Rummel v. Estelle

Mr. Justice Stewart,

concurring.

I am moved to repeat the substance of what I had to say on another occasion about the recidivist legislation of Texas:

“If the Constitution gave me a roving commission to impose upon the criminal courts of Texas my own notions of enlightened policy, I would not join the Court’s opinion. For it is clear to me that the recidivist procédures adopted in recent years by many other States . . . are far superior to those utilized [here]. But the question for decision is not whether we applaud or even whether we personally approve the procedures followed in [this case]. The question is whether those procedures fall below the minimum level the [Constitution] will tolerate. Upon that question I am constrained to join the opinion and judgment of the Court.” Spencer v. Texas, 385 U. S. 554, 569 (concurring opinion).

Mr. Justice Powell,

with whom Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Stevens join,

dissenting.

The question in this case is whether petitioner was subjected to cruel and unusual punishment in contravention of the Eighth Amendment, made applicable to the States by the Fourteenth Amendment, when he received a mandatory life sentence upon his conviction for a third property-related *286 felony. Today, the Court holds that petitioner has not been punished unconstitutionally. I dissent.

I

The facts are simply stated. In 1964, petitioner was convicted for the felony of presenting a credit card with intent to defraud another of approximately $80. In 1969, he was convicted for the felony of passing a forged check with a face value of $28.36. In 1973, petitioner accepted payment in return for his promise to repair an air conditioner. The air conditioner was never repaired, and petitioner was indicted for the felony offense of obtaining $120.75 under false pretenses. He was also charged with being a habitual offender. The Texas habitual offender statute provides a mandatory life sentence for any person convicted of three felonies. See Tex. Penal Code Ann., Art. 63 (Vernon 1925), as amended and re-codified, Tex. Penal Code Ann. § 12.42 (d) (1974). Petitioner was convicted of the third felony and, after the State proved the existence of the two earlier felony convictions, was sentenced to mandatory life imprisonment.

After exhausting state remedies, petitioner sought a writ of habeas corpus in the Federal District Court for the Western District of Texas. Petitioner contended that his sentence constituted cruel and unusual punishment in violation of the Eighth Amendment. Petitioner did not suggest that the method of punishment — life imprisonment — was constitutionally invalid. Rather, he argued that the punishment was unconstitutional because it was disproportionate to the severity of the three felonies. A panel of the Court of Appeals for the Fifth Circuit accepted petitioner’s view, 568 F. 2d 1193 (1978), but the court en banc vacated that decision and affirmed the District Court’s denial of the writ of habeas corpus. 587 F. 2d 651 (1979).

This Court today affirms the Fifth Circuit’s decision. I dissent because I believe that (i) the penalty for a noncapital offense may be unconstitutionally disproportionate, (ii) the *287 possibility of parole should not be considered in assessing the nature of the punishment, (iii) a mandatory life sentence is grossly disproportionate as applied to petitioner, and (iv) the conclusion that this petitioner has suffered a violation of his Eighth Amendment rights is compatible with principles of judicial restraint and federalism.

II

A

The Eighth Amendment prohibits “cruel and unusual punishments.” That language came from Art, I, § 9, of the Virginia Declaration of Rights, which provided that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The words of ..the Virginia Declaration were taken from the English Bill of Rights of 1689. See Granucci, “Nor Cruel and Unusual Punishments Inflicted”: The Original Meaning, 57 Calif. L. Rev. 839 , 840 (1969).

Although the legislative history of the Eighth Amendment is not extensive, we can be certain that the Framers intended to proscribe inhumane methods of punishment. See Furman v. Georgia, 408 U. S. 238, 319-322 (1972) (Marshall, J., concurring); Granucci, supra, at 839-842. When the Virginia delegates met to consider the Federal Constitution, for example, Patrick Henry specifically noted the absence of the provisions contained within the Virginia Declaration. Henry feared that without a “cruel and unusual punishments” clause, Congress “may introduce the practice ... of torturing, to extort a confession of the crime.” 1 Indeed, during debate in the.First Congress on the adoption of the Bill of Rights, one Congressman objected to adoption of the Eighth Amendment precisely because “villains often deserve whipping, and perhaps having their ears cut off.” 2

*288 In two 19th-century cases, the Court considered constitutional challenges to forms of capital punishment. In Wilkerson v. Utah, 99 U. S. 130, 135 (1879), the Court held that death by shooting did not constitute cruel and unusual punishment. The Court emphasized, however, that torturous methods of execution, such as burning a live offender, would violate the Eighth Amendment. In re Kemmler, 136 U. S. 436 (1890), provided the Court with its second opportunity to review methods of carrying out a death penalty. That case involved a constitutional challenge to New York’s use of electrocution. Although the Court did not apply the Eighth Amendment to state action, it did conclude that electrocution would not deprive the petitioner of due process of law. See also Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 464 (1947).

B

The scope of the Cruel and Unusual Punishments Clause extends not only to barbarous methods of punishment, but also to punishments that are grossly disproportionate. Dis-proportionality analysis measures the relationship between the nature and number of offenses committed and the severity of the punishment inflicted upon the offender. The inquiry focuses on whether a person deserves such punishment, not simply on whether punishment would serve a utilitarian goal. A statute that levied a mandatory life sentence for overtime parking might well deter vehicular lawlessness, but it would offend our felt sense of justice. The Court concedes today that the principle of disproportionality plays a role in the review of sentences imposing the death penalty, but suggests that the principle may be less applicable when a noncapital sentence is challenged. Such a limitation finds no support in the history of Eighth Amendment jurisprudence.

The principle of disproportionality is rooted deeply in English constitutional law. The Magna Carta of 1215 insured that “[a] free man shall not be [fined] for a trivial offence, *289 except in accordance with the degree of the offence; and for a serious offence he shall be [fined] according to its gravity.” 3 By 1400, the English common law had embraced the principle, not always followed in practice, that punishment should not be excessive either in severity or length. 4 One commentator’s survey of English law demonstrates that the “cruel and unusual punishments” clause of the English 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, supra, at 860. See Gregg v. Georgia, 428 U. S. 153, 169 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).

In Weems v. United States, 217 U. S. 349 (1910), a public official convicted for- falsifying a public record claimed that he suffered cruel and unusual punishment when he was sentenced to serve 15 years’ imprisonment in hard labor with chains. 5 The sentence also subjected Weems to loss of civil rights and perpetual surveillance after his release. This Court agreed that the punishment was cruel and unusual. The Court was attentive to the methods of the punishment, id., at 363-364 , but its conclusion did not rest solely upon the nature of punishment. The Court relied explicitly upon the *290 relationship between the crime committed and the punishment imposed:

“Such penalties for such offenses amaze those who have formed their conception of the relation of a state to even its offending citizens from the practice of the American commonwealths, and believe that it is a precept of justice that punishment for crime should be graduated and proportioned to offense.” Id., at 366-367 .

In both capital and noncapital cases this Court has recognized that the decision in Weems v. United States “proscribes punishment grossly disproportionate to the severity of the crime.” Ingraham v. Wright, 430 U. S. 651, 667 (1077); see Hutto v. Finney, 437 U. S. 678, 685 (1978); Coker v. Georgia, 433 U. S. 584, 592 (1977) (opinion of White, J.); Gregg v. Georgia, supra, at 171 (opinion of Stewart, Powell, and Stevens, JJ.); Furman v. Georgia, 408 U. S., at 325 (Marshall, J., concurring). 6

In order to resolve the constitutional issue, the Weems Court measured the relationship between the punishment and the offense. The Court noted that Weems had been punished more severely than persons in the same jurisdiction who committed more serious crimes, or persons who committed a similar crime in other American jurisdictions. 217 U. S., at 381-382 . 7

*291 Robinson v. California, 370 U. S. 660, 667 (1962), established that the Cruel and Unusual Punishments Clause applies to the States through the operation of the Fourteenth Amendment. The Court held that imprisonment for the crime of being a drug addict was cruel and unusual. The Court based its holding not upon the method of punishment, but on the nature of the “crime.” Because drug addiction is an illness which may be contracted involuntarily, the Court said that “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. 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.

In Furman v. Georgia, supra, the Court held that the death penalty may constitute cruel and unusual punishment in some circumstances. The special relevance of Furman to this case lies in the general acceptance by Members of the Court of two basic principles. First, the Eighth Amendment prohibits grossly excessive punishment. 8 Second, the scope of *292 the Eighth Amendment is to be measured by “evolving standards of decency.” See Trop v. Dulles, 356 U. S. 86, 101 (1958) (opinion of Warren, C. J.). 9

In Coker v. Georgia, supra, this Court held that rape of an adult woman may not be punished by the death penalty. The plurality opinion of Mr. Justice White stated that a punishment is unconstitutionally excessive “if it (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.” Id., at 592. 10 The plurality concluded that the death penalty was a grossly disproportionate punishment for the crime of rape. The plurality recognized that “Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent.” Ibid. To this end, the plurality examined the nature of the crime and attitudes of state legislatures and sentencing juries toward use of the death penalty in rape cases. In a separate opinion, I concurred in the plurality’s reasoning that death ordinarily is disproportionate punishment for the crime of raping an adult woman. Id., at 601. Nothing in the Coker analysis suggests that principles of disproportionality are applicable only *293 to capital cases. Indeed, the questions posed in Coker and this case are the same: whether a punishment that can be imposed for one offense is grossly disproportionate when imposed for another.

In sum, a few basic principles emerge from the history of the Eighth Amendment. Both barbarous forms of punishment and grossly excessive punishments are cruel and unusual. A sentence may be excessive if it serves no acceptable social purpose, or is grossly disproportionate to the seriousness of the crime. The principle of disproportionality has been acknowledged to apply to both capital and noncapital sentences.

Ill

Under Texas law, petitioner has been sentenced to a mandatory life sentence. Even so, the Court of Appeals rejected the petitioner’s Eighth Amendment claim primarily because it concluded that the petitioner probably would not serve a life sentence. 587 P 2d, at 659 (en banc). In view of good-time credits available under the Texas system, the court concluded that Hummel might serve no more than 10 years. Ibid. Thus, the Court of Appeals equated petitioner’s sentence to 10 years of imprisonment without the possibility of parole. Id., at 660.

It is true that imposition in Texas of a mandatory life sentence does not necessarily mean that petitioner will spend the. rest of his life behind prison walls. If petitioner attains sufficient good-time credits, he may be eligible for parole within 10 or 12 years after he begins serving his life sentence. But petitioner will have no right to early release; he will merely be eligible for parole. And parole is simply an act of executive grace.

Last Term in Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979), we held that a criminal conviction extinguishes whatever liberty interest a prisoner has in securing freedom before the end of his lawful sentence. The Court stated unequivocally that a convicted person has “no constitutional or *294 inherent right ... to be conditionally released before the expiration of a valid sentence.” Id., at 7 . Of course, a State may create legitimate expectations that are entitled to procedural protection under the Due Process Clause of.the Fourteenth Amendment, but Texas has not chosen to create a cognizable interest in parole. The Court of Appeals for the Fifth Circuit has held that a Texas prisoner has no constitutionally enforceable interest in being freed before the expiration of his sentence. See Johnson v. Wells, 566 F. 2d 1016, 1018 (1978); Craft v. Texas Board of Pardons and Paroles, 550 F. 2d 1054, 1056 (1977).

A holding that the possibility of parole discounts a prisoner’s sentence for the purposes of the Eighth Amendment would be cruelly ironic. The combined effect of our holdings under the Due Process Clause of the Fourteenth Amendment and the Eighth Amendment would allow a State to defend an Eighth Amendment claim by contending that parole is probable even though the prisoner cannot enforce that expectation. Such an approach is inconsistent with the Eighth Amendment. The Court has never before failed to examine a prisoner’s Eighth Amendment claim because of the speculation that he might be pardoned before the sentence was carried out.

Recent events in Texas demonstrate that parole remains a matter of executive grace. In June 1979, the Governor of Texas refused to grant parole to 79% of the state prisoners whom the parole board recommended for release. 11 The State’s chief executive acted well within his rights in declining to follow the board, but his actions emphasize the speculative nature of the Court of Appeals’ reasoning. As this case comes to us, petitioner has been deprived by operation of state law of his right to freedom from imprisonment for the rest of his life. We should judge the case accordingly.

*295 IV

The Eighth Amendment commands this Court to enforce the constitutional limitation of the Cruel and Unusual Punishments Clause. In discharging this responsibility, we should minimize the risk of constitutionalizing the personal predilictions of federal judges by relying upon certain objective factors. Among these are (i) the nature of the offense, see Coker v. Georgia, 433 U. S., at 598 ; id., at 603 (Powell, J:, concurring in judgment in part and dissenting in part); (ii) the sentence imposed for commission of the same crime in other jurisdictions, see id., at 598-594 ; Gregg v. Georgia, 428 U. S., at 179-180 ; Weems v. United States, 217 U. S., at 380 ; cf. Trop v. Dulles, 356 U. S., at 102-103 ; and (iii) the sentence imposed upon other criminals in the same jurisdiction, Weems v. United States, supra, at 380-381 .

A

Each of the crimes that underlies the petitioner’s conviction as a habitual offender involves the use of fraud to obtain small sums of money ranging from $28.36 to $120.75. In total, the three crimes involved slightly less than $230. None of the crimes involved injury to one’s person, threat of injury to one’s person, violence, the threat of violence, or the use of a weapon. Nor does the commission of any such crimes ordinarily involve a threat of violent action against another person or his property. It is difficult to imagine felonies that pose less danger to the peace and good order of a civilized society than the three crimes committed by the petitioner. Indeed, the state legislature’s recodification of its criminal law supports this conclusion. Since the petitioner was convicted as a habitual offender, the State has reclassified his third offense, theft by false pretext, as a misdemeanor. Tex. Penal Code Ann. §31.03 (d)(3) (Supp. 1980). 12

*296 B

Apparently, only 12 States have ever enacted habitual offender statutes imposing a mandatory life sentence for the commission of two or three nonviolent felonies and only 3, Texas, Washington, and West Virginia, have retained such a statute. 13 Thus, three-fourths of the States that experimented *297 with the Texas scheme appear to have decided that the imposition of a mandatory life sentence upon some persons who have committed three felonies represents excess punishment. Kentucky, for example, replaced the mandatory life sentence with a more flexible scheme “because of a judgment that under some circumstances life imprisonment for an habitual criminal is not justified. An example would be an offender who has committed three Class D felonies, none involving injury to person.” . Commentary following Criminal Law of Kentucky Annotated, Penal Code § 532.080, p. 790 (1978). The State of Kansas abolished its statute mandating a life sentence for the commission of three felonies after a state legislative commission concluded that “[t]he legislative policy as expressed in the habitual criminal law bears no particular resemblance to the enforcement policy of prosecutors and judges.” Kansas Legislative Council, The Operation of the Kansas Habitual Criminal Law, Pub. No. 47, p. 4 (1936). In the eight years following enactment of the Kansas statute, only 96 of the 733 defendants who committed their third felony were sentenced to life imprisonment. Id., at 32-33. This statistic strongly supports the belief that prosecutors and judges thought the habitual offender statute too severe. 14 In Wash *298 ington, which retains the Texas rule, the State Supreme Court has suggested that application of its statute to persons like the petitioner might constitute cruel and unusual punishment. See State v. Lee, 87 Wash. 2d 932, 937, n. 4 , 558 P. 2d 236, 240, n. 4 (1976).

More than three-quarters of American jurisdictions have never adopted a habitual offender statute that would commit the petitioner to mandatory life imprisonment. The jurisdictions that currently employ habitual offender statutes either (i) require the commission of more than three offenses, 15 (ii) require the commission of at least one violent crime, 16 (iii) limit a mandatory penalty to less than life, 17 or (iv) grant discretion to the sentencing authority. 18 In none of the *299 jurisdictions could the petitioner have received a mandatory life sentence merely upon the showing that he committed three nonviolent property-related offenses. 19

The federal habitual offender statute also differs materially from the Texas statute. Title 18 U. S. C. § 3575 provides increased sentences for “dangerous special offenders” who have been convicted of a felony. A defendant is a “dangerous special offender” if he has committed two or more previous felonies, one of them within the last five years, if the current felony arose from a pattern of conduct “which constituted a substantial source of his income, and in which he manifested special skill or expertise,” or if the felony involved a criminal conspiracy in which the defendant played a supervisory role. § 3575 (e). Federal courts may sentence such persons “to imprisonment for an appropriate term not to exceed twenty-five years and not disproportionate in severity to the maximum term otherwise authorized by law for such felony.” *300 § 3575 (b). 20 Thus, Congress and an overwhelming number of state legislatures have not adopted the Texas scheme. These legislative decisions lend credence to the view that a mandatory-life sentence for the commission of three nonviolent felonies is unconstitutionally disproportionate. 21

C

Finally, it is necessary to examine the punishment that Texas provides for other criminals. First and second offenders who commit more serious crimes than the petitioner may receive markedly less severe sentences. The only first-time offender subject to a mandatory life sentence is a person *301 convicted of capital murder. Tex. Penal Code §§ 12.31, 19.03 (1974). A person who commits a first-degree felony, including murder, aggravated kidnaping, or aggravated rape, may be imprisoned from 5 to 99 years. §§ 19.02, 21.03; 12.32 (1974 and Supp. 1980). Persons who commit a second-degree felony, including voluntary manslaughter, rape, or robbery, may be punished with a sentence of between 2 and 20 years. § 12.33 (1974). A person who commits a second felony is punished as if he had committed a felony of the next higher degree. §§ 12.42 (a)-(b) (1974). Thus, a person who rapes twice may receive a 5-year sentence. He also may, but need not, receive a sentence functionally equivalent to life imprisonment.

The State argues that these comparisons are not illuminating because a three-time recidivist may be sentenced more harshly than a first-time offender. Of course, the State may mandate extra punishment for a recidivist. See Oyler v. Boles, 368 U. S. 448 (1962). In Texas a person convicted twice of the unauthorized use of a vehicle receives a greater sentence than a person once convicted for that crime, but he does not receive a sentence as great as a person who rapes twice. Compare §§ 12.42 (a) and 31.07 with § 12.42 (b) § 21.02 (1974 and Supp. 1980). Such a statutory scheme demonstrates that the state legislature has attempted to choose a punishment in proportion to the nature and number of offenses committed.

Texas recognizes when it sentences two-time offenders that the amount of punishment should vary with the severity of the offenses committed. But all three-time felons receive the same sentence. In my view, imposition of the same punishment upon persons who have committed completely different types of crimes raises serious doubts about the proportionality of the sentence applied to the least harmful offender. Of course, the Constitution does not bar mandatory sentences. I merely note that the operation of the Texas habitual offender system raises a further question about the extent to which a *302 mandatory life sentence, no doubt a suitable sentence for a person who has committed three violent crimes, also is a proportionate punishment for a person who has committed the three crimes involved in this case.

D

Examination of the objective factors traditionally employed by the Court to assess the proportionality of a sentence demonstrates that petitioner suffers a cruel and unusual punishment. Petitioner has been sentenced to the penultimate criminal penalty because he committed three offenses defrauding others of about $230. The nature of the crimes does not suggest that petitioner ever engaged in conduct that threatened another’s person, involved a trespass, or endangered in any way the peace of society. A comparison of the sentence petitioner received with the sentences provided by habitual offender statutes of other American jurisdictions demonstrates that only two other States authorize the same punishment. A comparison of petitioner to other criminals sentenced in Texas shows that he has been punished for three property-related offenses with a harsher sentence than that given first-time offenders or two-time offenders convicted of far more serious offenses. The Texas system assumes that all three-time offenders deserve the same punishment whether they commit three murders or cash three fraudulent checks.

The petitioner has committed criminal acts for which he may be punished. He has been given a sentence that is not inherently barbarous. But the relationship between the criminal acts and the sentence is grossly disproportionate. For having defrauded others of about $230, the State of Texas has deprived petitioner of his freedom for the rest of his life. The State has not attempted to justify the sentence as necessary either to deter other persons or to isolate a potentially violent individual. Nor has petitioner’s status as a habitual offender been shown to justify a mandatory life sentence. My view, informed by examination of the “objective indicia *303 that reflect the public attitude toward a given sanction,” Gregg v. Georgia, 428 U. S., at 173 , is that this punishment violates the principle of proportionality contained within the Cruel and Unusual Punishments Clause.

V

The Court today agrees with the State’s arguments that a decision in petitioner’s favor would violate principles of federalism and, because of-difficulty in formulating standards-to guide the decision of the federal courts, would lead, to excessive interference with state sentencing decisions. Neither contention is convincing.

Each State has sovereign responsibilities to promulgate and enforce its criminal law. In our federal system we should never forget that the Constitution “recognizes and preserves the autonomy and independence of the States — independence in their legislative and independence in their judicial departments.” Erie R. Co. v. Tompkins, 304 U. S. 64, 78-79 (1938), quoting Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, 401 (1893) (Field, J., dissenting). But even as the Constitution recognizes a sphere of state activity free from federal interference, it explicitly compels the States to follow certain constitutional commands. When we apply the Cruel and Unusual Punishments Clause against the. States, we merely enforce an obligation that the Constitution has created. As Me. Justice Rehnquist has stated, “[c]ourts are exercising no more than the judicial function conferred upon them by Art. Ill of the Constitution when they assess, in a case before them, whether or not a particular legislative enactment is within the authority granted by the Constitution to the enacting body, and whether it runs afoul of some limitation placed by the Constitution on the authority of that body.” Furman v. Georgia, 408 U. S., at 466 (dissenting opinion). See Weems v. United States, 217 U. S., at 379 .

Because the State believes that the federal courts can formulate no practicable standard to identify grossly dispropor *304 tionate sentences, it fears that the courts would intervene into state criminal justice systems at will. Such a “floodgates” argument can be easy to make and difficult to rebut. But in this case we can identify and apply objective criteria that reflect constitutional standards of punishment and minimize the risk of judicial subjectivity. Moreover, we can rely upon the experience of the United States Court of Appeals for the Fourth Circuit in applying criteria similar to those that I believe should govern this case.

In 1974, the Fourth Circuit considered the claim of a West Virginia prisoner who alleged that the imposition of a mandatory life sentence for three nonviolent crimes violated the Eighth Amendment. In Hart v. Coiner, 483 F. 2d 136 (1973), cert. denied, 415 U. S. 983 (1974), the court held that the mandatory sentence was unconstitutional as applied to the prisoner. The court noted that none of the offenses involved violence or the danger of violence, that only a few States would apply such a sentence, and that West Virginia gave less severe sentences to first- and second-time offenders who committed more serious offenses. The holding in Hart v. Coiner is the holding that the State contends will undercut the ability, of the States to exercise independent sentencing authority. Yet the Fourth Circuit subsequently has found only twice that noncapital sentences violate the Eighth Amendment. In Davis v. Davis, 601 F. 2d 153 (1979) (en banc), the court held that a 40-year sentence for possession and distribution of less than nine ounces of marihuana was cruel and unusual. In Roberts v. Collins, 544 F. 2d 168 (1976), the court held that a person could not receive a longer sentence for a lesser included offense (assault) than he could have received for the greater offense (assault with intent to murder). 22

*305 More significant are those cases in which the Fourth Circuit held that the principles of Hart v. Coiner were inapplicable. In a case decided the same day as Hart v. Coiner , the Court of Appeals held that a 10-year sentence given for two obscene telephone calls did not violate the Cruel and Unusual Punishments Clause. The court stated that “[w]hatever may be our subjective view of the matter, we fail to discern here objective factors establishing disproportionality in violation of the eighth amendment.” Wood v. South Carolina, 483 F. 2d 149, 150 (1973). In Griffin v. Warden, 517 F. 2d 756 (1975), the court refused to hold that the West Virginia statute was unconstitutionally applied to a person who had been convicted of breaking and entering a gasoline and grocery store, burglary of a residence, and grand larceny. The court distinguished Hart v. Coiner on the ground that Griffin’s offenses “clearly involve the potentiality of violence and danger to life, as well as property.” 517 F. 2d, at 757 . Similarly, the Fourth Circuit turned aside an Eighth Amendment challenge to the imposition of a 10- to 20-year sentence for statutory rape of a 13-year-old female. Hall v. McKenzie, 537 F. 2d 1232, 1235-1236 (1976). The court emphasized that the sentence was less severe than a mandatory life sentence; that the petitioner would have received a similar sentence in 17 other American jurisdictions, and that the crime involved violation of personal integrity and the potential of physical injury. The Fourth Circuit also has rejected Eighth Amendment challenges brought by persons sentenced to 12 years for possession and distribution of heroin, United States v. Atkinson, 513 F. 2d 38, 42 (1975), 2 years for unlawful possession of a firearm, United States v. Wooten, 503 F. 2d 65, 67 (1974), 15 years for assault with intent to commit murder, Robinson v. Warden, 455 F. 2d 1172 (1972), and 40 years for kidnaping, United States v. Martell, 335 F. 2d 764 (1964). 23

*306 I do not suggest that each of the decisions in which the Court of Appeals for the Fourth Circuit applied Hart v. Coiner is necessarily correct. But I do believe that the body of Eighth Amendment law that has developed in that Circuit constitutes impressive empirical evidence that the federal courts are capable of applying the Eighth Amendment to disproportionate noncapital sentences with a high degree of sensitivity to principles of federalism and state autonomy. 24

VI

I recognize that the difference between the petitioner’s grossly disproportionate sentence and other prisoners’ constitutionally valid sentences is not separated by the clear distinction that separates capital from noncapital punishment. “But the fact that a line has to be drawn somewhere does not justify its being drawn anywhere.” Pearce v. Commissioner, 315 U. S. 543, 558 (1942) (Frankfurter, J., dissenting). The *307 Court has, in my view, chosen the easiest line rather than the best. 25

It is also true that this Court has not heretofore invalidated a mandatory life sentence under the Eighth Amendment. Yet our precedents establish that the duty to review the disproportionality of sentences extends to noncapital cases. Supra, at 289-293. The reach of the Eighth Amendment cannot be restricted only to those claims previously adjudicated under the Cruel and Unusual. Punishments Clause. “Time 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 particularly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, ‘designed to approach immortality as nearly as human institutions can approach it.' ” Weems v. United States, 217 U. S., at 373 .

We are construing a living Constitution. The sentence imposed upon the petitioner would be viewed as grossly unjust by virtually every layman and lawyer. In my view, objective criteria clearly establish that a mandatory life sentence for defrauding persons of about $230 crosses any rationally drawn line separating punishment that lawfully may be imposed from that which is proscribed by the Eighth Amendment. I would reverse the decision of the Court of Appeals.

3 J. Elliot, Debates on the Federal Constitution 447-448 (1876).

1 Annals of Cong. 754 (1789) (Rep. Livermore).

R. Perry, Sources of Our Liberties 236 (1959).

The principle that grossly disproportionate sentences violate the Eighth Amendment was first enunciated in this Court by Mr. Justice-Field in O’Neil v. Vermont, 144 U. S. 323 (1892). In that case, a defendant convicted of 307 offenses for selling alcoholic beverages in Vermont had been sentenced to more than 54 years in prison. The Court did not reach the question whether the sentence violated the Eighth Amendment because the issue had not been raised properly, and because the Eighth Amendment had yet to be applied against the States. Id., at 331-332 . But Mr. Justice Field dissented, asserting that the “cruel and unusual punishment” Clause was directed “against all punishments which by their excessive length or severity are greatly disproportioned to the offences charged.” Id., at 339-340 .

See also Jeffries & Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L. J. 1325, 1377 (1979); Note, Dis-proportionality in Sentences of Imprisonment, 79 Colum. L. Rev. 1119 (1979).

The Court notes that Graham v. West Virginia, 224 U. S. 616, 631 (1912), rejected an Eighth Amendment claim brought by a person sentenced under the West Virginia statute to mandatory life imprisonment for the commission of three felonies. But the Graham Court’s entire discussion of that claim consists of one sentence: “Nor can it be maintained that cruel and unusual punishment has been inflicted.” The Court then cited six cases in support of its statement. The first case was In re Kemmler, 136 U. S. 436, 448-449 (1890), in which the Court declined to apply the Eighth Amendment against state action. The Graham opinion also cited Waters-Pierce OIL Co. v. Texas, 212 U. S. 86, 111 (1909), in *291 which the Court recognized that no claim was made that the Eighth Amendment controlled state action, and stated that “[w]e can only interfere with such legislation and judicial action of the States enforcing it if the fines imposed are so grossly excessive as to amount to a deprivation of property without due process of law.” The Eighth Amendment was not applied as a prohibition on state action until this Court’s decision in Robinson v. California, 370 U. S. 660, 667 (1962). A one-sentence holding in a preincorporation decision is hardly relevant to the determination of the case before us today.

Badders v. United States, 240 U. S. 391 (1916), also adds “little to our knowledge of the scope of the cruel and unusual language.” Furman v. Georgia, 408 U. S. 238, 326 (1972) (Marshall, J., concurring). In Badders , this Court rejected a claim that concurrent 5-year sentences and a $7,000 fine for seven counts of mail fraud violated the Eighth Amendment. 240 U. S., at 394 . Badders merely teaches that the Court did not believe that a 5-year sentence for the commission of seven crimes was cruel and unusual.

Furman v. Georgia, 408 U. S., at 280 (Brennan, J., concurring); id., at 312 (White, J., concurring); id., at 331-332 (Marshall, J., con *292 curring); id., at 457-458 (Powell, J., dissenting, joined by Burger, C. J., and Blaokmun and Rehnquist, JJ.).

Id., at 266 (Brennan, J., concurring); id., at 329 (Marshall, J., concurring); id., at 382 (Burger, C. J., dissenting, joined by Blaokmun, Powell, and Rehnquist, JJ.); id., at 409 (Blaokmun, J., dissenting) ; id., at 420 (Powell, J., dissenting, joined by Burger, C. J., and Black-mun and Rehnquist, JJ.).

The Coker standard derived from the joint opinion in Gregg v. Georgia, 428 U. S. 153, 173 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), which stated that “the inquiry into 'excessiveness’ has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. . . . Second, the punishment must not be grossly out of proportion to the severity of the crime.”

Austin American-Statesman, Sept. 23, 1979, p. A1, col. 4. The newspaper reported that in a 6-month period including June 1979, the Governor rejected 33% of the parole board recommendations that prisoners be released. Ibid.

The Court suggests that an inquiry into the nature of the offense at issue in this case inevitably involves identifying subjective distinctions beyond the province of the judiciary. Ante, at 275-276. Yet the distinc- *296 tiori between forging a check for $28 and committing a violent crime or one that threatens violence is surely no more difficult for the judiciary to perceive than the distinction between the gravity of murder and rape. See Coker v. Georgia, 433 U. S. 584, 598 (1977); id., at 603 (Powell, J., concurring in judgment in part and dissenting in part). I do not suggest that all criminal acts may be separated into precisely identifiable compartments. A professional seller of addictive drugs may inflict greater bodily harm upon members of society than the person who commits a single assault. But the difficulties of line-drawing that might be presented in other cases need not obscure our vision here.

The nine States that previously enforced such laws include: (1) California, 1927 Cal. Stats., ch. 634, § 1, p. 1066, repealed, 1935 Cal. Stats., ch. 602-603, p. 1699; ch. 754, § 1, p. 2121. See Cal. Penal Code Ann. § 667.5 (West Supp. 1979) (Habitual offender statute allows no more than three years’ additional sentence for the commission of a previous felony). (2) Indiana, 1907 Ind. Acts, ch. 82, § 1, p. 109, repealed, 1977 Ind. Acts No. 340, § 121, p. 1594. See Ind. Code § 35-50-2-8 (Supp. 1979) (30 years’ additional sentence upon the conviction of a third felony). (3) Kansas, 1927 Kan. Sess. Laws, ch. 191, § 1, p. 247, repealed, 1939 Kan. Sess. Laws, ch. 178, § 1, p. 299. See 1978 Kan. Sess. Laws, ch. 120, § 4 (2) (Up to the treble maximum penalty may be given upon the commission of the third felony). (4) Kentucky, 1893 Ky. Acts, ch. 182, Art. I, § 4, p. 757, repealed, 1974 Ky. Acts, ch. 406, § 280, p. 873. See Ky. Rev. Stat. § 532.080 (Supp. 1978) (A persistent felony offender may receive a discretionary fife sentence upon the conviction of a Class A or B felony). (5) Massachusetts, 1818 Mass. Acts, ch. 176, §§ 5-6, p. 603, repealed, 1833 Mass. Acts, ch. 85, p. 618. See Mass. Gen. Laws Ann., ch. 279, § 25 (West 1972) (A person convicted of three specified felonies receives the maximum penalty provided for the third offense). (6) New York, 1796 N. Y. Laws, ch. 30, p. 669, repealed, 1881 N. Y. Laws, ch. 676, §§ 688-690, p. 181. See N. Y. Penal Code §§ 70.04, 70.06-70.10 (McKinney 1975 and Supp. 1979-1980) (mandatory life imprisonment upon the conviction for a third violent felony). (7) Ohio, 1885 Ohio Leg. Acts, No. 751, § 2, p. 236, repealed, 1929 Ohio Leg. Acts, No. 8, §§ 1-2, p. 40. See Ohio *297 Rev. Code Ann. §§ 2929.01 , 2929.11, 2929.12 (Supp. 1979) (no mandatory habitual offender penalties). (8) Oregon, 1921 Ore. Laws, ch. 70, § 1, p. 97, repealed, 1927 Ore. Laws, ch. 334, §§ 1-3, p. 432. See Ore. Rev. Stat. §§ 161.725, 166.230 (1977) (life sentence upon conviction of fourth armed felony or attempted felony). (9) Virginia, 1848 Va. Acts, ch. 199, § 26, p. 752,. repealed, 1916 Va. Acts, chs. 29-30, pp. 34-35. See 1979 Va. Acts, ch. 411 (no habitual offender statute). .

In addition to Texas, Washington, see Wash. Rev. Code § 9.92.090 (1976), and West Virginia, see W. Va. Code § 61-11-18 (1977), continue to provide mandatory life imprisonment upon the commission of a third nonviolent felony.

See Note, The Kansas Habitual Criminal Act, 9 Washburn L. J. 244, 247-250 (1970); see also State.v. Lee, 87 Wash. 2d 932, 940-942 , 558 P. 2d 236, 241-242 (1976) (Rosellini, J., dissenting); State v. Thomas, 16 Wash. App. 1, 13-15 , 553 P. 2d 1357, 1365-1366 (1976); Commentary fol *298 lowing Criminal Law of Kentucky Annotated, Penal Code § 532.080, p. 790 (1978).

Four States impose a mandatory life sentence upon the commission of a fourth felony. See Colo. Rev. Stat. § 16-13-101 (2) (1978); Nev. Rev. Stat. § 207.010 (2) (1977); S. D. Comp. Laws Ann. §§ 22-6-1,22-7-8 (1979); Wyo. Stat. §6-1-110 (1977). Thus, even if the line between these States and Texas, West Virginia, and Washington, is “subtle rather than gross,” ante, at 279, the most that one can say is that 7 of the 50 States punish the commission of four or fewer felonies with a mandatory life sentence.

See, e. g., Del. Code Ann., Tit. 11, §§ 4214, 4215 (1975 and Supp. 1978) (mandatory life sentence for one who has committed two felonies and commits a third specified felony involving violence or the threat of violence); Miss. Code Ann. § 99-19-83 (Supp. 1979) (mandatory life sentence for one who commits three felonies at least one of which is violent).

See, e. g., N. M. Stat. Ann. § 31-18-17 (Supp. 1979) (Persons who have committed two felonies punishable by at least one year in prison receive four years’ additional sentence upon the commission of a third felony and eight years upon the commission of a fourth felony); Wis. Stat. § 939.62 (1977) (Persons who have committed one felony within 5 years may be sentenced to 10 years’ additional sentence upon the commission of an offense punishable by a term greater than 10 years).

See, e. g., D. C. Code § 22-104a (1973) (Persons who commit three felonies may be sentenced to life); Idaho Code § 19-2514 (1979) (Persons who have committed three felonies may receive a sentence ranging from *299 five years to life). Statutes that permit the imposition of a discretionary life sentence for the commission of three felonies are fundamentally different from the statute under review in this case. In a discretionary jurisdiction, the question at sentencing is whether a three-time felon has engaged in behavior other than the commission of three felonies that justifies the imposition of the maximum permissible sentence. In such a jurisdiction, therefore, other evidence of dangerousness may justify imposition of a life sentence. In Texas, a person receives a mandatory life sentence merely because he is a three-time felon.

A State’s choice of a sentence will, of course, never be unconstitutional simply because the penalty is harsher than the sentence imposed by other States for the same crime. Such a rule would be inconsistent with principles of federalism. The Eighth Amendment prohibits grossly disproportionate punishment, but it does not require local sentencing decisions to be controlled by majority vote of the States. Nevertheless, a comparison of the Texas standard with the sentencing statutes of other States is one method of “assess [ing] contemporary values concerning the infliction of a challenged sanction.” Gregg v. Georgia, 428 U. S., at 173 (opinion of Stewart, Powell, and Stevens, JJ.). The relevant objective factors should be considered together and, although the weight assigned to each may vary, no single factor will ever be controlling.

The proportionality principle was incorporated into the bill after the Senate Judiciary Committee heard testimony that a sentencing authority considering the punishment due a dangerous special offender should “examine each substantive offense and make some determination based upon the gravity of that offense as to the ultimate maximum which seems to be wise.” Hearings before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 205 (1969) (testimony of Professor Peter W. Low of the University of Virginia School of Law). See Katkin, Habitual Offender Laws: A Reconsideration, 21 Buffalo L. Rev. 99, 118 (1972).

The American Law Institute proposes that a felon be sentenced to an extended term of punishment only if he is a persistent offender, professional criminal, dangerous mentally abnormal person whose extended commitment is necessary for the protection of the public, or “a multiple offender whose criminality was so extensive that a sentence of imprisonment for an extended term is warranted.” ALI, Model Penal Code § 7.03 (Prop. Off. Draft 1962). The term for a multiple offender may not exceed the longest sentences of imprisonment authorized for each of the offender’s crimes if they ran consecutively. Ibid. Under this proposal the petitioner could have been sentenced up to 25 years. Ante, at 269.

The American Bar Association has proposed that habitual offenders be sentenced to no more than 25 years and that “[a]ny increased term which can be imposed because of prior criminality should be related in severity to the sentence otherwise provided for the new offense.” The choice of sentence would be left to the discretion of the sentencing court. ABA Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures § 3.3 (App. Draft 1968).

In Ralph v. Warden, 438 F. 2d 786 (1970); the Fourth Circuit also applied -the Eighth Amendment to hold that rape may not be punished by death. This Court reached the same result seven years later in Coker v. Georgia, 433 U. S. 584 (1977).

The Fourth Circuit also has held that a sentence of eight years for possessing a firearm as a convicted felon, given to a felon previously con *306 victed of manslaughter and breaking and entering, was not disproportionate under 18 U. S. C. § 3575 . United States v. Williamson, 567 F. 2d 610, 616 (1977). See n. 20, supra, and accompanying text.

The District Courts in the Fourth Circuit also have applied the Eighth Amendment carefully. Although one District Court has held that a sentence of 48 years for safecracking is constitutionally disproportionate, see Thacker v. Garrison, 445 F. Supp. 376 (WDNC 1978), other District Courts have found no constitutional infirmity in the disenfranchisement of convicted persons, Thiess v. State Board, 387 F. Supp. 1038, 1042 (Md. 1974) (three-judge court), a 5-year sentence for distributing marihuana, Queen, v. Leeke, 457 F. Supp. 476 (SC 1978), and a 5-year sentence for possession of marihuana with intent to distribute that was suspended for 20 years on condition of payment of a $1,500 fine and nine months in jail. Wolkind v. Selph, 473 F. Supp. 675 (ED Va. 1979.)

Supreme Courts in two States within the Fourth Circuit have upheld as constitutional a 20-year sentence for a person convicted of burglary who had a prior conviction for armed robbery, Martin v. Leverette, -W. Va. -, -, 244 S. E. 2d 39, 43-44 (1978), and a life sentence for murder, Simmons v. State, 264 S. C. 417, 420, 215 S. E. 2d 883, 884 (1975).

The Court concedes, as it must, that a mandatory life sentence may be constitutionally disproportionate to the severity of an offense. Ante, at 274, n. 11. Yet its opinion suggests no basis in principle for distinguishing between permissible and grossly disproportionate life imprisonment.