The Supreme Court/The Supreme Court.iso/pc/ascii/1989/89_7272/89_7272.d1

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Subject: 89-7272 -- DISSENT, HARMELIN v. MICHIGAN




    SUPREME COURT OF THE UNITED STATES


No. 89-7272



RONALD ALLEN HARMELIN, PETITIONER
v. MICHIGAN


on writ of certiorari to the court of appeals of michigan

[June 27, 1991]



    Justice White, with whom Justice Blackmun and Justice Stevens join,
dissenting.
    The Eighth Amendment provides that "[e]xcessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted."  Justice Scalia concludes that "the Eighth Amendment contains
no proportionality guarantee."  Ante, at 6.  Accordingly, he says Solem v.
Helm, 463 U. S. 277 (1983), "was simply wrong" in holding otherwise, as
would be the Court's other cases interpreting the Amendment to contain a
proportionality principle.  Justice Kennedy, on the other hand, asserts
that the Eighth Amendment's proportionality principle is so "narrow," ante,
at 1, that Solem's analysis should be reduced from three factors to one.
With all due respect, I dissent.
    The language of the Amendment does not refer to proportionality in so
many words, but it does forbid "excessive" fines, a restraint that suggests
that a determination of excessiveness should be based at least in part on
whether the fine imposed is disproportionate to the crime committed.  Nor
would it be unreasonable to conclude that it would be both cruel and
unusual to punish overtime parking by life imprisonment, see Rummel v.
Estelle, 445 U. S. 263, 274, n. 11 (1980), or, more generally, to impose
any punishment that is grossly disproportionate to the offense for which
the defendant has been convicted.  Thus, Benjamin Oliver, cited by Justice
Scalia, ante, at 21, observed with respect to the Eighth Amendment:
    "No express restriction is laid in the constitution, upon the power of
imprisoning for crimes.  But, as it is forbidden to demand unreasonable
bail, which merely exposes the individual concerned, to imprisonment in
case he cannot procure it; as it is forbidden to impose unreasonable fines,
on account of the difficulty the person fined would have of paying them,
the default of which would be punished by imprisonment only, it would seem,
that imprisonment for an unreasonable length of time, is also contrary to
the spirit of the constitution.  Thus in cases where the courts have a
discretionary power to fine and imprison, shall it be supposed, that the
power to fine is restrained, but the power to imprison is wholly
unrestricted by it?  In the absence of all express regu lations on the
subject, it would surely be absurd to imprison an individual for a term of
years, for some in considerable offence, and consequently it would seem,
that a law imposing so severe a punishment must be contrary to the
intention of the framers of the constitution."  B. Oliver, The Rights of an
American Citizen 185-186 (1832).


    Justice Scalia concedes that the language of the Amendment bears such a
construction.  See ante, at 16.  His reasons for claiming that it should
not be so construed are weak.  First, he asserts that if proportionality
was an aspect of the restraint, it could have been said more clearly -- as
plain-talking Americans would have expressed themselves (as for instance, I
suppose, in the Fifth Amendment's Due Process Clause or the Fourth
Amendment's prohibition against unreasonable searches and seizures).
    Second, Justice Scalia claims that it would be difficult or impossible
to label as "unusual" any punishment imposed by the Federal Government,
which had just come into existence and had no track record with respect to
criminal law.  But the people of the new Nation had been living under the
criminal law regimes of the States, and there would have been no lack of
benchmarks for determining unusualness.  Furthermore, this argument would
deprive this part of the Amendment of any meaning at all.
    Third, Justice Scalia argues that all of the available evidence of the
day indicated that those who drafted and approved the Amendment "chose . .
. not to include within it the guarantee against disproportionate sentences
that some State Constitutions contained."  Ante, at 25.  Even if one were
to accept the argument that the First Congress did not have in mind the
proportionality issue, the evidence would hardly be strong enough to come
close to proving an affirmative decision against the proportionality
component.  Had there been an intention to exclude it from the reach of the
words that otherwise could reasonably be construed to include it, perhaps
as plain-speaking Americans, the Members of the First Congress would have
said so.  And who can say with confidence what the members of the state
ratifying conventions had in mind when they voted in favor of the
Amendment?  Surely, subsequent state court decisions do not answer that
question. {1}
    In any event, the Amendment as ratified contained the words "cruel and
unusual," and there can be no doubt that prior decisions of this Court have
construed these words to include a proportionality principle.  In 1910, in
the course of holding unconstitutional a sentence imposed by the Philippine
courts, the Court stated:
"Such penalties for such offenses amaze those who . . . believe that it is
a precept of justice that punishment for crime should be graduated and
proportioned to [the] offense.



[T]he inhibition [of the cruel and unusual punishments clause] was
directed, not only against punishments which inflict torture, `but against
all punishments which by their excessive length or severity are greatly
dispro portioned to the offenses charged.' "  Weems v. United States, 217
U. S. 349, 366-367, 371 (1910), quoting O'Neil v. Vermont, 144 U. S. 323,
339-340 (1892) (Field, J., dissenting.)


    That the punishment imposed in Weems was also unknown to Anglo-American
tradition -- "It has no fellow in American legislation," 217 U. S., at 377
-- was just another reason to set aside the sentence and did not in the
least detract from the holding with respect to proportionality, which, as
Gregg v. Georgia, 428 U. S. 153, 171-172 (1976), observed, was the focus of
the Court's holding.
    Robinson v. California, 370 U. S. 660 (1962), held for the first time
that the Eighth Amendment was applicable to punishment imposed by state
courts; it also held it to be cruel and unusual to impose even one day of
imprisonment for the status of drug addiction, id., at 667.  The plurality
opinion in Gregg, supra, at 173, observed that the Eighth Amendment's
proscription of cruel and unusual punishment is an evolving concept and
announced that punishment would violate the Amendment if it "involve[d] the
unnecessary and wanton infliction of pain" or if it was "grossly out of
proportion to the severity of the crime."  Under this test, the death
penalty was not cruel and unusual in all cases.  Following Gregg, Coker v.
Georgia, 433 U. S. 584, 592 (1977), held that the Amendment bars not only a
barbaric punishment but also a punishment that is excessive, i. e., a
punishment that "(1) makes no measurable contribution to acceptable goals
of punishment and hence is nothing more than the purposeless and needless
imposition of pain and suffering; or (2) is grossly out of proportion to
the severity of the crime."  We went on to hold that the punishment of
death for the crime of rape was unconstitutional for lack of
proportionality.  Ibid.  Similarly, in Enmund v. Florida, 458 U. S. 782
(1982), we invalidated a death sentence for felony murder, on disproportion
ality grounds, where there had been no proof of an intent to murder.
Finally, Solem v. Helm, 463 U. S. 277 (1983), invalidated a prison sentence
on the ground that it was too severe in relation to the crime that had been
committed.
    Not only is it undeniable that our cases have construed the Eighth
Amendment to embody a proportionality component, but it is also evident
that none of the Court's cases suggest that such a construction is
impermissible.  Indeed, Rummel v. Estelle, 445 U. S. 263 (1980), the
holding of which Justice Scalia does not question, itself recognized that
the Eighth Amendment contains a proportionality requirement, for it did not
question Coker and indicated that the proportionality principle would come
into play in some extreme, nonfelony cases.  Id., at 272, 274, and n. 11.
    If Justice Scalia really means what he says -- "the Eighth Amendment
contains no proportionality guarantee," ante, at 6, it is difficult to see
how any of the above holdings and declarations about the proportionality
requirement of the Amendment could survive.  Later in his opinion, however,
ante, at 34, Justice Scalia backtracks and appears to accept that the
Amendment does indeed insist on proportional punishments in a particular
class of cases, those that involve sentences of death.  His fallback
position is that outside the capital cases, proportionality review is not
required by the Amendment.  With the exception of capital cases, the
severity of the sentence for any crime is a matter that the Amendment
leaves to the discretion of legislators.  Any prison sentence, however
severe, for any crime, however petty, will be beyond review under the
Eighth Amendment.  This position restricts the reach of the Eighth
Amendment far more than did Rummel.  It also ignores the generality of the
Court's several pronouncements about the Eighth Amendment's proportionality
component.  And it fails to explain why the words "cruel and unusual"
include a proportionality requirement in some cases but not in others.
Surely, it is no explanation to say only that such a requirement in death
penalty cases is part of our capital punishment jurisprudence.  That is
true but the decisions requiring proportionality do so because of the
Eighth Amendment's prohibition against cruel and unusual punishments.  The
Court's capital punishment cases requiring proportionality reject Justice
Scalia's notion that the Amendment bars only cruel and unusual modes or
methods of punishment.  Under that view, capital punishment -- a mode of
punishment -- would either be completely barred or left to the discretion
of the legislature.  Yet neither is true.  The death penalty is appropriate
in some cases and not in others.  The same should be true of punishment by
imprisonment.
    What is more, the Court's jurisprudence concerning the scope of the
prohibition against cruel and unusual punishments has long understood the
limitations of a purely historical analysis.  See Trop v. Dulles, 356 U. S.
86, 100-101 (1958) (plurality opinion); Browning-Ferris Industries of
Vermont, Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 264, n. 4 (1989).
Thus, "this Court has `not confined the prohibition embodied in the Eighth
Amendment to "barbarous" methods that were generally outlawed in the 18th
century,' but instead has interpreted the Amendment `in a flexible and
dynamic manner.' "  Stanford v. Kentucky, 492 U. S. 361, 369 (1989),
quoting Gregg v. Georgia, 428 U. S., at 171 (opinion of Stewart, Powell,
and Stevens, JJ.).  In so doing, the Court has borne in mind Justice
McKenna's admonition in Weems v. United States, 217 U. S., at 373, that
"[t]ime works changes, brings into existence new conditions and purposes.
Therefore a principle to be vital must be capable of wider application than
the mischief which gave it birth.  This is peculiarly true of
constitutions."  See also Browning-Ferris, supra, at 273 (quoting Weems).
    The Court therefore has recognized that a punishment may violate the
Eighth Amendment if it is contrary to the "evolving standards of decency
that mark the progress of a maturing society."  Trop, supra, at 101.  See
Stanford, supra, at 369, quoting Trop.  In evaluating a punishment under
this test, "we have looked not to our own conceptions of decency, but to
those of modern American society as a whole" in determining what standards
have "evolved," Stanford, supra, at 369, and thus have focused not on "the
subjective views of individual Justices," but on "objective factors to the
maximum possible extent," Coker, supra, at 592 (plurality opinion).  It is
this type of objective factor which forms the basis for the tripartite
proportionality analysis set forth in Solem.
    Contrary to Justice Scalia's suggestion, ante, at 25-26, the Solem
analysis has worked well in practice.  Courts appear to have had little
difficulty applying the analysis to a given sentence, and application of
the test by numerous state and federal appellate courts has resulted in a
mere handful of sentences being declared unconstitutional. {2}  Thus, it is
clear that reviewing courts have not baldly substituted their own
subjective moral values for those of the legislature.  Instead, courts have
demonstrated that they are "capable of applying the Eighth Amendment to
disproportionate noncapital sentences with a high degree of sensitivity to
principles of federalism and state autonomy."  {3}  Rummel, 445 U. S., at
306 (Powell, J., dissenting).  Solem is wholly consistent with this
approach, and when properly applied, its analysis affords "substantial
deference to the broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes, as well as to
the discretion that trial courts possess in sentencing convicted
criminals," 463 U. S., at 290 (footnote omitted), and will only rarely
result in a sentence failing constitutional muster.  The fact that this is
one of those rare instances is no reason to abandon the analysis.
    Nor does the fact that this case involves judicial review of a
legislatively mandated sentence, rather than a sentence imposed in the
exercise of judicial discretion, warrant abandonment of Solem.  First, the
quote from Solem in the preceding paragraph makes clear that the analysis
is intended to apply to both types of sentences.  Second, contrary to
Justice Scalia's suggestion, ante, at 16, the fact that a punishment has
been legislatively mandated does not automatically render it "legal" or
"usual" in the constitutional sense.  Indeed, as noted above, if this were
the case, then the prohibition against cruel and unusual punishments would
be devoid of any meaning.  He asserts that when "[w]renched out of its
common-law context, and applied to the actions of a legislature, the word
`unusual' could hardly mean `contrary to law,' " because "[t]here were no
common-law punishments in the federal system."  Id., at 15-16.  But if this
is so, then neither could the term "unusual" mean "contrary to custom," for
until Congress passed the first penal law, there were no "customary"
federal punishments either.  Moreover, the suggestion that a legislatively
mandated punishment is necessarily "legal" is the antithesis of the
principles established in Marbury v. Madison, 1 Cranch 137 (1803), for
"[i]t is emphatically the province and duty of the judicial department to
say what the law is," id., at 177, and to determine whether a legislative
enactment is consistent with the Constitution.  This Court's decision in
Robinson v. California, 370 U. S. 660 (1962), in which the prohibition
against cruel and unusual punishments was made applicable to the States
through the Fourteenth Amendment, removed any doubt that it is as much our
duty to assess the constitutionality of punishments enacted by state
legislative bodies as it is our obligation to review congressional
enactments.  Indeed, the Court's prior decisions have recognized that
legislatively mandated sentences may violate the Eighth Amendment.  See
Rummel, supra, at 274, n. 11; Hutto v. Davis, 454 U. S. 370, 374, n. 3
(1982).  This Court has long scrutinized legislative enactments concerning
punishment without fear that it was unduly invading the legislative
prerogative of the States.  See, e. g., Coker v. Georgia, 433 U. S. 584
(1977); Enmund v. Florida, 458 U. S. 782 (1982).  That such scrutiny
requires sensitivity to federalism concerns and involves analysis that may
at times be difficult affords no justification for this Court's abrogation
of its responsibility to uphold constitutional principles.
    Two dangers lurk in Justice Scalia's analysis.  First, he provides no
mechanism for addressing a situation such as that proposed in Rummel, in
which a legislature makes overtime parking a felony punishable by life
imprisonment.  He concedes that "one can imagine extreme examples" --
perhaps such as the one described in Rummel -- "that no rational person, in
no time or place, could accept," but attempts to offer reassurance by
claiming that "for the same reason these examples are easy to decide, they
are certain never to occur."  Ante, at 25-26.  This is cold comfort indeed,
for absent a proportionality guarantee, there would be no basis for
deciding such cases should they arise.
    Second, as I have indicated, Justice Scalia's position that the Eighth
Amendment addresses only modes or methods of punishment is quite
inconsistent with our capital punishment cases, which do not outlaw death
as a mode or method of punishment, but instead put limits on its appli
cation.  If the concept of proportionality is downgraded in the Eighth
Amendment calculus, much of this Court's capital penalty jurisprudence will
rest on quicksand.
    While Justice Scalia seeks to deliver a swift death sentence to Solem,
Justice Kennedy prefers to eviscerate it, leaving only an empty shell.  The
analysis Justice Kennedy proffers is contradicted by the language of Solem
itself and by our other cases interpreting the Eighth Amendment.
    In Solem, the Court identified three major factors to consider in
assessing whether a punishment violates the Eighth Amendment: "the gravity
of the offense and the harshness of the penalty," 463 U. S., at 290-291;
"the sentences imposed on other criminals in the same jurisdiction," id.,
at 291; and "the sentences imposed for commission of the same crime in
other jurisdictions," id., at 291-292.  Justice Kennedy, however, maintains
that "one factor may be sufficient to determine the constitutionality of a
particular sentence," and that there is no need to consider the second and
third factors unless "a threshold comparison of the crime committed and the
sentence imposed leads to an inference of gross dis proportionality."
Ante, at 9.  Solem is directly to the contrary, for there the Court made
clear that "no one factor will be dispositive in a given case," and "no
single criterion can identify when a sentence is so grossly
disproportionate that it violates the Eighth Amendment," "[b]ut a
combination of objective factors can make such analysis possible."  463 U.
S., at 291, n. 17.
    Moreover, as Justice Kennedy concedes, see ante, at 9-10, the use of an
intra- and inter-jurisdictional comparison of punishments and crimes has
long been an integral part of our Eighth Amendment jurisprudence.  Numerous
cases have recognized that a proper proportionality analysis must include
the consideration of such objective factors as "the historical development
of the punishment at issue, legislative judgments, international opinion,
and the sentencing decisions juries have made."  Enmund, supra, at 788.
See also Stanford, 492 U. S., at 369-371; McCleskey v. Kemp, 481 U. S. 279,
300 (1987).
    Thus, in Weems, 217 U. S., at 380-381, the Court noted the great
disparity between the crime at issue and those within the same jurisdiction
for which less severe punishments were imposed.  In Trop, 356 U. S., at
102-103, the Court surveyed international law before determining that
forfeiture of citizenship as a punishment for wartime desertion violated
the Eighth Amendment.  In Coker v. Georgia, 433 U. S. 584 (1977), we sought
"guidance in history and from the objective evidence of the country's
present judgment concerning the acceptability of death as a penalty for
rape of an adult woman," id., at 593, and surveyed the laws of the States
before concluding that "[t]he current judgment with respect to the death
penalty for rape," though "not wholly unanimous among state legislatures, .
. . weigh[ed] very heavily on the side of rejecting capital punishment as a
suitable penalty," id., at 596.  And in Enmund, we again reviewed the laws
of the States before concluding that the death penalty is unconstitutional
when inflicted upon one who merely participates in a felony during which a
murder occurs.  458 U. S., at 797.  That in some of these cases the
comparisons were made after the Court had considered the severity of the
crime in no way suggests that this part of the analysis was any less
essential to an assessment of a given punishment's proportionality.
    Justice Kennedy's abandonment of the second and third factors set forth
in Solem makes any attempt at an objective proportionality analysis futile.
The first prong of Solem requires a court to consider two discrete factors
-- the gravity of the offense and the severity of the punishment.  A court
is not expected to consider the interaction of these two elements and
determine whether "the sentence imposed was grossly excessive punishment
for the crime committed."  See ante, at 10.  Were a court to attempt such
an assessment, it would have no basis for its determination that a sentence
was -- or was not -- disproportionate, other than the "subjective views of
individual [judges]," Coker, supra, at 592 (plurality opinion), which is
the very sort of analysis our Eighth Amendment jurisprudence has shunned.
Justice Kennedy asserts that "our decisions recognize that we lack clear
objective standards to distinguish between sentences for different terms of
years," citing Rummel and Solem as support.  Ante, at 5.  But Solem
recognized that

"[f]or sentences of imprisonment, the problem is not so much one of
ordering, but one of line-drawing.  It is clear that a 25-year sentence
generally is more severe than a 15-year sentence, but in most cases it
would be difficult to decide that the former violates the Eighth Amendment
while the latter does not.  Decisions of this kind, although troubling, are
not unique to this area.  The courts are constantly called upon to draw
similar lines in a variety of contexts."  463 U. S., at 294 (footnote
omitted).


The Court compared line-drawing in the Eighth Amendment context to that
regarding the Sixth Amendment right to a speedy trial and right to a jury
before concluding that "courts properly may look to the practices in other
jurisdictions in deciding where lines between sentences should be drawn."
Id., at 295.  Indeed, only when a comparison is made with penalties for
other crimes and in other jurisdictions can a court begin to make an
objective assessment about a given sentence's constitutional
proportionality, giving due deference to "public attitudes concerning a
particular sentence."  Coker, supra, at 592.
    Because there is no justification for overruling or limiting Solem, it
remains to apply that case's proportionality analysis to the sentence
imposed on petitioner. Application of the Solem factors to the statutorily
mandated punishment at issue here reveals that the punishment fails muster
under Solem and, consequently, under the Eighth Amendment to the
Constitution.
    Petitioner, a first-time offender, was convicted of possession of 672
grams of cocaine.  The statute under which he was convicted, Mich. Comp.
Laws MDRV 333.7403(2)(a)(i) (1980), provides that a person who knowingly or
intentionally possesses any of various narcotics, including cocaine,
"[w]hich is in an amount of 650 grams or more of any mixture containing
that substance is guilty of a felony and shall be imprisoned for life."  No
particular degree of drug purity is required for a conviction.  Other
statutes make clear that an individual convicted of possessing this
quantity of drugs is not eligible for parole.  See 15 791.233b[1](b),
791.234(4).  A related statute, MDRV 333.7401(2)(a)(i), which was enacted
at the same time as the statute under which petitioner was convicted,
mandates the same penalty of life imprisonment without possibility of
parole for someone who "manufacture[s], deliver[s], or possess[es] with
intent to manufacture or deliver," 650 grams or more of a narcotic mixture.
{4}  There is no room for judicial discretion in the imposition of the life
sentence upon conviction.  The asserted purpose of the legislative
enactment of these statutes was to " `stem drug traffic' " and reach "
`drug dealers.' "  See Brief for Respondent 7, quoting House Legislative
Analysis of Mich. House Bill 4190 of 1977 (May 17, 1978).
    The first Solem factor requires a reviewing court to assess the gravity
of the offense and the harshness of the penalty.  463 U. S., at 292.  The
mandatory sentence of life imprisonment without possibility of parole "is
the most severe punishment that the State could have imposed on any
criminal for any crime," id., at 297, for Michigan has no death penalty.
    Although these factors are "by no means exhaustive," id., at 294, in
evaluating the gravity of the offense, it is appropriate to consider "the
harm caused or threatened to the victim or society," based on such things
as the degree of violence involved in the crime and "[t]he absolute
magnitude of the crime," and "the culpability of the offender," including
the degree of requisite intent and the offender's motive in committing the
crime, id., at 292-293.
    Drugs are without doubt a serious societal problem.  To justify such a
harsh mandatory penalty as that imposed here, however, the offense should
be one which will always warrant that punishment.  Mere possession of drugs
-- even in such a large quantity -- is not so serious an offense that it
will always warrant, much less mandate, life imprisonment without
possibility of parole.  Unlike crimes directed against the persons and
property of others, possession of drugs affects the criminal who uses the
drugs most directly.  The ripple effect on society caused by possession of
drugs, through related crimes, lost productivity, health problems, and the
like, is often not the direct consequence of possession, but of the
resulting addiction, something which this Court held in Robinson v.
California, 370 U. S., at 660-667, cannot be made a crime.
    To be constitutionally proportionate, punishment must be tailored to a
defendant's personal responsibility and moral guilt.  See Enmund v.
Florida, 458 U. S., at 801.  Justice Kennedy attempts to justify the harsh
mandatory sentence imposed on petitioner by focusing on the subsidiary
effects of drug use, and thereby ignores this aspect of our Eighth
Amendment jurisprudence.  While the collateral consequences of drugs such
as cocaine are indisputably severe, they are not unlike those which flow
from the misuse of other, legal, substances.  For example, in considering
the effects of alcohol on society, the Court has stressed that "[n]o one
can seriously dispute the magnitude of the drunken driving problem or the
States' interest in eradicating it," Michigan Department of State Police v.
Sitz, 496 U. S. ---, --- (1990) (slip op., at 5), but at the same time has
recognized that the severity of the problem "cannot excuse the need for
scrupulous adherence to our constitutional principles," Grady v. Corbin,
495 U. S. ---, --- (1990) (slip op., at 15).  Thus, the Court has held that
a drunken driver who has been prosecuted for traffic offenses arising from
an accident cannot, consistent with the Double Jeopardy Clause,
subsequently be prosecuted for the death of the accident victim.  Ibid.
Likewise, the Court scrutinized closely a state program of vehicle
checkpoints designed to detect drunken drivers before holding that the
brief intrusion upon motorists is consistent with the Fourth Amendment.
Sitz, supra, at --- (slip op., at 5).  It is one thing to uphold a
checkpoint designed to detect drivers then under the influence of a drug
that creates a present risk that they will harm others.  It is quite
something else to uphold petitioner's sentence because of the collateral
consequences which might issue, however indirectly, from the drugs he
possessed.  Indeed, it is inconceivable that a State could rationally
choose to penalize one who possesses large quantities of alcohol in a
manner similar to that in which Michigan has chosen to punish petitioner
for cocaine possession, because of the tangential effects which might
ultimately be traced to the alcohol at issue.  "Unfortunately, grave evils
such as the narcotics traffic can too easily cause threats to our basic
liberties by making attractive the adoption of constitutionally forbidden
shortcuts that might suppress and blot out more quickly the unpopular and
dangerous conduct."  Turner v. United States, 396 U. S. 398, 427 (1970)
(Black, J., dissenting).  That is precisely the course Justice Kennedy
advocates here.
    The "absolute magnitude" of petitioner's crime is not exceptionally
serious.  Because possession is necessarily a lesser included offense of
possession with intent to distribute, it is odd to punish the former as
severely as the latter.  Cf. Solem, 463 U. S., at 293.  Nor is the
requisite intent for the crime sufficient to render it particularly grave.
To convict someone under the possession statute, it is only necessary to
prove that the defendant knowingly possessed a mixture containing narcotics
which weighs at least 650 grams.  There is no mens rea requirement of
intent to distribute the drugs, as there is in the parallel statute.
Indeed, the presence of a separate statute which reaches manufacture,
delivery, or possession with intent to do either, undermines the State's
position that the purpose of the possession statute was to reach drug
dealers. {5}  Although "[i]ntent to deliver can be inferred from the amount
of a controlled substance possessed by the accused," People v. Abrego, 72
Mich. App. 176, 181, 249 N. W. 2d 345, 347 (1976), the inference is one to
be drawn by the jury, see People v. Kirchoff, 74 Mich. App. 641, 647-649,
254 N. W. 2d 793, 796-797 (1977).  In addition, while there is usually a
pecuniary motive when someone possesses a drug with intent to deliver it,
such a motive need not exist in the case of mere possession.  Cf. Solem,
supra, at 293-294.  Finally, this statute applies equally to first-time
offenders, such as petitioner, and recidivists.  Consequently, the
particular concerns reflected in recidivist statutes such as those in
Rummel and Solem are not at issue here.
    There is an additional concern present here.  The State has conceded
that it chose not to prosecute Harmelin under the statute prohibiting
possession with intent to deliver, because it was "not necessary and not
prudent to make it more difficult for us to win a prosecution."  Tr. of
Oral Arg. 30-31.  The State thus aimed to avoid having to establish
Harmelin's intent to distribute by prosecuting him instead under the
possession statute. {6}  Because the statutory punishment for the two
crimes is the same, the State succeeded in punishing Harmelin as if he had
been convicted of the more serious crime without being put to the test of
proving his guilt on those charges.
    The second prong of the Solem analysis is an examination of "the
sentences imposed on other criminals in the same jurisdiction."  463 U. S.,
at 292.  As noted above, there is no death penalty in Michigan;
consequently, life without parole, the punishment mandated here, is the
harshest penalty available.  It is reserved for three crimes: first-degree
murder, see Mich. Comp. Laws MDRV 750.316 (1991); manufacture,
distribution, or possession with intent to manufacture or distribute 650
grams or more of narcotics; and possession of 650 grams or more of
narcotics.  Crimes directed against the persons and property of others --
such as second-degree murder, MDRV 750.317; rape, MDRV 750.520b; and armed
robbery, MDRV 750.529 -- do not carry such a harsh mandatory sentence,
although they do provide for the possibility of a life sentence in the
exercise of judicial discretion.  It is clear that petitioner "has been
treated in the same manner as, or more severely than, criminals who have
committed far more serious crimes."  463 U. S., at 299.
    The third factor set forth in Solem examines "the sentences imposed for
commission of the same crime in other jurisdictions."  Id., at 291-292.  No
other jurisdiction imposes a punishment nearly as severe as Michigan's for
possession of the amount of drugs at issue here.  Of the remaining 49
States, only Alabama provides for a mandatory sentence of life imprisonment
without possibility of parole for a first-time drug offender, and then only
when a defendant possesses ten kilograms or more of cocaine.  Ala. Code
MDRV 13A-12-231(2)(d) (Supp. 1990).  Possession of the amount of cocaine at
issue here would subject an Alabama defendant to a mandatory minimum
sentence of only five years in prison.  MDRV 13A-12231(2)(b). {7}  Even
under the Federal Sentencing Guidelines, with all relevant enhancements,
petitioner's sentence would barely exceed ten years.  See United States
Sentencing Commission Guidelines Manual, MDRV 2D1.1 (1990).  Thus, "[i]t
appears that [petitioner] was treated more severely than he would have been
in any other State."  Solem, supra, at 300.  Indeed, the fact that no other
jurisdiction provides such a severe, mandatory penalty for possession of
this quantity of drugs is enough to establish "the degree of national
consensus this Court has previously thought sufficient to label a
particular punishment cruel and unusual."  Stanford, 492 U. S., at 371.
Cf. Coker, 433 U. S., at 596; Ford v. Wainwright, 477 U. S. 399, 408
(1986).
    Application of Solem's proportionality analysis leaves no doubt that
the Michigan statute at issue fails constitutional muster. {8}  The
statutorily mandated penalty of life without possibility of parole for
possession of narcotics is unconsti tutionally disproportionate in that it
violates the Eighth Amendment's prohibition against cruel and unusual
punishment.  Consequently, I would reverse the decision of the Michigan
Court of Appeals.







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1
    As Justice Scalia notes, ante, at 6, the text of the Eighth Amendment
is taken almost verbatim from the English Declaration of Rights of 1689.
He argues that if the Amendment was intended to adopt whatever meaning the
Declaration was understood in England to have, the Amendment does not
contain a proportionality component because the Declaration did not include
the proportionality principle.  Justice Scalia labors to demonstrate as
much, but concedes that there are scholars who disagree and have the view
that the the Declaration forbade both illegal and disproportionate
punishments.  Ante, at 14-15.  One such scholar, after covering much the
same ground as does Justice Scalia, concluded that "[t]he English evidence
shows that the cruel and unusual punishments clause of the Bill of Rights
of 1689 was first, an objection to the imposition of punishments which were
unauthorized by statute and outside the jurisdiction of the sentencing
court, and second, a reiteration of the English policy against
disproportionate penalties."  Granucci, "Nor Cruel and Unusual Punishments
Inflicted:" The Original Meaning, 57 Calif. L. Rev. 839, 860 (1969).
Justice Scalia goes on to argue that whatever the Declaration meant to
Englishmen, the almost identical language of the Eighth Amendment should
not be interpreted to forbid excessive punishments.  As indicated in the
text, I disagree.

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

3
    Nor are appellate courts forced to expend undue resources to evaluate
prison sentences under Solem.  In each case cited by respondent in which an
appellate court had to review a sentence under Solem, the court quickly
disposed of the constitutional challenge.  See United States v. Sullivan,
895 F. 2d 1030, 1031-1032 (CA5), cert. denied, 498 U. S. --- (1990); United
States v. Benefield, 889 F. 2d 1061, 1063-1065 (CA11 1989); United States
v. Savage, 888 F. 2d 528 (CA7 1989), cert. denied, 495 U. S. --- (1990);
State v. Elbert, 125 N. H. 1, 15-16, 480 A. 2d 854, 862 (1984) (Souter,
J.).

4
    The two statutes also set forth penalties for those convicted based on
lesser quantities of drugs.  They provide for parallel penalties for all
amounts greater than 50 grams, but below that point the penalties under the
two statutes diverge.

5
    The Court of Appeals for the Sixth Circuit has applied the Solem
factors to uphold the mandatory life sentence imposed by the Michigan
statute concerning possession with intent to deliver 650 or more grams of
narcotics.  See Young v. Miller, 883 F. 2d 1276 (CA6 1989), cert. pending,
No. 89-6960 (Jan. 29, 1990).  In so doing, the court recognized that the
sentence was particularly harsh, especially in light of the lack of oppor
tunity for the exercise of judicial discretion, but found that it was not
so disproportionate to other sentences for drug trafficking as to violate
the Eighth Amendment.  Id., at 1284-1285.  Because the statute at issue
here concerns only drug possession, the Sixth Circuit's analysis has little
relevance.

6
    Both the State and Justice Kennedy, see ante, at 13, point to the fact
that the amount and purity of the drugs, and Harmelin's possession of a
beeper, coded phone book, and gun all were noted in the presentence report
and provided circumstantial evidence of an intent to distribute.  None of
this information, however, was relevant to a prosecution under the
possession statute.  Indeed, because the sentence is statutorily mandated
for mere possession, there was no reason for defense counsel to challenge
the presence of this information in the presentence report.  See Tr. of
Oral Arg. 10.  It would likewise be inappropriate to consider petitioner's
characteristics in assessing the constitutionality of the penalty.

7
    The Alabama statute is entitled "Trafficking in cannabis, cocaine,
etc.," and punishes "[a]ny person who knowingly sells, manufactures,
delivers, or brings into this state, or who is knowingly in actual or
constructive possession of" specified amounts of various drugs.  See Ala.
Code 13A-12-231(1) (Supp. 1990).  The mandatory minimum sentences vary
depending on the particular drug involved and the amount of the drug at
issue.

8
    Because the statute under which petitioner was convinced is
unconstitutional under Solem, there is no need to reach his remaining
argument that imposition of a life sentence without the possibility of
parole necessitates the sort of individualized sentencing determination
heretofore reserved for defendants subject to the death penalty.