that excessive Bail ought not to be
required, nor excessive Fines imposed, nor cruel nor unusual
Punishments afflicted."

															1 Journals of the House of Lords 367 (May 31, 1689), quoted in Second Trial of Titus Oates, supra at 1325.

															Oates' cause then aroused support in the House of Commons, whose
members proceeded to pass a bill to annul the sentence. A "free
conference" was ultimately convened in which representatives of the
House of Commons attempted to persuade the Lords to reverse their
position. See 6 Macaulay 143-145. Though this attempt was
not successful, the Commons' report of the conference confirms that
the "cruell and unusuall Punishments" clause was directed at the
Oates case (among others) in particular, and at illegality, rather
than disproportionality, of punishment in general.

															"[T]he Commons had hoped, That, after the Declaration [of
Rights] presented to their Majesties upon their Page 501 U. S. 972 accepting the Crown (wherein their Lordships had joined with the
Commons in complaining of the cruel and illegal Punishments of the
last Reign; and in asserting it to be the ancient Right of the
People of England that they should not be subjected to cruel and
unusual Punishments; and that no Judgments to the Prejudice of the
People in that kind ought in any wise to be drawn into Consequence,
or Example); and after this Declaration had been so lately renewed
in that Part of the Bill of Rights which the Lords have agreed to;
they should not have seen Judgments of this Nature affirmed, and
been put under a Necessity of sending up a Bill for reversing them;
since those Declarations will not only be useless, but of
pernicious Consequence to the People, if, so soon after, such
Judgments as these stand affirmed, and be not taken to be cruel and
illegal within the Meaning of those Declarations."

															" That the Commons had a particular Regard to these
Judgments, amongst others, when that Declaration was first made;
and must insist upon it, That they are erroneous, cruel, illegal,
and of ill Example to future Ages. . . . "

															" * * * *" "That it seemed no less plain, That the Judgments were cruel,
and of ill Example to future Ages."

															"That it was surely of ill Example for a Temporal Court to give
Judgment, 'That a Clerk be divested of his Canonical Habits; and
continue so divested during his Life.'"

															"That it was of ill Example, and illegal, That a Judgment of
perpetual Imprisonment should be given in a Case, where there is no
express Law to warrant it."

															"It was of ill Example, and unusual, That an Englishman should
be exposed upon a Pillory, so many times a Year, during his Life.
" Page 501 U. S. 973 "That it was illegal, cruel, and of dangerous Example, That a
Freeman should be whipped in such a barbarous manner, as, in
Probability, would determine in Death."

															"That this was avowed, when these Judgments was [ sic ]
given by the then Lord Chief Justice of the King's Bench; who
declared; 'That all the Judges had met; and unanimously agreed,
That where the Subject was prosecuted at Common Law for a
Misdemeanor, it was in the Discretion of the Court, to inflict what
Punishment they pleased, not extending to Life, or Member.'"

															"That as soon as they had set up this Pretence to a
discretionary Power, it was observable how they put it in Practice,
not only in this, but in other Cases, and for other Offences, by
inflicting such cruel and ignominious Punishments, as will be
agreed to be far worse than Death itself to any Man who has a sense
of Honour or Shame. . . ."

															10 Journal of the House of Commons 247 (Aug. 2, 1689) (emphasis
added).

															In all these contemporaneous discussions, as in the prologue of
the Declaration, a punishment is not considered objectionable
because it is disproportionate, [ Footnote 4 ] but because it is "out of [the Judges']
Power," "contrary to Law and ancient practice," without
"Precedents" or "express Law to warrant," "unusual," "illegal," or
imposed by "Pretence to a discretionary Power." Accord, 2
Macaulay 204 (observing that Oates' punishment, while deserved, was
unjustified by law). Moreover, the phrase "cruell and unusuall" is
treated as interchangeable with "cruel and illegal." In other
words, the Page 501 U. S. 974 "illegall and cruell Punishments" of the Declaration's prologue, see supra at 501 U. S. 969 ,
are the same thing as the "cruell and unusuall Punishments" of its
body. (JUSTICE MARSHALL's concurrence in Furman v.
Georgia, 408 U.S. at 408 U. S. 318 ,
observes that an earlier draft of the body prohibited "illegal"
punishments, and that the change "appears to be inadvertent." See also 1 Chitty 712 (describing Declaration of Rights as
prohibiting "cruel and illegal" punishments).) In the legal world
of the time, and in the context of restricting punishment
determined by the Crown (or the Crown's judges), "illegall" and
"unusuall" were identical for practical purposes. Not all
punishments were specified by statute; many were determined by the
common law. Departures from the common law were lawful only if
authorized by statute. See 1 J. Stephen, A History of the
Criminal Law of England 489-490 (1883); 1 Chitty 710. A requirement
that punishment not be "unusuall" -- that is, not contrary to
"usage" (Lat. " usus ") or "precedent" -- was primarily a
requirement that judges pronouncing sentence remain within the
bounds of common law tradition. 1 id. at 710-712; Ingraham v. Wright, 430 U.S. at 430 U. S. 665 (English provision aimed at "judges acting beyond their lawful
authority"); Granucci, 57 Calif.L.Rev. at 859; Cf. 4 W.
Blackstone, Commentaries *371-*373.

															In sum, we think it most unlikely that the English Cruell and
Unusuall Punishments Clause was meant to forbid "disproportionate"
punishments. There is even less likelihood that proportionality of
punishment was one of the traditional "rights and privileges of
Englishmen" apart from the Declaration of Rights, which happened to
be included in the Eighth Amendment. Indeed, even those scholars
who believe the principle to have been included within the
Declaration of Rights do not contend that such a prohibition was
reflected in English practice -- nor could they. See Granucci, Page 501 U. S. 975 supra at 847. [ Footnote
5 ] For, as we observed in Woodson v. North Carolina, 428 U. S. 280 , 428 U. S. 289 (1976), in 1791, England punished over 200 crimes with death. See also 1 Stephen, supra at 458, 471-472 (until
1826, all felonies, except mayhem and petty larceny, were
punishable by death). By 1830, the class of offenses punishable by
death was narrowed to include "only" murder; attempts to murder by
poisoning, stabbing, shooting, etc.; administering poison to
procure abortion; sodomy; rape; statutory rape; and certain classes
of forgery. See 1 Stephen, supra at 473-474. It
is notable that, during his discussion of English capital
punishment reform, Stephen does not once mention the Cruell and
Unusuall Punishments Clause, though he was certainly aware of it. See 1 Stephen, supra at 489-490. Likewise, in his
discussion of the suitability of punishments, Blackstone does not
mention the Declaration. See 4 Blackstone, supra at *9-*19. C Unless one accepts the notion of a blind incorporation, however,
the ultimate question is not what "cruell and unusuall punishments"
meant in the Declaration of Rights, but what its meaning was to the
Americans who adopted the Eighth Amendment. Even if one assumes
that the Founders knew the precise meaning of that English
antecedent, but see Granucci, supra at 860-865, a
direct transplant of the English meaning to the soil of American
constitutionalism would, in any case, have been impossible. There
were no common law punishments in the federal system, See United States v.
Hudson , 7 Cranch 32 (1812), so that the provision
must have been meant as a check not upon judges, but upon Page 501 U. S. 976 the Legislature. See, e.g., In re Kemmler, 136 U.
S. 436 , 136 U. S.
446 -447 (1890).

															Wrenched out of its common law context, and applied to the
actions of a legislature, the word "unusual" could hardly mean
"contrary to law." But it continued to mean (as it continues to
mean today) "such as [does not] occu[r] in ordinary practice,"
Webster's American Dictionary (1828), "[s]uch as is [not] in common
use," Webster's Second International Dictionary 2807 (1954).
According to its terms, then, by forbidding "cruel and
unusual punishments," see Stanford v. Kentucky, 492 U. S. 361 , 492 U. S. 378 (1989) (plurality opinion); In re Kemmler, supra at 136 U. S.
446 -447, the Clause disables the Legislature from
authorizing particular forms or "modes" of punishment --
specifically, cruel methods of punishment that are not regularly or
customarily employed. E.g., Louisiana ex rel. Francis v.
Resweber, 329 U. S. 459 , 329 U. S. 464 (1947) (plurality opinion); In re Kemmler, supra at 136 U. S.
446 -447. See also United States v. Collins, 25
F.Cas. (No. 14,836) 545 (CC R.I. 1854) (Curtis, J.).

															The language bears the construction, however -- and here we come
to the point crucial to resolution of the present case -- that
"cruelty and unusualness" are to be determined not solely with
reference to the punishment at issue ("Is life imprisonment a cruel
and unusual punishment?"), but with reference to the crime for
which it is imposed, as well ("Is life imprisonment cruel and
unusual punishment for possession of unlawful drugs?"). The latter
interpretation would make the provision a form of proportionality
guarantee. [ Footnote 6 ] The
arguments against it, however, seem to us conclusive. Page 501 U. S. 977 First of all, to use the phrase "cruel and unusual punishment"
to describe a requirement of proportionality would have been an
exceedingly vague and oblique way of saying what Americans were
well accustomed to saying more directly. The notion of
"proportionality" was not a novelty (though then, as now, there was
little agreement over what it entailed). In 1778, for example, the
Virginia Legislature narrowly rejected a comprehensive "Bill for
Proportioning Punishments" introduced by Thomas Jefferson. See 4 W. Blackstone, Commentaries 18 (H. Tucker ed. 1803)
(discussing efforts at reform); 1 Writings of Thomas Jefferson
218-239 (A. Lipscomb ed.1903). Proportionality provisions had been
included in several state constitutions. See, e.g., Pa.Const., § 38 (1776) (punishments should be, "in general, more
proportionate to the crimes"); S.C.Const., Art. XL (1778) (same);
N.H.Bill of Rights, Art. XVIII (1784) ("[A]ll penalties ought to be
proportioned to the nature of the offence"). There is little doubt
that those who framed, proposed, and ratified the Bill of Rights
were aware of such provisions, [ Footnote 7 ] yet chose not to replicate them. Both the New
Hampshire Constitution, adopted 8 years before ratification of the
Eighth Amendment, and the Ohio Constitution, adopted 12 years
after, contain, in separate provisions, a prohibition of "cruel and
unusual punishments" ("cruel or unusual," in New Hampshire's case) and a requirement that Page 501 U. S. 978 "all penalties ought to be proportioned to the nature of the
offence." N.H. Bill of Rights, Arts. XVIII, XXXIII (1784). Ohio
Const., Art. VIII, §§ 13, 14 (1802). [ Footnote 8 ]

															Secondly, it would seem quite peculiar to refer to cruelty and
unusualness for the offense in question, in a provision
having application only to a new government that had never before
defined offenses, and that would be defining new and peculiarly
national ones. Finally, and most conclusively, as we proceed to
discuss, the fact that what was "cruel and unusual" under the
Eighth Amendment was to be determined without reference to the
particular offense is confirmed by all available evidence of
contemporary understanding. [ Footnote 9 ] Page 501 U. S. 979 The Eighth Amendment received little attention during the
proposal and adoption of the Federal Bill of Rights. However, what
evidence exists from debates at the state ratifying conventions
that prompted the Bill of Rights, as well as the floor debates in
the First Congress which proposed it, "confirm[s] the view that the
cruel and unusual punishments clause was directed at prohibiting
certain methods of punishment." Granucci, 57 Calif.L.Rev.
at 842 (emphasis added). See Schwartz, Eighth Amendment
Proportionality Analysis and the Compelling Case of William Rummel,
71 J.Crim.L. & Criminology 378, 378-382 (1980); Welling &
Hipfner, Cruel and Unusual?: Capital Punishment in Canada, 26
U.Toronto L.J. 55, 61 (1976).

															In the January, 1788, Massachusetts Convention, for example, the
objection was raised that Congress was

															"nowhere restrained from inventing the most cruel and
unheard-of punishments, and annexing them to crimes; and there
is no constitutional check on [it], but that racks and gibbets may be amongst the most mild instruments of [its]
discipline."

															2 J. Elliot, Debates on the Federal Constitution 111 (2d ed.
1854) (emphasis added). Page 501 U. S. 980 In the Virginia Convention, Patrick Henry decried the absence of
a bill of rights, stating:

															"What says our [Virginia] Bill of Rights? -- 'that excessive
bail ought not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.' . . ."

															"In this business of legislation, your members of Congress will
loose the restriction of not imposing excessive fines, demanding
excessive bail, and inflicting cruel and unusual punishments. These
are prohibited by your declaration of rights. What has
distinguished our ancestors? -- That they would not admit of
tortures, or cruel and barbarous punishment."

															3 id. at 447.

															The actions of the First Congress, which are, of course,
persuasive evidence of what the Constitution means, Marsh v.
Chambers, 463 U. S. 783 , 463 U. S.
788 -790 (1983); Carroll v. United States, 267 U. S. 132 , 267 U. S.
150 -152 (1925); cf. 17 U. S. Maryland, 4 Wheat. 316, 17 U. S.
401 -402 (1819), belie any doctrine of proportionality.
Shortly after this Congress proposed the Bill of Rights, it
promulgated the Nation's first Penal Code. See 1 Stat.
112-119 (1790). As the then-extant New Hampshire Constitution's
proportionality provision didactically observed, "[n]o wise
legislature" -- that is, no legislature attuned to the principle of
proportionality -- "will afix the same punishment to the crimes of
theft, forgery and the like, which they do to those of murder and
treason," N.H. Const., Pt. I, Art. XVIII (1784). Jefferson's Bill
For Proportioning Crimes and Punishments punished murder and
treason by death; counterfeiting of public securities by forfeiture
of property plus six years at hard labor, and "run[ning] away with
any sea-vessel or goods laden on board thereof" by treble damages
to the victim and five years at hard labor. See 1 Writings
of Thomas Jefferson at 220-222, 229-231 (footnote omitted). Shortly
after proposing the Bill of Rights, the First Congress ignored
these teachings. It punished forgery of United States securities,
"run[ning] away with [a] ship or vessel, or any goods or
merchandise to the value Page 501 U. S. 981 of fifty dollars," treason, and murder on the high seas with the
same penalty: death by hanging. 1 Stat. 114. The law books of the
time are devoid of indication that anyone considered these newly
enacted penalties unconstitutional by virtue of their
disproportionality. Cf. United States v. Tully, 28 F.Cas.
(No. 16,545) 226 (CC Mass. 1812) (Story and Davis, JJ.) (Force or
threat thereof not an element of "run[n]ing away with [a] ship or
vessel").

															The early commentary on the Clause contains no reference to
disproportionate or excessive sentences, and again indicates that
it was designed to outlaw particular modes of punishment. One
commentator wrote:

															"The prohibition of cruel and unusual punishments, marks the
improved spirit of the age, which would not tolerate the use of the
rack or the stake, or any of those horrid modes of torture, devised
by human ingenuity for the gratification of fiendish passion."

															J. Bayard, A Brief Exposition of the Constitution of the United
States 154 (2d ed. 1840). Another commentator, after explaining (in
somewhat convoluted fashion) that the "spirit" of the Excessive
Bail and Excessive Fines Clauses forbade excessive imprisonments,
went on to add:

															"Under the [Eighth] amendment, the infliction of cruel and
unusual punishments is also prohibited. The various barbarous and
cruel punishments inflicted under the laws of some other countries,
and which profess not to be behind the most enlightened nations on
earth in civilization and refinement, furnish sufficient reasons
for this express prohibition. Breaking on the wheel, flaying alive,
rending assunder with horses, various species of horrible tortures
inflicted in the inquisition, maiming, mutilating and scourging to
death, are wholly alien to the spirit of our humane general
constitution."

															B. Oliver, The Rights of An American Citizen 186 (1832). Page 501 U. S. 982 Chancellor Kent; in a paragraph of his Commentaries arguing that
capital punishment "ought to be confined to the few cases of the
most atrocious character," does not suggest that the "Cruel and
Unusual Punishments" Clauses of State or Federal Constitutions
require such proportionality -- even though the very paragraph in
question begins with the statement that "cruel and unusual
punishments are universally condemned." 2 J. Kent, Commentaries on
American Law 10-11 (1827). And Justice Story had this to say:

															"The provision [the Eighth Amendment] would seem wholly
unnecessary in a free government, since it is scarcely possible
that any department of such a government should authorize or
justify such atrocious conduct. It was, however, adopted as an
admonition to all departments of the national government to warn
them against such violent proceedings as had taken place in England
in the arbitrary reigns of some of the Stuarts."

															3 J. Story, Commentaries on the Constitution of the United
States § 1896 (1833). Many other Americans apparently agreed that
the Clause only outlawed certain modes of punishment:
during the 19th century, several States ratified constitutions that
prohibited "cruel and unusual," "cruel or unusual," or simply
"cruel" punishments and required all punishments
to be proportioned to the offense. Ohio Const., Art. VIII, §§ 13,
14 (1802); Ind.Const., Art. I, §§ 15-16 (1816); Me.Const., Art. I,
§ 9 (1819); R.I.Const., Art. I, § 8 (1842); W.Va.Const., Art. II, §
2 (1861-1863); Ga.Const., Art. I, §§ 16, 21 (1868).

															Perhaps the most persuasive evidence of what "cruel and unusual"
meant, however, is found in early judicial constructions of the
Eighth Amendment and its state counterparts. An early (perhaps the
earliest) judicial construction of the federal provision is
illustrative. In Barker v. People, 20 Johns. *457
(N.Y.Sup.Ct. 1823), aff'd, 3 Cow. 686 (N.Y. 1824), the
defendant, upon conviction of challenging another to a duel, had
been disenfranchised. Chief Justice Spencer Page 501 U. S. 983 assumed that the Eighth Amendment applied to the States, and, in
finding that it had not been violated, considered the
proportionality of the punishment irrelevant. "The
disenfranchisement of a citizen," he said,

															"is not an unusual punishment; it was the consequence of
treason, and of infamous crimes, and it was altogether
discretionary in the legislature to extend that punishment to other
offences." Barker v People, supra at *459.

															Throughout the 19th century, state courts interpreting state
constitutional provisions with identical or more expansive wording
( i.e., "cruel or unusual") concluded that these
provisions did not proscribe disproportionality, but only certain
modes of punishment. For example, in Aldridge v.
Commonwealth, 4 Va. 447 (1824), the General Court of Virginia
had occasion to interpret the cruel and unusual punishments clause
that was the direct ancestor of our federal provision, see
supra at 501 U. S. 966 .
In rejecting the defendant's claim that a sentence of so many as 39
stripes violated the Virginia Constitution, the court said:

															"As to the ninth section of the Bill of Rights, denouncing cruel
and unusual punishments, we have no notion that it has any bearing
on this case. That provision was never designed to control the
Legislative right to determine ad libitum upon the adequacy of punishment, but is merely applicable to the
modes of punishment. . . . [T]he best heads and hearts of the land
of our ancestors had long and loudly declaimed against the wanton
cruelty of many of the punishments practised in other countries,
and this section in the Bill of Rights was framed effectually to
exclude these, so that no future Legislature, in a moment perhaps
of great and general excitement, should be tempted to disgrace our
Code by the introduction of any of those odious modes of
punishment."

															4 Va. at 449-450 (emphasis in original). Accord,
Commonwealth v. Hitchings, 71 Mass. 482, 486 (1855); Garcia v. Territory, 1 N.M. 415, 417-419 (1869); Page 501 U. S. 984 Whitten v. Georgia, 47 Ga. 297, 301 (1872); Cummins
v. People, 42 Mich. 142, 143-144, 3 N.W. 305 (1879); State
v. Williams, 77 Mo. 310, 312-313 (1883); State v.
White, 44 Kan. 514, 520-521, 25 P. 33, 34-35 (1890); People v. Morris, 80 Mich. 634, 638, 45 N.W. 591, 592
(1890); Hobbs v. State, 133 Ind. 404, 408-410, 32 N.E.
1019, 1020-1021 (1893); State v. Hogan, 63 Ohio St. 202,
218, 58 N.E. 572, 575 (1900); see also In re Bayard, 25
Hun. 546, 549-550 (1881). In the 19th century, judicial agreement
that a "cruel and unusual" (or "cruel or unusual") provision did
not constitute a proportionality requirement appears to have been
universal. [ Footnote 10 ] One
case, late in the century, suggested in dictum, not a
full-fledged Page 501 U. S. 985 proportionality principle, but at least the power of the courts
to intervene

															"in very extreme cases, where the punishment proposed is so
severe and out of proportion to the offense as to shock public
sentiment and violate the judgment of reasonable people." State v. Becker, 3 S.D. 29, 41, 51 N.W. 1018, 1022
(1892). That case, however, involved a constitutional provision
proscribing all punishments that were merely "cruel," S.D.Const.,
Art. VI, § 23 (1889). A few decisions early in the present century
cited it (again in dictum) for the proposition that a sentence "so
out of proportion to the offense . . . as to shock public
sentiment and violate the judgment of reasonable people'" would be
"cruel and unusual." Jackson v. United States, 102 F. 473,
488 (CA9 1900); Territory v. Ketchum, 10 N.M. 718, 723, 65
P. 169, 171 (1901). II We think it enough that those who framed and approved the
Federal Constitution chose, for whatever reason, not to include
within it the guarantee against disproportionate sentences that
some State Constitutions contained. It is worth noting, however,
that there was good reason for that choice -- a reason that
reinforces the necessity of overruling Solem. While there
are relatively clear historical guidelines and accepted practices
that enable judges to determine which modes of punishment are
"cruel and unusual," proportionality does not lend itself to such
analysis. Neither Congress nor any state legislature has ever set
out with the objective of crafting a penalty that is
"disproportionate"; yet, as some of the examples mentioned above
indicate, many enacted dispositions seem to be so -- because they
were made for other times or other places, with different social
attitudes, different criminal epidemics, different public fears,
and different prevailing theories of penology. This is not to say
that there are no absolutes; one can imagine extreme examples that
no rational person, in no time or place, could accept. But, for the
same reason, these examples are easy to decide, they are Page 501 U. S. 986 certain never to occur. [ Footnote 11 ] The real function of a constitutional
proportionality principle, if it exists, is to enable judges to
evaluate a penalty that some assemblage of men and women has considered proportionate -- and to say that it is not.
For that real-world enterprise, the standards seem so inadequate
that the proportionality principle becomes an invitation to
imposition of subjective values.

															This becomes clear, we think, from a consideration of the three
factors that Solem found relevant to the proportionality
determination: (1) the inherent gravity of the offense, (2) the Page 501 U. S. 987 sentences imposed for similarly grave offenses in the same
jurisdiction, and (3) sentences imposed for the same crime in other
jurisdictions. 463 U.S. at 463 U. S. 290 -291. As to the first factor: of course,
some offenses, involving violent harm to human beings, will always
and everywhere be regarded as serious, but that is only half the
equation. The issue is what else should be regarded to be as serious as these offenses, or even to be more
serious than some of them. On that point, judging by the
statutes that Americans have enacted, there is enormous variation
-- even within a given age, not to mention across the many
generations ruled by the Bill of Rights. The State of Massachusetts
punishes sodomy more severely than assault and battery, compare Mass.Gen.Laws § 272:34 (1988) ("not more than
twenty years" in prison for sodomy) with § 265:13A ("not
more than two and one-half years" in prison for assault and
battery); whereas, in several States, sodomy is not unlawful at
all. In Louisiana, one who assaults another with a dangerous
weapon faces the same maximum prison term as one who removes a
shopping basket "from the parking area or grounds of any store . .
. without authorization." La.Rev.Stat.Ann. §§ 14:37, 14:68.1 (West
1986). A battery that results in "protracted and obvious
disfigurement" merits imprisonment "for not more than five years,"
§ 14:34.1, one-half the maximum penalty for theft of livestock or
an oilfield seismograph, §§ 14:67.1, 14:67.8. We may think that the
First Congress punished with clear disproportionality when it
provided up to seven years in prison and up to $1,000 in fine
for

															"cut[ting] off the ear or ears, . . . cut[ting] out or
disabl[ing] the tongue, . . . put[ting] out an eye, . . . cut[ting]
off . . . any limb or member of any person with intention . . . to
maim or disfigure,"

															but provided the death penalty for "run[ning] away with [a] ship
or vessel, or any goods or merchandise to the value of fifty
dollars." Act of Apr. 30, 1790, ch. 9, §§ 8, 13, 1 Stat. 113-115.
But then perhaps the citizens of 1791 would think that today's
Congress punishes with clear disproportionality when it
sanctions Page 501 U. S. 988 "assault by . . . wounding" with up to six months in prison, 18
U.S.C. § 113(d), unauthorized reproduction of the "Smokey Bear"
character or name with the same penalty, 18 U.S.C. § 711, offering
to barter a migratory bird with up to two years in prison, 16
U.S.C. § 707(b), and purloining a "key suited to any lock adopted
by the Post Office Department" with a prison term of up to 10
years, 18 U.S.C. § 1704. Perhaps both we and they would be right,
but the point is that there are no textual or historical standards
for saying so.

															The difficulty of assessing gravity is demonstrated in the very
context of the present case: Petitioner acknowledges that a
mandatory life sentence might not be "grossly excessive" for
possession of cocaine with intent to distribute, see Hutto v.
Davis, 454 U. S. 370 (1982). But surely whether it is a "grave" offense merely to
possess a significant quantity of drugs -- thereby facilitating
distribution, subjecting the holder to the temptation of
distribution, and raising the possibility of theft by others who
might distribute -- depends entirely upon how odious and socially
threatening one believes drug use to be. Would it be "grossly
excessive" to provide life imprisonment for "mere possession" of a
certain quantity of heavy weaponry? If not, then the only issue is
whether the possible dissemination of drugs can be as "grave" as
the possible dissemination of heavy weapons. Who are we to say no?
The members of the Michigan Legislature, and not we, know the
situation on the streets of Detroit.

															The second factor suggested in Solem fails for the same
reason. One cannot compare the sentences imposed by the
jurisdiction for "similarly grave" offenses if there is no
objective standard of gravity. Judges will be comparing what they
consider comparable. Or, to put the same point differently: when it
happens that two offenses judicially determined to be "similarly
grave" receive significantly dissimilar penalties, what follows is
not that the harsher penalty is unconstitutional, but merely that
the legislature does not Page 501 U. S. 989 share the judges' view that the offenses are similarly grave.
Moreover, even if "similarly grave" crimes could be identified, the
penalties for them would not necessarily be comparable, since there
are many other justifications for a difference. For example, since
deterrent effect depends not only upon the amount of the penalty,
but upon its certainty, crimes that are less grave but
significantly more difficult to detect may warrant substantially
higher penalties. Grave crimes of the sort that will not be
deterred by penalty may warrant substantially lower penalties, as
may grave crimes of the sort that are normally committed once in a
lifetime by otherwise law-abiding citizens who will not profit from
rehabilitation. Whether these differences will occur, and to what
extent, depends, of course, upon the weight the society accords to
deterrence and rehabilitation, rather than retribution, as the
objective of criminal punishment (which is an eminently legislative
judgment). In fact, it becomes difficult even to speak
intelligently of "proportionality" once deterrence and
rehabilitation are given significant weight. Proportionality is
inherently a retributive concept, and perfect proportionality is
the talionic law. Cf. Bill For Proportioning Punishments,
1 Writings of Thomas Jefferson at 218, 228-229 ("[W]hoever . . .
shall maim another, or shall disfigure him . . . shall be maimed or
disfigured in like sort").

															As for the third factor mentioned by Solem -- the
character of the sentences imposed by other States for the same
crime -- it must be acknowledged that that can be applied with
clarity and ease. The only difficulty is that it has no conceivable
relevance to the Eighth Amendment. That a State is entitled to
treat with stern disapproval an act that other States punish with
the mildest of sanctions follows a fortiori from the
undoubted fact that a State may criminalize an act that other
States do not criminalize at all. Indeed, a State may
criminalize an act that other States choose to reward --
punishing, for example, the killing of endangered wild animals for
which other States are offering a bounty. What Page 501 U. S. 990 greater disproportion could there be than that?

															"Absent a constitutionally imposed uniformity inimical to
traditional notions of federalism, some State will always bear the
distinction of treating particular offenders more severely than any
other State." Rummel, 445 U.S. at 445 U. S. 282 .
Diversity not only in policy, but in the means of implementing
policy, is the very raison d'etre of our federal system.
Though the different needs and concerns of other States may induce
them to treat simple possession of 672 grams of cocaine as a
relatively minor offense, see Wyo.Stat. § 35-7-1031(c)
(1988) (6 months); W.Va.Code § 60A-4-401(c) (1989) (6 months),
nothing in the Constitution requires Michigan to follow suit. The
Eighth Amendment is not a ratchet, whereby a temporary consensus on
leniency for a particular crime fixes a permanent constitutional
maximum, disabling the States from giving effect to altered beliefs
and responding to changed social conditions. III Our 20th-century jurisprudence has not remained entirely in
accord with the proposition that there is no proportionality
requirement in the Eighth Amendment, but neither has it departed to
the extent that Solem suggests. In Weems v. United
States, 217 U. S. 349 (1910), a government disbursing officer convicted of making false
entries of small sums in his account book was sentenced by
Philippine courts to 15 years of cadena temporal. That
punishment, based upon the Spanish Penal Code, called for
incarceration at " hard and painful labor'" with chains fastened
to the wrists and ankles at all times. Several "accessor[ies]" were
superadded, including permanent disqualification from holding any
position of public trust, subjection to "[government] surveillance"
for life, and "civil interdiction," which consisted of deprivation
of "`the rights of parental authority, guardianship of person or
property, participation in the family council[, etc.]'" Weems,
supra at 217 U. S.
364 . Page 501 U. S. 991 Justice McKenna, writing for himself and three others, held that
the imposition of cadena temporal was "Cruel and Unusual
Punishment." (Justice White, joined by Justice Holmes, dissented.)
That holding, and some of the reasoning upon which it was based,
was not at all out of accord with the traditional understanding of
the provision we have described above. The punishment was both (1)
severe and (2) unknown to Anglo-American tradition. As to the
former, Justice McKenna wrote:

															"No circumstance of degradation is omitted. It may be that even
the cruelty of pain is not omitted. He must bear a chain night and
day. He is condemned to painful as well as hard labor. What painful
labor may mean we have no exact measure. It must be something more
than hard labor. It may be hard labor pressed to the point of
pain."

															217 U.S. at 217 U. S.
366 -367.

															As to the latter:

															"It has no fellow in American legislation. Let us remember that
it has come to us from a government of a different form and genius
from ours. It is cruel in its excess of imprisonment and that which
accompanies and follows imprisonment. It is unusual in its
character." Id. at 217 U. S. 377 .
Other portions of the opinion, however, suggest that mere
disproportionality, by itself, might make a punishment cruel and
unusual:

															"Such penalties for such offenses amaze those who . . . believe
that it is a precept of justice that punishment for crime should be
graduated and proportioned to offense." Id. at 217 U. S.
366 -367.

															"[T]he inhibition [of the Cruel and Unusual Punishments Clause]
was directed not only against punishments which inflict torture,
'but against all punishments which, by their excessive length or
severity, are greatly disproportioned to the offenses
charged.'" Id. at 217 U. S.
371 , Page 501 U. S. 992 quoting O'Neil v. Vermont, 144 U.
S. 323 , 144 U. S.
339 -340 (1892) (Field, J., dissenting).

															Since it contains language that will support either theory, our
later opinions have used Weems, as the occasion required,
to represent either the principle that

															"the Eighth Amendment bars not only those punishments that are
'barbaric,' but also those that are 'excessive' in relation to the
crime committed," Coker v. Georgia, 433 U. S. 584 , 433 U. S. 592 (1977), or the principle that only a "unique . . . punishmen[t]," a
form of imprisonment different from the "more traditional forms . .
. imposed under the Anglo-Saxon system," can violate the Eighth
Amendment, Rummel, supra at 445 U. S.
274 -275. If the proof of the pudding is in the eating,
however, it is hard to view Weems as announcing a
constitutional requirement of proportionality, given that it did
not produce a decision implementing such a requirement, either here
or in the lower federal courts, for six decades. In Graham v.
West Virginia, 224 U. S. 616 (1912), for instance, we evaluated (and rejected) a claim that life
imprisonment for a third offense of horse theft was "cruel and
unusual." We made no mention of Weems, although the
petitioner had relied upon that case. [ Footnote 12 ] See also Badders v. United
States, 240 U. S. 391 (1916).

															Opinions in the Federal Courts of Appeals were equally devoid of
evidence that this Court had announced a general proportionality
principle. Some evaluated "cruel and unusual punishment" claims
without reference to Weems. See, e.g., Bailey v.
United States, 284 F. 126 (CA7 1922); Tincher v. United
States, 11 F.2d 18, 21 (CA4 1926). Others continued to echo
(in dictum) variants of the dictum in State v. Becker, 3
S.D. 29, 51 N.W. 1018 (1892), to the effect that courts will not
interfere with punishment unless it is "manifestly cruel Page 501 U. S. 993 and unusual," and cited Weems for the proposition that
sentences imposed within the limits of a statute "ordinarily will
not be regarded as cruel and unusual." See, e.g., Sansone v.
Zerbst, 73 F.2d 670, 672 (CA10 1934); Bailey v. United
States, 74 F.2d 451, 453 (CA10 1934). [ Footnote 13 ] Not until more than half a century
after Weems did the Circuit Courts begin performing
proportionality analysis. E.g., Hart v. Coiner, 483 F.2d
136 (CA4 1973). Even then, some continued to state that "[a]
sentence within the statutory limits is not cruel and unusual
punishment." Page v. United States, 462 F.2d 932, 935 (CA3
1972). Accord, Rener v. Beto, 447 F.2d 20, 23 (CA5 1971); Anthony v. United States, 331 F.2d 687, 693 (CA9
1964).

															The first holding of this Court unqualifiedly applying a
requirement of proportionality to criminal penalties was issued 185
years after the Eighth Amendment was adopted. [ Footnote 14 ] In Page 501 U. S. 994 Coker v. Georgia, supra, the Court held that, because
of the disproportionality, it was a violation of the Cruel and
Unusual Punishments Clause to impose capital punishment for rape of
an adult woman. Five years later, in Enmund v. Florida, 458 U. S. 782 (1982), we held that it violates the Eighth Amendment, because of
disproportionality, to impose the death penalty upon a participant
in a felony that results in murder, without any inquiry into the
participant's intent to kill. Rummel, 445 U.
S. 263 (1980), treated this line of authority as an
aspect of our death penalty jurisprudence, rather than a
generalizable aspect of Eighth Amendment law. We think that is an
accurate explanation, and we reassert it. Proportionality review is
one of several respects in which we have held that "death is
different," and have imposed protections that the Constitution
nowhere else provides. See, e.g., Turner v. Murray, 476 U. S. 28 , 476 U. S. 36 -37
(1986); Eddings v. Oklahoma, 455 U.
S. 104 (1982); id. at 455 U. S. 117 (O'CONNOR, J., concurring); Beck v. Alabama, 447 U.
S. 625 (1980). We would leave it there, but will not
extend it further. IV Petitioner claims that his sentence violates the Eighth
Amendment for a reason in addition to its alleged
disproportionality. He argues that it is "cruel and unusual" to
impose a mandatory sentence of such severity, without any
consideration of so-called mitigating factors such as, in his case,
the fact that he had no prior felony convictions. He apparently
contends that the Eighth Amendment requires Michigan to create a
sentencing scheme whereby life in prison without possibility of
parole is simply the most severe of a range of available penalties
that the sentencer may impose after hearing evidence in mitigation
and aggravation.

															As our earlier discussion should make clear, this claim has no
support in the text and history of the Eighth Amendment. Severe,
mandatory penalties may be cruel, but they are not unusual in the
constitutional sense, having been employed in Page 501 U. S. 995 various forms throughout our Nation's history. As noted earlier,
mandatory death sentences abounded in our first Penal Code. They
were also common in the several States -- both at the time of the
founding and throughout the 19th century. See Woodson v. North
Carolina, 428 U.S. at 428 U. S. 289 -290. There can be no serious contention,
then, that a sentence which is not otherwise cruel and unusual
becomes so simply because it is "mandatory." See Chapman v.
United States, 500 U. S. 453 , 500 U. S. 467 (1991).

															Petitioner's "required mitigation" claim, like his
proportionality claim, does find support in our death penalty
jurisprudence. We have held that a capital sentence is cruel and
unusual under the Eighth Amendment if it is imposed without an
individualized determination that that punishment is "appropriate"
-- whether or not the sentence is "grossly disproportionate." See Woodson v. North Carolina, supra; Lockett v. Ohio, 438 U. S. 586 (1978); Eddings v. Oklahoma, supra; Hitchcock v. Dugger, 481 U. S. 393 (1987). Petitioner asks us to extend this so-called "individualized
capitalsentencing doctrine," Sumner v. Shuman, 483 U. S. 66 , 483 U. S. 73 (1987), to an "individualized mandatory life in prison without
parole sentencing doctrine." We refuse to do so.

															Our cases creating and clarifying the "individualized capital
sentencing doctrine" have repeatedly suggested that there is no
comparable requirement outside the capital context, because of the
qualitative difference between death and all other penalties. See Eddings v. Oklahoma, 455 U.S. at 455 U. S.
110 -112; id. at 455 U. S.
117 -118 (O'CONNOR, J., concurring); Lockett v. Ohio,
supra at 438 U. S.
602 -605; Woodson v. North Carolina, supra at 428 U. S.
303 -305; Rummel v. Estelle, supra at 445 U. S.
272 .

															"The penalty of death differs from all other forms of criminal
punishment, not in degree, but in kind. It is unique in its total
irrevocability. It is unique in its rejection of rehabilitation of
the convict as a basic purpose of criminal justice. And it is
unique, finally, in its absolute renunciation of all that is
embodied in our concept Page 501 U. S. 996 of humanity." Furman v. Georgia, 408 U.S. at 408 U. S. 306 (Stewart, J., concurring).

															It is true that petitioner's sentence is unique in that it is
the second most severe known to the law; but life imprisonment with
possibility of parole is also unique in that it is the third most
severe. And if petitioner's sentence forecloses some "flexible
techniques" for later reducing his sentence, see Lockett,
supra at 438 U. S. 605 (Burger, C.J.) (plurality opinion), it does not foreclose all of
them, since there remain the possibilities of retroactive
legislative reduction and executive clemency. In some cases,
moreover, there will be negligible difference between life without
parole and other sentences of imprisonment -- for example, a life
sentence with eligibility for parole after 20 years, or even a
lengthy term sentence without eligibility for parole, given to a
65-year-old man. But even where the difference is the greatest, it
cannot be compared with death. We have drawn the line of required
individualized sentencing at capital cases, and see no basis for
extending it further.

															The judgment of the Michigan Court of Appeals is Affirmed. [ Footnote 1 ]

															Mich.Comp.Laws Ann. § 333.7403(2)(a)(i) (West Supp. 1990-1991)
provides a mandatory sentence of life in prison for possession of
650 grams or more of "any mixture containing [a schedule 2]
controlled substance"; § 333.7214(a)(iv) defines cocaine as a
schedule 2 controlled substance. Section 791.234(4) provides
eligibility for parole after 10 years in prison, except for those
convicted of either first-degree murder or "a major controlled
substance offense"; § 791.233b[1](b) defines "major controlled
substance offense" as, inter alia, a violation of §
333.7403.

															[ Footnote 2 ]

															Specifically, we rejected, in some detail, the four-factor test
promulgated by the Fourth Circuit in Hart v. Coiner, 483
F.2d 136 (1973). This test included the three factors relied upon
by the Rummel dissent. See Hart, supra, at
140-143.

															[ Footnote 3 ] Solem v. Helm, 463 U. S. 277 (1983), apparently adopted this interpretation, quoting, as it did,
from one of these sources. See id. at 463 U. S. 285 (quoting Sources of Our Liberties 236 (R. Perry & J. Cooper
eds.1959)).

															[ Footnote 4 ]

															Indeed, it is not clear that, by the standards of the age,
Oates' sentence was disproportionate, given that his perjuries
resulted in the deaths of 15 innocents. Granucci suggests that it
was not. See Granucci, "Nor Cruel and Unusual Punishments
Inflicted:" The Original Meaning, 57 Calif.L.Rev. 839, 859, and n.
97 (1969). And Macaulay observed that Oates' "sufferings, great as
they might seem, had been trifling when compared with his crimes."
6 Macaulay 137. See also 2 id. at 203-204.

															[ Footnote 5 ]

															Contrary to JUSTICE WHITE's suggestion, post at 501 U. S.
1011 -1012, n. 1, Granucci provides little (if any)
direct evidence that the Declaration of Rights embodied a
proportionality principle. He simply reasons that, because English
law was concerned with proportionality, the Declaration of Rights
must have embodied such a principle. Granucci, supra, at
844-847.

															[ Footnote 6 ]

															JUSTICE WHITE apparently agrees that the Clause outlaws
particular "modes" of punishment. He goes on to suggest, however,
that, because the Founders did not specifically exclude a
proportionality component from words that "could reasonably be
construed to include it," the Eighth Amendment must prohibit disproportionate punishments as well. Post at 501 U. S.
1011 . Surely this is an extraordinary method for
determining what restrictions upon democratic self-government the
Constitution contains. It seems to us that our task is not merely
to identify various meanings that the text "could reasonably" bear,
and then impose the one that from a policy standpoint pleases us
best. Rather, we are to strive as best we can to select from among
the various "reasonable" possibilities the most plauible meaning.
We do not bear the burden of "proving an affirmative decision
against the proportionality component," ibid.; rather,
JUSTICE WHITE bears the burden of proving an affirmative decision
in its favor. For if the Constitution does not affirmatively
contain such a restriction, the matter of proportionality is left
to state constitutions, or to the democratic process.

															[ Footnote 7 ]

															Printed collections of state constitutions were available to the
Founders, see The Federalist No. 24, p. 159, n. (C.
Rossiter ed.1961) (A. Hamilton); see also id. No. 47, pp.
304-307 (J. Madison) (comparing constitutions of all 13
States).

															[ Footnote 8 ]

															The New Hampshire proportionality provision, by far the most
detailed of the genre, read:

															"All penalties ought to be proportioned to the nature of the
offence. No wise legislature will affix the same punishment to the
crimes of theft, forgery and the like, which they do to those of
murder and treason; where the same undistinguishing severity is
exerted against all offences; the people are led to forget the real
distinction in the crimes themselves, and to commit the most
flagrant with as little compunction as they do those of the
lightest dye: For the same reason a multitude of sanguinary laws is
both impolitic and unjust. The true design of all punishments being
to reform, not to exterminate, mankind."

															N.H.Const., Pt. I, Art. XVIII (1784).

															The Ohio provision copied that of New Hampshire.

															[ Footnote 9 ]

															JUSTICE WHITE suggests that, because the Framers prohibited
"excessive fines" (which he asserts, and we will assume for the
sake of argument, means "disproportionate fines"), they must have
meant to prohibit "excessive" punishments as well. Post at 501 U. S.
1009 . This argument apparently did not impress state
courts in the 19th century, and with good reason. The logic of the
matter is quite the opposite. If "cruel and unusual punishments"
included disproportionate punishments, the separate prohibition of
disproportionate fines (which are certainly punishments) would have
been entirely superfluous. When two parts of a provision (the
Eighth Amendment) use different language to address the same or
similar subject matter, a difference in meaning is assumed. See
Walton v. Arizona, 497 U. S. 639 , 497 U. S.
669 -670 (1990) (SCALIA, J., concurring in part and
concurring in judgment).

															But, it might be argued, why would any rational person be
careful to forbid the disproportionality of fines, but provide no
protection against the disproportionality of more severe
punishments? Does not the one suggest the existence of the other?
Not at all. There is good reason to be concerned that fines,
uniquely of all punishments, will be imposed in a measure out of
accord with the penal goals of retribution and deterrence.
Imprisonment, corporal punishment, and even capital punishment cost
a State money; fines are a source of revenue. As we have recognized
in the context of other constitutional provisions, it makes sense
to scrutinize governmental action more closely when the State
stands to benefit. See United States Trust Co. of N.Y. v. New
Jersey, 431 U. S. 1 , 431 U. S. 25 -26
(1977); Perry v. United States, 294 U.
S. 330 , 294 U. S.
350 -351 (1935). (We relied upon precisely the lack of
this incentive for abuse in holding that "punitive damages" were
not "fines" within the meaning of the Eighth Amendment. Browning-Ferris Indstries of Vt., Inc. v. Kelco Disposal,
Inc., 492 U. S. 257 , 492 U. S.
271 -276 (1989)). Thus, some early State Constitutions
prohibited excessive fines without placing any restrictions on
other modes of punishment. E.g., Conn.Declaration of
Rights, Art. I, § 13 (1818) (prohibiting excessive fines only);
Ga.Const., Art. LIX (1777) (same).

															[ Footnote 10 ]

															Neither State v. Driver, 78 N.C. 423 (1878), nor State ex rel. Garvey v. Whitaker, 48 La. 527, 19 Ss. 457
(1896), is to the contrary. They are examples of applying not a
proportionality principle, but, rather, the principle (curiously in
accord with the original meaning of the phrase in the English
Declaration of Rights, discussed above) that a punishment is "cruel
and unusual" if it is illegal because not sanctioned by common law
or statute. In Driver, the court had imposed a sentence of
five years in a county jail for the common law offense of assault
and battery, for which no statutory penalty had been established.
The North Carolina Supreme Court held the sentence to violate the
State's "cruel or unusual punishment" provision because a county
jail is "a close prison, where life is soon in jeopardy," and no
prisoner had ever "been imprisoned for five years in a County jail
for any crime, however aggravated." 78 N.C., at 425, 426-427. A
subsequent North Carolina case makes it clear that, when the
legislature has prescribed a penalty of a traditional mode, the
penalty's severity for the offense in question cannot violate the
State's "cruel or unusual punishment" clause. State v.
Blake, 157 N.C. 608, 611, 72 S.E. 1080, 1081-1082 (1911).

															In Garvey, the defendants were sentenced to nearly six
years in jail for trespassing on public property. The sentence
prescribed by the relevant city ordinance was 30 days, but the
defendants' one-hour forty-minute occupation had been made the
subject of 72 separate counts, "each offence embracing only one and
one-half minutes and one offence following after the other
immediately and consecutively," 48 La. at 533, 19 So. at 459. The
Louisiana Supreme Court found the sentence to have been cruel and
unusual "considering the offence to have been a continuing one," ibid. We think it a fair reading of the case that the
sentence was cruel and unusual because it was illegal.

															[ Footnote 11 ]

															JUSTICE WHITE argues that the Eighth Amendment must contain a
proportionality principle, because otherwise legislatures could
"mak[e] overtime parking a felony punishable by life imprisonment." Post at 501 U. S.
1018 . We do not, in principle, oppose the "parade of
horribles" form of argumentation, see Scalia, Assorted
Canards of Contemporary Legal Analusis, 40 Case W.Res.L.Rev. 581,
590-593 (1989-1990); but its strength is in direct proportion to
(1) the certitude that the provision in question was meant to
exclude the very evil represented by the imagined parade, and (2)
the probability that the parade will, in fact, materialize. Here,
for the reasons we have discussed, there is no cause to believe
that the provision was meant to exclude the evil of a
disproportionate punishment. JUSTICE WHITE's argument has force
only for those who believe that the Constitution prohibited
everything that is intensely undesirable -- which is an obvious
fallacy, see Art. I, § 9 (implicitly permitting slavery);
Monaghan, Our Perfect Constitution, 56 N.Y.U.L.Rev. 353 (1981). Nor
is it likely that the horrible example imagined would ever, in
fact, occur, unless, of course, overtime parking should one day
become an arguably major threat to the common good, and the need to
deter it arguably critical -- at which time, the members of this
Court would probably disagree as to whether the punishment really is "disproportionate," even as they disagree regarding the
punishment for possession of cocaine today. As Justice Frankfurter
reminded us,

															"[t]he process of Constitutional adjudication does not thrive on
conjuring up horrible possibilities that never happen in the real
world and devising doctrines sufficiently comprehensive in detail
to cover the remotest contingency." New York v. United States, 326 U.
S. 572 , 326 U. S. 583 (1946). It seems to us no more reasonable to hold that the Eighth
Amendment forbids "disproportionate punishment" because, otherwise,
the State could impose life imprisonment for a parking offense,
than it would be to hold that the Takings Clause forbids
"disproportionate taxation" because, otherwise, the State could tax
away all income above the subsistence level.

															[ Footnote 12 ]

															At the time we decided Graham, it was not clear that
the Eighth Amendment was applicable to the States, but our opinion
obviously assumed that it was. See Rummel v. Estelle, 445 U. S. 263 , 445 U. S. 277 ,
n. 13 (1980).

															[ Footnote 13 ]

															State Supreme Courts reacted to Weems in various ways.
The Virginia Supreme Court suggested that, since only four Justices
had joined the majority opinion, the proportionality question "may
be fairly said to be still an open question insofar as the
authority of the Supreme Court is concerned." Hart v.
Commonwealth, 131 Va. 726, 745, 109 S.E. 582, 588 (1921). Cf. North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 , 419 U. S.
616 -619 (1975) (BLACKMUN, J., dissenting). The Supreme
Court of Indiana apparently thought Weems to be in accord
with the traditional view expressed in Hobbs v. State, 133
Ind. 404, 32 N.E. 1019 (1893). See Kistler v. State, 190
Ind. 149, 158 (1921). The North Carolina Supreme Court, after
stating that Weems contained "an interesting historical
review," went on to hold that, under North Carolina's "similar
provision," punishment fixed by the legislature "cannot be
excessive." State v. Blake, 157 N.C. 608, 611, 72 S.E.
1080, 1081-1082 (1911).

															[ Footnote 14 ]

															In Robinson v. California, 370 U.
S. 660 (1962), the Court invalidated a 90-day prison
sentence for the crime of being "addicted to the use of narcotics."
The opinion does not cite Weems, and rests upon the
proposition that "[e]ven one day in prison would be a cruel and
unusual punishment for the crime' of having a common cold," 370
U.S. at 370 U. S. 667 .
Despite the Court's statement to the contrary in Solem v.
Helm, 463 U.S. at 463 U. S. 287 ,
there is no reason to believe that the decision was an application
of the principle of proportionality. See Ingraham v.
Wright, 430 U. S. 651 , 430 U. S. 667 (1977). JUSTICE KENNEDY, with whom JUSTICE O'CONNOR and JUSTICE SOUTER
join, concurring in part and concurring in the judgment.

															I concur in Part IV of the Court's opinion and in the judgment.
I write this separate opinion because my approach to the Eighth
Amendment proportionality analysis differs from JUSTICE SCALIA's.
Regardless of whether JUSTICE SCALIA or JUSTICE WHITE has the best
of the historical argument, compare ante at 501 U. S.
966 -985, with post at 501 U. S.
1009 -1011, and n. 1, stare decisis counsels our
adherence to the narrow proportionality principle that has existed
in our Eighth Amendment jurisprudence for 80 years. Although our
proportionality decisions have not been clear or consistent in all
respects, Page 501 U. S. 997 they can be reconciied, and they require us to uphold
petitioner's sentence. I A Our decisions recognize that the Cruel and Unusual Punishments
Clause encompasses a narrow proportionality principle. We first
interpreted the Eighth Amendment to prohibit " greatly
disproportioned'" sentences in Weems v. United States, 217 U. S. 349 , 217 U. S. 371 (1910), quoting O'Neil v. Vermont, 144 U.
S. 323 , 144 U. S. 340 (1892) (Field, J., dissenting). Since Weems, we have
applied the principle in different Eighth Amendment contexts. Its
most extensive application has been in death penalty cases. In Coker v. Georgia, 433 U. S. 584 , 433 U. S. 592 (1977), we held that "a sentence of death is grossly disproportionate and excessive
punishment for the crime of rape, and is therefore forbidden by the
Eighth Amendment as cruel and unusual punishment."

															We applied like reasoning in Enmund v. Florida, 458 U. S. 782 (1982), to strike down a capital sentence imposed for a felony
murder conviction in which the defendant had not committed the
actual murder and lacked intent to kill. Cf. Tison v.
Arizona, 481 U. S. 137 (1987).

															The Eighth Amendment proportionality principle also applies to
noncapital sentences. In Rummel v. Estelle, 445 U.
S. 263 (1980), we acknowledged the existence of the
proportionality rule for both capital and noncapital cases, id. at 445 U. S.
271 -274, and n. 11, but we refused to strike down a
sentence of life imprisonment, with possibility of parole, for
recidivism based on three underlying felonies. In Hutto v.
Davis, 454 U. S. 370 , 454 U. S. 374 ,
and n. 3 (1982), we recognized the possibility of proportionality
review, but held it inapplicable to a 40-year prison sentence for
possession with intent to distribute nine ounces of marijuana. Our
most recent decision discussing the subject is Solem v.
Helm, 463 U. S. 277 (1983). There we held that a sentence of life imprisonment without
possibility of parole violated the Eighth Amendment because it
was Page 501 U. S. 998 "grossly disproportionate" to the crime of recidivism based on
seven underlying nonviolent felonies. The dissent in Solem disagreed with the Court's application of the proportionality
principle, but observed that, in extreme cases, it could apply to
invalidate a punishment for a term of years. Id. at 463 U. S. 280 ,
n. 3. See also Hutto v. Finney, 437 U.
S. 678 , 437 U. S. 685 (1978) (dicta); Ingraham v. Wright, 430 U.
S. 651 , 430 U. S. 667 (1977) (dicta). B Though our decisions recognize a proportionality principle, its
precise contours are unclear. This is so, in part, because we have
applied the rule in few cases, and even then to sentences of
different types. Our most recent pronouncement on the subject in Solem, furthermore, appeared to apply a different analysis
than in Rummel and Davis. Solem twice
stated, however, that its decision was consistent with Rummel, and thus did not overrule it. Solem,
supra at 463 U. S. 288 ,
n. 13, 303, n. 32. Despite these tensions, close analysis of our
decisions yields some common principles that give content to the
uses and limits of proportionality review.

															The first of these principles is that the fixing of prison terms
for specific crimes involves a substantive penological judgment
that, as a general matter, is "properly within the province of
legislatures, not courts." Rummel, supra at 445 U. S.
275 -276. Determinations about the nature and purposes of
punishment for criminal acts implicate difficult and enduring
questions respecting the sanctity of the individual, the nature of
law, and the relation between law and the social order.

															"As a moral or political issue [the punishment of offenders]
provokes intemperate emotions, deeply conflicting interests, and
intractable disagreements."

															D. Garland, Punishment and Modern Society 1 (1990). The efficacy
of any sentencing system cannot be assessed absent agreement on the
purposes and objectives of the penal system. And the responsibility
for making these fundamental choices and implementing them lies
with the legislature. See Gore v. United
States , Page 501 U. S. 999 357 U. S. 386 , 357 U. S. 393 (1958) ("Whatever views may be entertained regarding severity of
punishment, whether one believes in its efficacy or its futility, .
. . these are peculiarly questions of legislative policy").
Thus,

															"[r]eviewing courts . . . should grant substantial deference to
the broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes." Solem, supra at 463 U. S. 290 . See also Rummel, supra at 445 U. S. 274 (acknowledging "reluctance to review legislatively mandated terms
of imprisonment"); Weems, supra at 217 U. S. 379 ("The function of the legislature is primary, its exercises
fortified by presumptions of right and legality, and is not to be
interfered with lightly, nor by any judicial conception of their
wisdom or propriety").

															The second principle is that the Eighth Amendment does not
mandate adoption of any one penological theory. "The principles
which have guided criminal sentencing . . . have varied with the
times." Payne v. Tennessee, ante at 501 U. S. 819 .
The federal and state criminal systems have accorded different
weights at different times to the penological goals of retribution,
deterrence, incapacitation, and rehabilitation. Compare
Mistretta v. United States, 488 U. S. 361 , 488 U. S.
363 -366 (1989), with Williams v. New York, 337 U. S. 241 , 337 U. S. 248 (1949). And competing theories of mandatory and discretionary
sentencing have been in varying degrees of ascendancy or decline
since the beginning of the Republic. See United States v.
Grayson, 438 U. S. 41 , 438 U. S. 45 -47
(1978).

															Third, marked divergences both in underlying theories of
sentencing and in the length of prescribed prison terms are the
inevitable, often beneficial, result of the federal structure. See Solem, supra at 463 U. S. 291 ,
n. 17, ("The inherent nature of our federal system" may result in
"a wide range of constitutional sentences"). "Our federal system
recognizes the independent power of a State to articulate societal
norms through criminal law." McCleskey v. Zant, 499 U. S. 467 , 499 U. S. 491 (1991). State sentencing schemes may embody different penological
assumptions, making interstate comparison of Page 501 U. S. 1000 sentences a difficult and imperfect enterprise. See
Rummel, 463 U.S. at 463 U. S. 281 . See also Solem, supra at 463 U. S.
294 -295 (comparison of different terms of years for
imprisonment "troubling" but not "unique to this area"). And even
assuming identical philosophies, differing attitudes and
perceptions of local conditions may yield different, yet rational,
conclusions regarding the appropriate length of prison terms for
particular crimes. Thus, the circumstance that a State has the most
severe punishment for a particular crime does not, by itself,
render the punishment grossly disproportionate. Rummel, 445 U.S. at 445 U. S.
281 .

															"[O]ur Constitution 'is made for people of fundamentally
differing views.' . . . Absent a constitutionally imposed
uniformity inimical to traditional notions of federalism, some
State will always bear the distinction of treating particular
offenders more severely than any other State." Id. at 445 U. S. 282 ,
quoting Lochner v. New York, 198 U. S.
45 , 198 U. S. 76 (1905) (Holmes, J., dissenting). See also Graham v. West
Virginia, 224 U. S. 616 (1912).

															The fourth principle at work in our cases is that
proportionality review by federal courts should be informed by
" objective factors to the maximum possible extent.'" Rummel, supra at 445 U. S.
274 -275, quoting Coker, 433 U.S. at 433 U. S. 592 (plurality opinion). See also Solem, supra at 463 U. S. 290 .
The most prominent objective factor is the type of punishment
imposed. In Weems, "the Court could differentiate in an objective fashion between
the highly unusual cadena temporal and more traditional
forms of imprisonment imposed under the Anglo-Saxon system." Rummel, 445 U.S. at 445 U. S. 275 .
In a similar fashion, because " [t]he penalty of death differs
from all other forms of criminal punishment,'" id. at 445 U. S. 272 ,
quoting Furman v. Georgia, 408 U.
S. 238 , 408 U. S. 306 (1972) (opinion of Stewart, J.), the objective line between capital
punishment and imprisonment for a term of years finds frequent
mention in our Eighth Amendment jurisprudence. See Solem,
supra at 463 U. S. 294 ("The easiest comparison [of different sentences] is between
capital punishment and noncapital punishment"). Page 501 U. S. 1001 By contrast, our decisions recognize that we lack clear
objective standards to distinguish between sentences for different
terms of years. Rummel, supra, at 445 U. S. 275 . See also Solem, 463 U.S. at 463 U. S. 294 ("It is clear that a 25-year sentence generally is more severe than
a 15-year sentence, but, in most cases, it would be difficult to
decide that the former violates the Eighth Amendment while the
latter does not") (footnote omitted). Although "no penalty is per se constitutional," id. at 463 U. S. 290 ,
the relative lack of objective standards concerning terms of
imprisonment has meant that "`[o]utside the context of capital
punishment, successful challenges to the proportionality of
particular sentences [are] exceedingly rare.'" Id. at 463 U. S.
289 -290, quoting Rummel, supra at 445 U. S.
272 .

															All of these principles -- the primacy of the legislature, the
variety of legitimate penological schemes, the nature of our
federal system, and the requirement that proportionality review be
guided by objective factors -- inform the final one: the Eighth
Amendment does not require strict proportionality between crime and
sentence. Rather, it forbids only extreme sentences that are
"grossly disproportionate" to the crime. Solem, supra at 463 U. S. 288 , 463 U. S. 303 . See also Weems, 217 U.S. at 217 U. S. 371 (Eighth Amendment prohibits "greatly disproportioned" sentences); Coker, supra at 433 U. S. 592 (Eighth Amendment prohibits "grossly disproportionate" sentences); Rummel, supra at 445 U. S. 271 (same). II With these considerations stated, it is necessary to examine the
challenged aspects of petitioner's sentence: its severe length and
its mandatory operation. A Petitioner's life sentence without parole is the second most
severe penalty permitted by law. It is the same sentence received
by the petitioner in Solem. Petitioner's crime, however,
was far more grave than the crime at issue in Solem. Page 501 U. S. 1002 The crime of uttering a no account check at issue in Solem was " one of the most passive felonies a person
could commit.'" Solem, 463 U.S. at 463 U. S. 296 (citation omitted). It "involved neither violence nor threat of
violence to any person," and was "viewed by society as among the
less serious offenses." Ibid. The felonies underlying the
defendant's recidivism conviction, moreover, were "all relatively
minor." Id. at 463 U. S.
296 -297. The Solem Court contrasted these
"minor" offenses with "very serious offenses" such as "a third
offense of heroin dealing," and stated that "[n]o one suggests that [a statute providing for life
imprisonment without parole] may not be applied constitutionally to
fourth-time heroin dealers or other violent criminals." Id. at 463 U. S. 299 ,
and n. 26.

															Petitioner was convicted of possession of more than 650 grams
(over 1.5 pounds) of cocaine. This amount of pure cocaine has a
potential yield of between 32,500 and 65,000 doses. A. Washton,
Cocaine Addiction: Treatment, Recovery, and Relapse Prevention 18
(1989). From any standpoint, this crime falls in a different
category from the relatively minor, nonviolent crime at issue in Solem. Possession, use, and distribution of illegal drugs
represents "one of the greatest problems affecting the health and
welfare of our population." Treasury Employees v. Von
Raab, 489 U. S. 656 , 489 U. S. 668 (1989). Petitioner's suggestion that his crime was nonviolent and
victimless, echoed by the dissent, see post at 501 U. S.
1022 -1023, is false to the point of absurdity. To the
contrary, petitioner's crime threatened to cause grave harm to
society.

															Quite apart from the pernicious effects on the individual who
consumes illegal drugs, such drugs relate to crime in at least
three ways: (1) A drug user may commit crime because of
drug-induced changes in physiological functions, cognitive ability,
and mood; (2) A drug user may commit crime in order to obtain money
to buy drugs; and (3) A violent crime may occur as part of the drug
business or culture. See Goldstein, Drugs and Violent
Crime, in Pathways to Criminal Violence Page 501 U. S. 1003 16, 24-36 (N. Weiner & M. Wolfgang eds.1989). Studies bear
out these possibilities, and demonstrate a direct nexus between
illegal drugs and crimes of violence. See generally id. at
16-48. To mention but a few examples, 57 percent of a national
sample of males arrested in 1989 for homicide tested positive for
illegal drugs. National Institute of Justice, 1989 Drug Use
Forecasting Annual Report 9 (June 1990). The comparable statistics
for assault, robbery, and weapons arrests were 55, 73, and 63
percent, respectively. Ibid. In Detroit, Michigan, in
1988, 68 percent of a sample of male arrestees and 81 percent of a
sample of female arrestees tested positive for illegal drugs.
National Institute of Justice, 1988 Drug Use Forecasting Annual
Report 4 (Mar.1990). Fifty-one percent of males and seventy-one
percent of females tested positive for cocaine. Id. at 7.
And last year, an estimated 60 percent of the homicides in Detroit
were drug-related, primarily cocaine-related. U.S. Department of
Health and Human Services, Epidemiologic Trends in Drug Abuse 107
(Dec.1990).

															These and other facts and reports detailing the pernicious
effects of the drug epidemic in this country do not establish that
Michigan's penalty scheme is correct or the most just in any
abstract sense. But they do demonstrate that the Michigan
Legislature could with reason conclude that the threat posed to the
individual and society by possession of this large an amount of
cocaine -- in terms of violence, crime, and social displacement --
is momentous enough to warrant the deterrence and retribution of a
life sentence without parole. See United States v.
Mendenhall, 446 U. S. 544 , 446 U. S. 561 (1980) (Powell, J., concurring in part and concurring in judgment)
("Few problems affecting the health and welfare of our population,
particularly our young, cause greater concern than the escalating
use of controlled substances"); Florida v. Royer, 460 U. S. 491 , 460 U. S. 513 (1983) (BLACKMUN, J., dissenting) (same). See also Terrebonne
v. Butler, 848 F.2d 500, 504 (CA5 1988) (en banc). Page 501 U. S. 1004 The severity of petitioner's crime brings his sentence within
the constitutional boundaries established by our prior decisions.
In Hutto v. Davis, 454 U. S. 370 (1982), we upheld against proportionality attack a sentence of 40
years' imprisonment for possession with intent to distribute nine
ounces of marijuana. Here, Michigan could, with good reason,
conclude that petitioner's crime is more serious than the crime in Davis. Similarly, a rational basis exists for Michigan to
conclude that petitioner's crime is as serious and violent as the
crime of felony murder without specific intent to kill, a crime for
which "no sentence of imprisonment would be disproportionate," Solem, 463 U.S. at 463 U. S. 290 ,
n. 15. Cf. Rummel, 445 U.S. at 445 U. S. 296 ,
n. 12 (Powell, J., dissenting) ("A professional seller of addictive
drugs may inflict greater bodily harm upon members of society than
the person who commits a single assault").

															Petitioner and amici contend that our proportionality
decisions require a comparative analysis between petitioner's
sentence and sentences imposed for other crimes in Michigan and
sentences imposed for the same crime in other jurisdictions. Given
the serious nature of petitioner's crime, no such comparative
analysis is necessary. Although Solem considered these
comparative factors after analyzing "the gravity of the offense and
the harshness of the penalty," 463 U.S. at 463 U. S.
290 -291, it did not announce a rigid three-part test. In
fact, Solem stated that, in determining unconstitutional
disproportionality, "no one factor will be dispositive in a given
case." Id. at 463 U. S. 291 ,
n. 17. See also ibid. ("[N]o single criterion can identify
when a sentence is so grossly disproportionate that it violates the
Eighth Amendment").

															On the other hand, one factor may be sufficient to determine the
constitutionality of a particular sentence. Consistent with its
admonition that

															"a reviewing court rarely will be required to engage in extended
analysis to determine that a sentence is not constitutionally
disproportionate," id. at 463 U. S. 290 ,
n. 16, Solem is best understood as holding that
comparative Page 501 U. S. 1005 analysis within and between jurisdictions is not always relevant
to proportionality review. The Court stated that "it may be helpful to compare sentences imposed on other criminals in the
same jurisdiction," and that "courts may find it useful to
compare the sentences imposed for commission of the same crime in
other jurisdictions." Id. at 463 U. S.
291 -292 (emphasis added). It did not mandate such
inquiries.

															A better reading of our cases leads to the conclusion that
intra-jurisdictional and inter-jurisdictional analyses are
appropriate only in the rare case in which a threshold comparison
of the crime committed and the sentence imposed leads to an
inference of gross disproportionality. In Solem and Weems, decisions in which the Court invalidated sentences
as disproportionate, we performed a comparative analysis of
sentences after determining that the sentence imposed was grossly
excessive punishment for the crime committed. Solem, supra at 463 U. S.
298 -300; Weems, 217 U.S. at 217 U. S.
377 -381. By contrast, Rummel and Davis, decisions in which the Court upheld sentences
against proportionality attacks, did not credit such comparative
analyses. In rejecting this form of argument, Rummel noted
that,

															"[e]ven were we to assume that the statute employed against
Rummel was the most stringent found in the 50 States, that severity
hardly would render Rummel's punishment 'grossly disproportionate'
to his offenses." Rummel, supra at 445 U. S.
281 .

															The proper role for comparative analysis of sentences, then, is
to validate an initial judgment that a sentence is grossly
disproportionate to a crime. This conclusion neither
"eviscerate[s]" Solem, nor "abandon[s]" its second and
third factors, as the dissent charges, post at 501 U. S.
1018 , 501 U. S.
1020 , and it takes full account of Rummel and Davis, cases ignored by the dissent. In light of the
gravity of petitioner's offense, a comparison of his crime with his
sentence does not give rise to an inference of gross
disproportionality, and comparative analysis of his sentence with
others in Michigan and across the Nation need not be performed. Page 501 U. S. 1006 B Petitioner also attacks his sentence because of its mandatory
nature. Petitioner would have us hold that any severe penalty
scheme requires individualized sentencing so that a judicial
official may consider mitigating circumstances. Our precedents do
not support this proposition, and petitioner presents no convincing
reason to fashion an exception or adopt a new rule in the case
before us. The Court demonstrates that our Eighth Amendment capital
decisions reject any requirement of individualized sentencing in
noncapital cases. Ante at 501 U. S.
994 -996.

															The mandatory nature of this sentence comports with our
noncapital proportionality decisions as well. The statute at issue
in Solem made the offender liable to a maximum, not a
mandatory, sentence of life imprisonment without parole. Solem, 463 U.S. at 463 U. S.
281 -282, n. 6. Because a "lesser sentence . . . could
have been entirely consistent with both the statute and the Eighth
Amendment," the Court's decision "d[id] not question the
legislature's judgment," but rather challenged the sentencing
court's selection of a penalty at the top of the authorized
sentencing range. Id. at 463 U. S. 299 ,
n. 26. Here, by contrast, the Michigan Legislature has mandated the
penalty and has given the state judge no discretion in implementing
it. It is beyond question that the legislature "has the power to
define criminal punishments without giving the courts any
sentencing discretion," Chapman v. United States, 500 U. S. 453 , 500 U. S. 467 (1991). Since the beginning of the Republic, Congress and the
States have enacted mandatory sentencing schemes. See Mistretta
v. United States, 488 U.S. at 488 U. S. 363 ; United States v. Grayson, 438 U.S. at 438 U. S. 45 -46; Ex parte United States, 242 U. S. 27 (1916). To set aside petitioner's mandatory sentence would require
rejection not of the judgment of a single jurist, as in Solem, but rather the collective wisdom of the Michigan
Legislature and, as a consequence, the Michigan citizenry. We have
never invalidated a penalty mandated by a legislature based only on
the Page 501 U. S. 1007 length of sentence, and, especially with a crime as severe as
this one, we should do so only in the most extreme circumstance. Cf. Rummel, 445 U.S. at 445 U. S.
274 .

															In asserting the constitutionality of this mandatory sentence, I
offer no judgment on its wisdom. Mandatory sentencing schemes can
be criticized for depriving judges of the power to exercise
individual discretion when remorse and acknowledgment of guilt, or
other extenuating facts, present what might seem a compelling case
for departure from the maximum. On the other hand, broad and
unreviewed discretion exercised by sentencing judges leads to the
perception that no clear standards are being applied, and that the
rule of law is imperiled by sentences imposed for no discernible
reason other than the subjective reactions of the sentencing judge.
The debate illustrates that, as noted at the outset, arguments for
and against particular sentencing schemes are for legislatures to
resolve.

															Michigan's sentencing scheme establishes graduated punishment
for offenses involving varying amounts of mixtures containing
controlled substances. Possession of controlled substances in
schedule 1 or 2 in an amount less than 50 grams results in a
sentence of up to 20 years imprisonment; possession of more than 50
but less than 225 grams results in a mandatory minimum prison
sentence of 10 years with a maximum sentence of 20 years;
possession of more than 225 but less than 650 grams results in a
mandatory minimum prison sentence of 20 years with a maximum
sentence of 30 years; and possession of 650 grams or more results
in a mandatory life sentence. Mich.Comp.Laws Ann. § 333.7401 (West
Supp. 1990-1991). Sentencing courts may depart from the minimum
terms specified for all amounts, except those exceeding 650 grams,
"if the court finds on the record that there are substantial and
compelling reasons to do so." §§ 333.7401(4), 333.7403(3). This
system is not an ancient one revived in a sudden or surprising way;
it is, rather, a recent enactment calibrated with care, clarity,
and much deliberation to address Page 501 U. S. 1008 a most serious contemporary social problem. The scheme provides
clear notice of the severe consequences that attach to possession
of drugs in wholesale amounts, thereby giving force to one of the
first purposes of criminal law -- deterrence. In this sense, the
Michigan scheme may be as fair, if not more so, than other
sentencing systems in which the sentencer's discretion or the
complexity of the scheme obscures the possible sanction for a
crime, resulting in a shock to the offender who learns the severity
of his sentence only after he commits the crime.

															The Michigan scheme does possess mechanisms for consideration of
individual circumstances. Prosecutorial discretion before sentence
and executive or legislative clemency afterwards provide means for
the State to avert or correct unjust sentences. Here the prosecutor
may have chosen to seek the maximum penalty because petitioner
possessed 672.5 grams of undiluted cocaine and several other
trappings of a drug trafficker, including marijuana cigarettes,
four brass cocaine straws, a cocaine spoon, 12 Percodan tablets, 25
tablets of Phendimetrazine Tartrate, a Motorola beeper, plastic
bags containing cocaine, a coded address book, and $3,500 in
cash. III A penalty as severe and unforgiving as the one imposed here
would make this a most difficult and troubling case for any
judicial officer. Reasonable minds may differ about the efficacy of
Michigan's sentencing scheme, and it is far from certain that
Michigan's bold experiment will succeed. The accounts of
pickpockets at Tyburn hangings are a reminder of the limits of the
law's deterrent force, but we cannot say the law before us has no
chance of success, and is, on that account, so disproportionate as
to be cruel and unusual punishment. The dangers flowing from drug
offenses and the circumstances of the crime committed here
demonstrate that the Michigan penalty scheme does not surpass
constitutional Page 501 U. S. 1009 bounds. Michigan may use its criminal law to address the issue
of drug possession in wholesale amounts in the manner that it has
in this sentencing scheme. See New State Ice Co. v.
Liebmann, 285 U. S. 262 , 285 U. S. 311 (1932) (Brandeis, J., dissenting). For the foregoing reasons, I
conclude that petitioner's sentence of life imprisonment without
parole for his crime of possession of more than 650 grams of
cocaine does not violate the Eighth Amendment.

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

															The Eighth Amendment provides that "[e]xcessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." JUSTICE SCALIA concludes that "the Eighth
Amendment contains no proportionality guarantee." Ante at 501 U. S. 965 .
Accordingly, he says Solem v. Helm, 463 U.
S. 277 (1983), "was simply wrong" in holding otherwise,
as would be the Court's other cases interpreting the Amendment to
contain a proportionality principle. JUSTICE KENNEDY, on the other
hand, asserts that the Eighth Amendment's proportionality principle
is so "narrow," ante at 501 U. S. 996 ,
that Solem's analysis should be reduced from three factors
to one. With all due respect, I dissent.

															The language of the Amendment does not refer to proportionality
in so many words, but it does forbid "excessive" fines, a restraint
that suggests that a determination of excessiveness should be
based, at least in part, on whether the fine imposed is
disproportionate to the crime committed. Nor would it be
unreasonable to conclude that it would be both cruel and unusual to
punish overtime parking by life imprisonment, see Rummel v.
Estelle, 445 U. S. 263 , 445 U. S. 274 ,
n. 11 (1980), or, more generally, to impose any punishment that is
grossly disproportionate to the offense for which the defendant has
been convicted. Thus, Benjamin Oliver, cited by Page 501 U. S. 1010 JUSTICE SCALIA, ante at 501 U. S. 981 ,
observed with respect to the Eighth Amendment:

															"No express restriction is laid in the constitution, upon the
power of imprisoning for crimes. But, as it is forbidden to demand
unreasonable bail, which merely exposes the individual concerned,
to imprisonment in case he cannot procure it; as it is forbidden to
impose unreasonable fines, on account of the difficulty the person
fined would have of paying them, the default of which would be
punished by imprisonment only, it would seem that imprisonment for
an unreasonable length of time is also contrary to the spirit of
the constitution. Thus, in cases where the courts have a
discretionary power to fine and imprison, shall it be supposed,
that the power to fine is restrained, but the power to imprison is
wholly unrestricted by it? In the absence of all express
regulations on the subject, it would surely be absurd to imprison
an individual for a term of years for some inconsiderable offence,
and, consequently, it would seem that a law imposing so severe a
punishment must be contrary to the intention of the framers of the
constitution."

															B. Oliver, The Rights of an American Citizen 185-186 (1832).

															JUSTICE SCALIA concedes that the language of the Amendment bears
such a construction. See ante at 501 U.S. 976 . His reasons for claiming
that it should not be so construed are weak. First, he asserts
that, if proportionality was an aspect of the restraint, it could
have been said more clearly -- as plain-talking Americans would
have expressed themselves (as for instance, I suppose, in the Fifth
Amendment's Due Process Clause or the Fourth Amendment's
prohibition against unreasonable searches and seizures).

															Second, JUSTICE SCALIA claims that it would be difficult or
impossible to label as "unusual" any punishment imposed by the
Federal Government, which had just come into existence, and had no
track record with respect to criminal law. But Page 501 U. S. 1011 the people of the new Nation had been living under the criminal
law regimes of the States, and there would have been no lack of
benchmarks for determining unusualness. Furthermore, this argument
would deprive this part of the Amendment of any meaning at all.

															Third, JUSTICE SCALIA argues that all of the available evidence
of the day indicated that those who drafted and approved the
Amendment "chose . . . not to include within it the guarantee
against disproportionate sentences that some State Constitutions
contained." Ante at 501 U. S. 985 .
Even if one were to accept the argument that the First Congress did
not have in mind the proportionality issue, the evidence would
hardly be strong enough to come close to proving an affirmative
decision against the proportionality component. Had there been an
intention to exclude it from the reach of the words that otherwise
could reasonably be construed to include it, perhaps, as
plain-speaking Americans, the Members of the First Congress would
have said so. And who can say with confidence what the members of
the state ratifying conventions had in mind when they voted in
favor of the Amendment? Surely, subsequent state court decisions do
not answer that question. [ Footnote
2/1 ] Page 501 U. S. 1012 In any event, the Amendment, as ratified, contained the words
"cruel and unusual," and there can be no doubt that prior decisions
of this Court have construed these words to include a
proportionality principle. In 1910, in the course of holding
unconstitutional a sentence imposed by the Philippine courts, the
Court stated:

															"Such penalties for such offenses amaze those who . . . believe
that it is a precept of justice that punishment for crime should be
graduated and proportioned to [the] offense. Weems v. United
States, 217 U. S. 349 , 217 U. S.
366 -367 (1910)."

															"[T]he inhibition [of the Cruel and Unusual Punishments Clause]
was directed not only against punishments which inflict torture,
'but against all punishments which by their excessive length or
severity are greatly disproportioned to the offenses charged.'" Id. at 217 U. S. 371 ,
quoting O'Neil v. Vermont, 144 U.
S. 323 , 144 U. S.
339 -340 (1892) (Field, J., dissenting).

															That the punishment imposed in Weems was also unknown
to Anglo-American tradition -- "It has no fellow in American
legislation," 217 U.S. at 217 U. S. 377 -- was just another reason to set aside the sentence, and did not
in the least detract from the holding with respect to
proportionality, which, as Gregg v. Georgia, 428 U.
S. 153 , 428 U. S.
171 -172 (1976), observed, was the focus of the Court's
holding. Robinson v. California, 370 U.
S. 660 (1962), held for the first time that the Eighth
Amendment was applicable to punishment imposed by state courts; it
also held it to be cruel and unusual to impose even one day of
imprisonment for the status of drug addiction, id. at 370 U. S. 667 .
The plurality opinion in Gregg, supra at 428 U. S. 173 ,
observed that the Eighth Amendment's proscription of cruel and
unusual punishment is an evolving Page 501 U. S. 1013 concept and announced that punishment would violate the
Amendment if it "involve[d] the unnecessary and wanton infliction
of pain" or if it was "grossly out of proportion to the severity of
the crime." Under this test, the death penalty was not cruel and
unusual in all cases. Following Gregg, Coker v. Georgia, 433 U. S. 584 , 433 U. S. 592 (1977), held that the Amendment bars not only a barbaric punishment
but also a punishment that is excessive, i.e., a
punishment that

															"(1) makes no measurable contribution to acceptable goals of
punishment, and hence is nothing more than the purposeless and
needless imposition of pain and suffering; or (2) is grossly out of
proportion to the severity of the crime."

															We went on to hold that the punishment of death for the crime of
rape was unconstitutional for lack of proportionality. Ibid. Similarly, in Enmund v. Florida, 458 U. S. 782 (1982), we invalidated a death sentence for felony murder, on
disproportionality grounds, where there had been no proof of an
intent to murder. Finally, Solem v. Helm, 463 U.
S. 277 (1983), invalidated a prison sentence on the
ground that it was too severe in relation to the crime that had
been committed.

															Not only is it undeniable that our cases have construed the
Eighth Amendment to embody a proportionality component, but it is
also evident that none of the Court's cases suggest that such a
construction is impermissible. Indeed, Rummel v. Estelle, 445 U. S. 263 (1980), the holding of which JUSTICE SCALIA does not question,
itself recognized that the Eighth Amendment contains a
proportionality requirement, for it did not question Coker and indicated that the proportionality principle would come into
play in some extreme, nonfelony cases. Id. at 445 U. S. 272 , 445 U. S. 274 ,
and n. 11.

															If JUSTICE SCALIA really means what he says -- "the Eighth
Amendment contains no proportionality guarantee," ante at 501 U. S. 965 ,
it is difficult to see how any of the above holdings and
declarations about the proportionality requirement of the Amendment
could survive. Later in his opinion, however, ante at 501 U. S. 994 ,
JUSTICE SCALIA backtracks and appears to accept Page 501 U. S. 1014 that the Amendment does indeed insist on proportional
punishments in a particular class of cases, those that involve
sentences of death. His fall-back position is that, outside the
capital cases, proportionality review is not required by the
Amendment. With the exception of capital cases, the severity of the
sentence for any crime is a matter that the Amendment leaves to the
discretion of legislators. Any prison sentence, however severe, for
any crime, however petty, will be beyond review under the Eighth
Amendment. This position restricts the reach of the Eighth
Amendment far more than did Rummel. It also ignores the
generality of the Court's several pronouncements about the Eighth
Amendment's proportionality component. And it fails to explain why
the words "cruel and unusual" include a proportionality requirement
in some cases, but not in others. Surely it is no explanation to
say only that such a requirement in death penalty cases is part of
our capital punishment jurisprudence. That is true, but the
decisions requiring proportionality do so because of the Eighth
Amendment's prohibition against cruel and unusual punishments. The
Court's capital punishment cases requiring proportionality reject
JUSTICE SCALIA's notion that the Amendment bars only cruel and
unusual modes or methods of punishment. Under that view, capital
punishment -- a mode of punishment -- would either be completely
barred or left to the discretion of the legislature. Yet neither is
true. The death penalty is appropriate in some cases, and not in
others. The same should be true of punishment by imprisonment.

															What is more, the Court's jurisprudence concerning the scope of
the prohibition against cruel and unusual punishments has long
understood the limitations of a purely historical analysis. See
Trop v. Dulles, 356 U. S. 86 , 356 U. S.
100 -101 (1958) (plurality opinion); Browning-Ferris
Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.
S. 257 , 492 U. S. 264 ,
n. 4 (1989). Thus,

															"this Court has "not confined the prohibition embodied in the
Eighth Amendment to barbarous' methods that were Page 501 U. S.
1015 generally outlawed in the 18th century," but instead has
interpreted the Amendment "in a flexible and dynamic
manner."" Stanford v. Kentucky, 492 U. S. 361 , 492 U. S. 369 (1989), quoting Gregg v. Georgia, 428 U.S. at 428 U. S. 171 (opinion of Stewart, Powell, and STEVENS, JJ.). In so doing, the
Court has borne in mind Justice McKenna's admonition in Weems
v. United States, 217 U.S. at 217 U. S. 373 ,
that

															"[t]ime works changes, brings into existence new conditions and
purposes. Therefore, a principle, to be vital, must be capable of
wider application than the mischief which gave it birth. This is
peculiarly true of constitutions." See also Browning-Ferris, supra at 492 U. S. 273 (quoting Weems ).

															The Court therefore has recognized that a punishment may violate
the Eighth Amendment if it is contrary to the "evolving standards
of decency that mark the progress of a maturing society." Trop,
supra at 356 U. S. 101 . See Stanford, supra at 492 U. S. 369 (quoting Trop ). In evaluating a punishment under this
test, "we have looked not to our own conceptions of decency, but to
those of modern American society as a whole" in determining what
standards have "evolved," Stanford, supra at 492 U. S. 369 ,
and thus have focused not on "the subjective views of individual
Justices," but on "objective factors to the maximum possible
extent," Coker, supra at 433 U. S. 592 (plurality opinion). It is this type of objective factor which
forms the basis for the tripartite proportionality analysis set
forth in Solem. Contrary to JUSTICE SCALIA's suggestion, ante at 501 U. S.
985 -986, the Solem analysis has worked well in
practice. Courts appear to have had little difficulty applying the
analysis to a given sentence, and application of the test by
numerous state and federal appellate courts has resulted in a mere
handful of sentences being declared unconstitutional. [ Footnote 2/2 ] Thus, it is clear Page 501 U. S. 1016 that reviewing courts have not baldly substituted their own
subjective moral values for those of the legislature. Instead,
courts have demonstrated that they are

															"capable of applying the Eighth Amendment to disproportionate
noncapital sentences with a high degree of sensitivity to
principles of federalism and state autonomy. [ Footnote 2/3 ]" Rummel, 445 U.S. at 445 U. S. 306 (Powell, J., dissenting). Solem is wholly consistent with
this approach, and, when properly applied, its analysis affords

															"substantial deference to the broad authority that legislatures
necessarily possess in determining the types and limits of
punishments for crimes, as well as to the discretion that trial
courts possess in sentencing convicted criminals,"

															463 U.S. at 463 U. S. 290 (footnote omitted), and will only rarely result in a sentence
failing constitutional muster. The fact that this is one of those
rare instances is no reason to abandon the analysis.

															Nor does the fact that this case involves judicial review of a
legislatively mandated sentence, rather than a sentence imposed in
the exercise of judicial discretion, warrant abandonment of Solem. First, the quote from Solem in the
preceding paragraph makes clear that the analysis is intended to
apply to both types of sentences. Second, contrary to JUSTICE
SCALIA's suggestion, ante at 501 U.S. 976 , the fact that a
punishment Page 501 U. S. 1017 has been legislatively mandated does not automatically render it
"legal" or "usual" in the constitutional sense. Indeed, as noted
above, if this were the case, then the prohibition against cruel
and unusual punishments would be devoid of any meaning. He asserts
that, when

															"[w]renched out of its common law context, and applied to the
actions of a legislature, the word 'unusual' could hardly mean
'contrary to law,'"

															because "[t]here were no common law punishments in the federal
system." Ante at 501 U. S. 975 , 501 U.S. 976 . But if this
is so, then neither could the term "unusual" mean "contrary to
custom," for, until Congress passed the first penal law, there were
no "customary" federal punishments either. Moreover, the suggestion
that a legislatively mandated punishment is necessarily "legal" is
the antithesis of the principles established in Marbury v.
Madison , 1 Cranch 137 (1803), for "[i]t is
emphatically the province and duty of the judicial department to
say what the law is," id. at 5 U. S. 177 , and
to determine whether a legislative enactment is consistent with the
Constitution. This Court's decision in Robinson v.
California, 370 U. S. 660 (1962), in which the prohibition against cruel and unusual
punishments was made applicable to the States through the
Fourteenth Amendment, removed any doubt that it is as much our duty
to assess the constitutionality of punishments enacted by state
legislative bodies as it is our obligation to review congressional
enactments. Indeed, the Court's prior decisions have recognized
that legislatively mandated sentences may violate the Eighth
Amendment. See Rummel, supra at 445 U. S. 274 ,
n. 11; Hutto v. Davis, 454 U. S. 370 , 454 U. S. 374 ,
n. 3 (1982). This Court has long scrutinized legislative enactments
concerning punishment without fear that it was unduly invading the
legislative prerogative of the States. See, e.g., Coker v.
Georgia, 433 U. S. 584 (1977); Enmund v. Florida, 458 U.
S. 782 (1982). That such scrutiny requires sensitivity
to federalism concerns and involves analysis that may, at times, be
difficult affords no justification for this Page 501 U. S. 1018 Court's abrogation of its responsibility to uphold
constitutional principles.

															Two dangers lurk in JUSTICE SCALIA's analysis. First, he
provides no mechanism for addressing a situation such as that
proposed in Rummel, in which a legislature makes overtime
parking a felony punishable by life imprisonment. He concedes that
"one can imagine extreme examples" -- perhaps such as the one
described in Rummel -- "that no rational person, in no
time or place, could accept," but attempts to offer reassurance by
claiming that, "for the same reason these examples are easy to
decide, they are certain never to occur." Ante at 501 U. S.
985 -986. This is cold comfort, indeed, for, absent a
proportionality guarantee, there would be no basis for deciding
such cases should they arise.

															Second, as I have indicated, JUSTICE SCALIA's position that the
Eighth Amendment addresses only modes or methods of punishment is
quite inconsistent with our capital punishment cases, which do not
outlaw death as a mode or method of punishment, but instead put
limits on its application. If the concept of proportionality is
downgraded in the Eighth Amendment calculus, much of this Court's
capital penalty jurisprudence will rest on quicksand.

															While JUSTICE SCALIA seeks to deliver a swift death sentence to Solem, JUSTICE KENNEDY prefers to eviscerate it, leaving
only an empty shell. The analysis JUSTICE KENNEDY proffers is
contradicted by the language of Solem itself and by our
other cases interpreting the Eighth Amendment.

															In Solem, the Court identified three major factors to
consider in assessing whether a punishment violates the Eighth
Amendment: "the gravity of the offense and the harshness of the
penalty," 463 U.S. at 463 U. S.
290 -291; "the sentences imposed on other criminals in
the same jurisdiction," id. at 463 U. S. 291 ;
and "the sentences imposed for commission of the same crime in
other jurisdictions," id. at 463 U. S.
291 -292. JUSTICE KENNEDY, however, maintains that "one
factor may be sufficient to determine the constitutionality of a
particular sentence," and Page 501 U. S. 1019 that there is no need to consider the second and third factors
unless "a threshold comparison of the crime committed and the
sentence imposed leads to an inference of gross
disproportionality." Ante at 501 U. S.
1004 , 1005. Solem is directly to the contrary,
for there. the Court made clear that "no one factor will be
dispositive in a given case," and "no single criterion can identify
when a sentence is so grossly disproportionate that it violates the
Eighth Amendment," "[b]ut a combination of objective factors can
make such analysis possible." 463 U.S. at 463 U. S. 291 ,
n. 17.

															Moreover, as JUSTICE KENNEDY concedes, see ante at 501 U. S.
1005 , the use of an intra-jurisdictional and
inter-jurisdictional comparison of punishments and crimes has long
been an integral part of our Eighth Amendment jurisprudence.
Numerous cases have recognized that a proper proportionality
analysis must include the consideration of such objective factors
as

															"the historical development of the punishment at issue,
legislative judgments, international opinion, and the sentencing
decisions juries have made." Enmund, supra at 458 U. S. 788 . See also Stanford, 492 U.S. at 492 U. S.
369 -371; McCleskey v. Kemp, 481 U.
S. 279 , 481 U. S. 300 (1987).

															Thus, in Weems, 217 U.S. at 217 U. S.
380 -381, the Court noted the great disparity between the
crime at issue and those within the same jurisdiction for which
less severe punishments were imposed. In Trop, 356 U.S. at 356 U. S.
102 -103, the Court surveyed international law before
determining that forfeiture of citizenship as a punishment for
wartime desertion violated the Eighth Amendment. In Coker v.
Georgia, supra, we sought

															"guidance in history and from the objective evidence of the
country's present judgment concerning the acceptability of death as
a penalty for rape of an adult woman," id. at 433 U. S. 593 (plurality opinion), and surveyed the laws of the States before
concluding that "[t]he current judgment with respect to the death
penalty for rape," though "not wholly unanimous among state
legislatures, . . . weigh[ed] very heavily on the side of rejecting
capital punishment as a Page 501 U. S. 1020 suitable penalty," id. at 433 U. S. 596 (plurality opinion). And in Enmund, we again reviewed the
laws of the States before concluding that the death penalty is
unconstitutional when inflicted upon one who merely participates in
a felony during which a murder occurs. 458 U.S. at 458 U. S. 797 .
That, in some of these cases, the comparisons were made after the
Court had considered the severity of the crime in no way suggests
that this part of the analysis was any less essential to an
assessment of a given punishment's proportionality.

															JUSTICE KENNEDY's abandonment of the second and third factors
set forth in Solem makes any attempt at an objective
proportionality analysis futile. The first prong of Solem requires a court to consider two discrete factors -- the gravity of
the offense and the severity of the punishment. A court is not
expected to consider the interaction of these two elements and
determine whether "the sentence imposed was grossly excessive
punishment for the crime committed." See ante at 501 U. S.
1005 . Were a court to attempt such an assessment, it
would have no basis for its determination that a sentence was -- or
was not -- disproportionate, other than the "subjective views of
individual [judges]," Coker, supra at 433 U. S. 592 (plurality opinion), which is the very sort of analysis our Eighth
Amendment jurisprudence has shunned. JUSTICE KENNEDY asserts that
"our decisions recognize that we lack clear objective standards to
distinguish between sentences for different terms of years," citing Rummel and Solem as support. Ante at 501 U. S.
1001 . But Solem recognized that

															"[f]or sentences of imprisonment, the problem is not so much one
of ordering, but one of line-drawing. It is clear that a 25-year
sentence generally is more severe than a 15-year sentence, but, in
most cases, it would be difficult to decide that the former
violates the Eighth Amendment while the latter does not. Decisions
of this kind, although troubling, are not unique to this area. The
courts are constantly called upon to draw similar Page 501 U. S. 1021 lines in a variety of contexts."

															463 U.S. at 463 U. S. 294 (footnote omitted). The Court compared line drawing in the Eighth
Amendment context to that regarding the Sixth Amendment right to a
speedy trial and right to a jury before concluding that "courts
properly may look to the practices in other jurisdictions in
deciding where lines between sentences should be drawn." Id. at 463 U. S. 295 .
Indeed, only when a comparison is made with penalties for other
crimes and in other jurisdictions can a court begin to make an
objective assessment about a given sentence's constitutional
proportionality, giving due deference to "public attitudes
concerning a particular sentence." Coker, 433 U.S. at 433 U. S. 592 (plurality opinion).

															Because there is no justification for overruling or limiting Solem, it remains to apply that case's proportionality
analysis to the sentence imposed on petitioner. Application of the Solem factors to the statutorily mandated punishment at
issue here reveals that the punishment fails muster under Solem and, consequently, under the Eighth Amendment to the
Constitution.

															Petitioner, a first-time offender, was convicted of possession
of 672 grams of cocaine. The statute under which he was convicted,
Mich.Comp.Laws Ann. § 333.7403(2)(a)(i) (Supp. 1990-1991), provides
that a person who knowingly or intentionally possesses any of
various narcotics, including cocaine,

															"[w]hich is in an amount of 650 grams or more of any mixture
containing that controlled substance is guilty of a felony and
shall be imprisoned for life."

															No particular degree of drug purity is required for a
conviction. Other statutes make clear that an individual convicted
of possessing this quantity of drugs is not eligible for parole. See §§ 791.233b[1](b), 791.234(4). A related statute, §
333.7401(2)(a)(i), which was enacted at the same time as the
statute under which petitioner was convicted, mandates the same
penalty of life imprisonment without possibility of parole for
someone who "manufacture[s], deliver[s], or possess[es] with
intent Page 501 U. S. 1022 to manufacture or deliver" 650 grams or more of a narcotic
mixture. [ Footnote 2/4 ] There is no
room for judicial discretion in the imposition of the life sentence
upon conviction. The asserted purpose of the legislative enactment
of these statutes was to " stem drug traffic'" and reach "`drug
dealers.'" See Brief for Respondent 7, quoting House
Legislative Analysis of Mich.House Bill 4190 of 1977 (May 17,
1978). The first Solem factor requires a reviewing court to
assess the gravity of the offense and the harshness of the penalty.
463 U.S. at 463 U. S. 292 .
The mandatory sentence of life imprisonment without possibility of
parole "is the most severe punishment that the State could have
imposed on any criminal for any crime," id. at 463 U.S. 297 , for Michigan
has no death penalty.

															Although these factors are "by no means exhaustive," id. at 463 U. S. 294 ,
in evaluating the gravity of the offense, it is appropriate to
consider "the harm caused or threatened to the victim or society,"
based on such things as the degree of violence involved in the
crime and "[t]he absolute magnitude of the crime," and "the
culpability of the offender," including the degree of requisite
intent and the offender's motive in committing the crime, id. at 463 U. S.
292 -293.

															Drugs are, without doubt, a serious societal problem. To justify
such a harsh mandatory penalty as that imposed here, however, the
offense should be one which will always warrant that punishment.
Mere possession of drugs -- even in such a large quantity -- is not
so serious an offense that it will always warrant, much less
mandate, life imprisonment without possibility of parole. Unlike
crimes directed against the persons and property of others,
possession of drugs affects the criminal who uses the drugs most
directly. The ripple effect on society caused by possession of
drugs, through related crimes, lost productivity, health problems,
and the like, Page 501 U. S. 1023 is often not the direct consequence of possession, but of the
resulting addiction, something which this Court held in Robinson v. California, 370 U.S. at 370 U. S. 660 -667,
cannot be made a crime.

															To be constitutionally proportionate, punishment must be
tailored to a defendant's personal responsibility and moral guilt. See Enmund v. Florida, 458 U.S. at 458 U. S. 801 .
JUSTICE KENNEDY attempts to justify the harsh mandatory sentence
imposed on petitioner by focusing on the subsidiary effects of drug
use, and thereby ignores this aspect of our Eighth Amendment
jurisprudence. While the collateral consequences of drugs such as
cocaine are indisputably severe, they are not unlike those which
flow from the misuse of other, legal substances. For example, in
considering the effects of alcohol on society, the Court has
stressed that "[n]o one can seriously dispute the magnitude of the
drunken driving problem or the States' interest in eradicating it," Michigan Dept. of State Police v. Sitz, 496 U.
S. 444 , 496 U. S. 451 (1990), but, at the same time, has recognized that the severity of
the problem "cannot excuse the need for scrupulous adherence to our
constitutional principles," Grady v. Corbin, 495 U.
S. 508 , 495 U. S. 524 (1990). Thus, the Court has held that a drunken driver who has been
prosecuted for traffic offenses arising from an accident cannot,
consistent with the Double Jeopardy Clause, subsequently be
prosecuted for the death of the accident victim. Ibid. Likewise, the Court scrutinized closely a state program of vehicle
checkpoints designed to detect drunken drivers before holding that
the brief intrusion upon motorists is consistent with the Fourth
Amendment. Sitz, supra at 496 U. S. 451 .
It is one thing to uphold a checkpoint designed to detect drivers
then under the influence of a drug that creates a present risk that
they will harm others. It is quite something else to uphold
petitioner's sentence because of the collateral consequences which
might issue, however indirectly, from the drugs he possessed.
Indeed, it is inconceivable that a State could rationally choose to
penalize one Page 501 U. S. 1024 who possesses large quantities of alcohol in a manner similar to
that in which Michigan has chosen to punish petitioner for cocaine
possession, because of the tangential effects which might
ultimately be traced to the alcohol at issue.

															"Unfortunately, grave evils such as the narcotics traffic can
too easily cause threats to our basic liberties by making
attractive the adoption of constitutionally forbidden shortcuts
that might suppress and blot out more quickly the unpopular and
dangerous conduct." Turner v. United States, 396 U.
S. 398 , 396 U. S. 427 (1970) (Black, J., dissenting). That is precisely the course
JUSTICE KENNEDY advocates here.

															The "absolute magnitude" of petitioner's crime is not
exceptionally serious. Because possession is necessarily a lesser
included offense of possession with intent to distribute, it is odd
to punish the former as severely as the latter. Cf. Solem,
supra at 463 U. S. 293 .
Nor is the requisite intent for the crime sufficient to render it
particularly grave. To convict someone under the possession
statute, it is only necessary to prove that the defendant knowingly
possessed a mixture containing narcotics which weighs at least 650
grams. There is no mens rea requirement of intent to
distribute the drugs, as there is in the parallel statute. Indeed,
the presence of a separate statute which reaches manufacture,
delivery, or possession with intent to do either undermines the
State's position that the purpose of the possession statute was to reach drug dealers. [ Footnote 2/5 ] Although "[i]ntent to deliver can be
inferred from the amount of a controlled substance possessed by
the Page 501 U. S. 1025 accused," People v. Abrego, 72 Mich.App. 176, 181, 249
N.W.2d 345, 347 (1976), the inference is one to be drawn by the
jury, see People v. Kirchoff, 74 Mich.App. 641, 647-649,
254 N.W.2d 793, 796-797 (1977). In addition, while there is usually
a pecuniary motive when someone possesses a drug with intent to
deliver it, such a motive need not exist in the case of mere
possession. Cf. Solem, 463 U.S. at 463 U. S.
293 -294. Finally, this statute applies equally to
first-time offenders, such as petitioner, and recidivists.
Consequently, the particular concerns reflected in recidivist
statutes such as those in Rummel and Solem are
not at issue here.

															There is an additional concern present here. The State has
conceded that it chose not to prosecute Harmelin under the statute
prohibiting possession with intent to deliver, because it was "not
necessary and not prudent to make it more difficult for us to win a
prosecution." Tr. of Oral Arg. 30-31. The State thus aimed to avoid
having to establish Harmelin's intent to distribute by prosecuting
him instead under the possession statute. [ Footnote 2/6 ] Because the statutory punishment for the
two crimes is the same, the State succeeded in punishing Harmelin
as if he had been convicted of the more serious crime without being
put to the test of proving his guilt on those charges.

															The second prong of the Solem analysis is an
examination of "the sentences imposed on other criminals in the
same jurisdiction." 463 U.S. at 463 U. S. 292 .
As noted above, there is no death penalty in Michigan;
consequently, life without parole, Page 501 U. S. 1026 the punishment mandated here, is the harshest penalty available.
It is reserved for three crimes: first-degree murder, see Mich.Comp.Laws Ann. § 750.316 (West 1991); manufacture,
distribution, or possession with intent to manufacture or
distribute 650 grams or more of narcotics; and possession of 650
grams or more of narcotics. Crimes directed against the persons and
property of others -- such as second-degree murder, § 750.317;
rape, § 750.520b; and armed robbery, § 750.529 -- do not carry such
a harsh mandatory sentence, although they do provide for the
possibility of a life sentence in the exercise of judicial
discretion. It is clear that petitioner "has been treated in the
same manner as, or more severely than, criminals who have committed
far more serious crimes." 463 U.S. at 463 U. S.
299 .

															The third factor set forth in Solem examines "the
sentences imposed for commission of the same crime in other
jurisdictions." Id. at 463 U. S.
291 -292. No other jurisdiction imposes a punishment
nearly as severe as Michigan's for possession of the amount of
drugs at issue here. Of the remaining 49 States, only Alabama
provides for a mandatory sentence of life imprisonment without
possibility of parole for a first-time drug offender, and then only
when a defendant possesses ten klograms or more of cocaine.
Ala.Code § 13A-12-231(2)(d) (Supp. 1990). Possession of the amount
of cocaine at issue here would subject an Alabama defendant to a
mandatory minimum sentence of only five years in prison. §
13A-12231(2)(b). [ Footnote 2/7 ]
Even under the Federal Sentencing Guidelines, with all relevant
enhancements, petitioner's sentence would barely exceed 10 years. See United States Sentencing Commission Page 501 U. S. 1027 Guidelines Manual § 2D1.1 (1990). Thus, "[i]t appears that
[petitioner] was treated more severely than he would have been in
any other State." Solem, supra at 463 U. S. 300 .
Indeed, the fact that no other jurisdiction provides such a severe,
mandatory penalty for possession of this quantity of drugs is
enough to establish "the degree of national consensus this Court
has previously thought sufficient to label a particular punishment
cruel and unusual." Stanford, 492 U.S. at 492 U. S. 371 . Cf. Coker, 433 U.S. at 433 U. S. 596 ; Ford v. Wainwright, 477 U. S. 399 , 477 U. S. 408 (1986).

															Application of Solem's proportionality analysis leaves
no doubt that the Michigan statute at issue fails constitutional
muster. [ Footnote 2/8 ] The
statutorily mandated penalty of life without possibility of parole
for possession of narcotics is unconstitutionally disproportionate
in that it violates the Eighth Amendment's prohibition against
cruel and unusual punishment. Consequently, I would reverse the
decision of the Michigan Court of Appeals.

															[ Footnote 2/1 ]

															As JUSTICE SCALIA notes, ante at 501 U. S. 966 ,
the text of the Eighth Amendment is taken almost verbatim from the
English Declaration of Rights of 1689. He argues that, if the
Amendment was intended to adopt whatever meaning the declaration
was understood in England to have, the Amendment does not contain a
proportionality component because the declaration did not include
the proportionality principle. JUSTICE SCALIA labors to demonstrate
as much, but concedes that there are scholars who disagree, and
have the view that the declaration forbade both illegal and
disproportionate punishments. Ante at 501 U. S.
974 -975. One such scholar, after covering much the same
ground as does JUSTICE SCALIA, concluded that

															"[t]he English evidence shows that the cruel and unusual
punishments clause of the Bill of Rights of 1689 was, first, an
objection to the imposition of punishments which were unauthorized
by statute and outside the jurisdiction of the sentencing court,
and, second, a reiteration of the English policy against
disproportionate penalties."

															Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The
Original Meaning, 57 Calif.L.Rev. 839, 860 (1969). JUSTICE SCALIA
goes on to argue that whatever the declaration meant to Englishmen,
the almost identical language of the Eighth Amendment should not be
interpreted to forbid excessive punishments. As indicated in the
text, I disagree.

															[ Footnote 2/2 ]

															Indeed, the parties have cited only four cases decided in the
years since Solem in which sentences have been reversed on
the basis of a proportionality analysis. See Clower v.
State, 522 So. 2d
762 (Miss.1988) (holding that trial court had discretion to
reduce a mandatory sentence of 15 years without parole under a
recidivist statute for a defendant who uttered a forged check); Ashley v. State, 538 So. 2d
1181 (Miss.1989) (reaching a similar result for a defendant who
burgled a home to get $4.00 to pay a grocer for food eaten in the
store); State v. Gilham, 48 Ohio App.3d 293, 549 N.E.2d
555 (1988). In addition, in Naovarath v. State, 105 Nev.
525, 779 P.2d 944 (1989), the court relied on both State and Federal Constitutions to
strike a sentence of life without parole imposed on an adolescent
who killed and then robbed an individual who had repeatedly
molested him.

															[ Footnote 2/3 ]

															Nor are appellate courts forced to expend undue resources to
evaluate prison sentences under Solem. In each case cited
by respondent in which an appellate court had to review a sentence
under Solem, the court quickly disposed of the
constitutional challenge. See United States v. Sullivan, 895 F.2d 1030, 1031-1032 (CA5), cert. denied, 498 U.S. 877
(1990); United States v. Benefield, 889 F.2d 1061,
1063-1065 (CA11 1989); United States v. Savage, 888 F.2d
528 (CA7 1989), cert. denied, 495 U.S. 959 (1990); State v. Elbert, 125 N.H. 1, 15-16, 480 A.2d 854, 862
(1984) (Souter, J.).

															[ Footnote 2/4 ]

															The two statutes also set forth penalties for those convicted
based on lesser quantities of drugs. They provide for parallel
penalties for all amounts greater than 50 grams, but, below that
point, the penalties under the two statutes diverge.

															[ Footnote 2/5 ]

															The Court of Appeals for the Sixth Circuit has applied the Solem factors to uphold the mandatory life sentence
imposed by the Michigan statute concerning possession with intent
to deliver 650 or more grams of narcotics. See Young v.
Miller, 883 F.2d 1276 (1989), cert. pending, No.
896960. In so doing, the court recognized that the sentence was
particularly harsh, especially in light of the lack of opportunity
for the exercise of judicial discretion, but found that it was not
so disproportionate to other sentences for drug trafficking as to violate the Eighth Amendment. Id. at 1284-1285. Because the statute at issue here
concerns only drug possession, the Sixth Circuit's analysis has
little relevance.

															[ Footnote 2/6 ]

															Both the State and JUSTICE KENNEDY, see ante at 501 U. S.
1008 , point to the fact that the amount and purity of
the drugs and Harmelin's possession of a beeper, coded phone book,
and gun all were noted in the presentence report, and provided
circumstantial evidence of an intent to distribute. None of this
information, however, was relevant to a prosecution under the
possession statute. Indeed, because the sentence is statutorily
mandated for mere possession, there was no reason for defense
counsel to challenge the presence of this information in the
presentence report. See Tr. of Oral Arg. 10. It would
likewise be inappropriate to consider petitioner's characteristics
in assessing the constitutionality of the penalty.

															[ Footnote 2/7 ]

															The Alabama statute is entitled "Trafficking in cannabis,
cocaine, etc.," and punishes "[a]ny person who knowingly sells,
manufactures, delivers, or brings into this state, or who is
knowingly in actual or constructive possession of" specified
amounts of various drugs. See Ala.Code § 13A-12-231(1)
(Supp. 1990). The mandatory minimum sentences vary depending on the
particular drug involved and the amount of the drug at issue.

															[ Footnote 2/8 ]

															Because the statute under which petitioner was convicted is
unconstitutional under Solem, there is no need to reach
his remaining argument that imposition of a life sentence without
the possibility of parole necessitates the sort of individualized
sentencing determination heretofore reserved for defendants subject
to the death penalty.

															JUSTICE MARSHALL, dissenting.

															I agree with JUSTICE WHITE's dissenting opinion, except insofar
as it asserts that the Eighth Amendment's Cruel and Unusual
Punishments Clause does not proscribe the death penalty. I adhere
to my view that capital punishment is in all instances
unconstitutional. See Gregg v. Georgia, 428 U.
S. 153 , 428 U. S. 231 (1976) (MARSHALL, J., dissenting). I also believe that, "[b]ecause
of the uniqueness of the death penalty," id. at 428 U. S. 188 (opinion of Stewart, Powell, and STEVENS, JJ.,), the Eighth
Amendment requires comparative proportionality review of capital
sentences. See Turner v. California, 498 U.
S. 1053 , 1054 (1991) (MARSHALL, J., dissenting from
denial of certiorari). However, my view that capital punishment Page 501 U. S. 1028 is especially proscribed and, where not proscribed, especially
restricted by the Eighth Amendment is not inconsistent with JUSTICE
WHITE's central conclusion, ante at 501 U. S.
1012 -1015, that the Eighth Amendment also imposes a
general proportionality requirement. As JUSTICE WHITE notes, this
Court has recognized and applied that requirement in both capital
and noncapital cases, and, had it done so properly here, it would
have concluded that Michigan's law mandating life sentences with no
possibility of parole even for first-time drug possession offenders
is unconstitutional.

															JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins,
dissenting.

															While I agree wholeheartedly with JUSTICE WHITE's dissenting
opinion, I believe an additional comment is appropriate.

															The severity of the sentence that Michigan has mandated for the
crime of possession of more than 650 grams of cocaine, whether
diluted or undiluted, does not place the sentence in the same
category as capital punishment. I remain convinced that Justice
Stewart correctly characterized the penalty of death as "unique"
because of "its absolute renunciation of all that is embodied in
our concept of humanity." Furman v. Georgia, 408 U.
S. 238 , 408 U. S. 306 (1972) (Stewart, J., concurring). Nevertheless, a mandatory
sentence of life imprisonment without the possibility of parole
does share one important characteristic of a death sentence: the
offender will never regain his freedom. Because such a sentence
does not even purport to serve a rehabilitative function, the
sentence must rest on a rational determination that the
punished

															"criminal conduct is so atrocious that society's interest in
deterrence and retribution wholly outweighs any considerations of
reform or rehabilitation of the perpetrator." Id. at 408 U. S. 307 .
Serious as this defendant's crime was, I believe it is irrational
to conclude that every similar offender is wholly incorrigible.

															The death sentences that were at issue and invalidated in Furman were "cruel and unusual in the same way that
being Page 501 U. S. 1029 struck by iightning is cruel and unusual." Id. at 408 U. S. 309 .
In my opinion, the imposition of a life sentence without
possibility of parole on this petitioner is equally capricious . As
JUSTICE WHITE has pointed out, under the Federal Sentencing
Guidelines, with all relevant enhancements, petitioner's sentence
would barely exceed 10 years. Ante at 501 U. S.
1026 -1027. In most States, the period of incarceration
for a first offender like petitioner would be substantially
shorter. No jurisdiction except Michigan has concluded that the
offense belongs in a category where reform and rehabilitation are
considered totally unattainable. Accordingly, the notion that this
sentence satisfies any meaningful requirement of proportionality is
itself both cruel and unusual.

															I respectfully dissent.