Petition — Rummel v. Estelle

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In THE

Supreme Cowt of the United States

Octoser TERM, 1978

No.

WiuuuM James RumMet,

Petitioner,

Vv.

W. J. Esteve, Jr., Drrector,

Texas DEPARTMENT OF CORRECTIONS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Scorr J. Arias

\ Vinson & ELK1ns

2100 First City National

Bank Building

Houston, Texas 77002

Counsel for Petitioner

Of Counsel

CHartes ALAN WRIGHT

2500 Red River

Austin, Texas 78705

March 10, 1979

—————— ay

Bowne of Houston, Inc. Printed In U.S.A.

| INDEX

Co tMCUL, ee tS br ca Balke bedaie ne cdae)

EG OT Soe ee og

RE Se

Constitutional and Statutory Provisions Involved ..........

RG OE Ay TE

Reasons for Granting the Writ ..........................

Ganal Maia Chart of hepacks io Acglying Rights

sion urt in Applyi

Amendment Taasapationdite — to a Habitual

Offender Statute Mandating a Life Sentence for Com-

mission of Three Relatively Trivial, Nonviolent Property

2. The Decision Below Applies Incorrectly the Relevant

Test Prescribed by Applicable Decisions of this Court

for Evaluating Whether a Particular Sentence is Uncon-

stitutionally IE fyi ec tak. «ea ae

3. The Eighth Amendment Issue Raised in this Case is

One of First Impression that Requires Clarification by

this Court Because of Confusion in the Lower Federal

and State Courts Concerning the Py pe amg Standards

by Which to Evaluate Whether a Lengthy Sentence is

nconstitutionally Disproportionate ................

wer

Citations

Cases

Badders v. United States, 240 U.S. 391 (1916) .............

Bordenkircher v. Hayes, 434 U.S. 357 (1978) ...... Ah tas, ’

Carmona v. Ward, 576 F.2d 405 (2d Cir. 1978), cert. denied,

47 U.S.L.W. 3460 (U.S. Jan. 9, 1979) (No. 78-5531) 6, 8, 17,18

Coker v. Georgia, 433 U.S. 584 (1977) .............. 6, 7, 14, i6

Downey v. P. 518 F.2a 1288 (6th Cir.), vacated and

remanded Soper grounds, 423 U.S. 993 (1975) ........ 5

Furman v. Georgia, 408 U.S. 238 (1972) .............. 6, 13, 14

Glasscock v. State, 570 S.W.2d 354 (Tex. Crim. App. 1978),

m8) or cert. filed, 47 U.S.L.W. 3485 (U.S. Nov. 29,

i aca baka cases s

Gregg v. Georgia, 428 U.S. 153 (1976) ................... 6, 16

Green v. Commonwealth, 556 S.W.2d 684 (Ky. 1977) ...... 18

Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), cert. denied as

untimely filed, 415 U.S. 938 (1974) ......... 4-5, 11, 12, 13, 14

Hutto v. Finney, 98 S. Ct. 2565 (1978) ................... 6

I Citizens Union v. Shapp, 451 F. Supp. 893 (E.D.

Te ERP Te eae SS SS 16

Ingraham v. Wright, 430 U.S. 651 (1977) ................. 6

In re Lynch, 503 P.2d 921 (Cal. 1973) ................... 18

Jones v. Cunningham, 371 U.S. 236 (1963) ............... 8

McMahan v. State, 382 N.E.2d 154 (Ind. 1978) ........... 17

O’Donnell v. State, 326 So. 2d 4 (Fla. 1974) .............. 18

People v. Lorentzen, 194 N.W.2d 827 (Mich. 1972) ........ 18

Pickard v. State, 585 P.2d 1342 (Nev. 1978) .............. 18

Rummel v. Estelle, 568, F.2d 1193 (5th Cir. 1978), re

en banc granted April 21,1978 ............. 2-3, 4, 11, 13, 18

Rummel v. Estelle, 587 F.2d 651 (5th Cir. 1978) (en banc) passim

Smith v, United States, 273 F.2d 462 (10th Cir. 1959) ...... 18

State v. Guerrero, No. 78-CR-538 (Bexar County, Texas Dist.

3 a Re TR) NR 17

State v. Lee, 558 P.2d 236 (1977) ..................0..0.. 12

State v. Mitchell, 563 S.W.2d 18 (Mo. 1978) (en banc) ..... 18

State v. Myers, 570 P.2d 1252 (Ariz. 1977) (en banc), cert.

denied, NN oes och tk ces ooge 18

United States v. Washington, 578 F.2d 256 (10th Cir. 1978) . 18

Weems v. United States, 217 U.S. 349 (1910) ........ 5, 6, 7,13

Page

Statutes

Oe es ik oo a5 AROS ht d nod Re im sea sees ¥24 2

Tex. Laws 1856, Paschal, Digest of Texas Laws, art. 2464

NE Sains a Chichen a 5's oo opie ee Wee din’s < is Cua cea 12

Texas Penal Code art. 63 (1925) ................4.. 2, 3,4, 10

Texas Penal Code Ann., Savings Provision § 6 (1974) ...... 13

Texas Penal Code Ann. § 12.21 (1974) .................5. 13

Texas Penal Code Ann. § 12.42 (1974) .................4.. 2

Texas Penal Code Ann. § 12.43 (1974) .................08. 13

Texas Penal Code Ann. § 19.03 (1974) ................4.. 13

Texas Penal Code Ann. $31.02 (1974) ................... 13

Texas Penal Code Ann. § 31.03 (1974 .................. 10, 13

Texas Revised Civil Statutes Ann. art. 60711-2 (1977) ...... 10

Other Authorities

Katkin, Habitual Offender Laws: A Reconsideration, 21

Bi SG UNE os novos ec keneance seats 7, 11

Packer, Making the Punishment Fit the Crime, 77 Harv. L.

NE CCG. tric hg't ad sgn Nncan) ee seen ve > ll

mip otras fae ens rire

L. Rev. 989 (1978) ........ Me SEA ATs ROE REN 6

Tappan, Book Review, 65 Harv. L. Rev. 1092 (1952) ....... 13

Timasheff, The Treatment of Persistent Offenders Outside of

ie gt States, in 40 J. Crim. L. & Criminology 455

rae, mie 28, QM wrt SY ar? ARR aN a aa 13

Weschler, Sentencing Innovations in Sentencing Institute:

(i908) Today —A Judicial Concern, 46 F.R.D. 497

Ms geile ane Scare fea al @ Mette aa Oo” ee ae teeta fees 11

Wheeler, Toward a Theory of Limited Punishment: An

Examination of the Eighth Amendment, 24 Stan. L. Rev.

I iin Salk § 85s NS Ss ash «San ROIS eb 10

Wheeler, Toward a Theory of Limited Punishment II: The

Eighth Amendment After Furman v. Georgia, 25 Stan. L.

Sr fat Se aL LY a ee ss Samet Ses 14

Comment, The Eighth Amendment, Beccaria, and the En-

lightenment: An Historical Justification for the Weems v.

United States Excessive Punishment Doctrine, 24 Buffalo

I gs i Cea cat wes os rely Take uwee es 7

Page

Note, The Cruel and Unusual Punishment Clause and the

Substantive Criminal Law, 79 Harv. L. Rev. 635 (1966) .. 7

Texas as See: A Statistical Study,

Gp Fae tas We Ce. cs hee. Se. 10

Brief for Petitioner, Coker v. Georgia, 433 U.S. 584 (1976)... 7

Second Supplemental io of Coggh ogee

Rummel v. Estelle, F.2d 651 (5th Cir. 1978) (en

BR oa 5 os ak. eA es. 11

Third Supplemental Brief of Petitioner-Appellant, Rummel v.

Estelle, 587 F.2d 651 (5th Cir. 1978) tae eS eee 15

Fourth Supplemental Brief of Petitioner-Appellant, Rummel

v. Estelle, 587 F.2d 651 (5th Cir. 1978) (en banc) ....... 12

In THE

Supreme Cowt of the United States

Octoser Term, 1978

No.

Wituiam James RumMMEL,

Petitioner,

Vv.

W. J. Esrerye, Jr., Director,

Texas DEPARTMENT OF CORRECTIONS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner William James Rummel respectfully prays

that a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Fifth Circuit en

banc entered on December 20, 1978, in Rummel v. Estelle.

OPINIONS BELOW

The clerk’s letter concerning entry of judgment of the

court of appeals, dated December 20, 1978, is reproduced in

a separately bound Appendix at Appendix A. (2a). The

en banc opinion of the court of appeals, dated December 20,

1978, is reported at 587 F.2d 651 and is reproduced at

Appendix A. (3a). The order denying the petition for

rehearing, dated March 9, 1979, is reproduced at Appen-

dix A. (la). The panel opinion of the court of appeals,

dated March 6, 1978, is reported at 568 F.2d 1193 and is

reproduced at Appendix A. (24a).

JURISDICTION

The judgment of the en bane Court of Appeals for the

Fifth Circuit was entered on December 20, 1978, and the

petition for rehearing was denied by that court on March 9,

1979. This petition for a writ of certiorari is being filed

within 90 days of both dates. This Court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Whether the mandatory life sentence imposed on William

James Rummel under the Texas habitual offender statute

for theft by false pretext of $120.75, with prior convictions

for presenting a credit card with intent to defraud of

property worth approximately $80.00 and passing a forged

$28.36 check, constitutes cruel and unusual punishment.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The provisions involved —.the Eighth Amendment to the

United States Constitution, article 63 of the Texas Penal

Code of 1925, and its successor statute, article 12.42(d) of

the Texas Penal Code of 1974 — are set out in Appendix B.

(56a).

STATEMENT OF THE CASE

As stated in the Fifth Circuit panel opinion and quoted

by the en banc opinion, the relevant facts are as follows:

In January 1973 a Texas grand jury indicted

Rummel for the felony offense of obtaining $120.75

under false pretenses. The indictment also charged

him with having two prior felony convictions: pre-

senting a credit card with the intent to defraud of

approximately $80 [in 1964] and [passing] a forged

instrument with a face value of $28.36 [in 1969]. [A]

jury found him guilty as charged [of the false pre-

tenses offense]. After the state proved his two prior

convictions, Rummel received an enhanced sentence of

life imprisonment under the Texas habitual criminal

statute then applicable, Tex. Penal Code Ann. art.

63 (Vernon 1925). [T]he Texas Court of Criminal

Appeals affirmed his conviction. . . . Rummel applied

for postconviction relief and raised in the Texas

courts the [issue presented here and an ineffective

counsel claim], but his application was denied without

a hearing. Then Rummel sought habeas corpus relief

[on the same grounds] in the federal district court,

which also denied his petition without a hearing.

Rummel v. Estelle, 568 F.2d 1193, 1195 (5th Cir. 1978)

(panel opinion), quoted in Rummel v. Estelle, 587 F.2d 651,

653 (5th Cir. 1978) (en banc). On March 6, 1978, by a 2-1

vote, a Fifth Circuit panel reversed the district court

decision and held that article 63’s automatic life sentence

was cruel and unusual as applied to the offenses for which

the sentence had been assessed. 568 F.2d at 1193.

By an 8-6 vote, the Fifth Circuit sitting en bane vacated

the panel opinion, affirmed the district court’s denial of the

petition on the Eighth Amendment issue, and remanded the

case to the panel for reconsideration of the Sixth Amend-

ment issue. The en banc court held, in short, that while a

severe sentence imposed for a minor offense could be cruel

and unusual solely because of its length, 587 F.2d at 655,

Rummel’s automatic life sentence does not violate the

Eighth Amendment because Rummel failed to prove that

the legislative scheme has no rational basis and is totally

and utterly rejected in modern thought, id. at 661-62. The

en bane court relied on the following grounds: (1) Texas’

good time credit system gives Rummel an opportunity to

become eligible for parole in twelve years if he behaves

while in prison, id. at 657-59; (2) the nature of the three

underlying offenses triggering the mandatory application

of article 63 is irrelevant because the statutory purpose is

to punish a three-time felony offender irrespective of the

nature of the underlying offenses, id. at 659; (3) Rummel |

might have received a comparable sentence in several other

jurisdictions, id. at 659-60; (4) Rummel’s sentence cannot

appropriately be compared to the penalty for any single

offense in Texas, id. at 660; and (5) the test of “whether

significantly less severe punishment could achieve the pur-

poses for which the challenged punishment is inflicted,” id.

at 660-61 (quoting the panel opinion, 568 F.2d at 1198), has

no role in Eighth Amendment analysis.

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW DIRECTLY CONFLICTS WITH

THE DECISION OF ANOTHER COURT OF APPEALS

IN APPLYING EIGHTH AMENDMENT DISPROPOR-

TIONALITY ANALYSIS TO A HABITUAL OFFENDER

STATUTE MANDATING A LIFE SENTENCE FOR COM-

MISSION OF THREE RELATIVELY TRIVIAL, NON-

._ VIOLENT PROPERTY OFFENSES.

In Hart v. Comer, 483 F.2d 136 (4th Cir. 1973), cert.

denied as untimely filed, 415 U.S. 938 (1974), the Fourth

Cireuit held that a life sentence mandated by a West

Virginia recidivist statute (identical in all material respects

to the Texas law) was cruel and unusual based on length

alone because it was grossly disproportionate to the under-

lying offenses, The state court had enhanced Hart’s punish-

ment for committing perjury at his son’s murder trial to

life imprisonment on the basis of a 1955 conviction for

interstate transportation of forged checks totaling $140.00

and a 1949 conviction for writing a $50.00 check on insuffi-

cient funds. In determining that the statutory punishment

violated the Eighth Amendment as applied to Hart, the

Fourth Circuit considered cumulatively (1) the nature and

gravity of the offenses, (2) whether a much less severe

penalty could accomplish equally as well the legislative

purpose behind the punishment, (3) the punishment that

the defendant would have received in other jurisdictions,

and (4) the punishment prescribed for other offenses in the

same jurisdiction.

Hart and Rummel cannot be reconciled because, unlike

the Rummel court: the Hart court (1) relied heavily on

this Court’s decision in Weems v. United States, 217 U.S.

349 (1910); (2) held that in considering the nature of the

underlying offenses and in comparing them to the penalties

for other offenses in the same jurisdiction, not only the

number of offenses but also their gravity must be consid-

ered; (3) did not consider parole eligibility as a factor

mitigating the harshness of a life sentence; (4) used a

“much less drastic means” test based on the statutory

purpose as one factor in the disproportionality inquiry ;?

and (5) did not require the prisoner to prove that the

punishment assessed was totally irrational.

2. THE DECISION BELOW APPLIES INCORRECTLY

THE RELEVANT TEST PRESCRIBED BY APPLICA-

BLE DECISIONS OF THIS COURT FOR EVALUATING

WHETHER A PARTICULAR SENTENCE IS UNCON.

STITUTIONALLY DISPROPORTIONATE.

The principle that an excessively long prison sentence

for trivial offenses can violate the Eighth Amendment has

1 Cf. Downey v. Perini, 518 F.2d 1288, 1291-92 (6th Cir.), vacated

and remanded on other grounds, 423 U.S. 993 (1975) (declaring

excessive a 30-60 year sentence imposed on a first drug offender

for sale of a small amount of marijuana, in part because the a

lative purposes of the statute could be achieved by a much less

severe penalty ).

long been recognized by this Court, first in Weems? and

repeatedly since.*

As pointed out recently by Justices Marshall and Powell

in Carmona v. Ward, 47 U.S.L.W. 3460, 3461 (U.S. Jan 9,

1979) (No. 78-5531) (dissenting from denial of certiorari)

(mandatory life sentence for possession of small amount of

cocaine) (emphasis added) :

2 Although Weems based in the inherent of th

Punishment, lg rested on the separte grounds that the Fight

V are neers Seemann Yaw one wee the

length [eer epee offense. See

Weems, US. at 367-68, 371- accord, Carmona v. Ward,

47 U.S.L.W. 3460, 3461 (U.S. Jan. 8, 1979) (No. 78-553) (Mar-

shall & Powell, JJ., dissenting from denial of certiorari); Hutto v.

se ss na tag US.

US. ~ 1976), quot. Daly tv Char ¥. Coorgia,

433 US, 54, Sm (White Stewart, Blackmun & Steven

ty opinion). See also Ingraham v. t, 430 U.S. 651,

Tet (1977) (Powell, erate Sag Blackmun Rehnquist, JJ).

Bice popahe ramos Weems as good law

~ msulsoquent decision v. United States, 240

US. res “(ii6) Season thartateclon as “summarily

dismiss[ & proportionality attack on» five yee sentence.”

ood at n. a five- sentence hardly compares to a

life sentence. Moreover, which does not mention

Weems, is not even a disproportionali case: the convicted

aarp wey only Eighth Brig gy va objection challenged the

fraud statute’s makin deposit each letter t

offense, See 240 USS. at 393. Seca

3 Gregg, 428 U.S. at 173 Loy ge chee 2 lly

Chine Blenmen, Rarchell& Se Stevens, at dissentin ‘eat 23

mine ae Coker ep

Hayes, 434 370-71 (1978) PM land

yee oop a eS

statute. rc

Most recently, in Coker ..., the Court refined the

test for assessing Eighth Amendment challenges, con-

cluding that

“a punishment is ‘excessive’ and unconstitutional

if it (1) makes no measurable contribution to

acceptable goals of punishment and hence is noth-

ing more than the purposeless and needless impo-

sition of pain and suffering; or (2) is grossly out

of proportion to the severity of the crime.” Id.

at 592.

In holding the Georgia death penalty for rape invalid

on the latter ground, the Court followed the approach

of Weems, focusing on [(1)] the character of the

crime, [(2)] the punishment for the same offense in

other jurisdictions, and [(3)] the penalty for similar

crimes in the same jurisdiction.

The en bane opinion, while conceding the validity in theory

of both the excessiveness principle and the Coker test, see

587 F.2d at 655, emasculates the principal by applying the

test improperly in practice.

A. Nature of the Penalty

In comparing the seriousness of the offenses with the

harshness of the penalty, the en banc opinion discounts the

length of Rummel’s sentence by the probability of parole .

based on Texas’ liberal system of awarding good time

Both federal and state courts have generally interpreted Weems

as pr mgece cs the rule that excessive sentence length alone may

render a punishment unconstitutionally cruel. Katkin, Habitual

rk pees A Reconsideration, 21 Buffalo L. Rev. 99, 117 &

cases one tied at n.82 (1971); 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, 831-35 (1975) (discussing cases); Note, The

Cruel and Unusual Punishment C. and the Substantive Crim-

inal Law, 79 Harv. L. Rev. 635, 640 (1966); Brief for Petitioner at

34 n.30, Coker v. Georgia, 433 U.S. 584 (1977).

credits, id. at 657-59, and considers only the constitutionality

of an undefined, possibly lesser sentence, while ultimately

conceding that “if the court is forced to assume that

Rummel’s sentence is automatically and invariably one for

his natural life, then the majority’s assertion [that Rum-

mel’s sentence is grossly disproportionate to Rummel’s

offenses] is probably accurate,” id. at 659. Thus, if the

en banc cvurt had viewed Rummel’s sentence as the term

he actually received, it probably would have decided the

case differently.

Accumulation of good time credit is useless to someone

given a life sentence, as pointed out numerous times by the

dissent, see, ¢.g., id. at 666, except with respect to determin-

ing when one first becomes eligible for parole considera-

tion. Further, as a quote in the en banc opinion points out,

“Texas ... gives the longest sentences and is the most

reluctant [State in the country] to grant parole.” Id. at

.. 658. Moreover, parole is a matter of executive grace not

protected by due process. Accord, id. at 666-71; see Car-

mona, 47 U.S.L.W. at 3461. And the Parole Board’s deci-

sion will depend largely on Rummel’s behavior in prison,

not the offenses for which he was sentenced. Rummel, 587

F.2d at 668-69. The en banc opinion treats a trusty’s eligi-

bility for parole after serving twelve years not only as a

guarantee of parole but also as a guarantee of complete

freedom, id. at 658, 669; ef. id, at 659 n.19, which it is not.®

4 Thus, the majority's example, 587 F.2d at 660, of two states — one

that gives a fixed ten-year sentence and one that assesses a thirty-

year sentence with good time credit that makes actual time served

only ten years — breaks down when applied to a prisoner given a

life sentence, since no amount of good time credit discharges

completely a life sentence.

5 See id. at 866, 669, 670 (dissentin aioe): . Jones v. Cunning-

ham, 371 U.S. 236, 241-43 (1963) olding a state prisoner

placed on parole is “in custody” the meaning of the habeas

corpus statute because of “significant restraints” on a parolee’s

Moreover, if a life sentence without possibility of parole

for three petty, nonviolent offenses would probably be

unconstitutional, as the majority apparently concedes, thea

surely the added “crime” of a “bad attitude” in prison, vir-

tually guaranteeing rejection of a prisoner’s parole appli-

cation and assuring him of lifetime imprisonment, should

not make the sentence any less constitutionaliy infirm.

Cf. id. at 668-69. After all, no one would argue that a “bad

attitude” makes more acceptable an otherwise unconstitu-

tionally cruel method of torture or death, even if a “good

attitude” carried with it the possibility of a reprieve.

B. Character of the Crime

Although the en banc opinion concedes that proportion-

ality analysis requires consideration of the nature of the

offense, it then refuses to consider the nature of the under-

lying offenses for which the habitual statute mandated

Rummel’s life sentence on the grounds that (1) the sen-

tence was imposed for the commission of any three sep-

arate and distinct felonies, irrespective of the nature of

those felonies, and (2) because Rummel has. demonstrated

that he cannot conform to society’s rules,'Texas has justi-

fiably branded him a habitual criminal and accordingly

liberty). The en banc opinion attempts to demonstrate that the

mandatory maximum ten-year sentence that Georgia courts must

assess a habitual offender whose last offense is theft is “approxi-

mately the same” as Rummel’s life sentence because Rummel

might be paroled in twelve years if (and only if) (1) he remains

a trusty during that period and (2) the Parole Board chooses to

grant parole. Id. at 660. But Georgia assesses a mandatory maxi-

mum of ten years for theft only on someone convicted four times

and only if the fourth offense was committed after the third con-

viction, so that Rummel could not be sentenced under that pro- |

vision of Georgia law. Further, even if he is eventually paroled,

Rummel’s lifetime of restrictions can hardly be dismissed as insig-

nificant when compared to the unconditional release after ten

years that a Georgia convict would receive for the same crimes.

imprisoned him for life, subject only to the Parole Board’s

exercise of its virtually unfettered discretion to parole him

if he behaves. Jd. at 659. But the issue is not whether

Texas can classify Rummel a habitual offender or enhance

his punishment, which Rummel concedes, but whether

Texas can enhance the punishment by so much for so little.®

By refusing to consider the nature of the underlying offen-

ses, the majority opinion converts Rummel’s as-applied

challenge into a per se challenge, treats a life sentence for

petty offenses identically to the manner in which it would

treat a life sentence for three heinous, violent crimes, and

in effect precludes any as-applied challenge to the habitual

statute, regardless of the triviality of the offenses, so long

as those offenses are punishable as criminal. Under the

majority decision as written, if the State can punish a

6 The majority opinion challenges Rummel’s assertion that his

cian” son Be trivial than most others and asks “by what

authority does Rummel denegrate [sic] the interest oe in

ishing his crimes?” Id. at 662 n.29. But Rummel not

challenge the State’s right to punish him; he questions only its

right to include his petty crimes in the ty id of offenses for

which a life sentence automatically applies. Moreover, it would

be difficult to find three felonies any less serious than Rummel's.

Compare Tex. Penal Code § 31,03(d) (4)(A) (1974) (making pig

theft a felony, regardless of value); Tex. Rev. Civ. Stat. Ann. art.

6071I-2 (1977) (making felonies the second and subsequent con-

victions for driving while intoxicated). To characterize crimes

involving potential violence as significantly more serious than non-

violent property offenses can be justified on the ground that, al-

most without exception, crimes involving great danger to the phy-

sical well-being of others the severest sentences. Wheeler,

Toward a Theory of Limited Punishment: An Examination of the

Eighth Amendment, 24 Stan. L. Rev. 838, 862 & n.7 (1972); see,

e.g., Comment, Texas Agree Practices: A Statistical Study, 45

Tex. L. Rev. 471, 482-83, 491-93 (1967) (statistically demonstrat-

ing such a relationship between convictions for violent crimes and

assessed term of incarceration in Texas, except for a wide disparity

between expected sentence (approximately ten years) upon

conviction for a third nonviolent . felony if sentenced

under article 63 and the life sentence mandated by that statute).

frivial traffic offense as a crime, then it can punish the

third commission of such an offense with a life sentence.

As the panel opinion points out, 568 F.2d at 1198, none

of these offenses, singly or in sum, justify a severe penalty.

None involved violence, the threat of violence, danger to

person or property, skill in crime, use of sophisticated

implements of crime, possession of lethal weapons, or other

indicia of potential harm to the social order.’

C. Punishment for Same Offense in Other Jurisdictions®

Rummel could not receive a mandatory life sentence

for his three offenses in any other state, save possibly

"sSommentators uniformly condemn the imposition of a life sen-

tence for comparatively petty offenders, even incorrigible ones,

as offensive to universal standards of decency. See e.g., Katkin,

Habitual Offender Laws: A Reconsideration, 21 Buffalo L. Rev.

99, 120 (1971); Packer, i Punishment Fit the Crime, 77

Harv. L. Rev. 1071 (1964). Theft in particular is usually rated

one of the least serious crimes because it is not an offense that

“threatens the underpinnings of the social order.” Wechsler,

— Innovations in Sentencing Institute: Violence Today —

AJ Concern, 46 F.R.D. 497, 524-25 (1968). See also Bor-

denkircher, 434 U.S. at 371 (Powell, J., dissenting) (commenting

on limited adverse societal implications of $88.00 check forgery);

Hart, 483 F.2d at 141 (such harsh treatment of petty pn a is

both illogical and impractical).

8 Rummel filed in the en banc court a Second Supplemental Appen-

dix containing the following charts:

(1) Table 1, which lists for each state and territory (and

under federal law) in reverse chronological order the maximum

punishment prescribed by each habitual offender statute in

effect during the last 200 years;

2) Tables 2-4, which categorize, total, and list — by length

and type of punishment and number and type of triggerin

offenses — the federal, state, and territorial jurisdictions wi

habitual offender statutes at each five-year interval since 1900;

(3) Table 5, which lists every state that has ever enacted

a recidivist statute mandating a life sentence, gives the years

during which each statute applied, and describes each statute

and its successor;

one.2 Moreover, Texas, which has punished third-felony

offenders with a mandatory life sentence for 123 years, see

Tex. Laws 1856, Paschal, Digest of Texas Laws, art. 2464

(1866), has ignored a clear, 50-year trend in recidivist stat-

utes away from mandatory life sentences for repeaters

committing any felonies!° toward lighter and discretionary

hich divides into the same categories em-

ployed in Tables 2-4 all habitual offender legislation currently

in effect; and

(5) Table 7, which lists every reported habitual offender

case in the Texas Court of Criminal Appeals since 1965, group-

ing first all cases involving prisoners with convictions for three

or more violent crimes, in descending order according to degree

f potential violence.

Table ps updated in hummel’s Fourth Supplemental Brief at

10-11 n.9.

t references in this Petition to the laws of other states

are Feet a those tabios and can be verified there.

9 Washington, which has a similar statute, the

rt ms has seems has indicated that it probably would not per-

mit a) fication of the statute in a case like Rummel’s. See State v.

Lee, P.2d 236, 240 n.4 (1977). Hart limited to violent crimes

West Virginia’s law requiring a life sentence after any three felony

convictions. Every other state habitual offender statute requires

commission of more offenses or at least one violent crime, imposes

a sentence substantially less than life, or grants discretion to the

sentencing authority. , .

c opinion’s suggestion that (1) six states might sen-

tices Setcanal a caseicale to a life term and (2) judges and

juries in eleven states might have discretion to give him a life

sentence, 587 F.2d at 659-60, is inaccurate for the following rea-

sons: (1) it incorrectly equates discretionary and mandatory

sentences, (2) it pre, an alleged fourth felony conviction

that does not appear in the record and is irrelevant in any owe

since it was not one of the offenses named in Rummel’s in a

ment, and (3) it misconstrues eight state statutes that co

not apply to Rummel, because of either the nature of his offenses,

when i occurred, or both.

10 other states have “experimented” with mandatory life

abbas for rol felonies, apparently concluded that such a —

penalty is either ineffective, counterproductive, or inhumane, an

sepa their laws by either (1) making the sentence ssi worst

O statins), (2) Kidding the orate eee (4) sacking the man-

tng al ee dg i life Ip States], ( F both (1)

sentence to a term less y [1 State].

and (4) [1 State], or (6) repealing the statute entire

sentences and a violent-crime limitation. And it appears

that no other western nation punishes recidivists as

severely as Texas does,!!

D. Punishment for Other Offenses in Texas

Only capital murder is punishable by a mandatory life

sentence (or death) in Texas. See Tex. Penal Code Ann.

§ 19.03 (1974). Every other felony, including many violent

crimes, are punishable by sentences that are either much

less than life imprisonment or discretionary. Rummel, 568

F.2d at 1199 & nn. 10-11. And since 1974, Rummel’s last

offense has carried a maximum sentence of only one year,

even for a person with two prior felony convictions.!2

‘! Compare Timasheff, The Treatment of Persistent Offenders Out-

side of the United States, in 40 J. Crim. L. & Criminology 455,

passim (1940); Tappan, Book Review, 65 Harv. L. Rev. 1092,

passim (1952).

12 Tf Rummel’s trial for theft by false pretext had ended after Jan-

uary 1, 1974, and Rummel had requested assessment of punish-

ment under the new Penal Code, see Tex. Penal Code Ann.,

Savings Provision § 6(c) (1974), his offense would have been only

a misdemeanor, id. § 31.03(b)(1), (d)(3) (raising from $50.00 to

$200.00 the minimum amount necessary to constitute a felony);

see id. § 31.02 (“theft” as defined in section 31.03 includes the

offense previously called “theft by false pretext”), carrying a

maximum punishment of only one year in prison and a $2,000.00

fine, id. § 12.21(2). Even under the new Penal Code’s habitual

misdemeanant statute, id. § 12.43(a), which applies to anyone on

trial for a Class A misdemeanor who has a prior felony conviction,

Rummel’s prison term could not exceed one year.

This reduced sentence highlights both the relatively trivial

nature of the offenses, compare Hart, 483 F.2d at 138 n.1, and the

public’s increasingly more sophisticated enlightenment concern-

ing incarceration and treatment of habitual offenders, see Weems,

217 U.S. at 378 (the cruel and unusual punishment clause is “pro-

gressive, and is not fastened to the obsolete but may acquire

meaning as public opinion becomes enlightened by a humane

usin") quoted in Furman, 408 U.S. at 242 (Douglas, J., con-

curring) ).

The en banc opinion rejects Rummel’s comparison of the

punishment for various single offenses in Texas with the

life sentence he received for three petty offenses on the

ground that the sentence resulted from Rummel’s status

as a habitual criminal, not from the commission of any one

offense. 587 F.2d at 660. But Rummel’s status is based in

part on the nature of each offense (i.e., all must be one’

ies), and surely no one would dispute that Rummel s

repetitive but petty, cheating conduct causes less societal

harm than the commission of one rape, kidnapping, or

murder.

E. Imposition of Severe Punishment Without Furthering

Any Legitimate Penal Purpose

After rejecting Rummel’s claim that his life sentence is

grossly disproportionate to his crimes, the en bane opinion

refuses to consider the statutory purposes of the Texas

recidivist law, id. at 661,!° even though Coker makes clear

that a punishment may be excessive if it fails to serve any

legitimate penal goal, 433 U.S. at 592; see id. n. 4 (the con-

verse applies).'*

Every conceivable legislative purpose behind the life

sentence as applied to Rummel — isolation, deterrence,

rehabilitation, and retribution — is undermined by the stat-

ute or could be served equally as well by a substantially

3 jects the “lack of necessity test” based on

bon Pao e State could never prove that a sentence of one

deters more effectively that a shorter sentence. 587 F.2d

at 661 (quoting Wheeler, Toward A Theory of Limited Punish-

at oe IhstThe Eighth Amendment After Furman ¥. Georgia, 25

Stan. L. Rev. 62, 77-78 (1972)). But this criticism fails to a

nize that the burden is on the petitioner to prove that the punish-

ment imposed is excessive, not on the State tu prove that it is not.

14 Compare Furman, 408 U.S. at 279 (Brennan, J., concurring)

standard ressed in C. incorporates

CR ee ae ood ia Tart) tee ao 0 S00, 1, 331

i of Justi: rennan, White, and Marshall, respectively, on

epee: Pan a “least drastic means” test).

shorter sentence for such petty offenses. First, studies

consistently reveal that recidivist laws fail to isolate the

true threat to the social order — the professional, danger-

ous criminal—who either (1) escapes detection or con-

viction and thus has no prior record upon which to base a

habitual charge or (2) receives such long sentence upon

first or second conviction that the enhanced sentence for

a third conviction is unnecessary. See Third Supplemental

Brief of Petitioner-Appellant at 25-26 nn.25-28, Rummel

v. Estelle, 587 F.2d 651 (5th Cir. 1978) (citing numerous

studies). By the time most petty thieves are imprisoned

as habitual criminals, their propensity toward criminal

activity has declined with age and maturity. Zd. at 26 n.30.

Moreover, life imprisonment far exceeds the sentence nor-

mally imposed on others with similar convictions but not

charged as habituals. Jd. at 27 n.31; cf. id. n.32; note 6

supra. '

Second, a habitual law that punishes murderers and for-

gerers alike does not deter crime, see id. at 27-28, and may

even encourage a petty repeat offender to ‘commit more

serious crimes in order to avoid severe punishment for the

minor offense, id. at 28. Third, experts and common sense

repudiate the notion that the prospect of either permanent

incarceration or long-term confinement followed by life-

time parole with no possibility of complete freedom serves

a rehabilitative function, especially when it has twice failed.

See id. at 29 & n.39. Fourth, retribution, even if a legiti-

mate penal goal, cannot justify a penalty far exceeding the

severity of the offenses for which it is assessed. Finally,

studies reveal that judge, jury, and prosecution nullifi-

cation combine to ensure that indiscriminately harsh habi-

tual offender statutes advance no coherent policy. See id.

at 30-34.

F. Rational Basis Test

The en bane opinion demands that a punishment, to be

unconstitutionally disproportionate, can have “no rational

basis.” 587 F.2d at 655-56, 661-62. This burden is an im-

possible one to discharge, since the opinion refuses to

examine the nature of the underlying offenses, see id. at

659; and it is inappropriate for Eighth Amendment analy-

sis, since even the most reprehensible torture has some

rational basis as retribution or deterrent. Moreover, the

“rational basis” standard has no support in this Court’s

Eighth Amendment decisions, which require at most that

the courts give deference to the legislative judgment, see,

e.g., Gregg, 428 U.S. at 175 (Stewart, Powell & Stevens, JJ.,

plurality opinion). The disproportionality test is separate

from and independent of the rational basis test.’ And

Rummel has satisfied even this burden. That the statute

may be rational when applied to those committing at least

one violent offense does not justify the law’s application to

Rummel.

: EIGHTH AMENDMENT ISSUE RAISED IN THIS

, CASE IS ONE OF FIRST IMPRESSION THAT

REQUIRES CLARIFICATION BY THIS COURT

BECAUSE OF CONFUSION IN THE LOWER FEDERAL

AND STATE COURTS CONCERNING THE APPRO-

PRIATE STANDARDS ‘BY WHICH TO EVALUATE

WHETHER A LENGTHY SENTENCE IS UNCONSTI-

TUTIONALLY DISPROPORTIONATE.

This court has not previously addressed the issue

whether a lengthy sentence automatically imposed for

15 See Coker, 433 U.S. at 592-93 n.4 (White Stewart, Blackmun

Stevens, JJ., Lage | opinion) (emphasis added):

Because the death sentence is a roportionate punishment

for rape, it is cruel and unusual punishment within the meaning

of the Eighth Amendment even though it measurably serve

the legitimate ends of punishment and therefore it is not invalid

for its failure to do so.

. ; Imprisoned Citizens Union v. Shapp, 451 F.

se alee 0s vED. Pa. 1978) (pointing out that a punishment

violates the Eighth Amendment if it either (1) shocks the con-

science, (2) is ly excessive, or (3) is not rationally related to

legitimate goals).

relatively trivial offenses can violate the Eighth amend-

ment solely because of length. In Carmona this Court

refused to review lengthy sentences given for drug offenses,

an area in which legislatures have traditionally determined,

either directly or by implication, that the offender is part

of a system that spawns violent crime and threatens the

social fabric. But this case involves no such legislative

determination, as starkly illustrated by the disparity

between the life sentence Rummel received in April 1973

and the present one-year maximum. See note 12 supra &

accompanying text.

Although not occurring often enough in Texas to create

the flood of litigation that the court below apparently fears,

the imposition of a life sentence on a three-time petty

offender has occurred, on the average, at least once every

other year in Texas since 1965,!° at least one additional

instance in Texas in the last few months,!” and at least

once recently in Indiana,!* and possibly Tennessee.!®

Moreover, each new lower federal and state court deci-

sion on this issue reflects confusion among those courts

16 Only 7 of the 363 habitual offenders (.0193) who have received

a life sentence in reported cases in the Texas Court of Criminal

Appeals since 1965 have committed three nonviolent, petty prop-

erty crimes (i.e., certain thefts, forgeries, embezzlements, shop-

liftings, or some combination). This is no flood, just a trickle.

17 See State v. Guerrero, No. 78-CR-538 (Bexar County Dist. Ct.

entered Nov. 1, 1978) (certified copies of (1) the indictment and

jury verdict, reflecting a conviction for forging a $22.50 check and

rior convictions for forging a $123.10 check and child desertion

second offense) and (2) the judgment, reflecting a life sentence,

are included in Appendix C for the Court’s convenience).

18 McMahan v. State, 382 N.E.2d 154 (Ind. 1978) (life sentence for

three forgery convictions).

19 Glasscock v. State, 570 S.W.2d 354 (Tenr. Crim. App. 1978),

petition for cert. filed, 47 U.S.L.W. 3485 (U.S. Nov. 29, 1978)

(No. 78-861) (life sentence after conviction for grand larceny).

concerning the appropriate criteria by which to judge

lengthy sentences for excessiveness, both in terms of the

general excessiveness principle” and its application.”*

20 , €.g., In re Lynch, 503 P.2d 921, 930 (Cal. 1973) (en

one (citing cases in Kentucky, Oregon, Michigan, and a

each employing a different formulation of the general principle);

and cases cited in Rummel, 568 F.2d at 2044-45 n6 (panel

inion), with United States v. Washington, 578 F.2d 256, 258

Toth Cir. 1978) (a sentence within statutory limits cannot be

challenged as cruel and. unusual); Smith v. United States, 273

F.2d 462, 468 (10th Cir. 1959) (same); and O'Donnell v. State,

326 So. 2d 4, 5-6 (Fla. 1975) (same), and with State y. Myers, 570

P.2d 1252, 1264 (Ariz.) (en banc) (no discernible test); and

Green v. Commonwealth, 556 S.W.2d 684, 687 (Ky. 1977) (same).

21 .. Carmona, 47 U.S.L.W. at 3461-62 & n.12 (discuss-

poy Bate and New York cases, which evaluated Eighth

Amendment claims based on the maximum possible terms, irre-

ve_of the possibility of parole); and Pickard v. State, 585

2d 1342, 1344 (Nev. 1078) (no consideration of possibility of

People v. Lorentzen, 194 N.W.2d 827, 831, 834

Peron 1972) (test is the minimum ible punishment); and

State ‘i Mitchell, 563 S.W. 2d 18, (Mo. 1978) (en banc)

(same).

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Fifth Circuit.

Respectfully submitted,

Vinson & ELxrns