U.S. Supreme Court Solem v. Helm, 463
U.S. 277 (1983) Solem v. Helm No. 82-492 Argued March 29, 1983 Decided June 28, 1983 463
U.S. 277 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH
CIRCUIT Syllabus In 1979, respondent was convicted in a South Dakota state court
of uttering a "no account" check for $100. Ordinarily the maximum
punishment for that crime would have been five years' imprisonment
and a $5,000 fine. Respondent, however, was sentenced to life
imprisonment without possibility of parole under South Dakota's
recidivist statute because of his six prior felony convictions --
three convictions for third-degree burglary and convictions for
obtaining money under false pretenses, grand larceny, and
third-offense driving while intoxicated. The South Dakota Supreme
Court affirmed the sentence. After respondent's request for
commutation was denied, he sought habeas relief in Federal District
Court, contending that his sentence constituted cruel and unusual
punishment under the Eighth and Fourteenth Amendments. The District
Court denied relief, but the Court of Appeals reversed. Held: 1. The Eighth Amendment's proscription of cruel and unusual
punishments prohibits not only barbaric punishments, but also
sentences that are disproportionate to the crime committed. Pp. 463 U. S.
284 -290.

															(a) The principle of proportionality is deeply rooted in common
law jurisprudence. It was expressed in Magna Carta, applied by the
English courts for centuries, and repeated in the English Bill of
Rights in language that was adopted in the Eighth Amendment. When
the Framers of the Eighth Amendment adopted this language, they
adopted the principle of proportionality that was implicit in it.
Pp. 463 U. S.
284 -286.

															(b) The constitutional principle of proportionality has been
recognized explicitly in this Court for almost a century. In
several cases, the Court has applied the principle to invalidate
criminal sentences. E.g., Weems v. United States, 217 U. S. 349 . And
the Court often has recognized that the Eighth Amendment proscribes
grossly disproportionate punishments, even when it has not been
necessary to rely on the proscription. Pp. 463 U. S.
286 -288.

															(c) There is no basis for the State's assertion that the
principle of proportionality does not apply to felony prison
sentences. Neither the text of the Eighth Amendment nor the history
behind it supports such an exception. Moreover, this Court's cases
have recognized explicitly that Page 463 U. S. 278 prison sentences are subject to proportionality analysis. No
penalty is per se constitutional. Pp. 463 U. S.
288 -290.

															2. A court's proportionality analysis under the Eighth Amendment
should be guided by objective criteria. Pp. 463 U. S.
290 -295.

															(a) Criteria that have been recognized in this Court's prior
cases include (i) the gravity of the offense and the harshness of
the penalty; (ii) the sentences imposed on other criminals in the
same jurisdiction, that is, whether more serious crimes are subject
to the same penalty or to less serious penalties; and (iii) the
sentences imposed for commission of the same crime in other
jurisdictions. Pp. 463 U. S.
290 -292.

															(b) Courts are competent to judge the gravity of an offense, at
least on a relative scale. Comparisons can be made in light of the
harm caused or threatened to the victim or to society, and the
culpability of the offender. There are generally accepted criteria
for comparing the severity of different crimes, despite the
difficulties courts face in attempting to draw distinctions between
similar crimes. Pp. 463 U. S.
292 -294.

															(c) Courts are also able to compare different sentences. For
sentences of imprisonment, the problem is one of line-drawing.
Decisions of this kind, although troubling, are not unique to this
area. The courts are constantly called upon to draw similar lines
in a variety of contexts. Cf. Barker v. Wingo, 407 U. S. 514 ; Baldwin v. New York, 399 U. S. 66 . Pp. 463 U. S.
294 -295.

															3. In light of the relevant objective criteria, respondent's
sentence of life imprisonment without possibility of parole is
significantly disproportionate to his crime, and is therefore
prohibited by the Eighth Amendment. Pp. 463 U. S.
295 -303.

															(a) Respondent's crime of uttering a "no account" check for $100
is viewed by society as among the less serious offenses. It
involved neither violence nor threat of violence, and the face
value of the check was not a large amount. Respondent's prior
felonies were also relatively minor. All were nonviolent, and none
was a crime against a person. Respondent's sentence was the most
severe that the State could have imposed on any criminal for any
crime. He has been treated in the same manner as, or more severely
than, other criminals in South Dakota who have committed far more
serious crimes. Nevada is the only other State that authorizes a
life sentence without possibility of parole in the circumstances of
this case, and there is no indication that any defendant such as
respondent, whose prior offenses were so minor, has received the
maximum penalty in Nevada. Pp. 463 U. S.
296 -300.

															(b) The possibility of commutation of a life sentence under
South Dakota law is not sufficient to save respondent's otherwise
unconstitutional sentence on the asserted theory that this
possibility matches the possibility of parole. Assuming good
behavior, parole is the normal Page 463 U. S. 279 expectation in the vast majority of cases, and is governed by
specified legal standards. Commutation is an ad hoc exercise of executive clemency that may occur at any time for any
reason without reference to any standards. In South Dakota, no life
sentence has been commuted in over eight years, while parole --
where authorized -- has been granted regularly during that period.
Moreover, even if respondent's sentence were commuted, he merely
would be eligible to be considered for parole. Rummel v.
Estelle, 445 U. S. 263 ,
distinguished. Pp. 463 U. S.
300 -303.

															684 F.2d 582, affirmed.

															POWELL, J., delivered the opinion of the Court, in which
BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BURGER,
C.J., filed a dissenting opinion, in which WHITE, REHNQUIST, and
O'CONNOR, JJ., joined, post, p. 463 U. S.
304 .

															JUSTICE POWELL delivered the opinion of the Court.

															The issue presented is whether the Eighth Amendment proscribes a
life sentence without possibility of parole for a seventh
nonviolent felony. I By 1975, the State of South Dakota had convicted respondent
Jerry Helm of six nonviolent felonies. In 1964, 1966, and 1969,
Helm was convicted of third-degree burglary. [ Footnote 1 ] In 1972, Page 463 U. S. 280 he was convicted of obtaining money under false pretenses.
[ Footnote 2 ] In 1973, he was
convicted of grand larceny. [ Footnote 3 ] And in 1975, he was convicted of third-offense
driving while intoxicated. [ Footnote 4 ] The record contains no details about the
circumstances of any of these offenses, except that they were all
nonviolent, none was a crime against a person, and alcohol was a
contributing factor in each case. Page 463 U. S. 281 In 1979, Helm was charged with uttering a "no account" check for
$100. [ Footnote 5 ] The only
details we have of the crime are those given by Helm to the state
trial court:

															"'I was working in Sioux Falls, and got my check that day, was
drinking, and I ended up here in Rapid City with more money than I
had when I started. I knew I'd done something, I didn't know
exactly what. If I would have known this, I would have picked the
check up. I was drinking, and didn't remember, stopped several
places.'" State v. Helm, 287 N.W.2d
497 , 501 (S.D.1980) (Henderson, J., dissenting) (quoting Helm).
After offering this explanation, Helm pleaded guilty.

															Ordinarily, the maximum punishment for uttering a "no account"
check would have been five years' imprisonment in the state
penitentiary and a $5,000 fine. See S.D.Comp.Laws Ann. §
22-6-1(6) (1967 ed., Supp.1978) (now codified at S.D.Codified Laws
§ 22-6-1(7) (Supp.1982)). As a result of his criminal record,
however, Helm was subject to South Dakota's recidivist statute:

															"When a defendant has been convicted of at least three prior
convictions [ sic ] in addition to the principal felony, the
sentence for the principal felony shall be enhanced to the sentence
for a Class 1 felony."

															S.D.Codified Laws § 22-7-8 (1979) (amended 1981). The maximum
penalty for a "Class 1 felony" was life imprisonment in the state
penitentiary and a $25,000 fine. [ Footnote 6 ] S.D. Page 463 U. S. 282 Comp.Laws Ann. § 22-6-1(2) (1967 ed., Supp.1978) (now codified
at S.D.Codified Laws § 22-6-1(3) (Supp.1982)). Moreover, South
Dakota law explicitly provides that parole is unavailable: "A
person sentenced to life imprisonment is not eligible for parole by
the board of pardons and paroles." S.D.Codified Laws § 24-15-4
(1979). The Governor [ Footnote
7 ] is authorized to pardon prisoners, or to commute their
sentences, S.D. Const., Art. IV, § 3, but no other relief from
sentence is available even to a rehabilitated prisoner.

															Immediately after accepting Helm's guilty plea, the South Dakota
Circuit Court sentenced Helm to life imprisonment under § 22-7-8.
The court explained:

															"'I think you certainly earned this sentence, and certainly
proven that you're an habitual criminal, and the record Page 463 U. S. 283 would indicate that you're beyond rehabilitation and that the
only prudent thing to do is to lock you up for the rest of your
natural life, so you won't have further victims of your crimes,
just be coming back before Courts. You'll have plenty of time to
think this one over.'" State v. Helm, supra, at 500 (Henderson, J.,
dissenting) (quoting South Dakota Circuit Court, Seventh Judicial
Circuit, Pennington County (Parker, J.)). The South Dakota Supreme
Court, in a 3-2 decision, affirmed the sentence despite Helm's
argument that it violated the Eighth Amendment. State v. Helm,
supra. After Helm had served two years in the state penitentiary, he
requested the Governor to commute his sentence to a fixed term of
years. Such a commutation would have had the effect of making Helm
eligible to be considered for parole when he had served
three-fourths of his new sentence. See S.D.Codified Laws §
24-15-5(3) (1979). The Governor denied Helm's request in May, 1981.
App. 26.

															In November, 1981, Helm sought habeas relief in the United
States District Court for the District of South Dakota. Helm
argued, among other things, that his sentence constituted cruel and
unusual punishment under the Eighth and Fourteenth Amendments.
Although the District Court recognized that the sentence was harsh,
it concluded that this Court's recent decision in Rummel v.
Estelle, 445 U. S. 263 (1980), was dispositive. It therefore denied the writ.

															The United States Court of Appeals for the Eighth Circuit
reversed. 684 F.2d 582 (1982). The Court of Appeals noted that Rummel v. Estelle was distinguishable. Helm's sentence of
life without parole was qualitatively different from Rummel's life
sentence with the prospect of parole, because South Dakota has
rejected rehabilitation as a goal of Page 463 U. S. 284 the criminal justice system. The Court of Appeals examined the
nature of Helm's offenses, the nature of his sentence, and the
sentence he could have received in other States for the same
offense. It concluded, on the basis of this examination, that
Helm's sentence was "grossly disproportionate to the nature of the
offense." 684 F.2d at 587. It therefore directed the District Court
to issue the writ unless the State resentenced Helm. Ibid. .

															We granted certiorari to consider the Eighth Amendment question
presented by this case. 459 U.S. 986 (1982). We now affirm. II The Eighth Amendment declares: "Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." The final clause prohibits not only
barbaric punishments, but also sentences that are disproportionate
to the crime committed. A The principle that a punishment should be proportionate to the
crime is deeply rooted and frequently repeated in common law
jurisprudence. In 1215, three chapters of Magna Carta were devoted
to the rule that "amercements" [ Footnote 8 ] may not be excessive. [ Footnote 9 ] And the principle was repeated and extended
in the First Statute of Westminster, 3 Edw. I, ch. 6 Page 463 U. S. 285 (1275). These were not hollow guarantees, for the royal courts
relied on them to invalidate disproportionate punishments. See,
e.g., Le Gras v. Bailiff of Bishop of Winchester, Y.B.Mich. 10
Edw. II, pl. 4 (C. P. 1316), reprinted in 52 Selden Society 3
(1934). When prison sentences became the normal criminal sanctions,
the common law recognized that these, too, must be proportional. See, e.g., Hodges v. Humkin, 2 Bulst. 139, 140, 80
Eng.Rep. 1015, 1016 (K.B. 1615) (Croke, J.) ("imprisonment ought
always to be according to the quality of the offence").

															The English Bill of Rights repeated the principle of
proportionality in language that was later adopted in the Eighth
Amendment: "excessive Baile ought not to be required nor excessive
Fines imposed nor cruell and unusuall Punishments inflicted." 1 Wm.
& Mary, sess. 2, ch. 2 (1689). Although the precise scope of
this provision is uncertain, it at least incorporated

															"the longstanding principle of English law that the punishment .
. . should not be, by reason of its excessive length or severity,
greatly disproportionate to the offense charged."

															R. Perry, Sources of Our Liberties 236 (1959); see 4 W.
Blackstone, Commentaries *16-*19 (1769) (hereafter Blackstone); see also id. at *16-*17 (in condemning "punishments of
unreasonable severity," uses "cruel" to mean severe or excessive).
Indeed, barely three months after the Bill of Rights was adopted,
the House of Lords declared that a

															"fine of thirty thousand pounds, imposed by the court of King's
Bench upon the earl of Devon was excessive and exorbitant, against
magna charta, the common right of the subject, and the law of the
land." Earl of Devon's Case, 11 State Tr. 133, 136 (1689).

															When the Framers of the Eighth Amendment adopted the language of
the English Bill of Rights, [ Footnote 10 ] they also adopted the Page 463 U. S. 286 English principle of proportionality. Indeed, one of the
consistent themes of the era was that Americans had all the rights
of English subjects. See, e.g., 1 J.Continental Cong. 83
(W. Ford ed.1904) (Address to the People of Great Britain, Sept. 5,
1774) ("we claim all the benefits secured to the subject by the
English constitution"); 1 American Archives 700 (4th series 1837)
(Georgia Resolutions, Aug. 10, 1774) ("his Majesty's subjects in America . . . are entitled to the same rights, privileges,
and immunities with their fellow subjects in Great
Britain "). Thus our Bill of Rights was designed in part to
ensure that these rights were preserved. Although the Framers may
have intended the Eighth Amendment to go beyond the scope of its
English counterpart, their use of the language of the English Bill
of Rights is convincing proof that they intended to provide at
least the same protection -- including the right to be free from
excessive punishments. B The constitutional principle of proportionality has been
recognized explicitly in this Court for almost a century. [ Footnote 11 ] In the Page 463 U. S. 287 leading case of Weems v. United States, 217 U.
S. 349 (1910), the defendant had been convicted of
falsifying a public document and sentenced to 15 years of
" cadena temporal, " a form of imprisonment that included
hard labor in chains and permanent civil disabilities. The Court
noted that "it is a precept of justice that punishment for crime
should be graduated and proportioned to offense," id. at 217 U. S. 367 ,
and held that the sentence violated the Eighth Amendment. The Court
endorsed the principle of proportionality as a constitutional
standard, see, e.g., id. at 217 U. S.
372 -373, and determined that the sentence before it was
"cruel in its excess of imprisonment," id. at 217 U. S. 377 ,
as well as in its shackles and restrictions.

															The Court next applied the principle to invalidate a criminal
sentence in Robinson v. California, 370 U.
S. 660 (1962). [ Footnote 12 ] A 90-day sentence was found to be excessive
for the crime of being "addicted to the use of narcotics." The
Court explained that "imprisonment for ninety days is not, in the
abstract, a punishment which is either cruel or unusual." Id. at 370 U. S. 667 .
Thus there was no question of an inherently barbaric
punishment.

															"But the question cannot be considered in the abstract. Even one
day in prison would be a cruel and unusual punishment for the
'crime' of having a common cold." Ibid. Page 463 U. S. 288 Most recently, the Court has applied the principle of
proportionality to hold capital punishment excessive in certain
circumstances. Enmund v. Florida, 458 U.
S. 782 (1982) (death penalty excessive for felony murder
when defendant did not take life, attempt to take life, or intend
that a life be taken or that lethal force be used); Coker v.
Georgia, 433 U. S. 584 , 433 U. S. 592 (1977) (plurality opinion) ("sentence of death is grossly
disproportionate and excessive punishment for the crime of rape"); id. at 433 U. S. 601 (POWELL, J., concurring in judgment in part and dissenting in part)
("ordinarily death is disproportionate punishment for the crime of
raping an adult woman"). And the Court has continued to recognize
that the Eighth Amendment proscribes grossly disproportionate
punishments, even when it has not been necessary to rely on the
proscription. See, e.g., Hutto v. Finney, 437 U.
S. 678 , 437 U. S. 685 (1978); Ingraham v. Wright, 430 U.
S. 651 , 430 U. S. 667 (1977); Gregg v. Georgia, 428 U.
S. 153 , 428 U. S.
171 -172 (1976) (opinion of Stewart, POWELL, and STEVENS,
JJ.); cf. Hutto v. Davis, 454 U.
S. 370 , 454 U. S. 374 ,
and n. 3 (1982) (per curiam) (recognizing that some prison
sentences may be constitutionally disproportionate); Rummel v.
Estelle, 445 U.S. at 445 U. S. 274 ,
n. 11 (same). [ Footnote
13 ] C There is no basis for the State's assertion that the general
principle of proportionality does not apply to felony prison
sentences. [ Footnote 14 ] The
constitutional language itself suggests no Page 463 U. S. 289 exception for imprisonment. We have recognized that the Eighth
Amendment imposes "parallel limitations" on bail, fines, and other
punishments, Ingraham v. Wright, supra, at 430 U. S. 664 ,
and the text is explicit that bail and fines may not be excessive.
It would be anomalous indeed if the lesser punishment of a fine and
the greater punishment of death were both subject to
proportionality analysis, but the intermediate punishment of
imprisonment were not. There is also no historical support for such
an exception. The common law principle incorporated into the Eighth
Amendment clearly applied to prison terms. See Hodges v.
Humkin, 2 Bulst. 139, 80 Eng.Rep. 1015 (K.B. 1615). And our
prior cases have recognized explicitly that prison sentences are
subject to proportionality analysis. See, e.g., Weems,
supra, at 217 U. S. 377 ; cf. Hutto v. Finney, supra, at 437 U. S. 685 ("Confinement in a prison . . . is a form of punishment subject to
scrutiny under Eighth Amendment standards").

															When we have applied the proportionality principle in capital
cases, we have drawn no distinction with cases of imprisonment. See Gregg v. Georgia, supra, at 428 U. S. 176 (opinion of Stewart, POWELL, and STEVENS, JJ.). It is true that the
"penalty of death differs from all other forms of criminal
punishment, not in degree but in kind." Furman v. Georgia, 408 U. S. 238 , 408 U. S. 306 (1972) (Stewart, J., concurring). As a result, "our decisions [in]
capital cases are of limited assistance in deciding the
constitutionality of the punishment" in a noncapital case. Rummel v. Estelle, 445 U.S. at 445 U. S. 272 .
We agree, therefore, that,

															"[o]utside the context of capital punishment, successful challenges to the proportionality of
particular Page 463 U. S. 290 sentences [will be] exceedingly rare. [ Footnote 15 ]" Ibid. (emphasis added); see Hutto v. Davis,
supra, at 454 U. S. 374 .
This does not mean, however, that proportionality analysis is
entirely inapplicable in noncapital cases.

															In sum, we hold as a matter of principle that a criminal
sentence must be proportionate to the crime for which the defendant
has been convicted. Reviewing courts, of course, should grant
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. [ Footnote 16 ] But no penalty is per
se constitutional. As the Court noted in Robinson v.
California, 370 U.S. at 370 U. S. 667 ,
a single day in prison may be unconstitutional in some
circumstances. III A When sentences are reviewed under the Eighth Amendment, courts
should be guided by objective factors that our cases have
recognized. [ Footnote 17 ]
First, we look to the gravity of the Page 463 U. S. 291 offense and the harshness of the penalty. In Enmund, for example, the Court examined the circumstances of the
defendant's crime in great detail. 458 U.S. at 458 U. S.
797 -801. In Coker, the Court considered the
seriousness of the crime of rape, and compared it to other crimes,
such as murder. 433 U.S. at 433 U. S.
597 -598 (plurality opinion); id. at 433 U. S. 603 (POWELL, J., concurring in judgment in part and dissenting in
part). In Robinson, the emphasis was placed on the nature
of the "crime." 370 U.S. at 370 U. S.
666 -667. And in Weems, the Court's opinion
commented in two separate places on the pettiness of the offense.
217 U.S. at 217 U. S. 363 and 217 U. S. 365 .
Of course, a court must consider the severity of the penalty in
deciding whether it is disproportionate. See, e.g., Coker, 433 U.S. at 433 U. S. 598 (plurality opinion); Weems, 217 U.S. at 217 U. S.
366 -367.

															Second, it may be helpful to compare the sentences imposed on
other criminals in the same jurisdiction. If more serious crimes
are subject to the same penalty, or to less serious penalties, that
is some indication that the punishment at issue may be excessive.
Thus, in Enmund, the Court noted that all of the other
felony murderers on death row in Florida were more culpable than
the petitioner there. 458 U.S. at 458 U. S.
795 -796. The Weems Court identified an
impressive list of more serious crimes that were subject to less
serious penalties. 217 U.S. at 217 U. S.
380 -381.

															Third, courts may find it useful to compare the sentences
imposed for commission of the same crime in other
jurisdictions. Page 463 U. S. 292 In Enmund, the Court conducted an extensive review of
capital punishment statutes and determined that "only about a third
of American jurisdictions would ever permit a defendant [such as
Enmund] to be sentenced to die." 458 U.S. at 458 U. S. 792 .
Even in those jurisdictions, however, the death penalty was almost
never imposed under similar circumstances. Id. at 458 U. S.
794 -796. The Court's review of foreign law also
supported its conclusion. Id. at 458 U. S.
796 -797, n. 22. The analysis in Coker was
essentially the same. 433 U.S. at 433 U. S.
593 -597. And in Weems, the Court relied on the
fact that, under federal law, a similar crime was punishable by
only two years' imprisonment and a fine. 217 U.S. at 217 U. S. 380 . Cf. Trop v. Dulles, 356 U. S. 86 , 356 U. S.
102 -103 (1958) (plurality opinion).

															In sum, a court's proportionality analysis under the Eighth
Amendment should be guided by objective criteria, including (i) the
gravity of the offense and the harshness of the penalty; (ii) the
sentences imposed on other criminals in the same jurisdiction; and
(iii) the sentences imposed for commission of the same crime in
other jurisdictions. B Application of these factors assumes that courts are competent
to judge the gravity of an offense, at least on a relative scale.
In a broad sense, this assumption is justified, and courts
traditionally have made these judgments -- just as legislatures
must make them in the first instance. Comparisons can be made in
light of the harm caused or threatened to the victim or society,
and the culpability of the offender. Thus, in Enmund, the
Court determined that the petitioner's conduct was not as serious
as his accomplices' conduct. Indeed, there are widely shared views
as to the relative seriousness of crimes. See Rossi,
Waite, Bose, & Berk, The Seriousness of Crimes: Normative
Structure and Individual Differences, 39 Am.Sociological Rev. 224,
237 (1974) (hereafter Rossi et al. ). For example, as the
criminal laws make clear, nonviolent crimes are less serious than
crimes marked by violence Page 463 U. S. 293 or the threat of violence. Cf. Tr. of Oral Arg. 16 (the
State recognizes that the criminal law is more protective of people
than property).

															There are other accepted principles that courts may apply in
measuring the harm caused or threatened to the victim or society.
The absolute magnitude of the crime may be relevant. Stealing a
million dollars is viewed as more serious than stealing a hundred
dollars -- a point recognized in statutes distinguishing petty
theft from grand theft. See, e.g., S.D.Codified Laws §
22-30A-17 (Supp.1982). Few would dispute that a lesser included
offense should not be punished more severely than the greater
offense. Thus, a court is justified in viewing assault with intent
to murder as more serious than simple assault. See Roberts v.
Collin, 544 F.2d 168, 169-170 (CA4 1976) (per curiam), cert. denied, 430 U.S. 973 (1977). Cf. Dembowski v.
State, 251 Ind. 250, 252, 240 N.E.2d
815 , 817 (1968) (armed robbery more serious than robbery); Cannon v. Gladden, 203 Ore. 629, 632, 281 P.2d
233 , 235 (1955) (rape more serious than assault with intent to
commit rape). It also is generally recognized that attempts are
less serious than completed crimes. See, e.g., S.D.Codified Laws § 22-4-1 (1979); 4 Blackstone *15. Similarly, an
accessory after the fact should not be subject to a higher penalty
than the principal. See, e.g., 18 U.S.C. § 3.

															Turning to the culpability of the offender, there are again
clear distinctions that courts may recognize and apply. In Enmund, the Court looked at the petitioner's lack of
intent to kill in determining that he was less culpable than his
accomplices. 458 U.S. at 458 U. S. 798 .
Most would agree that negligent conduct is less serious than
intentional conduct. South Dakota, for example, ranks criminal acts
in ascending order of seriousness as follows: negligent acts,
reckless acts, knowing acts, intentional acts, and malicious acts.
S.D.Codified Laws § 22-1-2(1)(f) (Supp.1982). A court, of course,
is entitled to look at a defendant's motive in committing a crime.
Thus, a murder may be viewed as more serious when committed Page 463 U. S. 294 pursuant to a contract. See, e.g., Mass.Gen.Laws Ann.,
ch. 279, § 69(a)(5) (West Supp.1982-1983); cf. 4
Blackstone *15; In re Foss, 10 Cal. 3d
910 , 519 P.2d 1073 (1974).

															This list is by no means exhaustive. It simply illustrates that
there are generally accepted criteria for comparing the severity of
different crimes on a broad scale, despite the difficulties courts
face in attempting to draw distinctions between similar crimes. C Application of the factors that we identify also assumes that
courts are able to compare different sentences. This assumption,
too, is justified. The easiest comparison, of course, is between
capital punishment and noncapital punishments, for the death
penalty is different from other punishments in kind rather than
degree. [ Footnote 18 ] For
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,
[ Footnote 19 ] but in most
cases it would be difficult to decide that the former violates the
Eighth Amendment while the latter does not. Decisions of this kind,
although troubling, are not unique to this area. The courts are
constantly called upon to draw similar lines in a variety of
contexts.

															The Sixth Amendment offers two good examples. A State is
constitutionally required to provide an accused with a speedy
trial, Klopfer v. North Carolina, 386 U.
S. 213 (1967), but the delay that is permissible must be
determined on a case-by-case basis.

															"[A]ny inquiry into a speedy trial claim necessitates a
functional analysis of the right in the particular context of the
case. . . . " Barker v. Wingo, 407 U. S. 514 , 407 U. S. 522 (1972) (unanimous opinion). In Barker, we identified Page 463 U. S. 295 some of the objective factors that courts should consider in
determining whether a particular delay was excessive. Id. at 407 U. S. 530 .
None of these factors is

															"either a necessary or sufficient condition to the finding of a
deprivation of the right of speedy trial. Rather, they are related
factors and must be considered together with such other
circumstances as may be relevant." Id. at 407 U. S. 533 .
Thus the type of inquiry that a court should conduct to determine
if a given sentence is constitutionally disproportionate is similar
to the type of inquiry required by the Speedy Trial Clause.

															The right to a jury trial is another example. Baldwin v. New
York, 399 U. S. 66 (1970), in particular, illustrates the line-drawing function of the
judiciary, and offers guidance on the method by which some lines
may be drawn. There the Court determined that a defendant has a
right to a jury trial "where imprisonment for more than six months
is authorized." Id. at 399 U. S. 69 (plurality opinion). In choosing the 6-month standard, the
plurality relied almost exclusively on the fact that only New York
City denied the right to a jury trial for an offense punishable by
more than six months. As JUSTICE WHITE explained:

															"This near-uniform judgment of the Nation furnishes us with the
only objective criterion by which a line could ever be drawn -- on
the basis of the possible penalty alone -- between offenses that
are and that are not regarded as 'serious' for purposes of trial by
jury." Id. at 399 U. S. 72 -73.
In short, Baldwin clearly demonstrates that a court
properly may distinguish one sentence of imprisonment from another.
It also supports our holding that courts properly may look to the
practices in other jurisdictions in deciding where lines between
sentences should be drawn. IV It remains to apply the analytical framework established by our
prior decisions to the case before us. We first consider Page 463 U. S. 296 the relevant criteria, viewing Helm's sentence as life
imprisonment without possibility of parole. We then consider the
State's argument that the possibility of commutation is sufficient
to save an otherwise unconstitutional sentence. A Helm's crime was "one of the most passive felonies a person
could commit." State v. Helm, 287 N.W.2d at 501
(Henderson, J., dissenting). It involved neither violence nor
threat of violence to any person. The $100 face value of Helm's "no
account" check was not trivial, but neither was it a large amount.
One hundred dollars was less than half the amount South Dakota
required for a felonious theft. [ Footnote 20 ] It is easy to see why such a crime is viewed
by society as among the less serious offenses. See Rossi et al. at 229.

															Helm, of course, was not charged simply with uttering a "no
account" check, but also with being a habitual offender. [ Footnote 21 ] And a State is
justified in punishing a recidivist more severely than it punishes
a first offender. Helm's status, however, cannot be considered in
the abstract. His prior offenses, although classified as felonies,
were all relatively � 1 and S.
297� minor. [ Footnote 22 ]
All were nonviolent, and none was a crime against a person. Indeed,
there was no minimum amount in either the burglary or the false
pretenses statutes, see nn. 1 and | 1 and S.
277fn2|>2, supra, and the minimum amount covered by the
grand larceny statute was fairly small, see 1 and S. 277fn3|>n. 3, supra. [ Footnote 23 ]

															Helm's present sentence is life imprisonment without possibility
of parole. [ Footnote 24 ]
Barring executive clemency, see infra at 463 U. S.
300 -303, Helm will spend the rest of his life in the
state penitentiary. This sentence is far more severe than the life
sentence we considered in Rummel v. Estelle. Rummel was
likely to have been eligible for parole within 12 years of his
initial confinement, [ Footnote
25 ] a fact on which the Court relied heavily. See 445
U.S. at 445 U. S.
280 -281. Helm's sentence is the most severe punishment
that the State could have imposed on any criminal for any crime. See n 6, supra. Only capital punishment, a penalty not authorized
in South Dakota when Helm was sentenced, exceeds it. Page 463 U. S. 298 We next consider the sentences that could be imposed on other
criminals in the same jurisdiction. When Helm was sentenced, a
South Dakota court was required to impose a life sentence for
murder, S.D.Codified Laws § 22-16-12 (1979) (amended 1980), and was
authorized to impose a life sentence for treason, § 22-8-1,
first-degree manslaughter, § 22-16-15, first-degree arson, §
22-33-1, and kidnaping, S.D.Comp.Laws Ann. § 22-19-1 (1967 ed.,
Supp.1978) (amended 1979). No other crime was punishable so
severely on the first offense. Attempted murder, S.D.Codified Laws
§ 22-4-1(5) (1979), placing an explosive device on an aircraft, §
22-14A-5, and first-degree rape, § 22-22-1 (amended 1980 and 1982),
were only Class 2 felonies. Aggravated riot was only a Class 3
felony. § 22-10-5. Distribution of heroin, §§ 22-42-2 (amended
1982), 34-20B-13(7) (1977), and aggravated assault, § 22-18-1.1
(amended 1980 and 1981), were only Class 4 felonies.

															Helm's habitual offender status complicates our analysis, but
relevant comparisons are still possible. Under § 22-7-7, the
penalty for a second or third felony is increased by one class.
Thus a life sentence was mandatory when a second or third
conviction was for treason, first-degree manslaughter, first-degree
arson, or kidnaping, and a life sentence would have been authorized
when a second or third conviction was for such crimes as attempted
murder, placing an explosive device on an aircraft, or first-degree
rape. Finally, § 22-7-8, under which Helm was sentenced, authorized
life imprisonment after three prior convictions, regardless of the
crimes.

															In sum, there were a handful of crimes that were necessarily
punished by life imprisonment: murder, and, on a second or third
offense, treason, first-degree manslaughter, first-degree arson,
and kidnaping. There was a larger group for which life imprisonment
was authorized in the discretion of the sentencing judge,
including: treason, first-degree manslaughter, first-degree arson,
and kidnaping; attempted murder, placing an explosive device on an
aircraft, and first Page 463 U. S. 299 degree rape on a second or third offense; and any felony after
three prior offenses. Finally, there was a large group of very
serious offenses for which life imprisonment was not authorized,
including a third offense of heroin dealing or aggravated
assault.

															Criminals committing any of these offenses ordinarily would be
thought more deserving of punishment than one uttering a "no
account" check -- even when the bad-check writer had already
committed six minor felonies. Moreover, there is no indication in
the record that any habitual offender other than Helm has ever been
given the maximum sentence on the basis of comparable crimes. It is
more likely that the possibility of life imprisonment under §
22-7-8 generally is reserved for criminals such as fourth-time
heroin dealers, while habitual bad-check writers receive more
lenient treatment. [ Footnote
26 ] In any event, Helm has been treated in the same manner as,
or more severely than, criminals who have committed far more
serious crimes.

															Finally, we compare the sentences imposed for commission of the
same crime in other jurisdictions. The Court of Appeals found that
"Helm could have received a life sentence without parole for his
offense in only one other state, Nevada," 684 F.2d at 586, and we
have no reason to doubt this finding. See Tr. of Oral Arg.
21. At the very least, therefore, it is clear that Helm could not
have received such a severe sentence in 48 of the 50 States. But
even under Nevada law, a life sentence without possibility of
parole is Page 463 U. S. 300 merely authorized in these circumstances. See Nev.Rev.Stat. § 207.010(2) (1981). We are not advised that any
defendant such as Helm, whose prior offenses were so minor,
actually has received the maximum penalty in Nevada. [ Footnote 27 ] It appears that Helm
was treated more severely than he would have been in any other
State. B The State argues that the present case is essentially the same
as Rummel v. Estelle, for the possibility of parole in
that case is matched by the possibility of executive clemency here.
The State reasons that the Governor could commute Helm's sentence
to a term of years. We conclude, however, that the South Dakota
commutation system is fundamentally different from the parole
system that was before us in Rummel. As a matter of law, parole and commutation are different
concepts, despite some surface similarities. Parole is a regular
part of the rehabilitative process. Assuming good behavior, it is
the normal expectation in the vast majority of cases. The law
generally specifies when a prisoner will be eligible to be
considered for parole, and details the standards and procedures
applicable at that time. See, e.g., Greenholtz v. Nebraska
Penal Inmates, 442 U. S. 1 (1979)
(detailing Nebraska parole procedures); Morrissey v.
Brewer, 408 U. S. 471 , 408 U. S. 477 (1972) ("the practice of releasing prisoners on parole Page 463 U. S. 301 before the end of their sentences has become an integral part of
the penological system"). Thus it is possible to predict, at least
to some extent, when parole might be granted. Commutation, on the
other hand, is an ad hoc exercise of executive clemency. A
Governor may commute a sentence at any time for any reason without
reference to any standards. See, e.g., Connecticut Board of
Pardons v. Dumschat, 452 U. S. 458 (1981).

															We explicitly have recognized the distinction between parole and
commutation in our prior cases. [ Footnote 28 ] Writing on behalf of the Morrissey Court, for example, CHIEF JUSTICE BURGER contrasted the two
possibilities: "Rather than being an ad hoc exercise of
clemency, parole is an established variation on imprisonment of
convicted criminals." 408 U.S. at 408 U. S. 477 .
In Dumschat, THE CHIEF JUSTICE similarly explained that
"there is a vast difference between a denial of parole . . . and a
state's refusal to commute a lawful sentence." 452 U.S. at 452 U. S.
466 .

															The Texas and South Dakota systems in particular are very
different. In Rummel, the Court did not rely simply on the
existence of some system of parole. Rather, it looked to the
provisions of the system presented, including the fact that Texas
had

															"a relatively liberal policy of granting 'good time' credits to
its prisoners, a policy that historically has allowed a prisoner
serving a life sentence to become eligible for parole in as little
as 12 years."

															445 U.S. at 445 U. S. 280 .
A Texas prisoner became eligible for parole when his calendar
time Page 463 U. S. 302 served plus "good conduct" time equaled one-third of the maximum
sentence imposed or 20 years, whichever is less. Tex.Code
Crim.Proc.Ann., Art. 42.12, § 15(b) (Vernon 1979). An entering
prisoner earned 20 days good-time per 30 days served, Brief for
Respondent in Rummel, O.T. 1979, No. 78-6386, p. 16, and this could
be increased to 30 days good-time per 30 days served, see Tex.Rev.Civ.Stat.Ann., Art. 6181-1, §§ 2, 3 (Vernon
Supp.1982-1983). Thus, Rummel could have been eligible for parole
in as few as 10 years, and could have expected to become eligible,
in the normal course of events, in only 12 years.

															In South Dakota, commutation is more difficult to obtain than
parole. For example, the Board of Pardons and Paroles is authorized
to make commutation recommendations to the Governor, see n. 7, supra, but § 24-13-4 provides that

															"no recommendation for the commutation of . . . a life sentence,
or for a pardon . . shall be made by less than the unanimous vote
of all members of the board."

															In fact, no life sentence has been commuted in over eight years,
[ Footnote 29 ] App. 29, while
parole -- where authorized -- has been granted regularly during
that period, Tr. of Oral Arg. 8-9. Furthermore, even if Helm's
sentence were commuted, he merely would be eligible to be
considered for parole. [ Footnote
30 ] Not only is there no Page 463 U. S. 303 guarantee that he would be paroled, but the South Dakota parole
system is far more stringent than the one before us in Rummel. Helm would have to serve three-fourths of his
revised sentence before he would be eligible for parole, § 24-15-5,
and the provision for good-time credits is less generous, § 24-5-1.
[ Footnote 31 ]

															The possibility of commutation is nothing more than a hope for
"an ad hoc exercise of clemency." It is little different
from the possibility of executive clemency that exists in every
case in which a defendant challenges his sentence under the Eighth
Amendment. Recognition of such a bare possibility would make
judicial review under the Eighth Amendment meaningless. V The Constitution requires us to examine Helm's sentence to
determine if it is proportionate to his crime. Applying objective
criteria, we find that Helm has received the penultimate sentence
for relatively minor criminal conduct. He has been treated more
harshly than other criminals in the State who have committed more
serious crimes. He has been treated more harshly than he would have
been in any other jurisdiction, with the possible exception of a
single State. We conclude that his sentence is significantly
disproportionate to his crime, and is therefore prohibited by the
Eighth Amendment. [ Footnote
32 ] The judgment of the Court of Appeals is accordingly Affirmed. Page 463 U. S. 304 [ Footnote 1 ]

															In 1969, third-degree burglary was defined in at least two
sections of the South Dakota criminal code:

															"A person breaking into any dwelling house in the nighttime with
intent to commit a crime but under such circumstances as do not
constitute burglary in the first degree, is guilty of burglary in
the third degree."

															S.D. Comp. Laws Ann. § 22-32-8 (1967) (repealed 1976).

															"A person breaking or entering at any time any building within
the curtilage of a dwelling house but not forming a part thereof,
or any building or part of any building, booth, tent, railroad car,
vessel, vehicle as defined in § 32-14-1, or any structure or
erection in which any property is kept, with intent to commit
larceny or any felony, is guilty of burglary in the third
degree."

															S.D. Comp. Laws Ann. § 22-32-9 (1967) (repealed 1976). In 1964
and 1966, the third-degree burglary definition was essentially the
same. See S.D. Code § 13.3703 (1939 ed., Supp.1960); 1965
S.D. Laws, ch. 32. Third-degree burglary was punishable by
"imprisonment in the state penitentiary for any term not exceeding
fifteen years." S.D.Comp.Laws Ann. § 22-32-10 (1967) (previously
codified at S.D.Code § 13.3705(3) (1939)) (repealed 1976).

															[ Footnote 2 ]

															In 1972, the relevant statute provided:

															"Every person who designedly, by color or aid of any false token
or writing, or other false pretense, . . . obtains from any person
any money or property . . . is punishable by imprisonment in the
state penitentiary not exceeding three years or in a county jail
not exceeding one year, or by a fine not exceeding three times the
value of the money or property so obtained, or by both such fine
and imprisonment."

															S.D.Comp.Laws Ann. § 22-41-4 (1967) (repealed 1976).

															[ Footnote 3 ]

															In 1973, South Dakota defined "larceny" as "the taking of
personal property accomplished by fraud or stealth and with intent
to deprive another thereof."

															S.D.Comp.Laws Ann. § 22-37-1 (1967) (repealed 1976). Grand
larceny and petit larceny were distinguished as follows:

															"Grand larceny is larceny committed in any of the following
cases:"

															"(1) When the property taken is of a value exceeding fifty
dollars;"

															"(2) When such property, although not of a value exceeding fifty
dollars, is taken from the person of another;"

															"(3) When such property is livestock."

															"Larceny in other cases is petit larceny."

															S.D.Comp.Laws Ann. § 2237-2 (1967) (repealed 1976). Grand
larceny was then punishable by "imprisonment in the state
penitentiary not exceeding ten years or by imprisonment in the
county jail not exceeding one year." S.D.Comp.Laws Ann. § 22-37-3
(1967) (repealed 1976).

															[ Footnote 4 ]

															A third offense of driving while under the influence of alcohol
is a felony in South Dakota. S.D.Codified Laws § 32-23-4 (1976). See 1973 S.D. Laws, ch.195, § 7 (enacting version of §
32-23-4 in force in 1975).

															[ Footnote 5 ]

															The governing statute provides, in relevant part:

															"Any person who, for himself or as an agent or representative of
another for present consideration with intent to defraud, passes a
check drawn on a financial institution knowing at the time of such
passing that he or his principal does not have an account with such
financial institution, is guilty of a Class 5 felony."

															S.D.Codified Laws § 22-41-1.2 (1979).

															[ Footnote 6 ]

															When Helm was sentenced in April, 1979, South Dakota law
classified felonies as follows:

															"Except as otherwise provided by law, felonies are divided into
the following seven classes which are distinguished from each other
by the respective maximum penalties hereinafter set forth which are
authorized upon conviction:"

															"(1) Class A felony: life imprisonment in the state
penitentiary. A lesser sentence may not be given for a Class A
felony;"

															"(2) Class 1 felony: life imprisonment in the state
penitentiary. In addition, a fine of twenty-five thousand dollars
may be imposed;"

															"(3) Class 2 felony: twenty-five years imprisonment in the state
penitentiary. In addition, a fine of twenty-five thousand dollars
may be imposed;"

															"(4) Class 3 felony: fifteen years imprisonment in the state
penitentiary. In addition, a fine of fifteen thousand dollars may
be imposed;"

															"(5) Class 4 felony: ten years imprisonment in the state
penitentiary. In addition, a fine of ten thousand dollars may be
imposed;"

															"(6) Class 5 felony: five years imprisonment in the state
penitentiary. In addition, a fine of five thousand dollars may be
imposed; and"

															"(7) Class 6 felony: two years imprisonment in the state
penitentiary or a fine of two thousand dollars, or both."

															"Nothing in this section shall limit increased sentences for
habitual criminals. . . . "

															"Except in cases where punishment is prescribed by law, every
offense declared to be a felony and not otherwise classified is a
Class 6 felony."

															S.D.Comp.Laws Ann. § 22-6-1 (1967 ed., Supp.1978) (amended 1979
and 1980).

															[ Footnote 7 ]

															The Board of Pardons and Paroles is authorized to make
recommendations to the Governor, S.D.Codified Laws §§ 24-14-1,
24-14-5 (1979); S.D. Executive Order 82-04 (Apr. 12, 1982), but the
Governor is not bound by the recommendation, § 24-14-5.

															[ Footnote 8 ]

															An amercement was similar to a modern-day fine. It was the most
common criminal sanction in 13th-century England. See 2 F.
Pollock & F. Maitland, The History of English Law 613-616 (2d
ed.1909).

															[ Footnote 9 ]

															Chapter 20 declared that

															"[a] freeman shall not be amerced for a small fault, but after
the manner of the fault; and for a great crime according to the
heinousness of it." See 1 S.D.Codified Law, p. 4 (1978) (translation of
Magna Carta). According to Maitland, "there was no clause in Magna
Carta more grateful to the mass of the people. . . ." F. Maitland,
Pleas of the Crown for the County of Gloucester xxxiv (1884).
Chapter 21 granted the same rights to the nobility, and chapter 22
granted the same rights to the clergy.

															[ Footnote 10 ]

															The Eighth Amendment was based directly on Art. I, § 9, of the
Virginia Declaration of Rights (1776), authored by George Mason.
He, in turn, had adopted verbatim the language of the English Bill
of Rights. There can be no doubt that the Declaration of Rights
guaranteed at least the liberties and privileges of Englishmen. See A. Nevins, The American States During and After the
Revolution 146 (1924) (Declaration of Rights "was a restatement of
English principles -- the principles of Magna Charta . . . and the
Revolution of 1688"); A. Howard, The Road from Runnymede: Magna
Carta and Constitutionalism in America 205-207 (1968). As Mason
himself had explained:

															"We claim Nothing but the Liberties & Privileges of
Englishmen, in the same Degree, as if we had still continued among
our Brethren in Great Britain. . . . We have received [these
rights] from our Ancestors, and, with God's Leave, we will transmit
them, unimpaired to our Posterity."

															Letter to "the Committee of Merchants in London" (June 6, 1766),
reprinted in 1 The Papers of George Mason 71 (R. Rutland ed.1970); cf. the Fairfax County Resolves (1774) (colonists entitled
to all "Privileges, Immunities and Advantages" of the English
Constitution), reprinted in 1 The Papers of George Mason 201.

															[ Footnote 11 ]

															In O'Neil v. Vermont, 144 U. S. 323 (1892), the defendant had been convicted of 307 counts of "selling
intoxicating liquor without authority," and sentenced to a term of
over 54 years. The majority did not reach O'Neil's contention that
this sentence was unconstitutional, for he did not include the
point in his assignment of errors or in his brief. Id. at 144 U. S. 331 .
Furthermore, the majority noted that the Eighth Amendment "does not
apply to the States." Id. at 144 U. S. 332 .
Accordingly the Court dismissed the writ of error for want of a
federal question. Id. at 144 U. S.
336 -337. The dissent, however, reached the Eighth
Amendment question, observing that it "is directed . . . against
all punishments which, by their excessive length, or severity are
greatly disproportioned to the offences charged." Id. at 144 U. S.
339 -340 (Field, J., dissenting).

															[ Footnote 12 ]

															Members of the Court continued to recognize the principle of
proportionality in the meantime. See, e.g., Trop v.
Dulles, 356 U. S. 86 , 356 U. S. 100 (1958) (plurality opinion); id. at 356 U. S. 111 (BRENNAN, J., concurring); id. at 356 U. S.
125 -126 (Frankfurter, J., dissenting).

															[ Footnote 13 ]

															The dissent charges that "the Court blithely discards any
concept of stare decisis. " Post at 463 U. S. 304 ; cf. post at 463 U. S. 305 , 463 U. S.
311 -312, 463 U. S. 317 .
On the contrary, our decision is entirely consistent with this
Court's prior cases -- including Rummel v. Estelle. See n 32, infra. It is rather the dissent that would discard prior
precedent. Its assertion that the Eighth Amendment establishes only
a narrow principle of proportionality is contrary to the entire
line of cases cited in the text.

															[ Footnote 14 ]

															According to Rummel v. Estelle, " 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
sentence actually imposed is purely a matter of legislative
prerogative."

															445 U.S. at 445 U. S. 274 (emphasis added). The Court did not adopt the standard proposed,
but merely recognized that the argument was possible. To the extent
that the State -- or the dissent, see post at 463 U. S. 307 -- makes this argument here, we find it meritless.

															[ Footnote 15 ]

															In Enmund v. Florida, 458 U. S. 782 (1982), for example, the Court found the death penalty to be
excessive for felony murder in the circumstances of that case. But
clearly no sentence of imprisonment would be disproportionate for
Enmund's crime.

															[ Footnote 16 ]

															Contrary to the dissent's suggestions, post at 463 U. S. 305 , 463 U. S. 315 ,
we do not adopt or imply approval of a general rule of appellate
review of sentences. Absent specific authority, it is not the role
of an appellate court to substitute its judgment for that of the
sentencing court as to the appropriateness of a particular
sentence; rather, in applying the Eighth Amendment, the appellate
court decides only whether the sentence under review is within
constitutional limits. In view of the substantial deference that
must be accorded legislatures and sentencing courts, a reviewing
court rarely will be required to engage in extended analysis to
determine that a sentence is not constitutionally
disproportionate.

															[ Footnote 17 ]

															The dissent concedes -- as it must -- that some sentences of
imprisonment are so disproportionate that they are unconstitutional
under the Cruel and Unusual Punishments Clause. Post at 463 U. S. 311 ,
n. 3; cf. post at 463 U. S. 310 , n. 2. It offers no guidance, however, as
to how courts are to judge these admittedly rare cases. We
reiterate the objective factors that our cases have recognized. See, e.g., Coker v. Georgia, 433 U.
S. 584 , 433 U. S. 592 (1977) (plurality opinion). As the Court has indicated, no one
factor will be dispositive in a given case. See Hutto v.
Davis, 454 U. S. 370 , 454 U. S.
373 -374, n. 2 (1982) (per curiam); Rummel v.
Estelle, 445 U.S. at 445 U. S.
275 -276. The inherent nature of our federal system and
the need for individualized sentencing decisions result in a wide
range of constitutional sentences. Thus, no single criterion can
identify when a sentence is so grossly disproportionate that it
violates the Eighth Amendment. See Jeffries & Stephan,
Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88
Yale L.J. 1325, 1376-1377 (1979). But a combination of objective
factors can make such analysis possible.

															[ Footnote 18 ]

															There is also a clear line between sentences of imprisonment and
sentences involving no deprivation of liberty. See Argersinger
v. Hamlin, 407 U. S. 25 (1972).

															[ Footnote 19 ]

															The possibility of parole may complicate the comparison,
depending upon the time and conditions of its availability.

															[ Footnote 20 ]

															If Helm had been convicted simply of taking $100 from a cash
register, S.D.Codified Laws § 22-30A-1 (1979), or defrauding
someone of $100, § 22-30A-3, or obtaining $100 through extortion, §
22-30A-4(1), or blackmail, § 22-30A-4(3), or using a false credit
card to obtain $100, § 2230A-8.1, or embezzling $100, § 22-30A-10,
he would not be in prison today. All of these offenses would have
been petty theft, a misdemeanor. § 2230A-17 (amended 1982).
Similarly, if Helm had written a $100 check against insufficient
funds, rather than a nonexistent account, he would have been guilty
of a misdemeanor. §§ 22-41-1. Curiously, under South Dakota law,
there is no distinction between writing a "no account" check for a
large sum and writing a "no account" check for a small sum. §
22-41-1.2.

															[ Footnote 21 ]

															We must focus on the principal felony -- the felony that
triggers the life sentence -- since Helm already has paid the
penalty for each of his prior offenses. But we recognize, of
course, that Helm's prior convictions are relevant to the
sentencing decision.

															[ Footnote 22 ]

															Helm, who was 36 years old when he was sentenced, is not a
professional criminal. The record indicates an addiction to
alcohol, and a consequent difficulty in holding a job. His record
involves no instance of violence of any kind. Incarcerating him for
life without possibility of parole is unlikely to advance the goals
of our criminal justice system in any substantial way. Neither Helm
nor the State will have an incentive to pursue clearly needed
treatment for his alcohol problem, or any other program of
rehabilitation.

															[ Footnote 23 ]

															As suggested at oral argument, the third-degree burglary statute
covered entering a building with the intent to steal a loaf of
bread. Tr. of Oral Arg. 14-16. It appears that the grand larceny
statute would have covered the theft of a chicken.

															[ Footnote 24 ]

															Every life sentence in South Dakota is without possibility of
parole. See supra at 463 U. S. 282 .
We raise no question as to the general validity of sentences
without possibility of parole. The only issue before us is whether,
in the circumstances of this case and in light of the
constitutional principle of proportionality, the sentence imposed
on this respondent violates the Eighth Amendment.

															[ Footnote 25 ]

															We note that Rummel was, in fact, released within eight months
of the Court's decision in his case. See Los Angeles
Times, Nov. 16, 1980, p. 1, col. 3.

															[ Footnote 26 ]

															The State contends that § 22-7-8 is more lenient than the Texas
habitual offender statute in Rummel, for life imprisonment
under § 22-7-8 is discretionary, rather than mandatory. Brief for
Petitioner 22. Helm, however, has challenged only his own sentence.
No one suggests that § 22-7-8 may not be applied constitutionally
to fourth-time heroin dealers or other violent criminals. Thus, we
do not question the legislature's judgment. Unlike in Rummel, a lesser sentence here could have been entirely
consistent with both the statute and the Eighth Amendment. See Note, Disproportionality in Sentences of Imprisonment,
79 Colum.L.Rev. 1119, 1160 (1979).

															[ Footnote 27 ]

															Under § 207.010(2), a Nevada court is authorized to impose a
sentence of

															"imprisonment in the state prison for life with or without
possibility of parole. If the penalty fixed by the court is life
imprisonment with the possibility of parole, eligibility for parole
begins when a minimum of 10 years has been served."

															It appears that most sentences imposed under § 207.010(2) permit
parole, even when the prior crimes are far more serious than
Helm's. See, e.g., Rusling v. State, 96 Nev. 778, 617 P.2d 1302 (1980) (possession of a firearm by an ex-felon, two instances of
driving an automobile without the owner's consent, four
first-degree burglaries, two sales of marihuana, two sales of a
restricted dangerous drug, one sale of heroin, one escape from
state prison, and one second-degree burglary).

															[ Footnote 28 ]

															In Rummel itself, the Court implicitly recognized that
the possibility of commutation is not equivalent to the possibility
of parole. The Court carefully

															"distinguish[ed] Rummel from a person sentenced under a
recidivist statute like [Miss.Code Ann. § 99-19-83 (Supp.1979)],
which provides for a sentence of life without parole."

															445 U.S. at 445 U. S. 281 .
But the Mississippi Constitution empowers the Governor to grant
pardons in "all criminal and penal cases, excepting those of
treason and impeachment." Art. 5, § 124. The Mississippi Supreme
Court has long recognized that the power to pardon includes the
power to commute a convict's sentence. See Whittington v.
Steven, 221 Miss. 598, 603-604, 73 So. 2d
137 , 139-140 (1954).

															[ Footnote 29 ]

															The most recent commutation of a life sentence in South Dakota
occurred in 1975. App. 29. During the eight years since then, over
100 requests for commutation have been denied. See id. at
22-26. Although 22 life sentences were commuted to terms of years
between 1964 and 1975, see id. at 29; but see n 30, infra, we do
not have complete figures on the number of requests that were
denied during the same period. We are told only that at least 35
requests were denied. See App. 22-26. In any event, past
practice in this respect -- particularly the practice of a decade
ago -- is not a reliable indicator of future performance when the
relevant decision is left to the unfettered discretion of each
Governor. Indeed, the best indication we have of Helm's chance for
commutation is the fact that his request already has been denied. Id. at 26.

															[ Footnote 30 ]

															The record indicates that the prisoner whose life sentence was
commuted in 1975, see n 29, supra, still has not been paroled. App.
29.

															[ Footnote 31 ]

															Assume, for example, that, in 1979, the Governor had commuted
Helm's sentence to a term of 40 years (his approximate life
expectancy). Even if Helm were a model prisoner, he would not have
been eligible for parole until he had served over 21 years -- more
than twice the Rummel minimum. And this comparison is
generous to South Dakota's position. If Rummel had been sentenced
to 40 years, rather than life, he could have been eligible for
parole in less than 7 years.

															[ Footnote 32 ]

															Contrary to the suggestion in the dissent, post at 463 U. S.
305 -312, our conclusion today is not inconsistent with Rummel v. Estelle. The Rummel Court recognized --
as does the dissent, see post at 463 U. S. 311 ,
n. 3 -- that some sentences of imprisonment are so disproportionate
that they violate the Eighth Amendment. 445 U.S. at 445 U. S. 274 ,
n. 11. Indeed, Hutto v. Davis, 454 U.S. at 454 U. S. 374 ,
and n. 3, makes clear that Rummel should not be read to
foreclose proportionality review of sentences of imprisonment. Rummel did reject a proportionality challenge to a
particular sentence. But since the Rummel Court -- like
the dissent today -- offered no standards for determining when an
Eighth Amendment violation has occurred, it is controlling only in
a similar factual situation. Here the facts are clearly
distinguishable. Whereas Rummel was eligible for a reasonably early
parole, Helm, at age 36, was sentenced to life with no possibility
of parole. See supra at 463 U.S. 297 and 463 U. S.
300 -303.

															CHIEF JUSTICE BURGER, with whom JUSTICE WHITE, JUSTICE
REHNQUIST, and JUSTICE O'CONNOR join, dissenting.

															The controlling law governing this case is crystal clear, but
today the Court blithely discards any concept of stare
decisis, trespasses gravely on the authority of the states,
and distorts the concept of proportionality of punishment by
tearing it from its moorings in capital cases. Only three Terms
ago, we held, in Rummel v. Estelle, 445 U.
S. 263 (1980), that a life sentence imposed after only a
third nonviolent felony conviction did not constitute cruel and
unusual punishment under the Eighth Amendment. Today, the Court
ignores its recent precedent and holds that a life sentence imposed
after a seventh felony conviction constitutes cruel and unusual
punishment under the Eighth Amendment. Moreover, I reject the
fiction that all Helm's crimes were innocuous or nonviolent. Among
his felonies were three burglaries and a third conviction for
drunken driving. By comparison, Rummel was a relatively "model
citizen." Although today's holding cannot rationally be reconciled
with Rummel, the Court does not purport to overrule Rummel. I therefore dissent. I A The Court's starting premise is that the Eighth Amendment's
Cruel and Unusual Punishments Clause "prohibits not Page 463 U. S. 305 only barbaric punishments, but also sentences that are
disproportionate to the crime committed." Ante at 463 U. S. 284 .
What the Court means is that a sentence is unconstitutional if it
is more severe than five Justices think appropriate. In short, all
sentences of imprisonment are subject to appellate scrutiny to
ensure that they are "proportional" to the crime committed.

															The Court then sets forth three assertedly "objective" factors
to guide the determination of whether a given sentence of
imprisonment is constitutionally excessive: (1) the "gravity of the
offense and the harshness of the penalty," ante at 463 U. S.
290 -291; (2) a comparison of the sentence imposed with
"sentences imposed on other criminals in the same jurisdiction," ante at 463 U. S. 291 (emphasis added); (3) and a comparison of "the sentences imposed
for commission of the same crime in other jurisdictions." Ante at 463 U. S.
291 -292 (emphasis added). In applying this analysis, the
Court determines that respondent

															"has received the penultimate sentence for relatively
minor criminal conduct. He has been treated more harshly than
other criminals in the State who have committed more serious
crimes. He has been treated more harshly than he would have been in
any other jurisdiction. . . ." Ante at 463 U. S. 303 .
(Emphasis added.) Therefore, the Court concludes, respondent's
sentence is "significantly disproportionate to his crime, and is .
. . prohibited by the Eighth Amendment." This analysis is
completely at odds with the reasoning of our recent holding in Rummel, in which, of course, JUSTICE POWELL dissented. B The facts in Rummel bear repeating. Rummel was
convicted in 1964 of fraudulent use of a credit card; in 1969, he
was convicted of passing a forged check; finally, in 1973, Rummel
was charged with obtaining money by false pretenses, which is also
a felony under Texas law. These three offenses were indeed
nonviolent. Under Texas' recidivist Page 463 U. S. 306 statute, which provides for a mandatory life sentence upon
conviction for a third felony, the trial judge imposed a life
sentence as he was obliged to do after the jury returned a verdict
of guilty of felony theft.

															Rummel, in this Court, advanced precisely the same arguments
that respondent advances here; we rejected those arguments
notwithstanding that his case was stronger than respondent's. The
test in Rummel which we rejected would have required us to
determine on an abstract moral scale whether Rummel had received
his "just deserts" for his crimes. We declined that invitation;
today the Court accepts it. Will the Court now recall Rummel's case
so five Justices will not be parties to "disproportionate" criminal
justice?

															It is true, as we acknowledged in Rummel, that the

															"Court has, on occasion, stated that the Eighth Amendment
prohibits imposition of a sentence that is grossly disproportionate
to the severity of the crime."

															445 U.S. at 445 U. S. 271 .
But even a cursory review of our cases shows that this type of
proportionality review has been carried out only in a very limited
category of cases, and never before in a case involving solely a
sentence of imprisonment. In Rummel, we said that the
proportionality concept of the capital punishment cases was
inapposite because of the "unique nature of the death penalty. . .
." Id. at 445 U. S.
272 .

															"Because a sentence of death differs in kind from any sentence
of imprisonment, no matter how long, our decisions applying the
prohibition of cruel and unusual punishments to capital cases are
of limited assistance in deciding the constitutionality of the
punishment meted out to Rummel." Ibid. .

															The Rummel Court also rejected the claim that Weems
v. United States, 217 U. S. 349 (1910), required it to determine whether Rummel's punishment was
"disproportionate" to his crime. In Weems, the Court had
struck down as cruel and unusual punishment a sentence of cadena temporal imposed by a Philippine Court. This
bizarre penalty, which was unknown Page 463 U. S. 307 to Anglo-Saxon law, entailed a minimum of 12 years' imprisonment
chained day and night at the wrists and ankles, hard and painful
labor while so chained, and a number of "accessories" including
lifetime civil disabilities. In Rummel, the Court
carefully noted that "[ Weems' ] finding of
disproportionality cannot be wrenched from the facts of that case."
445 U.S. at 445 U. S. 273 .
[ Footnote 2/1 ]

															The lesson the Rummel Court drew from Weems and from the capital punishment cases was that the Eighth Amendment
did not authorize courts to review sentences of imprisonment to
determine whether they were "proportional" to the crime. In
language quoted incompletely by the Court, ante at 463 U. S.
288 -289, n. 14, the Rummel Court stated:

															"Given the unique nature of the punishments considered
in Weems and in the death penalty cases, 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. "

															445 U.S. at 445 U. S. 274 .
(Emphasis added.) Five Justices joined this clear and precise
limiting language. In context, it is clear that the Rummel Court was not merely summarizing an argument, as the Court
suggests, ante at 463 U. S. 288 -289, n. 14, but was stating affirmatively
the rule of law laid down. This passage from Rummel is
followed by an explanation of why it is permissible for courts to
review sentences of death or bizarre physically cruel punishments
as in Weems, but not sentences of imprisonment. 445 U.S.
at 445 U. S.
274 -275. The Rummel Court emphasized, as has
every Page 463 U. S. 308 opinion in capital cases in the past decade, that it was
possible to draw a "bright line" between

															"the punishment of death and the various other permutations and
commutations of punishment short of that ultimate sanction;"

															similarly, a line could be drawn between the punishment in Weems
and "more traditional forms of imprisonment imposed under the Anglo
Saxon system." 445 U.S. at 445 U. S. 275 . However, the Rummel Court
emphasized that drawing lines between different sentences of
imprisonment would thrust the Court inevitably "into the basic
line-drawing process that is preeminently the province of the
legislature," and produce judgments that were no more than the
visceral reactions of individual Justices. Ibid. The Rummel Court categorically rejected the very
analysis adopted by the Court today. Rummel had argued that various
objective criteria existed by which the Court could determine
whether his life sentence was proportional to his crimes. In
rejecting Rummel's contentions, the Court explained why each was
insufficient to allow it to determine in an objective manner whether a given sentence of imprisonment is proportionate to
the crime for which it is imposed.

															First, it rejected the distinctions Rummel tried to draw between
violent and nonviolent offenses, noting that

															"the absence of violence does not always affect the strength of
society's interest in deterring a particular crime or in punishing
a particular criminal." Ibid. Similarly, distinctions based on the amount of
money stolen are purely "subjective" matters of linedrawing. Id. at 445 U. S.
275 -276.

															Second, the Court squarely rejected Rummel's attempt to compare
his sentence with the sentence he would have received in other
States -- an argument that the Court today accepts. The Rummel Court explained that such comparisons are flawed
for several reasons. For one, the recidivist laws of the various
states vary widely.

															"It is one thing for a court to compare those States that impose
capital punishment for a Page 463 U. S. 309 specific offense with those States that do not. It is quite
another thing for a court to attempt to evaluate the position of
any particular recidivist scheme within Rummel's complex
matrix." Id. at 445 U. S. 280 (citation and footnote omitted). Another reason why comparison
between the recidivist statutes of different states is inherently
complex is that some states have comprehensive provisions for
parole and others do not. Id. at 445 U. S.
280 -281. Perhaps most important, such comparisons
trample on fundamental concepts of federalism. Different states
surely may view particular crimes as more or less severe than other
states. Stealing a horse in Texas may have different consequences
and warrant different punishment than stealing a horse in Rhode
Island or Washington, D.C. Thus, even if the punishment accorded
Rummel in Texas were to exceed that which he would have received in
any other state,

															"that severity hardly would render Rummel's punishment 'grossly
disproportionate' to his offenses or to the punishment he would
have received in the other States. . . . 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.
281 -282. (Emphasis added.)

															Finally, we flatly rejected Rummel's suggestion that we measure
his sentence against the sentences imposed by Texas for other
crimes:

															"Other crimes, of course, implicate other societal interests,
making any such comparison inherently speculative. . . ."

															". . . Once the death penalty and other punishments different in
kind from fine or imprisonment have been put to one side, there
remains little in the way of objective standards for judging
whether or not a life sentence imposed under a recidivist statute
for several separate Page 463 U. S. 310 felony convictions not involving 'violence' violates the cruel
and unusual punishment prohibition of the Eighth Amendment." Id. at 445 U. S.
282 -283, n. 27. Rather, we held that the severity of
punishment to be accorded different crimes was peculiarly a matter
of legislative policy. Ibid. In short, Rummel held that the length of a sentence of
imprisonment is a matter of legislative discretion; this is so
particularly for recidivist statutes. I simply cannot understand
how the Court can square Rummel with its holding that "a
criminal sentence must be proportionate to the crime for which the
defendant has been convicted." Ante at 463 U. S. 290 .
[ Footnote 2/2 ]

															If there were any doubts as to the meaning of Rummel, they were laid to rest last Term in Hutto v. Davis, 454 U. S. 370 (1982) (per curiam). There a United States District Court held that
a 40-year sentence for the possession of nine ounces of marihuana
violated the Eighth Amendment. The District Court applied almost
exactly the same analysis adopted today by the Court. Specifically,
the District Court stated:

															"After examining the nature of the offense, the legislative
purpose behind the punishment, the punishment in . . . Virginia
[the sentencing jurisdiction] for other offenses, and the
punishment actually imposed for the same or similar offenses in
Virginia, this court must necessarily conclude that a sentence of
forty years and twenty thousand dollars in fines is so grossly out
of proportion to the severity of the crimes as to constitute cruel
and unusual punishment in violation of the Eighth Amendment of
the Page 463 U. S. 311 United States Constitution." Davis v. Zahradnick, 432 F.
Supp. 444 , 453 (WD Va.1977). The Court of Appeals sitting en
banc affirmed. Davis v. Davis, 646 F.2d 123 (CA4 1981)
(per curiam). We reversed in a brief per curiam opinion, holding
that Rummel had disapproved each of the "objective"
factors on which the District Court and en banc Court of Appeals
purported to rely. 454 U.S. at 454 U. S. 373 .
It was therefore clear error for the District Court to have been
guided by these factors, which, paradoxically, the Court adopts
today.

															Contrary to the Court's interpretation of Hutto, see
ante at 463 U. S.
289 -290, and n. 17, and 463 U. S.
303 -304, n. 32, the Hutto Court did not hold
that the District Court miscalculated in finding Davis' sentence
disproportionate to his crime. It did not hold that the District
Court improperly weighed the relevant factors. Rather, it held that
the District Court clearly erred in even embarking on a
determination whether the sentence was "disproportionate" to the
crime. Hutto makes crystal clear that, under Rummel, it is error for appellate courts to second-guess
legislatures as to whether a given sentence of imprisonment is
excessive in relation to the crime, [ Footnote 2/3 ] as the Court does today, ante at 463 U. S.
296 -303.

															I agree with what the Court stated only days ago, that

															"the doctrine of stare decisis, while perhaps never
entirely persuasive on a constitutional question, is a doctrine
that demands respect in a society governed by the rule of law." City of Akron v. Akron Center
for Reproductive Health , Page 463 U. S. 312 Inc., 462 U. S. 416 , 462 U. S.
419 -420 (1983). While the doctrine of stare
decisis does not absolutely bind the Court to its prior
opinions, a decent regard for the orderly development of the law
and the administration of justice requires that directly
controlling cases be either followed or candidly overruled.
[ Footnote 2/4 ] Especially is this
so with respect to two key holdings, neither more than three years
old. II Although historians and scholars have disagreed about the
Framers' original intentions, the more common view seems to be that
the Framers viewed the Cruel and Unusual Punishments Clause as
prohibiting the kind of torture meted out during the reign of the
Stuarts. [ Footnote 2/5 ] Moreover,
it is clear that, Page 463 U. S. 313 until 1892, over 100 years after the ratification of the Bill of
Rights, not a single Justice of this Court even asserted the
doctrine adopted for the first time by the Court today. The
prevailing view up to now has been that the Eighth Amendment
reaches only the mode of punishment, and not the length of
a sentence of imprisonment. [ Footnote
2/6 ] In light of this history, it is disingenuous for the Court
blandly to assert that "[t]he constitutional principle of
proportionality has been recognized explicitly in this Court for
almost a century." Ante at 463 U. S. 286 .
That statement seriously distorts history and our cases.

															This Court has applied a proportionality test only in
extraordinary cases, Weems being one example and the line
of capital cases another. See, e.g., Coker v. Georgia, 433 U. S. 584 (1977); Enmund v. Florida, 458 U.
S. 782 (1982). The Court's reading of the Eighth
Amendment as restricting legislatures' authority to choose which
crimes to punish by death rests on the finality of the death
sentence. Such scrutiny is not required where a sentence of
imprisonment is imposed after the State has identified a criminal
offender whose record shows he will not conform to societal
standards. Page 463 U. S. 314 The Court's traditional abstention from reviewing sentences of
imprisonment to ensure that punishment is "proportionate" to the
crime is well founded in history, in prudential considerations, and
in traditions of comity. Today's conclusion by five Justices that
they are able to say that one offense has less "gravity" than
another is nothing other than a bald substitution of individual
subjective moral values for those of the legislature. Nor, as this
case well illustrates, are we endowed with Solomonic wisdom that
permits us to draw principled distinctions between sentences of
different length for a chronic "repeater" who has demonstrated that
he will not abide by the law.

															The simple truth is that

															"[n]o neutral principle of adjudication permits a federal court
to hold that, in a given situation, individual crimes are too
trivial in relation to the punishment imposed." Rummel v. Estelle, 568 F.2d 1193, 1201-1202 (CA5)
(Thornberry, J., dissenting), vacated, 587 F.2d 651 (1978)
(en banc), aff'd, 445
U. S. 445 U.S. 263 (1980). The apportionment of
punishment entails, in Justice Frankfurter's words, "peculiarly
questions of legislative policy." Gore v. United States, 357 U. S. 386 , 357 U. S. 393 (1958). Legislatures are far better equipped than we are to balance
the competing penal and public interests and to draw the
essentially arbitrary lines between appropriate sentences for
different crimes.

															By asserting the power to review sentences of imprisonment for
excessiveness, the Court launches into uncharted and unchartable
waters. Today it holds that a sentence of life imprisonment,
without the possibility of parole, is excessive punishment for a
seventh allegedly "nonviolent" felony. How about the eighth
"nonviolent" felony? The ninth? The twelfth? Suppose one offense
was a simple assault? Or selling liquor to a minor? Or statutory
rape? Or price-fixing? The permutations are endless, and the
Court's opinion is bankrupt of realistic guiding principles.
Instead, it casually lists several allegedly "objective" factors
and arbitrarily asserts that they show respondent's sentence to be
"significantly Page 463 U. S. 315 disproportionate" to his crimes. Ante at 463 U. S. 303 .
Must all these factors be present in order to hold a sentence
excessive under the Eighth Amendment? How are they to be weighed
against each other? Suppose several states punish severely a crime
that the Court views as trivial or petty? I can see no limiting
principle in the Court's holding.

															There is a real risk that this holding will flood the appellate
courts with cases in which equally arbitrary lines must be drawn.
It is no answer to say that appellate courts must review criminal
convictions in any event; up to now, that review has been on the
validity of the judgment, not the sentence. The vast majority of
criminal cases are disposed of by pleas of guilty, [ Footnote 2/7 ] and ordinarily there is no appellate
review in such cases. To require appellate review of all sentences
of imprisonment -- as the Court's opinion necessarily does -- will
"administer the coup de grace to the courts of appeals as
we know them." H. Friendly, Federal Jurisdiction: A General View 36
(1973). This is judicial usurpation with a vengeance; Congress has
pondered for decades the concept of appellate review of sentences,
and has hesitated to act. III Even if I agreed that the Eighth Amendment prohibits
imprisonment "disproportionate to the crime committed," ante at 463 U. S. 284 ,
I reject the notion that respondent's sentence is disproportionate
to his crimes for, if we are to have a system of laws, not men, Rummel is controlling.

															The differences between this case and Rummel are
insubstantial. First, Rummel committed three truly nonviolent
felonies, while respondent, as noted at the outset, committed seven
felonies, four of which cannot fairly be characterized as
"nonviolent." At the very least, respondent's burglaries and his
third-offense drunken driving posed real risk of serious Page 463 U. S. 316 harm to others. It is sheer fortuity that the places respondent
burglarized were unoccupied and that he killed no pedestrians while
behind the wheel. What would have happened if a guard had been on
duty during the burglaries is a matter of speculation, but the
possibilities shatter the notion that respondent's crimes were
innocuous, inconsequential, minor, or "nonviolent." Four of
respondent's crimes, I repeat, had harsh potentialities for
violence. Respondent, far more than Rummel, has demonstrated his
inability to bring his conduct into conformity with the minimum
standards of civilized society. Clearly, this difference demolishes
any semblance of logic in the Court's conclusion that respondent's
sentence constitutes cruel and unusual punishment, although
Rummel's did not.

															The Court's opinion necessarily reduces to the proposition that
a sentence of life imprisonment with the possibility of
commutation, but without possibility of parole, is so much more
severe than a life sentence with the possibility of parole that one
is excessive while the other is not. This distinction does not
withstand scrutiny; a well-behaved "lifer" in respondent's position
is most unlikely to serve for life.

															It is inaccurate to say, as the Court does, ante at 463 U. S.
301 -302, that the Rummel holding relied on the
fact that Texas had a relatively liberal parole policy. In context,
it is clear that the Rummel Court's discussion of parole
merely illustrated the difficulty of comparing sentences between
different jurisdictions. 445 U.S. at 445 U. S.
280 -281. However, accepting the Court's characterization
of Rummel as accurate, the Court today misses the point.
Parole was relevant to an evaluation of Rummel's life sentence
because, in the "real world," he was unlikely to spend his entire
life behind bars. Only a fraction of "lifers" are not released
within a relatively few years. In Texas, the historical evidence
showed that a prisoner serving a life sentence could become
eligible for parole in as little as 12 years. In South Dakota, the
historical evidence shows that, since 1964, 22 life sentences have
been commuted to Page 463 U. S. 317 terms of years, while requests for commutation of 25 life
sentences were denied. And, of course, those requests for
commutation may be renewed.

															In short, there is a significant probability that respondent
will experience what so many "lifers" experience. Even assuming
that at the time of sentencing respondent was likely to spend more
time in prison than Rummel, [ Footnote
2/8 ] that marginal difference is surely supported by
respondent's greater demonstrated propensity for crime -- and for
more serious crime, at that. IV It is indeed a curious business for this Court to so far intrude
into the administration of criminal justice to say that a state
legislature is barred by the Constitution from identifying its
habitual criminals and removing them from the streets. Surely seven
felony convictions warrant the conclusion that respondent is
incorrigible. It is even more curious that the Court should brush
aside controlling precedents that are barely in the bound volumes
of the United States Reports. The Court would do well to heed
Justice Black's comments about judges overruling the considered
actions of legislatures under the guise of constitutional
interpretation:

															"Such unbounded authority in any group of politically appointed
or elected judges would unquestionably be sufficient to classify
our Nation as a government of men, not the government of laws of
which we boast. With a 'shock the conscience' test of
constitutionality, citizens Page 463 U. S. 318 must guess what is the law, guess what a majority of nine judges
will believe fair and reasonable. Such a test willfully throws away
the certainty and security that lies in a written constitution, one
that does not alter with a judge's health, belief, or his
politics." Boddie v. Connecticut, 401 U.
S. 371 , 401 U. S. 393 (1971) (dissenting).

															[ Footnote 2/1 ]

															Other authorities have shared this interpretation of Weems
v. United States. E.g., Packer, Making the Punishment
Fit the Crime, 77 Harv.L.Rev. 1071, 1075 (1964).

															[ Footnote 2/2 ]

															Although Rummel v. Estelle, 445 U.S. at 445 U. S. 274 ,
n. 11, conceded that

															"a proportionality principle [might] come into play . . . if a
legislature made overtime parking a felony punishable by life
imprisonment,"

															the majority has not suggested that respondent's crimes are
comparable to overtime parking. Respondent's seven felonies are far
more severe than Rummel's three.

															[ Footnote 2/3 ]

															Both Rummel and Hutto v. Davis leave open the
possibility that, in extraordinary cases -- such as a life sentence
for overtime parking -- it might be permissible for a court to
decide whether the sentence is grossly disproportionate to the
crime. I agree that the Cruel and Unusual Punishments Clause might
apply to those rare cases where reasonable men cannot differ as to
the inappropriateness of a punishment. In all other cases, we
should defer to the legislature's line-drawing. However, the Court
does not contend that this is such an extraordinary case that
reasonable men could not differ about the appropriateness of this
punishment.

															[ Footnote 2/4 ]

															I do not read the Court's opinion as arguing that respondent's
sentence of life imprisonment without possibility of parole is so
different from Rummel's sentence of life imprisonment with the
possibility of parole as to permit it to apply the proportionality
review used in the death penalty cases, e.g., Coker v.
Georgia, 433 U. S. 584 (1977), to the former although not the latter. Nor would such an
argument be tenable. As was noted in Woodson v. North
Carolina, 428 U. S. 280 , 428 U. S. 305 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.):

															"[T]he penalty of death is qualitatively different from a
sentence of imprisonment, however long. Death, in its finality,
differs more from life imprisonment than a 100-year prison term
differs from one of only a year or two. Because of that qualitative
difference, there is a corresponding difference in the need for
reliability in the determination that death is the appropriate
punishment in a specific case."

															The greater need for reliability in death penalty cases cannot
support a distinction between a sentence of life imprisonment with
possibility of parole and a sentence of life imprisonment without
possibility of parole, especially when an executive commutation is
permitted as in South Dakota.

															[ Footnote 2/5 ] Compare, e.g., Granucci, "Nor Cruel and Unusual
Punishments Inflicted:" The Original Meaning, 57 Calif.L.Rev. 839
(1969); Schwartz, Eighth Amendment Proportionality Analysis and the
Compelling Case of William Rummel, 71 J. Crim.L. & Criminology
378, 379-382 (1980); Katkin, Habitual Offender Laws: A
Reconsideration, 21 Buffalo L.Rev. 99, 115 (1971), with,
e.g., Wheeler, Toward a Theory of Limited Punishment: An
Examination of the Eighth Amendment, 24 Stan.L.Rev. 838, 853-855
(1972); Comment, The Eighth Amendment, Beccaria, and the
Enlightenment: An Historical Justification for the Weems v.
United States Excessive Punishment Doctrine, 24 Buffalo L.Rev.
783 (1975).

															[ Footnote 2/6 ]

															In 1892, the dissent in O'Neil v. Vermont, 144 U.
S. 323 , 144 U. S.
339 -340 (1892) (Field, J., dissenting), argued that the
Eighth Amendment

															"is directed . . . against all punishments which, by their
excessive length or severity, are greatly disproportioned to the
offenses charged."

															Before and after O'Neil, most authorities thought that
the Eighth Amendment reached only the mode of punishment, and not
the length of sentences. See, e.g., Note, 24 Harv.L.Rev.
54, 55 (1910). Even after Weems v. United States, 217 U. S. 349 , was
decided in 1910, it was thought unlikely that the Court would
extend proportionality analysis to cases involving solely sentences
of imprisonment. See Packer, supra, n. 1, at
1075. Until today, not a single case of this Court applied the
"excessive punishment" doctrine of Weems to a punishment
consisting solely of a sentence of imprisonment, despite numerous
opportunities to do so. E.g., Hutto v. Davis, 454 U.
S. 370 (1982); Rummel v. Estelle, 445 U.
S. 263 (1980); Badders v. United States, 240 U. S. 391 (1916); Graham v. West Virginia, 224 U.
S. 616 (1912).

															[ Footnote 2/7 ]

															In 1972, nearly 90% of the convictions in federal courts
followed pleas of guilty or nolo contendere. H. Friendly,
Federal Jurisdiction: A General View 36 (1973).

															[ Footnote 2/8 ]

															No one will ever know if or when Rummel would have been released
on parole, since he was released in connection with a separate
federal habeas corpus proceeding in 1980. On October 3, 1980, a
Federal District Court granted Rummel's petition for a writ of
habeas corpus on the grounds of ineffective assistance of counsel. Rummel v. Estelle, 498 F.
Supp. 793 (WD Tex.1980). Rummel then pleaded guilty to theft by
false pretenses and was sentenced to time served under the terms of
a plea-bargaining agreement. Two-Bit Lifer Finally Freed -- After
Pleading Guilty, Chicago Tribune, Nov. 15, 1980, p. 2, col. 3.

Summary:
The Supreme Court case Solem v. Helm (1983) dealt with the Eighth Amendment's prohibition of cruel and unusual punishments, specifically addressing the principle of proportionality in sentencing.

Respondent was convicted of a crime that typically carried a maximum sentence of five years' imprisonment and a $5,000 fine. However, due to his prior felony convictions, he was sentenced to life imprisonment without parole under South Dakota's recidivist statute. The Court analyzed the proportionality of the sentence, considering the gravity of the offense and the harshness of the penalty, as well as sentences for similar crimes in South Dakota and other jurisdictions.

The Court held that the respondent's sentence was disproportionate to his crime and violated the Eighth Amendment. This decision reaffirmed the principle that the Eighth Amendment prohibits not only barbaric punishments but also sentences that are grossly disproportionate to the crime committed. The Court's ruling provided guidance on conducting proportionality analysis and emphasized the importance of objective criteria in such assessments.