Appendix — Rummel v. Estelle

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Supreme Court, U. |

FILED’ |

APPENDIX JUL 16 1979

MICHAEL RODAK, JR., CLERIC.

In the Supreme Court of the GAnited States

Ocroser Term, 1979

No. 78-6386

WiutuM James RumMMEL,

Petitioner,

W. J. Esretie, Jr., Drmector

Texas DEPARTMENT OF CORRECTIONS,

Respondent.

ON WRIT OF CERTIORARI TO

‘THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

“PETITION 1 FOR CERTIORARI FILED MAROH 19, 1979

CERTIORARI GRANTED MAY 2 1979

INDEX

Chronological List of Relevant Docket Entries ..........

Warrant of Arrest, Dated Jan. 30, 1973 ................

Motion of Surety to Surrender Defendant, Dated Jan. 30,

ISS ERED) US) UTS Siar ee

Defendant’s Letter Notice of Appeal to the 187th District

Court of Bexar County, Texas, Filed April 16, 1973 ..

Order Denying Petition for Habeas Corpus Relief of the

District Court of the United States for the Western

District of Texas, San Antonio Division, Filed May

RE Ah oT CE es a

Judgment of the District Court of the United States for the

Western District of Texas, San Antonio Division, Filed

ares visiaseU GINS + A bVAA ila o BH Rein ae cone ces

Order Denying Petitioner’s Motion for Reconsideration of

the United States District Court for the Western Divi-

sion of Texas, San Antonio Division, Filed July 14,

Boks ee i AR POUT ie St a peau ane ia

Opinion of the United States Court of Appeals for the Fifth

Circuit, Filed Mar. 6, 1978 ...............cceeeees

Opinion of the United States Court of Appeals for the

Fifth Cireuit En Banc, Filed Dec. 20, 1978 ..........

Order Denying Petitioner-Appellant’s Petition for Rehear-

ing of the United States Court of Appeals for the

Fifth Circuit, Filed Mar. 9, 1979 ..................

Judgment of the United States Court of Appeals for the

Fifth Circuit, Issued Mar. 19, 1979 ...............4.

Order Granting Petitioner’s Petition for Writ of Certiorari

and Motion for Leave to Proceed In Forma Pauperis

of the United States Supreme Court, Entered May

PE Seahawk aks we epa ra tabs > ts <p oses ces ages va

eee * Jam,

May

CHRONOLOGICAL LIST

OF RELEVANT DOCKET ENTRIES

. 31, 1973—Indictment issued by the Grand Jury of

Bexar County, Texas.

. 9, 1973—Jury trial of action commenced in the

187th State District Court of Bexar

County, Texas.

. 10, 1973—Court’s charge to the jury, and verdict of

the jury in favor of the State.

. 26, 1973—Judgment entered sentencing petitioner to

life imprisonment.

22, 1974—Opinion filed of the Texas Court of Crimi-

nal Appeals affirming petitioner’s convic-

tion.

. 4, 1975—Petitioner’s application for writ of habeas

corpus filed in the 187th State District

Court of Bexar County, Texas.

25, 1975—Order entered denying petitioner’s appli-

eation for writ of habeas corpus.

. 23, 1975—Action by the Texas Court of Criminal

Appeals denying without written order

petitioner’s application for writ of habeas

corpus.

9, 1976—Petitioner’s petition for writ of habeas

corpus filed in the U.S. District Court for

the Western District of Texas, San Anto-

nio Division.

13, 1976—Order entered denying petitioner’s peti-

tion for writ of habeas corpus.

17, 1976—Judgment entered denying petitioner’s

petition for writ of habeas corpus.

- June 2, 1976—Petitioner’s motion for reconsideration

filed.

se July 14, 1976—Order entered denying petitioner ’s motion

for reconsideration, and petitioner’s notice

of appeal filed.

Apr. 21,

Dec.

Jan.

Mar.

= *

20,

ill

1978—Opinion and judgment filed by the US.

Court of Appeals for the Fifth Cireuit in

favor of petitioner.

1978—Rehearing en banc granted by the Court

of Appeals.

1978—Opinion filed and judgment entered by the

Court of Appeals en bane in favor of the

State.

1979—Petitioner’s petition for rehearing filed.

1979—Order entered denying petitioner’s peti-

tion for rehearing.

Mar. 19, 1979—Judgment issued in favor of the State.

—

OFF-BOND AFFIDAVIT

$2500.00 Bond

Eee

Alias WARRANT OF ARREST

No. 23991

<= = ——=———

JUSTICE'S COURT PRECINCT NO. |

Bexar County, Texas

THE STATE OF TEXAS

WILLIAM J. RUM

Th pexar County Ba on otner cnarges

Came to hand the SO day o 19 Ze

and executed on the 20 day of

19 ZPby

Lx FIM thy. xr? 2 RITE

CAVE 8 po ms

te Vavon: Cr. Jo

W. B. “BILL” HAUCK, Sheriff

JOE FERRO, Constable, Precinct |

Bexar County, Texas

By CHT Pte) eee

, Deputy

FILING:

MIKE KREPNANDEZ, JR,

$ative ef the Pees, Prect. No. a)

Poxar Gouitty, Texrg

IN THE JUSTICE COURT PRECINCT NO. ONE

BEXAR COUNTY, TEXAS

Motion or Surety TO SURRENDER DEFENDANT

| No. 53951

THE STATE OF TEXAS

vs.

WILLIAM J. RUMMEL

Before me, the undersigned authority, on this day per-

sonally appeared James H. Hance, who, being by me duly

sworn, deposes and says on his oath that he is one of the

sureties on the appearance bond of said defendant, charged

with the Felony Offense of Theft over $50.00 which said

cause is pending in this Court and numbered: 53951 on the

Docket of this Court, and the said surety further states on

his oath that he desires to surrender the said defendant

into the custody of the Sheriff of Bexar County, Texas.

Said surety further states on his oath that he has just

cause to surrender said defendant, said cause being as

follows: Defendant is in Bexar Co. Jail on other charges,

Swindling by check, ete. 7

WHEREFORE, premises considered, petitioner prays

that Court that an Alias Warrant issue addressed to the

Sheriff of Bexar County, Texas, directing the said Sheriff

to place the said defendant in Jail.

/s/ James H. Hance

Sworn and subscribed before me, this the 30th day of

January, A.D. 1973

(seal)

/s/ Arturo Martinez

Notary Public in and for Bexar County, Texas

MOTION GRANTED AS PRAYED FOR AND AN

ALIAS WARRANT ORDERED ISSUED.

/s/ Mike Hernandez, Jr.

Justice of the Peace, Precinct No. 1, Bexar

County, Texas

2 ‘

DEFENDANT’S NOTICE OF APPEAL

HONORABLE JOHN BENAVIDES

187TH DISTRICT COURT

BEXAR COUNTY, TEXAS

SIR,

THIS IS MY OFFICIAL NOTICE OF APPEAL IN

THE INSTANCE OF CAUSE # UNKNOWN, THEFT

0/50 UNDER FALSE PRETEXT, OF WHICH I WAS

CONVICTED AND SENTENCED IN YOUR COURT

THE 10TH DAY OF APRIL, 1973.

AND IN THE INSTANCE OF CAUSE # UNKNOWN

SWINDLING BY WORTHLESS CHECK 0/50 OF

WHICH I WAS CONVICTED AND SENTENCED IN

YOUR COURT THE 10TH APRIL 1973.

William J. Rummel

WILLIAM J. RUMMEL

BEXAR COUNTY JAIL

FILING:

FILED

APR. 16, 1973

ELTON R. CUDE

Clerk of the District Courts

Bexar County, Texas

By: A. E. Ozuna,

Deputy

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

WiLuiaM JAMES RUMMEL )

wig - SA-76-CA-20

W. J. Esretxz, Jr., Director

Texas Department of Corrections |

ORDER DENYING PETITION FOR HABEAS

CORPUS RELIEF—Filed May 14, 1976

Petitioner, William James Rummel, was convicted in the

187th District Court of Bexar County, Texas, after his plea

of not guilty upon the charges of theft of property over

the value of $50.00 by false pretext. Two prior convictions

were proven in his record, and he was sentenced to life

imprisonment. Upon appeal, Petitioner’s conviction was

affirmed by the Texas Court of Criminal Appeals. See

Rummel v. State, 509 S.W.2d 630.

In the present Petition the Petitioner raises the follow-

ing points of alleged error by the trial court:

(1) Ineffective counsel, and

(2) Harsh, cruel, and unusual punishment.

Neither of these points were raised upon appeal, but each

was raised in a petition for habeas corpus in the trial

court. In this connection, the trial judge filed findings of

fact and conclusions of law, and found that the applica-

tion was without merit and should be denied. Texas Court

of Criminal Appeals followed this recommendation and

denied the Petitioner’s application without written order.

Therefore, the Court finds that the Petitioner has exhausted

his State court remedies pursuant to provisions of 28

U.S.C. § 2254(b).

After reviewing the record in the present case together

with the transcript of State court proceedings, the Court

finds that upon a showing of indigency the Petitioner was

first appointed Mr. William B. Chenault, III, as counsel

one month before his trial. Thereafter, on the day of trial,

the Petitioner was appointed a second attorney at his

own request, who was directed to assist his first appointed

4 °

counsel. The Petitioner complains that Mr. Chenault made

no pretrial motions, no independent investigation of his

case, did not know the names of the State’s witnesses, and

failed to call any witnesses on the Petitioner’s behalf.

Petitioner was released on bail some two weeks after his

arrest and at least four months before Chenault was ap-

pointed to represent him. The Petitioner admitted knowing

none of the names of the witnesses whom he contends that

his attorney, Mr. Chenault, should have called to testify

on his behalf, except for the complaining witness, Shaw.

Chenault’s co-counsel obtained an instrument from Mr.

Shaw entitled ‘‘Release and Non-prosecution Statement.’’

The instrument had first been the subject of a Motion in

Limine by the State at the commencement of the trial,

which Motion was granted and Chenault was instructed not

to attempt to introduce it. Nevertheless, prior to the hear-

ing on punishment at the conclusion of the trial, Chenault

sought permission to offer it in evidence, but such permis-

sion was denied. As observed by the Appellate Court,

Shaw’s testimony was factual and expressed no opinion

concerning the appellant’s guilt, and the instrument was

not admissible for impeachment purposes. Shaw’s prior

testimony given to the attorneys was not inconsistent with

any material testimony he gave at the trial. As to the

Petitioner’s complaint that other ‘‘witnesses’’ were not

called and that Mr. Chenault did not know their names, but

knew where they worked, the Court finds that the Peti-

tioner was at liberty on bail for many months before his

attorneys ever had the opportunity to look into the matter

of possible helpful evidence, and evidently made no effort

to do so.

Although the trial judge held no evidentiary hearing,

he prepared a remarkably detailed set of findings and con-

clusions which appear in the transcript. It shows that

among other things, Mr. Chenault obtained a continuance

on the Petitioner’s behalf, discussed the case with Peti-

tioner at the jail on at least three occasions, examined the

State’s file, communicated with the Petitioner’s parents by

telephone and letter, intensively cross-examined witnesses

of the State, moved for an instructed verdict, objected to

the Court’s charge and submitted requested instructions,

one of which was granted by the Court, and attempted to

impeach the complaining witness by introduction of the

above mentioned instrument.

In the Petitioner’s traverse, he cites the Fifth Circuit

ease of MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960),

which is the landmark case within the Fifth Cireuit on

the standard for effective counsel. In MacKenna, the Fifth

Cireuit stated that the right to effective counsel means not

errorless counsel, and not counsel judged ineffective by

hindsight, but counsel reasonably likely to render and

rendering reasonably effective assistance. Jd. at 599. Re-

viewing the transcript of State court proceedings in this

case in light of the Fifth Circuit’s standard in MacK enna,

the Court finds that Petitioner’s first contention is without

merit.

The second and final point raised by the Petitioner,

namely, that he was subjected to cruel and unusual punish-

ment in violation of the Constitution, by reason of the

jury’s verdict of life imprisonment based upon the enhance-

ment statute, is also without merit. It has been held that

the Texas enhancement statute is Constitutional. See

Spencer v. Texas, 385 U.S. 551 (1967). The Fifth Circuit

has also followed the Spencer decision. Further, the argu-

ment advanced by the Respondent to the effect that a ‘‘life

sentence’’ is nothing of the sort because State Parole law

in regulation entitle a convict to release on parole after he

has served approximately twelve years, and even less if

such prisoner is made a trusty, effectively answers any

attack on this sentence as being cruel and unusual punish-

ment forbidden by the Constitution. The Court finds Peti-

tioner’s second contention to also be without merit.

Therefore, for the reasons and authorities cited above,

the Court finds that an evidentiary hearing is not war-

ranted in this case, and that the Petitioner’s application

for habeas corpus relief should be and the same is hereby

DENTED. |

SO ORDERED this the 13th day of May, 1976.

/s/ D. W. Suttle

UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

WILLIAM JAMES RUMMEL )

vs. + SA-76-CA-20

W. J. Estewxez, Jr., Director,

Texas Department of Corrections |

JUDGMENT —Filed May 17, 1976

This action came on for consideration before the Court,

Honorable D. W. Suttle, United States District Judge, and

the issues having been duly considered and the Court

having rendered a decision on May 14, 1976, denying Peti-

tioner’s application for habeas corpus relief,

It is, therefore, ORDERED AND ADJUDGED that the

petition for writ of habeas corpus is denied and this cause

is terminated.

DATED at San Antonio, Texas, this 17th day of May,

1976.

DAN W. BENEDICT, CLERK

UNITED STATES DISTRICT COURT

By: Carolyn L. Wright

Deputy U.S. District Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

WILuiaM JAMES RuUMMEL 7

Vs.

W. 7. Esteuie, Jr., Director [{ SA-76-C.A-20

Texas Department of

Corrections

ORDER DENYING PETITIONER’S MOTION FOR

RECONSIDERATION—Filed July 14, 1976

After reviewing the file in the present case, together with

the Petitioner’s Motion for Reconsideration filed June 2,

1976, the Court finds no new arguments or authorities not

previously raised by the Petitioner and considered by the

Court that would warrant the reconsideration and reversal

of the Court’s decision rendered May 14, 1976, denying the

Petitioner’s application for habeas corpus relief. The

Petitioner’s Motion for Reconsideration is, according,

DENIED. _.

SO ORDERED this the 14th day of July, 1976.

/s/ D. W. Suttle

UNITED STATES DISTRICT JUDGE

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT

William James Rummel,

Petitioner-Appellant,

Vv.

W. J. Estelle, Jr., Director, Texas

Department of Corrections,

Respondent-Appellee.

No. 76-2946.

March 6, 1978.

Rehearing Granted April 21, 1978.

William James Rummel, pro se.

Scott J. Atlas, Houston, Tex. (court-appointed), for peti-

tioner-appellant.

John L. Hill, Atty. Gen., Dunklin Sullivan, Asst. Atty.

Gen., David M. Kendall, Jr., 1st Asst. Atty. Gen., Joe B.

Dibrell, Gilbert J. Pena, Asst. Attys. Gen., Austin, Tex.,

for respondent-appellee.

Appeal from the United States District Court for the

Western District of Texas.

Before THORNBERRY, GOLDBERG, and CLARK,

Cireuit Judges.

CLARK, Circuit Judge:

Petitioner William James Rummel appeals the district

court’s denial of habeas corpus relief from state confine-

ment. He complains that the enhanced sentence he received

constituted cruel and unusual punishment in violation of

the eighth amendment and that his court-appointed attor-

ney rendered ineffective assistance of counsel in violation

of his sixth amendment rights. Because we hold that Rum-

mel’s life sentence is so grossly disproportionate to his

crimes that it violates the Cruel and Unusual Punishments

ws 10

Cldiuse, we do not reach the question whether Rummel’s

trial counsel rendered adequate assistance.

In January 1973, a Texas grand jury indicted Rummel

for the felony offense of obtaining $120.75 under false pre-

tenses. The indictment also charged him with having two

prior felony convictions: In 1964 he presented a credit

card with the intent to defraud of approximately $80, and

in 1969 he passed a forged instrument with a face value of

$28.36. Rummel pled not guilty to the false pretense in-

dictment, but a jury found him guilty as charged. After

the state proved his two prior convictions, Rummel re-

ceived an enhanced sentence of life imprisonment under the

Texas habitual criminal statute then applicable, Tex. Penal

Code Ann. art. 63 (Vernon 1925). On appeal, the Texas

Court of Criminal Appeals affirmed his conviction. Rum-

mel v. State, 509 S.W.2d 630 (Tex.Cr.App.1974). Rummel

applied for post-conviction relief and raised in the Texas

courts the issues now before us, but his application was

denied without a hearing. Then Rummel sought habeas

corpus relief in the federal district court, which also denied

his petition without a hearing.

Article 63 requires the trial court to sentence a defendant

to life imprisonment upon a third conviction for any felony,

without consideration of any lesser penalty. On its face,

this statute does not violate the eighth amendment. Spencer

v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967).

Rummel does not maintain -that Article 63 as written vio-

lates the eighth amendment, but that Texas could not apply

its inflexible life imprisonment stricture of Article 63 to

him because it abridged his protection against cruel and

unusual! punishment.”

In addition to limiting the kinds of punishment that a

state may impose and placing substantive limits on what a

state may declare criminal and punish as such, the Cruel

and Unusual Punishments Clause proscribes amounts of

1 Article 63 provides:

Whoever shall have been three times convicted of a felony less than capital

_ shall om such third conviction be imprisoned for life in the penitentiary.

With slight rewording, the new Texas Penal Code preserves the provisions of

63, now codified as Tex. Penal Code Ann. § 12.42(4) (Vernon 1974).

2 A state may apply a concededly valid statute in a particular case in such a

way as to violate provisions of the Constitution. Edwards v. South Carolina,

372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.24 697 (1963); Yick Wo v. Hopkins, 118

UB. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).

—

punishment which are grossly disproportionate to the se-

verity of the crime. Ingraham v. Wright, 430 U.S. 651, 667,

97 S.Ct. 1401, 1410, 51 L.Ed.2d 711, 742 (1977). While the

Supreme Court has yet to hold a sentence cruel and unusual

for length alone, its reasoning never has suggested that a

disproportionately long prison sentence would be immune

from eighth amendment challenge.’ In Weems v. United

States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1909), the

Court held that a provision of the Philippine Code of Crimi-

nal Procedure allowing the imposition of a 15-year sentence

to hard and painful labor in chains for a false entry on an

official report violated the eighth amendment. The Court

found the Code’s minimum penalty of 12 years amazing in

light of the American commonwealths’ ‘‘ precept of justice

that punishment for crime should be graduated and propor-

tioned to offense.’’ 217 U.S. at 367, 30 S.Ct. at 549, 54 L.Ed.

at 798. Subsequently, in Trop v. Dulles, 356 U.S. 86, 78

S.Ct. 590, 2 L.Ed.2d 630 (1957), the Court overturned dena-

tionalization as a punishment for desertion from the mili-

tary. An opinion by Chief Justice Warren, joined by three

other members of the Court, put aside the death penalty

as the index of the constitutional limit on punishment in

these words:

[T]he existence of the death penalty [as punishment ac-

ceptable under the Constitution] is not a license to the

Government to devise any punishment short of death

within the limit of its imagination. .

356 U.S. at 99, 78 S.Ct. at 597, 2 L.Ed.2d at 641. Justice

Brennan, concurring, also judged the constitutionality of

the punishment by its proportion to the crime:

[T]he severity of the penalty, in the case of a serious

offense, is not enough to invalidate it where the nature

of the penalty is rationally directed to achieve, the legiti-

mate ends of punishment.

306 U.S. at 111, 78 S.Ct. at 603, 2 L.Ed.2d at 648.

Recently, in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861,

53 L.Ed.2d 982 (1977), the Supreme Court amplified the

proportionality component of the eighth amendment by

holding that a punishment clearly permissible for some

3 But of. Ingraham v. Wright, 430 U.S. 651, 670 n. 39, 97 S.Ct. 1401, 1412

n. 39, 51 L.Ed.2d 711, 730 n. 39 (1977).

crimes is constitutionally disproportionate for others. In

Coker, the plurality opinion by Justice White, and Justice

Powell’s opinion concurring in the judgment of the Court,

stressed disproportionality in holding that Georgia may

not execute a defendant for rape. Both of these-opinions

emphasized that to the maximum possible extent, objective

factors must inform the decision whether a particular pun-

ishment violates the eighth amendment. The Chief Justice’s

dissent challenged not the disproportionality approach,

but the conclusion that death was in fact an excessive pen-

alty for the crime of rape. Thus, Coker heralds a more

exacting weighing of the relationship of the punishment to

the crime, governed by objective factors.

Coker involved capital punishment, but that is not the

only sentence which can be disproportionate. A sentence to

imprisonment for life is surely not so lenient as to be un-

questionably proportional under the eighth amendment

wherever a state might impose it. Texas points out that a

life sentence under its law amounts to'less than a life sen-

tence because a prisoner becomes eligible for parole after

serving 20 years. With good conduct credit, eligibility ac-

crues in 12 years; and with trusty status, in ten years.

Texas argues that we should view its recidivist statute as a

requirement that a defendant with two or more prior felo-

nies prove himself within the prison system to achieve

early release. Therefore, since a well-behaved prisoner

could receive a term not grossly disproportionate for one

committing a third offense, Texas argues that this court

should not equate Rummel’s sentence with one for actual

incarceration for life.

The grant or denial of parole by a state, in the absence

of some unusual circumstance, is not reviewable in federal

court. If Rummel has a constitutional right not to be com-

mitted to prison for the remainder of his life to punish his

offenses, then Texas may not deprive him of that right by

-.. Suggesting it may be willing to interdict its denial by the

‘” future exercise of discretion which we have characterized

as'a matter of administrative grace.“ Indeed, if the propor-

Kearny, 355 F.24 100 (th Oi. 1966). Ses alsv Johnson v. Wells,

Piper man ir. 1978),

teats atc tek eb cian dis Seki ihre bo actvtla ent

in fact, because the threat itself makes the punishment obnoxious. Trop v.

Dulles, 356 U.S. at 102, 78 S.Ct. at 599, 2 L.Ed.24 at 643 (Opinion of Warren,

C. J.). We distinguish the case at bar from cases in which we upheld prison

tionality of Rummel’s sentence and hence its constitution-

ality depended upon the availability of parole, we would

have to make a careful review of procedures and evidence

in state parole proceedings, since the availability of parole

in fact and the aecuracy of individual parole decisions then

would measure constitutional dimensions.

In most jurisdictions, a sentence to imprisonment for life

now stands in the place where the death penalty stood

earlier in this century—the ultimate punishment imposed

by this society for those crimes most abhorrent to it. There-

fore, the question of the proportionality of Rummel’s life

sentence to the crime of which he was convicted deserves a

_ consideration which may be unnecessary for a lesser sen-

tence.°

Rummel draws support for his eighth amendment claim

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

denied, 415 U.S. 983, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974).

In Hart the Fourth Cireuit held that a sentence imposed

under a West Virginia recidivist statute was cruel and un-

usual based on length alone because it was grossly dispro-

portionate to the crimes involved. The state court en-

hanced Hart’s punishment for committing perjury at his

son’s murder trial to life imprisonment on the basis of a

1949 conviction for writing a $50 check on insufficient funds

and a 1955 conviction of interstate transportation of forged

checks worth $140. In determining that the West Virginia

statute violated the eighth amendment as applied to Hart,

the Fourth Circuit considered cumulatively (1) the nature

of the offense, (2) the legislative purposes behind the pun-

ishment, (3) the punishment that the defendant would have

received in other jurisdictions, and (4) the punishment

meted out for other offenses in the same jurisdiction.

The analysis in Hart is not inconsistent with our prior

applications of the Cruel and Unusual Punishments Clause.

We have held that a punishment violates the eighth amend-

ment only if it ‘‘is so greatly disproportionate to the offense

committed as to be completely arbitrary and shocking to the

terms of lengths far in excess of a natural life span, ¢.g., Yeager v. Estelle, 489

F.2d 276 (5th Cir. 1973), cert. denied, 416 U.8. 908, 92 S.Ct. 1616, 40 L.Ed.2d

113 (1974). In those cases, natural law and not administrative grace invariably

prohibited the state from carrying out any punishment greater than life

imprisonment.

5 Cf. Hall v. McKensie, 537 F.2d 1232, 1235-36 (4th Cir. 1976); Wood v.

South Carolina, 483 F.2d 149 (4th Cir. 1973).

sense of justice.’’ Rogers v. United States, 304 F.2d 520,

521 (5th Cir. 1962). But we have never set forth in detail

those factors which determine whether this standard has

been met where the nature of the offense alone does not con-

firm the proportionality of the punishment. Some decisions

of this cireuit have cited Hart approvingly.’ However, be-

cause each of these cases involved at least one offense pre-

senting a potential for violence, a strong social interest, or

a sentence less severe than life, we upheld the sentence im-

posed without considering any part of the Hart analysis

other than its initial inquiry into the nature of the crime.

The factors set forth in Hart have been central to the

Supreme Court’s major decisions applying the Cruel and

Unusual Punishments Clause, although the Court has not

applied them as systematically as did the Fourth Circuit.

The nature of the crime figures prominently in Coker v.

Georgia, 433 U.S. at 598-601, 97 S.Ct. at 2869-70, 53 L.Ed.

2d at 993-994 (Opinion of White, J.) ; id. at 602, 97 S.Ct. at

2871, 53 L.Ed.2d at 996 (Opinion of Powell, J.) ; and Weems

v. United States, 217 U.S. at 365-66, 30 S.Ct. at 548, 54 L.Ed.

at 797-798. See also Trop v. Dulles, 356 U.S. at 92-93, 78

S.Ct. at 593-94, 2 L.Eid.2d at 637-638 (Opinion of Warren,

C. J.). Weems took the object of the Philippine statute into

account in determining that the sentence to painful labor in

chains violated the eighth amendment. 217 U.S. at 363, 381,

30 S.Ct. at 547, 554-55, 54 L.Ed. at 804. In Trop, both the

plurality opinion by Chief Justice Warren and Justice

Brennan’s concurrence considered the relation between

the objectives of Congress and the penalty of denationaliza-

tion. 356 U.S. at 96-98, 78 S.Ct. at 595-96, 2 L.Ed.2d at

639-641 (Opinion of Warren, C. J.) ; id. at 107-10, 78 S.Ct.

at 601-03, 2 L.Bd.2d at 646-648 (Opinion of Brennan, J.).

Recent cases also confirm the need to discern the legislative

objective and to avoid displacing legislative discretion with

judi¢ial diseretion. See, e. g., Gregg v. Georgia, 428 US.

153, 181-182, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859, 879-880

“(Opinion of Stewart, J.), citing Furman v. Georgia,

8 U.S, 238, 451, 92 8.Ct. 2726, 2834, 33 L.Eid.2d 346, 472

tio) (Powell, J., dissenting). Comparisons of challenged

‘¥. Retell, 506 F.2d 440 (Sth Cir. 1975), cert, denied, 423 U.S.

842, 15 46 L.Bd.2a 62 (1975); Yeager v. Estelle, 489 F.2d 276 (5th

Cir, 1973), e¢ 416 U.S, 908, 92 S.Ct. 1616, 40 L.Ba.2d 113 (1974).

Seltae v. etelte, B44 24 1244 (5th Cir. 1977), cited Hart approvingly but

dismissed because the issue was not properly presented as a class action.

punishments with punishments meted out in the same juris-

diction or other jurisdiction have also guided the Supreme

Court in its major eighth amendment cases.’ Because Hart

applies objective criteria solidly grounded in decisions of

the Supreme Court, we hold that its form of analysis prop-

erly guides our decision.

In considering the constitutionality of Rummel’s sen-

tence, we look first to the nature of the crimes for which he

was convicted. Our prior cases found this factor alone

determinative where one or more offenses forming the basis

for the sentence involved violence, a potential for violence,

or a strong social interest. In Yeager v. Estelle, 489 F.2d

276 (5th Cir. 1973), cert. denied, 416 U.S. 908, 92 S.Ct. 1616,

40 L.Ed.2d 113 (1974), citing Hart v. Coiner, 483 F.2d 136,

139-40 (4th Cir. 1973), we upheld petitioner’s 500-year

prison term without proceeding to other points of the Hart

analysis where the petitioner had been convicted of murder

with malice. Capuchino v. Estelle, 506 F.2d 440 (5th Cir.

1975), cert. denied, 423 U.S. 842, 96 S.Ct. 75, 46 L.Ed.2d 62

(1975), upheld a life sentence under the Texas recidivist

statute where the state meted out a life sentence to a de-

fendant convicted of one crime involving violence (assault

with intent to murder), one involving a potential for vio-

lence (burglary), and one implicating a particularly strong

social interest (possession of narcotics paraphernalia).

Similarly, in King v. United States, 565 F.2d 356 (1978),

we examined only the nature of the offense in upholding a

15-year sentence for conspiracy to import heroin imposed

consecutively with a 10-year sentence previously imposed

for the substantive offense.*

* See, e.g. Coker v. Georgia, 433 U.S. at 592-595, 97 S.Ct. at 2866-67, 53

L.Ed.2d at 990-991 (Opinion of White, J.); id. at 602, 97 S.Ct. at 2871, 53

L.Ed.2d at 996 (Opinion of Powell, J.) (comparing various states as to modi-

fications to death penalty statutes after Furman) ; Gregg v. Georgia, 428 U.S. at

179, 96 S.Ct. ai 2928, 49 L.Ed.2d at 878 (Opinion of Stewart, J.); Weems v.

United States, 217 U.8. at 367-77, 380, 30 S.Ct. at 549-53, 554, 54 L.Ed. at

798-803, 804 (comparing challenged statute with state punishments, penalties

available under federal law, and other penalties for more serious crimes in the

same jurisdiction). See also Trop v. Dulles, 356 U.8. at 102-03, 78 8.Ct. at 599,

2 L.Ed. at 643 (Opinion of Warren, C. J.) (examining denationalization penal-

ties imposed by other nations). '

® The Cireuit which decided Hart has taken a similarly restrictive view of the

sorts of crimes for which a life sentence can give rise to mors than a frivolous

claim of constitutional disproportionality. Griffin v. Warden, 517 F.2d 756,

None of ~mel’s offenses present exacerbating factors

justifying vere penalty. Considered in combination,

Rummel’s e.. °>s, although felonies under Texas law, lack

thosé indicia of depravity generally associated with felonies

and the heinousness of the offenses for which life imprison-

ment is a common punishment. They were substantially

separated in time. None involved violence or the potential

of violence. Each was solely a property crime and the

amounts taken were not substantial.

\Seeond, we consider the legislative objective in making

the conduct a punishable offense. Here the inquiry seeks to

determine whether a significantly less severe punishment

could achieve the purposes for which the challenged punish-

ment is inflicted. Hart, swpra, 483 F.2d at 141. The Su-

preme Court has recognized the tension between an inquiry

into legislative purpose and the need for federal courts to

avoid substituting their discretionary judgment for that of

the states. Gregg v. Georgia, 428 U.S. at 181-182, 96 S.Ct.

at 2929, 49 L.Ed.2d at 879-880 (Opinion of Stewart, J.). In

Weems, however, the Court showed less deference to the

legislative judgment where ‘‘the law in controversy seems

to be independent of degrees.’’ 217 U.S. at 365, 30 S.Ct. at

548, 54 L.Ed. at 797. This latter conditon is present in the

ease at bar. Article 63 indiscriminately punishes such a

broad range of offenses with a mandatory life sentence that

we can discern no clear legislative judgment that Texas

757 (4th Cir. 1975), upheld a life sentence for a defendant convicted of grand

larceny, burglary, and breaking and entering because these offenses ‘‘ clearly

involve the potentiality of violence and danger to life as well as property.’’

Hall v. McKenzie, 537 F.2d 1232 (4th Cir. 1976), upheld a 10 to 20-year

sentence imposed upon a defendant in his early twenties convicted of the

nonforcible Seance nets: SF foeienesare: nace ie i ynen ve ©

crime against

Courts applying np have overturned few sentences. Davis v. Zahradnick,

432 F.Supp. 444 (W.D.Va. 1977),.struck down two twenty-year consecutive

sentences for one count of possession of marijuana with intent to distribute and

Cireuit followed Hart in striking down 30- to 60-year sentences imposed upon

| for the same two offenses under Ohio law. Downey v, Perini, 518

first

_ Bd 1288 (6th Cir. 1975), vacated on other grownds, 423 U.S. 993, 96 S.Ct. 419,

46 L.Ed.2d 367 (1975). Roberts v, Collins, 544 F.2d 168 (4th Cir. 1976), cited

that the eighth amendnient prohibits a state from imposing a

a lesser included offense than it could impose for the.

= See also United States v. Neary, 552 F.2d 1184, 1195 (7th

1977). .

could achieve its penological objectives only by imposing a

life sentence on one such as Rummel.

The Texas recidivist statute aims at protecting citizens

from incorrigible repeat offenders. While Rummel’s of-

fenses merit punishment, not only individually but also be-

cause of their cumulative impact, they hardly suggest that

he presents such a threat to society as to call forth its harsh-

est penalty short of death. Whether a particular punish-

ment is grossly disproportionate to a rational penological

objective is best answered by the last points of the Hart

analysis, which compare the punishment imposed with

available penalties for other offenses and with penalties in

other jurisdictions.

A comparison of Rummel’s sentence with the punishment

accorded other crimes under Texas law further highlights

the irrational severity of the life sentence mandated by

Article 63. Because the trial court sentenced Rummel un-

der a repeated offender statute, we consider Rummel’s of-

fenses together to determine whether the mandatory life:

sentence imposed upon him by the statute is proportionate

to the combined offenses as compared with similar punish-

ments inflicted under Texas law. Hart v. Coiner, 483 F.2d

at 142. Apart from its habitual criminal statute, Texas im-

poses a mandatory life sentence (or death) only for the

crime of capital murder: murdering a policeman, fireman,

or prison employee, murdering for pay or while escaping

from prison, or while committing kidnapping, burglary,

robbery, aggravated rape, or arson.’ The trial court could

have imposed a sentence for as little as five years if Rum-

mel had committed a single first-degree felony, such as

murder, aggravated rape, or arson.*® The same five-year

minimum would have applied if Rummel had committed a

second-degree felony with a prior conviction for another:

for example, aggravated kidnapping with a prior conviction

for rape or voluntary manslaughter with a prior conviction

for burglary. With a single conviction for a second-degree

* Tex. Penal Code Ann. § 19.03 (Vernon 1974) defines capital murder. Id.

§ 12.31 sets the punishment at life imprisonment or death.

1° Tex. Penal Code Ann, § 12.32 (Vernon 1974) punishes first-degree felonies

with a prison sentence of 5 to 99 years. Murder, éd. § 19.02, aggravated rape,

id. § 21,03, and arson, id. § 28.02, are among the crimes treated as first-degree

felonies.

felony, the trial court could impose a term no longer than

20 years and as short as two years.”

Compared with those statutory punishments for violent

felonies for which Texas does not bind the trial court’s

hand in granting leniency, the punishment indiscriminately

imposed on Rummel is too harsh. In combination, Rum-

mel’s deceitful acts deprived his victims of approximately

$230. The record suggests that no harmful consequences

‘beyond the-loss of the money itself flowed from his offenses.

Intervening action by the Texas legislature underscores

the relatively trivial nature of Rummel’s third offense, be-

cause Texas law now treats a first offense of theft by false

pretext only as a misdemeanor.”

Comparing Rummel’s sentence with the sentence im-

posed in other jurisdictions for similar offenses, confirms

the gross disproportionality between his crime and his

sentence.* At the time Rummel was convicted several

states had statutes allowing the sentencing court to impose

a life sentence upon a third f lony conviction for crimes

such as his. However, only Indiana and Washington made

the life sentence mandatory upon the third conviction for

any felony. Indiana has since modified its statute * and a

11 Aggravated kidnapping, Tex. Penal Code Ann, § 20,04 (Vernon 1974), rape,

id. § 21.03, voluntary manslaughter, id. § 19.04, and burglary, id. § 30.02(a)-(c)

are second-degree felonies, punishable under id, § 12.33 for a prison term of

from 2 to 20 years. Under id. § 12.42(b), a defendant convicted of his second

felony in the second degree is punished as a first-degree felon, thereby requiring

a 5-year minimum sentence under id, § 12,32.

12 Under the new Texas Penal Code, theft of $120 by false pretext constitutes

a Class A misdemeanor. Tex. Penal Code Ann. § 31.03(b) (1) & (a) (3) (Vernon

1974 & 1977 Supp.). A Class A misdemeanor carries a maximum jail term of one

year, id, § 12.21. This legislative change suggests that Rummel’s offense ranked

low in the hierarchy of felonies under Texas law, although standing alone it has

little persuasive value, Capuchino v. Estelle, 506 F.2d at 442.

138'This is not a search for a norm or a demand for conformity in these

diverse jurisdictions, Some siates might validly impose an uncustomarily harsh

sentence for an offense not regarded so seriously in others where it has a larger

interest in controlling that deviation. It also may impose a stiffer penalty where

an offense, non-serious in itself, forms part of a pattern of conduct which is a

particular problem for that state. Crimes involving dangerous drugs may fa!!

in this eategory. None of Rummel’s offenses presents such an interest.

14 Under Indiana’s new statute, the sentencing court adds a 30-year additional

‘term td the maximum sentence imposed upon a third-time felon. Ind. Code A=n.

§865-50-2:8 (Burns 1977 Supp.). West Virginia’s recidivist statute remains on

the books, but Hart limits its application. W.Va. Code § 61-11-18. Although

‘most states impose higher penalties upon third-time felons than upon first-

offenders, no other states have determined that all third-time felony offenders

}

decision by the Supreme Court of Washington makes #

questionable whether a mandatory life sentence could have

been imposed upon one in Rummel’s situation.” Thus, the

state. of Texas.now stands virtually alone in its unqualified

demand for life imprisonment for a three-time felon even

where his convictions were for minor property crimes in-

volving neither violence nor a remote possibility of violence.

Our assessment of Rummel’s sentence in light of the

Hart factors leads us to conciude that imposing a life sen-

tence for these three crimes is so grossly disproportionate

to the offenses as to constitute cruel and unusual punish-

ment in violation of the eighth amendment. Rummel’s of-

fenses involved no special factor sufficient to call forth so

severe a sentence. The legislative objective of punishing

recidivists certainly is legitimate. However, in view of the

dramatically lower minimum penalties that Texas imposes

upon defendants who commit even the most violent crimes

short of capital murder and even upon defendants with a

second conviction and a prior offense involving violent

second-degree felonies, it clearly appears that a signifi-

cantly less severe penalty would fulfill the legislative objec-

tives of protecting citizens and deterring crime. The

recent reclassification of Rummel’s third offense as a mis-

demeanor under Texas law buttresses this view. That at

most two other states and perhaps none would require life

imprisonment for a defendant in Rummel’s circumstances

confirms the constitutional disproportionality of the sen-

tence given Rummel.

must receive a sentence of life in prison. State statutes for the most part

employ one or more of the following techniques in determining the additional

penalty: (1) punishment is keyed to the grade of the third offense by increasing

the minimum punishment or by making the punishment the mandatory maxi-

mum, a multiple of the maximum or the maximum plus a fixed term of years;

(2) a lengthy sentence is allowed, but its imposition in a particular case is left

to the discretion of the sentencing court; (3) a relatively small mandatory

minimum is applied to all third-time felons, with greater mandatory punish-

ments available for fourth offenses; (4) severe penalties are required but only

for listed violent felonies.

In addition to Indiana, Washington, and West Virginia, the following state

statutes appear to require the strictest mandatory punishment for one in

Rummel’s situation: N.C. Gen. Stat. §§ 14-7.1, -7.6 (20-year minimum) ; Okla.

Stat. Ann. tit. 21, §51 (West) (20 ycars plus maximum for third offense).

Several states provide for a ten-year minimum for a third offense and a few

provide for a mandatory life sentence for a fourth felony conviction.

15 In State v. Lee, 87 Wash.2d 932, 558 P.2d 236, 240 n. 4 (1977), the Supreme

Court of Washington agreed that the sentence in Hart was disproportionate,

although it found Lee’s sentence within constitutional bounds. ~

Rummel maintains that a finding that the Texas habitual

criminal statute violates the eighth amendment requires

his immediate release. He points out that because a jury

sentenced him, Texas law requires a triai de novo in which

he may elect to be tried under the new Texas Penal Code,

which classifies his third offense as a misdemeanor. Even

if he were to receive the maximum sentence as a repeat

misdemeanant, he would have served his sentence already.

We do not pass upon this theory, but leave the question

for the courts of Texas to decide.

We add an important caveat to our holding that the

Texas habitual criminal statute, as applied to Rummel in

this instance, violates the eighth amendment. Today’s pre-

cedent signals ne beginning for appellate review of judicial

sentencing discretion. We expressly recognize both that

the prerogative to fix sentence ranges for proscribed crimi-

nal conduct belongs to the legislative and not the judicial

branch and that it is extremely broad. We hold only that it

is not unbounded. We overturn this nondiscretionary judi-

cial action in applying an inflexible legislative edict because

it can be objectively demonstrated to be grossly dispropor-

tionate to any rational penological objective to be served

in this particular case.

~The decision of the district court is reversed with direc-

tions to grant a writ of habeas corpus for the release of

Rummel, unless within 60. days the state of Texas shall re-

sentence him to punishment. according to Texas law but not

inconsistent with this opinion.

REVERSED and REMANDED with directions.

~ THORNBERRY, Circuit Judge, dissenting:

With deference, I must dissent.

Perhaps, if I were the prosecutor, I would not have

sought an indictment charging the defendant with an ha-

bitual count; if I were a state lawmaker I would vote to

amend the statute so that-it would not be applied as has

been done here; or if I were governor of the State of Texas,

I would consider the petitioner a prime candidate for

enya ee ee ae cee

, Ea yemeabed ogra In that amendment, I

cEF

sentence is so grossly disproportionate to the crimes he

committed that it cannot withstand an eighth amendment

attack. To reach that result the majority focuses on the

small amount of money involved and the asserted triviality

of all of Rummel’s offenses. But Rummel was not sentenced

to life imprisonment for stealing $230.00; the life sentence

resulted from his having committed three separate and dis-

tinct felonies under the laws of Texas. If. the state is en-

titled to characterize a particular criminal act as a felony,’

and to enforce its constitutional habitual criminal statute,’

I cannot understand how these two constitutional statutes

coalesce to produce an unconstitutional result. No neutral

principle of adjudication * permits a federal court to hold

1 The state’s right to categorize an offense as a felony and to determine appro-

priate punishment in the first instance is beyond dispute. That this is so is

demonstrated by the variety of statutory schemes relating to the type of offenses

for which Rummel received habitual criminal treatment. Not only do some

statutes retain the technical common law distinctions, compare Fla. Rev. Stat.

Ann. § 812.021 (grand larceny statute) with Ga. Code Ann. 26-1803, et seq.

(theft statutes), but the dollar amounts necessary to comprise a felony offense

vary considerably. See Alabama Code Ann., Tit. 14, § 331 (Cum. Supp. 1973)

(felony to take personal property worth more than $25.00); Fla. Rev. Stat.

Ann. § 812.021 (felony to take property worth more than $100-or of an aggre-

gate value of $200 in a twelve month period) ; Miss. Code Ann. § 97-17-41 (fe

ony to take property worth more than $100). Thus I assume that Texas’ right

to impose a monetary boundary on felony offenses could not have been challenged

by the petitioner. That Texas has since raised that limit is irrelevant. Prior law

in this cireuit so dictates. In Capuchino v, Estelle, 506 F.2d 440 (5 Cir. 1975),

the petitioner was convicted of possession of nareoties paraphernalia. Two prior

non-capital felonies were used for enhancement and he received a life sentence

under the very statute the present petitioner challenges. In upholding the denial

of habeas corpus, the panel specifically rejected the rationale of Hart v. Coiner,

483 F.2d 136 (4 Cir. 1973), cert. denied, 415 U.S. 983, 94 8.Ct. 1577, 39 L.Ed.2d

881 (1974), despite the fact that at the time of his habeas Capuchino could not

have been convicted of more than a misdemeanor for which he could have served

a year in jail.

2 Spencer v. Texas, 385 U.8. 554, 87 S.Ct. 648, 17 L.Ed.2a 606 (1967). The

majority concedes that the Texas statute is not unconstitutional but adopts an

‘‘uneonstitutional-as-applied’’ approach to determine that in this instance the

statute is invalid. The cases cited by the majority to support its approach are,

however, inapposite to the issue in this case.

3 The majority embraces the disproportionality rationale of Hart v. Coiner,

supra, because it ‘‘applies objective criteria’’ to eighth amendment determina-

tions. With due respect to my colleagues, I find no such objectivity in today’s

decision. The first of the four criteria requires a court inquiry into the ‘‘nature

of the crime.’’ The characterization of Rummel’s crimes as minor property

offenses is a subjective one based on the majority ’s decision that there simply

was not enough money involved to permit the state to exact a life imprisonment.

For many $200.00 is not an insignificant sum of money. To state,that a crime is

that in a given situation individual crimes are too trivial in

relation to the punishment imposed. I know of no stopping

point for today’s decision.

While it is well-settled that the eighth amendment cir-

cumscribes legislative power to punish crime,* the balance

to be struck when a court enters this traditionally legisla-

tive field is not easily determined. The judicial function

lies somewhere between abdication of fundamental respon-

sibility in the guise of judicial restraint and the insertion

of judicial conceptions of wisdom and propriety. Furman

v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 2741, 33 L.Ed.2d 346

(1972) (Brennan, J. concurring). To my mind, the major-

ity has strayed too far in the latter direction.

In doing so, the majority depreciates the state’s interest

in protecting its citizens from the repetition of property

crimes. Having found that Rummel was not ‘‘depraved,’’

‘theinous,’’ or ‘‘incorrigible,’’ the majority facilely sub-

mits that he does not pose such a threat to society to merit

life imprisonment. In spite of an attempt to limit this case

through an ‘‘unconstitutional-as-applied approach,’’ the re-

sult of its conclusion will surely be an attack on the habit-

ual offender statute in every instance of its attempted ap-

plication to property crime. However, nothing in the court’s

one against property does not dispose of the difficulty involved in these cases.

That difficulty is apparent in later Fourth Circuit decisions. Two years after

Hart was written, its own author refused to apply it in Griffin v. Warden, West

Virginia State Penitentiary, 517 F.2d 756 (4th Cir.), cert. denied, 423 U.S. 990,

96 8.Ct. 402, 46 L.Ed.2d 308 (1975). Griffin was charged with grand larceny.

His two prior offenses were breaking and entering and burglary of a residence.

‘The court stated :

These and grand larceny are serious offenses that clearly involved the

potentiality of violence and danger to life as well as property. Whether or

not Griffin may be actually deserving of such extreme dirapoamne is not

within our province to decide; vies 9

See also Wood v. State of South Carolina, 483 F.2d 149 (4 Cir. 1973) (refusing

to apply Hart to a five-year sentence for an obscene telephone call; defendant

had prior convictions for larceny and auto theft).

The second prong of the Hart test, whether the penalty was necessary to

aceomplish the legislative purpose, is subject to the same criticism as the first.

The last element, comparison of punishment of other offenses is limited by

_ Capuchino, supra, This leaves only the third clement that Texas’ penalty is

harsh in comparison with other states to support the majority*opinion.

4 Se. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) ;

- Furman v, Georgia, 408 U.S, 238, 92 S.Ct, 2726, 33 L.Ed.2d 346 (1972); Weems

v, United States, 217 U. 8. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910).

V9 ”

opinion informs state prosecutors, courts, or legislatures

of the possible limits of error.

Moreover, today’s decision signals a departure from

longstanding precedent in this circuit. In Rogers v. United

States, 304 F.2d 520 (5 Cir. 1962), the defendant was con-

victed of possession of a letter stolen from an authorized

mail depository, forgery of a treasury check and the utter-

ing of forgery with intent to defraud the United States.

The treasury check underlying the offenses was for $380.51.

None of Rogers’ prior convictions involved violence. The

panel affirmed his twenty-five-year sentence as within the

statutory limit and found it unnecessary to pass on whether

the sentence was within the eighth amendment standards.°

In Rener v. Beto, 447 F.2d 20 (5 Cir. 1971), cert. denied, 405

U.S. 1051, 92 S. Ct. 1521, 31 L.Ed.2d 787 (1972), the court

upheld a thirty-year sentence for the possession of a single

marijuana cigarette with the following statement:

This Cireuit has long followed the principle that a sen-

tence within the statutory limits set by a legislature is not

to be considered cruel or unusual. (citations omitted).

A sentence of thirty years is within the range of punish-

ment prescribed by the Texas Penal Code for a second

offense of possession of marijuana.

If the majority’s analysis is correct, Rummel’s case is

indeed the ‘‘easy’’ one in which to apply it. Here the court

faces an individual charged with what may seem to many

to be insignificant offenses when the spotlight is on the

amount of money involved. Surely the principle of decision

cannot be the dollar sign, and the court gives no other indi-

cation where the line is to be drawn. Whatever sociological

analysis I might apply to this case, T cannot avoid the con-

clusion that with this decision we stand on the brink of the

‘*slippery slope’’ in its most classic sense. For that reason

T cannot ad my voice to that of the majority and must re-

spectfully—but firmly—DISSENT.

ON PETITION FOR REHEARING AND

PETITION FOR REHEARING EN BANC

Before BROWN, Chief Judge, THORNBERRY, COLE-

MAN, GOLDBERG, AINSWORTH, GODBOLD, MOR-

5 See also Yeager v. Estelle, 489 F.2d 276 (5 Cir.), cert. denied, 416 U.S. 908,

94 S.Ct. 1616, 40 L.Ed.2d 113 (1973). (Citing Hart, but refusing to overturn

a ‘‘ patently absurd’’ 500-year sentence for murder with malice.) +

GAN, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY,

RUBIN and VANCE, Circuit Judges.

By THe Court:

A member of the Court in active service having requested

a poll on the application for rehearing en bane and a ma-

jority of the judges in active service having voted in favor

of granting a rehearing en bane,

IT IS ORDERED that the cause shall be reheard by the

Court en bane with oral argument on a date hereafter to be

fixed. The Clerk will specify a briefing schedule for the

filing of supplemental briefs.

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT.

William James RUMMEL,

Petitioner-Appellant,

W.J. ESTELLE, Jr., Director, Texas

Department of Corrections,

Respondent-Appellee.

No. 76-2946.

Dec. 20, 1978.

William James Rummel, pro se.

Seott J. Atlas (Court-appointed), Houston, Tex., for peti-

tioner-appellant.

John L. Hill, Atty. Gen., Dunklin Sullivan, Asst. Atty.

Gen., David M. Kendall, Jr., First Asst. Atty. Gen., Joe B.

Dibrell, Gilbert J. Pena, Douglas M. Becker, Asst. Attys.

Gen., Austin, Tex., for respondent-appellee.

Keith W. Burris, Asst. Crim. Dist. Atty., San Antonio,

Tex., for Crim. Dist. Atty. of Bexar County, Tex., amicus

curiae.

Michael Kuhn, Asst. Dist. Atty., Seteuben Tex., for Dist.

Atty. of Harris County, Tex., amicus curiae.

Harry J. Schulz, Jr., Asst. Dist. Atty., Dallas County,

Tex., for Henry Wade, Crim. Dist. Atty., Dallas County,

Tex., amicus curiae.

Appeal from the United States District Court for the

Western District of Texas.

Before BROWN, Chief Judge, THORNBERRY, COLE-

MAN, GOLDBERG, AINSWORTA, GODBOLD, CLARK,

RONEY, GEE, TJOFLAT, FILL, FAY, RUBIN and

VANCE, Circuit Judges.

THORNBERRY, Circuit Judge:

This is a habeas corpus case in which the petitioner,

William Rummel, challenges his life sentence under the

Texas habitual criminal statute’ as cruel and unusual

punishment in violation of the eighth amendment. A panel

of this court held that his sentence violated the eighth

amendment because his sentence was grossly disproportion-

ate to his crimes. Rummel v. Estelle, 568 F.2d 1193 (5 Cir.

1978). The court has reheard this important case en banc

and vacates the panel opinion.

Facts

As stated by the panel opinion, the relevant facts are:

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: In 1964 he presented a credit

card with the intent to defraud of approximately $80, and

in 1969 he passed a forged instrument with a face value

of $28.36. Rummel pled not guilty to the false pretense

indictment, but a jury found him guilty as charged. After

the state proved his two prior convictions, Rummel re-

ceived an enhanced sentence of life imprisonment under

the Texas habitual criminal statute then applicable, Tex.

Penal Code Ann. art. 63 (Vernon 1925). On appeal, the

Texas Court of Criminal Appeals affirmed his conviction.

Rummel v. State, 509 S.W.2d 630 (Tex.Cr.App.1974).

Rummel applied for posteonviction relief and raised in

the Texas courts the issues now before us, but his applica-

tion was denied without a hearing. Then Rummel sought

habeas corpus relief in the federal district court, which

also denied his petition without a hearing.

568 F.2d at 1195.

1 Rummel was convicted under Tex. Pena] Code Ann. art, 63 (Vernon 1925).

This article provides:

Whoever shall have been three times convicted of a felony less than capital

shall on such third conviction be imprisoned for life in the penitentiary.

With slight rewording, this provision is carried into the new Texas Penal Code.

The provision is now found at Tex. Penal Code Ann. § 12.42(d) (Vernon 1974).

The statute im various forms has been the law in Texas since 1856. See Tex.

Laws 1856, Paschal, Digest of Texas Laws, art. 2464 (1866).

Il.

As a preliminary matter, the State suggests that Rum-

mel’s petition is barred by Wainwright v. Sykes, 433 U.S. 72,

97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and the Texas “Con-

temporaneous Objection Rule” because Rummel failed to

object to the mandatory life sentence at the punishment

stage of his trial. In Sykes, the Court recognized the legiti-

mate state interest inherent in a contemporaneous objec-

tion rule. See St. John v. Estelle, 563 F.2d 168 (5 Cir. 1977)

(en bane). Since it is apparent that the Texas Court of

Criminal Appeals has repeatedly rejected Rummel-like chal-

lenges to the Texas habitual criminal statute,? we are at a

loss to see how any state interest would be served by de-

manding that Rummel make a futile gesture at his trial.

Moreover, Texas apparently does not require a contempor-

aneous objection when a defendant challenges the consti-

tutionality of the statute under which he was convicted.

Gann v. Keith, 151 Tex. 626, 253 S.W.2d 413, 417 (1952).

ITT.

The Panel Opinion

The panel majority held that Rummel’s life sentence un-

der the Texas recidivist statute must be considered one for

the entire term of Rummel’s life, irrespective of any con-

sideration of statutory good time. The majority reasoned

that to consider good time credits would require the court

to become involved in the parole process. 568 F.2d at 1196.

Next, the court adopted the proportionality standards set

out in Sart v. Coiner, 483 F.2d 136 (4 Cir. 1973), cert. denied,

415 U.S. 983, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974). Id.

Finally, the panel held that under these standards Rummel’s

life sentence violated the eighth amendment. 7d. at 1200.

IV.

The initial question we must answer is: Does the eighth

amendment prohibit some prison sentences for minor of-

2 Shaver v. State, 496 8.W.2d 604 (Tex.Cr.App. 1974); Rogers v. State, 486

S8.W.2d 786 (Tex.Cr.App. 1972); Flores v. State, 472 S.W.2d 146 (Tex.Cr.

App. 1971); Vandall v. State, 438 S.W.2d 578 (Tex.Cr.App. 1969); Ex Parte

Reyes, 383 8.W.2d 804 (Tex.Cr.App. 1964); Mackie v. State, 367 8.W.2d 697

(Tex.Cr.App. 1963); Young v. State, 170 Tex.Cr.R. 498, 341 8.W.2d 911

(1960) ; Redding v. State, 159 Tex.Cr.R. 535, 265 S.W.2d 811 (1954).

fenses solely because of their length? The State argues that

this court is without power under the eighth amendment to

review any prison sentence within the legislatively created

maximum. And, to be sure, there is language in some of our

opinions * and elsewhere * that supports this argument.

On the other hand, Rummel argues that an excessively

leng prison sentence for a trivial crime can be cruel and un-

usual punishment. Rummel, too, is aided by language in our

opinions * and elsewhere.*®

3 Salazar v. Estelle, 547 F.2d 1226, 1227 (5 Cir. 1977) (semble); Rener v.

Beto, 447 F.2d 20, 23 (5 Cir. 1971), cert. denied, 405 U.S. 1051, 92 8.Ct. 1521,

31 L.Ed.2d 787 (1972); Castle v. United States, 399 F.2d 642, 652 (5 Cir.

1968) ; Ginsberg v. United States, 96 F.2d 433, 437 (5 Cir. 1938).

* Weems v. United States, 217 U.S. 349, 30 8.Ct. 544, 565, 54 L.Ed. 793 (1910)

(cases cited in dissenting opinion); Downey v. Perini, 518 F.2d 1288, 1292

(6 Cir. 1975) (dissenting opinion), vacated on other grounds, 423 U.S. 993,

96 S.Ct. 419, 46 L.Ed.2d 367 (1975); United States v. Pruitt, 341 F.2d 700,

703 (4 Cir. 1964); Anthony v. United States, 331 F.2d 687, 693-94 (9 Cir.

1964) ; Smith v. United States, 273 F.2d 462, 467-68 (10 Cir. 1959), cert. denied,

363 U.S. 846, 80 8.Ct. 1619, 4 L.Ed.2d 1729 (1960); Edwards v. United States,

206 F.2d 855, 857 (10 Cir. 1953) ; United States v. Rosenberg, 195 F.2d 583, 604

(2 Cir.), cert. denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652 (1952); United

States v. Sorcey, 151 F.2d 899, 902 (7 Cir. 1945), cert. denied, 327 U.S. 794,

66 S.Ct. 821, 90 L.Ed. 1021 (1946); Gurera v. United States, 40 F.2d 338, 340

(8 Cir. 1980); Parker v. Bounds, 329 F.Supp. 1400, 1402 (E.D.N.C. 1971) ;

Ormento v. United States, ee 257 (S.D.N.Y. 1971) ; Cases cited in

footnote 2, supra.

5 United States v. Bondurant, 555 F.2a 1328, 1329 (5 Cir.), cert. denied, 434

U.S. 871, 98 S.Ct. 215, 54 L.Ed.2d 150° (1977) ; United States v. Gamboa, 543

F.2d 545, 548 (5 Cir. 1976) : United States v. Thevis, 526 F.2d 989, 991 (5 Cir,

1976); Bonner v. Henderson, 517 F.2d 135, 136 (5 Cir. 1975); Capuchino v.

Eatelle, 506 F.2d 440, 442 (5 Cir. 1975) ; United States v. Harbolt, 455 F.2d 970

(5 Cir. 1972); Yeager v. Estelle, 489 F.2d 276 (5 Cir. 1973), cert. denied, 416

U.8. 908, 94 S.Ct. 1616, 40 L.Ed. 2d 113 (1974); United States v. Drotar, 416

F.2d 914, 916 (5 Cir. 1969); Rodriquez v. United States, 394 F.2d 825 (5 Cir.

1968) ; Rogers v. United States, 304 F.2d 520, 521 (5 Cir. 1962).

® Moore v. Cowan, 560 F.2d 1298, 1302 (6 Cir. 1977); Roberts v. Collins, 544

F.2d 168 (4 Cir. 1976) ; Hall v. McKenzie, 537 F.2d 1232, 1235 (4 Cir. 1976) ;

Downey v. Perini, 518 F.2d 1288 (6 Cir. 1975), vacated on other grounds, 423

U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975); Hart v. Coiner, 483 F.2d 136

(4 Cir. 1973), cert. denied, 415 U.S. 983, 94 8.Ct. 1577, 39 L.Ed.2d 881 (1974) ;

Ralph v. Warden, 438 F.2d 786 (4 Cir. 1970), cert. denied, 408 U.S. 942, 92

S.Ct. 2846, 33 L.Ed.2d 766 (1972); Black v. United States, 269 F.2d 38, 43 (9

Cir. 1959); Hemans v. United States, 163 F.2d 228, 237 (6 Cir.), cert. denied,

332 U.S. 801, 68 S.Ct. 100, 92 L.Ed. 380 (1947) ; State v. Farrow, 386 A.2d 808

(N.H, 1978) ; State v, Freeman, 223 Kan. 362, 574 P.2d 18, 27 (Mo. 1978) (en

bane) ; State v. Remmers, 259 N.W.2d 779, 782 (Iowa 1977) ; Stockton v. Leeke,

237 S.E. 896, 897-98 (S.C. 1977); State v. Calendine, 233 8.E.2d 318, 330

(W.Va. 1977); State v. Lee, 87 Wash.2d 932, 558 P.2d 236, 240 n.4 (1976)

——

—

As has been frequently noted, the Supreme Court has

never held a punishment unconstitutional because of length

alone.’ We do know, however, that each of the nine Supreme

Court Justices, at least in death cases, has embraced the

proportionality concept. Coker v. Georgia, 483 U.S. 584,

592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1976) (White, Stewart,

Blackmun, Stevens, JJ., plurality opinion); Gregg v.

Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859

(1976) (Stewart, Powell, Stevens, JJ., plurality opinion) ;

Furman v. Georgia, 408 U.S. 238, 272 n.14, 92 S.Ct. 2726, 33

L.Ed.2d 346 (1972) (Brennan, J., coneurring) ; id. at 458,

92 S.Ct. at 2838 (Burger, Powell, Blackmun, Rehnquist, JJ.,

dissenting opinion).

Were this a question of history alone, we must admit that

we would have great difficulty in accepting the proportion-

ality analysis, despite the efforts to demonstrate to the

contrary. See Granucci, “Nor Cruel and Unusual Punish-

ment Inflicted: The Original Meaning,” 57 Calif.L.Rev. 839

(1969), Comment, “The Eighth Amendment, Beccaria, and

the Enlightment: An Historical Justification for the Weems

v. United States Excessive Punishment Doctrine,” 24 Buf-

falo L.Rev. 783 (1975). We conclude, however, that as a

result of jurisprudential development the eighth amend-

ment’s cruel and unusua! punishment provision also pro-

hibits unreasonable punishment, and a component of un-

reasonable punishment can be an excessive sentence for a

trivial offense. As early as Rogers v. United States, 304

F.2d 520, 521 (5 Cir. 1962), the court recognized that a

punishment could be cruel and unusual if “it is so greatly

disproportionate to the offense committed as to be com-*.

pletely arbitrary and shocking to the sense of justice.”

(en banc), appeal dismissed, 432 U.S. 901, 97 8.Ct. 2943, 53 L.Ed.2d 1074

(1977) ; People v. Broadie, 37 N.Y.2d 100, 371 N.Y.8.2d 471, 332 N.E.2d 338

(1975), cert. denied, 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 (1975); In Re

Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 (1973); People v.

_ Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972); Calhoun v, State, 85 Tex.

Cr.R. 496, 214 8.W. 335, 338 (1919) (semble) ; McDonald v, Commonwealth, 173

Mass. 322, 53 N.E. 874, 875 (1899); State ex rel. Garvey v. Whitaker, 48

La.Ann, 527, 19 So. 457 (1896) (semble); State v. Driver, 78 N.C, 423 (1878)

(semble).

™Rummel’s reliance on Weems v. United States, 217 U.S. 349, 30 S.Ct. 544,

54 L.Ed. 793 (1910), must be substantially discounted by the holding in Badders

v. United States, 240 U.S. 391, 36 S.Ct. 367, 60 L.Ed. 706 (1916). In Badders,

the Court, per Holmes, J., summarily dismissed a proportionality attack on a

five year sentence for mail fraud.

We do not wish to retreat from this rule and therefore

we conclude that the eighth amendment does proscribe some

punishments that are so disproportionate as to have no

rational support. As the Second Circuit has recently said

in Carmona v. Ward, 576 F.2d 405, 409 (2 Cir. 1978), cert.

denied, — U.S. —, 99 S.Ct. —, 58 L.Ed.2d — (1979) ‘‘[Wle

accept the proposition that in some extraordinary instance

a severe sentence imposed for a minor offense could, solely

because of its length, be a cruel and unusual punishment.”

Since we have concluded that some criminal sentences can

be so disproportionate as to amount to eruel and unusual

punishment, the question then becomes one of the proper

standard to apply.

First, we hold that a punishment must be viewed as it

oceurs in the real world. We will consider the system as it

actually works and we will not pass on academic possibili-

ties. Second, we will at all times be mindful that it is the

legislature that selects the range of punishments and it is

our duty to uphold the legislature if there is any rational

basis for so doing. We will remember that the petitioner

challenging his sentence carries a heavy burden, Gregg v.

Georgia, 428 U.S. 153, 96 S.Ct. 2909, 2926, 49 L.Ed.2d 859

(1976), and the petitioner does not discharge this burden

merely by showing that he is treated more harshly than he

would be treated in another state or by positing a more

rational system than the one adopted by the legislature.

Finally, we must remember that we can uphold a punishment

as judges and disagree with that punishment as men.

Our ultimate disagreement with the panel opinion is not

that it applied the Hart v. Coiner * standards, three of which

8 Recently, the Fourth Circuit has apparently seen the difficulty in applying

Hart v. Coiner to its fullest extent. In Davis v. Davis, 585 F.2d 1226 (1978),

reversing Davis v. Zahradnick, 432 F.Supp. 444 (W.D, Va. 1977), the Fourth

Cireuit refused to overturn a forty year sentence for possessing and distributing

approximately nine ounces of marijuana. The Fourth Cireuit stated that the

Hart inquiry was limited to cases in which a life sentence is imposed. Id.

Interestingly, the Fourth Circuit relied on Yeager v. Estelle, 489 F.2d 276 (5 Cir.

1973), cert, denied, 416 U.S. 908, 94:S.Ct. 1616, 40 L.Ed.2d 123 (1974). In

Yeager, we upheld a 500 year sentence for murder with wmalice, Considering

Texas law, we are unable to distinguish between Yeager *3 500 year sentence and

Rumme)’s life sentence. Therefore, we will not follow the Fourth Cireuit’s lead

and limit our inquiry to life cases. In Texas, a life sentence has essentially the

same effect as onc for sixty years. Certainly, the inquiry must be the same in

both cases.

ee ee eave a oes

we adopt today, but from its failure to uphold a sentence if

there is any rational basis for so doing.

VI.

A. The Texas Habitual Criminal Law

Recidivist statutes have Leen upheld many times against

a variety of challenges.’ The starting point of our analysis

is that Article 63 is constitutional. In Spencer v. Texas, 385

pe 554, 87 S.Ct. 648, 651, 17 L.Ed.2d 606 (1967), the Court

said:

. . . No claim is made here that recidivist statutes are

themselves unconstitutional, nor could there be under our

eases. Such statutes and other enhanced-sentence laws

. . . have been enacted in all the States, and by the Fed-

eral Government as well. . . . Such statutes, though not

in the precise procedural circumstances here involved,

have been sustained in this Court on several occasions

against contentions that they violate constitutional stric-

tures dealing with double jeopardy, ex post facto laws,

cruel and unusual punishment, due process, equal protec-

tion, and privileges and immunities. [Citations omitted. ]

Article 63 provides :

Whoever shall have been three times convicted of a felony

less than capital shall on such third conviction be im-

prisoned for life in the penitentiary.

Texas strictly construes this provision. Before one can

be sentenced under the enhanced penalty provision, the

State must prove that each succeeding conviction was sub-

sequent to both the commission of and conviction for the

preceding offense. Tyra v. State, 534 S.W.2d 695, 698 (Tex.

Cr.App.1976). Moreover, the defendant must actually have

gone to prison before the State can use the previous con-

viction for enhancement, Cromeans v. State, 160 Tex.Cr.R.

® Oyler v. Boles, 368 U.S, 448, 82 S.Ct. 501, 7 L.Ed.2d 446 ( 1961) ; Gryger v.

Burke, 334 U.8, 728, 732, 68 8.Ct. 1256, 92 L.Ed. 1683 (1948) ; Graham v. West

Virginia, 224 U.8. 616, 623 (1912); McDonald v. Massachusetts, 180 U.S. 311

312, 21 8.Ct. 389, 45 L.Ed. 542 (1901) ; Moore v, Missouri, 159 U.S. 673, 677, 16

S.Ct. 179, 40 L.Ed. 301 (1895) ; Wilson v. Slayton, 470 F.2d 986 (4 Cir. 1972);

Wessling v. Bennett, 410 F.2d 205 (7 Cir. 1969) ; Price v. Allgood, 369 F.2a 376

(5 Cir. pai Lig oe denied, 386 U.S. 998, 87 S.Ct. 1321, 18 L.Ed,2d 349 (1967) ;

see generally, Katkin, Habitual Offender Laws: ;

ee an cae s: A Reconsideration, 21 Buffalo

135, 268 S.W.2d 133, 135 (1954), and no conviction can be

used for enhancement more than one time when establishing

the habitual criminal status, Carvajal v. State, 529 S.W.2d

517, 521 (Tex.Cr.App.1975), cert. denied, 424 U.S. 926, 96

S.Ct. 1139, 47 L.Ed.2d 336 (1976); Ex Parte Montgomery,

571 S.W.2d 182, 183 (Tex.Cr.App.1978).

In practice the following events must happen before

Article 63 is ever called into question :

(1) A defendant must+be convicted of a felony *° and must

be sent to prison.

(2) After the defendant has been convicted of the first

felony, he must be convicted of a second felony. Again, the

defendant mast be given a prison term.

(3) After the defendant has been convicted of the second

felony and sent to prison for the second time, the defendant

must be convicted of a third felony. a

Most American jurisdictions do not interpret their recidi-

vist statutes as strictly as Texas.’ According to Note,

“Don’t Steal a Turkey in Arkansas—The Second Felony

Offender in New York,” 45 Fordham L.Rev. 76, 78-79

(1976) :

Other states require that the defendant have been previ-

ously convicted, sentenced and “placed on probation,

paroled, fined or imprisoned. . . .”** Florida demands a

“formal adjudication of guilt,” .... In other jurisdic-

tions, a verdict or a plea of guilty is all that is necessary

to implement added sanctions."* Other opinions indicate

that simultaneous, multiple convictions may be used for

the purpose of applying recidivist statutes.* [footnotes

renumbered ]

10 This section is new, however. If the felony is a third degree felony, the

trial judge has the discretion under present Texas law to reduce the offense to a

first degree misdemeanor. Tex. Penal Code Ann. § 12.44 (Vernon 1974).

11 Jowa’s interpretation is similar to the Texas view:

Our statute dictates that each offense must have been complete as to

conviction, sentence and commitment to prison before the commission of the

next im-order that it qualify for application of the enlarged punishment

of [Iowa’s habitual offender statute].

State v. Tillman, 228 N.W.2d 38, 41 (Iowa 1975).

12.8tate v. Abernathy, 515 8.W.2d 812, 814 (Mo.Ct.App., 1974) (emphasis

- added). Accord, Lis v. State, 327 A.2d 746, 748 (Del.Supr. 1974).

13 BE, g., Woods v, Mills, 503 8.W.2d 706 (Ky.Ct.App. 1974).

4B, g., Cox v. State, 255 Ark, 204, 499 8.W.2d 630 (1973) ; State v. Williams,

226 La. 862, 77 So.2d 515 (1955).

B. Texas Good Time Credit

The panei majority held that it could not consider good

time credits. This holding is inconsistent with at least two

other Fifth Circuit cases. Brown v. Wainwright, 574 F.2d

200, 201 (5 Cir. 1978) substituted opinion 576, 1148 (1978) ;

Rodriguez v. Estelle, 536 F.2d 1096, 1097 (5 Cir. 1976).

The majority of the court sitting en bane has determined

that Brown and Rodriguez establish the better rule for

several reasons. First, Brown and Rodriguez are consistent

with our view that the court is to look at the system realisti-

cally. To ignore the Texas good time system is to close our

eyes to reality. Second, to assume Rummel’s sentence is one

for life absolutely is to import a sentence unknown to Texas

law." Third, we cannot assume, even though good time

credits are not vested rights, that Texas will act arbitrarily,

capriciously and unconstitutionally in administering its

good time scheme. Fourth, we note that reasoned authority

in other jurisdictions consider the parole probability in re-

viewing sentences under the eighth amendment. In Carmona

v. Ward, supra at 413-414, the Second Circuit stated:

We cannot agree that the recognized probability of

parole in the cases before us was to be ignored when the

court determined whether the statutory punishment was

unconstitutional as applied to appellees. On the one hand,

we are asked to look at all the circumstances which would

ameliorate the seriousness of petitioners’ offenses and

their individual culpability in order to justify a finding

that their punishment was constitutionally offensive. On

the other hand, we are asked in effect to consider the ap-

pellees so incorrigible that they must be deemed destined

to durance vile for the rest of their natural lives because

they will never be paroled. We do not consider this to be

a realistic or practical approach. See 61 Calif.L.Rev. 418,

422 (1973).

We are told that the New York Parole Board is strin-

gent, that it lacks standards and that its determinations

are beyond the jurisdiction of the federal court. The sug-

gestion that the federal court act as a New York parole

board determining which prisoner should be released and

18 According to the respondent, only five states—Alabama, Arizona, Delaware,

Georgia, and Tennessee—provide for a life sentence without possibility of

parole.

under what conditions is not at all palatable as a practical

matter, Wolfish v. Levi, 573 F.2d 118, 120 (2d Cir. 1978),

to say nothing of the offense to the principles of comity

and federalism. Cf. Rizzo v. Goode, 423 U.S. 362, 378-81,

96 S.Ct. 598, 46 L.Ed.2d 561 (1976). This court has prop-

erly reviewed cases where state prisoners have alleged

denial of due process rights or other constitutional im-

perfections in parole procedures.“ There is no reason to

anticipate that either the petitioners here will be denied a

constitutionally proper parole hearing or that the federal

courts will hesitate to intervene if their constitutional

rights are violated in the state proceedings. We conclude

that in determining the severity of the sentences imposed

here we cannot consider them equivalent to life sentences

without parole.** Rather we must view the punishment as

set forth by the statute which provides that the defendants

here are eligible for parole, as are all other felons in the

state, at the conclusion of their mandatory minimum

sentences.

In Texas, a prisoner is eligible for parole after receiving

credit for twenty years’ imprisonment or after serving one

third of his sentence, whichever is less. Tex.Code Crim.

Pro.Ann. art. 42.12 § 15(a) (Vernon 1974). Since Rummel

is serving a life sentence, he is eligible for parole after ac-

cruing credit for twenty years. Texas employs a well-de-

veloped system of awarding good time credits. Class I

prisoners earn twenty days “good time” per month. Class IT

prisoners earn ten days “good time” per month, Tex.Civ.St.

Ann. art. 61841 everkn 1974), and State-approved trusties

earn thirty days credit for each thirty days service. Tex.

Penal Code Ann. art. 61841 (Vernon 1974). Thus, a State-

approved trusty can serve a life sentence in ten years.”*

The State of Texas argues that its “good time” system

is the most liberal in the country. Were we to judge this.as-

bck we would require more study, however, the State

et us with a compendium of each state’s good time

t system, and it appears that the Texas system com-

pares favorably with most jurisdictions.” This, we are told,

is not an accident nor an example of Texas’ munificence, but

16 Indeed, iisshill han Seilirabell wih’ cole that he has been'a State-approved

trusty since March 1, 1977.

' 11 We have attached an appendix of various jurisdiction’s good time pro-

visions.

a part of a very definite plan. As a popular journal has

stated:

Although the prisoners are not permitted by Texas

law to earn money for their work, the prison does pay

them in time. State Approved Trusties (SAT)—half the

inmate population—draw two-for-one good time. Every

month they serve puts two months in their time accounts;

a man with ten remaining years who is made an SAT

serves those ten years in five calendar years. Good time

earned also brings parole-eligibility dates closer. The men

in the Line are in one of three grades. Lines II and III

are disicplinary : Line II draws forty days for every thirty

days served, and Line III draws day for day. Everyone

else, even men just arriving at the Diagnostic Unit in

Huntsville in custody of their county sheriffs, is Line 1,

which draws fifty days for every thirty served.

Texas has the most liberal good-time laws in the country,

which is curious since Texas also gives the longest sen-

tences and is the most reluctant to grant parole.

The good-time grades are particularly important at

Ellis, where there are so many men doing heavy time and

so few who have much chance of being paroled. A change

in grade from SAT to Line ITT doubles the years ahead

to be served. Men with trusty jobs are very careful.

George Beto, Estelle’s predecessor as TDC director and

now on the faculty in the criminal justice program at Sam

Houston State University, used to tell visitors that the

administration of good time and the presence of the Line

kept inmates working hard in school programs and behav-

ing properly on other jobs.

Jackson, Hard Times, Texas Monthly, December 1978, 138

at 258.

Considering Texas’ good time system, the inevitable con-

clusion is that Rummel can be eligible for parole at the end

of twelve calendar years, or considering his trusty status,

even earlier.

VIL.

Both the panel majority and Hart looked to the nature of

the crime in determining whether a particular legislatively

selected punishment offended the eighth amendment’s pro-

portionality element. The en banc majority agrees that look-

ing to the nature of the offense is an inexorable part of pro-

portionality analysis.

Our disagreement with the panel majority is, however,

that it failed to apply the first principle of our analysis—

that every inference is to be made in favor of the selected

punishment and that it erred by looking to the underlying

offenses to establish the asserted triviality of the offenses.

We adopt the dissent’s reasoning that “Rummel was not

sentenced to life imprisonment for stealing $230.00; the life

sentence resulted from his having committed three separate

and distinct felonies under the laws of Texas.” Rummel v.

Estelle, 568 F.2d 1193, 1201 (5 Cir. 1978) (dissenting opin-

ion). As put another way by the Second Circuit:

The recidivists’ statutes which provide for longer sen-

_tences for repeat offenders present an example of a

penalty created by the legislature because of considera-

tions other than the specifics of the final underlying crime.

Carmona v. Ward, 576 F.2d at 411 n.9.

Rummel asserts that all of his offenses were “nuisance

offenses” ; if we were to judge this statement, we doubt that

we could so blandly characterize his behavior. Manifestly,

however, Rummel has demonstrated by his past behavior

that he is unable to conform himself to the rules of society.

Texas has justifiably found Rummel to be a habitual crimi-

nal and has imprisoned him for this reason.

It is beyond peradventure that Texas intends to punish

Rummel with at least a ten year sentence. And this does not

violate the eighth amendment.** Beyond that, the burden

is on Rummel to preve by his good behavior and diligent

work that he is entitied to a place in free society.”

VUE.

The panel majority argued that comparison of Rummel’s

sentence with the sentences imposed in other jurisdictions

18 See Davis v. Davis, 585 F.2d 1226 (4 Cir. 1978) ; Wood v, South Carolina,

483 F.2d 149 (4 Cir. 1973). ,

19 Rummel suggests that even if he is paroled, he is still on probation and

lifetime probation is in itself cruel and unusual punishment. This argument need

not detain us long. We cannot understand how a lifetime requirement of good

behavior is too much to ask of a habitual criminal.

confirms the gross disproportionality of Rummel’s sentence.

568 F.2d at 1199.

We believe that the evidence on this point is, at best, in-

conclusive. Of course, 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 is probably

accurate. However, we have rejected this approach and

have held that the likely probability of Rummel’s jail term

should be compared with the experience of other states. This

Rummel has not done, and our research suggests that Rum-

mel’s actual jail time would not be significantly longer in

Texas than his jail time in many other states.

The record in this case reveals that Rummel was convicted

of a fourth felony on the same day he was sertenced under

Texas habitual offender statute. Three states” punish a

three time offender with a mandatory life sentence, and

three states ** provide for a discretionary life sentence for a

three time offender. Three states * punish a four time of-

fender with a mandatory life sentence, and eight states *

provide for a discretionary life sentence for a four time

offender. Given these facts, it appears that up to a possible

six states would sentence Rummel to a life term and up to

eleven states would give discretion to the court to determine

Rummel’s sentence.

On the face of the record before us, we feel confident that

few if any of the eleven discretionary states would sentence

Rummel to the maximum discretionary life term. However,

it is most important to remember that the record we have

before us was developed under the particularly peculiar

Texas system, and since we do not have occasion to examine

the full extent of Rummel’s record, we cannot in complete

confidence hold that no one of the discretionary states would

20 Texas Penal Code art. 12.42(d) (Vernon 1974) ; Wash. Rev. Code § 9.92.090

(perhaps limited by State v. Lee, 87 Wash.2d 932, 558 P.2d 236, 240 n.4 (1976)

(en banc) ; W.Va. Code § 61-11-18 (limited by Hart).

21 Ark. Stat. Ann. § 14-1001; Idaho Code $ 19-2514; Kan. Crim. Code & Code

of Crim. Proc, § 21-4504.

22 Colo. Rev. Stat. § 16-13-101; N.M. Stat. Ann. § 40A-29-5; Wyo. Stat. § 6-1.

23 Alaska Stat. § 12.55.050; La. Rev. Stat. Ann. § 15-529.1; Mich. Comp. Laws

§ 28.1084, M.C.L.A. § 769.12; Nev. Rev. Stat. § 207.010; N.J. Stat. Ann.

§ 2A:85-12; N.C. Gen. Stat. § 14-7.1, 7.6; 8.D. Compiled Laws Ann. § 22-7-1;

Vt. Stat. Ann. tit. 13, § 11.

24 Nor do we have occasion to examine the discretion of the prosecutor in

bringing the enhanced indictment. But cf. Bordenkircher v. Hayes, 434 U.S. 357,

98 S.Ct. 663, 671-72, 54 L.Ed.2d 604 (Powell, J., dissenting).

sentence Rummel to a life sentence or a sentence that is es-

sentially equal to the one Rummel is serving.

Finally, Rummel has made no attempt to demonstrate

what the actual jail times in the various jurisdictions would

amount to.** An example will illustrate our point. Suppose

that State A gives a ten year sentence for theft and State B

gives a thirty year sentence for the same theft. State A has

a practice of fixed and determinate sentence and does not

award early release based on good time or discretionary

parole. State B, however, is similar to Texas and through

long experience is can be shown that the thirty year sen-

tence amounts to about ten years’ imprisonment. Can it

justifiably be said that State B punishes the theft three times

more severely than State A? This court thinks not.

A variation of this very possibility might be found in our

own ecireuit. In Georgia, upon conviction of the fourth

felony, the defendant receives the mandatory maximum

without parole.** Ga.Code Ann. § 27-2511. Rummel’s equiva-

lent offense in Georgia is theft by deception, Ga.Code Ann.

§ 26-1803, and the maximum penalty is ten years, Ga.Code

Ann, § 26-1812. Considering the no parole provision, Rum-

mel’s imprisonment in Georgia would be approximately the

same as his imprisonment in Texas.

IX.

The panel majority held that a “[C]omparison of Rum-

mel’s sentence with the punishment accorded other crimes

under Texas law” highlighted the irrational severity of

Rummel’s punishment. 568 F.2d at 1199. The majority com-

pared Rummel’s underlying crimes with the various Texas

penalties selected for a single act. This comparison is inap-

propriate in this ease. If this challenge were to a sentence

for one act of theft, then the comparison between the sen-

tence given for the theft and the sentence given for murder

or rape would be appropriate. But this is not the case, Rum-

25 Of course, this detailed comparison of actual practices was not required in

Coker v. Géaggia, 433 U.S, 584, 97 S.Ct. 2861, 2867, 53 L.Ed.2d 982 (1977), for

obvious reasons.

26 We cannot know definitely if the. Georgia enhancement provision would

apply to Rummel, but we nevertheless supply this example because there is

nothing on the face of the Georgia statute that suggests to us that Georgia

would not apply its enhancement statute to Rummel. We wish to underscore the

difficulty of comparing the various enhancement statutes to cach other.

a tf

mel’s sentence resulted from his status as a habitual crimi-

nal.

Finally, the panel majority adopted from Hart a test that

“seeks to determine whether a significantly less severe

punishment could achieve the purposes for which the chal-

lenged punishment is inflicted.” 568 F.2d at 1198 citing Hart,

483 F.2d at 141. We reject that test as a part of the appro-

priate proportionality analysis.

This test was taken from Justice Brennan’s concurring

opinion in Furman v. Georgia, 408 U.S. 238, 300, 92 S.Ct.

2726, 2757-2758, 33 L.Ed.2d 346 (1972). Mr. Justice Bren-

nan’s opinion stated a “lack of necessity” test or a “less

drastic means” test: “Although the determination that a

severe punishment is excessive may be grounded in a judg-

ment that it is disproportionate to the crime, the more sig-

aificant basis is that the punishment serves no penal purpose

more effectively than a less severe punishment.” *

This test has never commanded a majority in the Supreme

Court, even in death cases. And the very circuit that has

given us Hart declared, in Hall v. McKenzie, 537 F.2d 1232,

1235 (4 Cir. 1976), that death “occupies a special place in

eighth amendment jurisprudence.”

We believe that this passage from Wheeler, “Toward a

Theory of Limited Punishment IT: The Eighth Amendment

After Furman v. Georgia,” 25 Stanford L.Rev. 62, 77-78,

succinctly expresses our reasons for not adopting the Hart

“lack of necessity” test.

The Brennan-Marshall necessity test is even more im-

practical in other eighth amendment adjudication, where

the empirical data and long usage associated with capital

punishment are absent. If a convict were to challenge the

length of his prison sentence or the length of the stetutory

maximum as being unnecessary to deter potential crimi-

nals from committing the same crime he committed, I am

convinced that the government could never show that 10

years’ imprisonment deters more effectively than 5 years’

imprisonment or that one year in jail deters more effec-

27 Mr. Justice White expressed a similar sentiment, 408 U.S, 238, 311, 92 S.Ct.

2726, 2763, 33 L.Ed.2d 346, and, Mr. Justice Marshall id. at 331, 92 S.Ct. at

2773.

tively than a $500 fine. The problem would be even more

substantial for a new punishment. If the government at-

tempted to employ a new punishment, it would be im-

possible to adduce empirical data proving its necessity for

deterrence purposes. Thus, if the purpose of the punish-

ment was to increase deterrence, it would be unconstitu-

tional because its necessity was unproved.

XI.

Perhaps, the Texas habitual offender law and the Texas

scheme that has developed under the law is not in accord

with notions of modern penology,” but our task is not to

prod the State into adopting the latest theory of penal re-

form. The science of penology is an imprecise one that

offers us few sure answers. The Supreme Court has said

this many times but the best statement is from Gore v.

United States,

In effect, we are asked to enter the domain of penology,

and more particularly that tantalizing aspect of it, the

proper apportionment of punishment. Whatever views

may be entertained regarding severity of punishment,

whether one believes in its efficacy or its futility, see

Radzinowicz, The History of English Criminal Law: The

Movement for Reform, 1750-1833, passim, these are

peculiarly questions of legislative policy.

357 U.S. 386, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405.

The legislature in our society selects the punishment

scheme and we are justified to strike down the legislature’s

choice only when the petitioner demonstrates that the

legislative choice has no rational basis and is totally and

utterly rejected in modern thought. So long as there is room

for debate, the choice of the legislature will not be over-

turned. Rummel places great reliance on the fact that all of

his crimes were nonviolent. If a state were to limit its re-

cidivist statute to only those who have been convicted of

violent crimes,” the state would have made a rational choice

28 See e. g., Katkin, Habitual Offender Laws: A Reconsideration, 21 Buffalo

L. Rev. 99 (1971); Furgeson, The Law of Recidivism in Texas, 13 McGill Law

Journal 663, 665 (1967) ; Note, The Treatment of the Habitual Offender, 7 U.

Richmond L. Rev. 525 (1973).

29 Moreover, this is to totally ignore the difficulty in determining the line

between crimes that are violent or have a potential for violence or present a

oan

and perhaps a more rational choice than it has made if

Article 63. But Rummel cannot gain any advantage by

positing a more rational system than the one in existence:

He must demonstrate that the system in existence is an

irrational one.

After three felony convictions and two ineffectual prison

terms, the State of Texas has chosen to place the burden

on the offender to prove his entitlement to a place in society.

This is not an irrational choice, and to many, one that is not

particularly callous. We do not think that Texas has adopted

a system that is cruel and unusual in violation of the

eighth amendment, even as applied to William Rummel.

XII.

Rummel also alleges that his trial counsel was ineffective

at his state trial. The panel did not reach this issue, and

we deem the issue unworthy for en bane treatment in the

first instance. We therefore remand this issue to the panel

for its decision on this matter.

XITI.

We affirm the district court’s denial of habeas corpus re-

lief on the eighth amendment issue. We remand the sixth

amendment issue to the panel for its original consideration.

AFFIRMED in part; REMANDED to the panel in part.

Appendix to follow.

strong social interest. While we have not carefully surveyed the Texas Penal

Code, it appears that there are approximately forty-five third degree felonies.

In combinations of three, this yields 45,190 possibilities, and sooner or later, this

court could expect to see many of them.

Finally, by what authority does Rummel denegrate the interest society has in

punishing his crimes? Certainly, Rummel’s victims see the important social

interest in deterring his behavior. Would there be a greater social interest if

Rummel were to have stolen $2,300, $23,000, or $230,000 rather than the $230

he actually stole? Is it less serious to steal $230 from an elderly widow than to

steal $2,300,000 from the First National Bank?

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APPENDIX—Continued

According to the State, the following are selected examples of various jurisdiction's good time provisions.

vill

Effect on Discharge

and/or Release

Vil

Effect on Parole

Incligible Eligibility

Offender

Time Allowances Time Allowances for Good Time

Rate of

Rate of Good Time Types of

Allowances Additional Good Additional Good

discharge

sentence to advance scntence to advance

Alleligible Credited to maximum Credited to maximum

parole eligibility

30 days/mo

1 yr Sdays/mo Meritorious con- 9% days/mo

duct

1-3 yrs Gdays/mo

Credited to maximum

sentence to advance

No effect

Life

W.Va.

22:

Be 3B

24.2

Credited to maximum

No effect

Pederal 967 6mo-lyr Sdays/mo Camp good time, Ist yr Sdays/mo All eligible

scatence to advance

conditional release

2nd and Remain-

ing Sdays/mo

1-3 yrs Gdays/mo Work release

3-5 yrs ‘Tdays/mo good time,

6-10 yra Sdays/mo Community

Treatment Cen-

ter good time,

Remaining

-time, Meritorious

good time, special

award good time,

Good time earned

at other state in-

stitutions: mili-

tary, state, D.C

Industrial good

10days/mo

SE 0 Lt Bm

CHARLES CLARK, Circuit Judge, with whom GOLD-

BERG, GODBOLD, JAMES C. HILL, ALVIN B. RUBIN

and VANCKH, Circuit Judges, join, dissenting :

In Part VIII the majority concedes that “if the court is

forced to assume that Rummel’s sentence is automatically

and invariably one for his natural life, then the [assertion

that the sentence is grossly disproportionate to Rummel’s

crimes] is probably accurate.” Nevertheless, the court de-

cides that Rummel’s life sentence is not in fact a life sen-

tence because of Texas’ good time credit system and the pos-

sibility of parole. The court reasons that it should not be

concerned with “academic possibilities” but with the “real

world.”

But what is real and what is academic? The State of

Texas has sentenced William Rummel to spend the rest of

his life in the penitentiary. If parole ever comes, it comes

at the sheer grace of the State. In Rummel’s real world, it

is not the possibility that Texas will grant him parole that

governs his future. Rather, it is the existing order requiring

that he be held in custody until he dies. The eighth amend-

ment either bars affixing the sentence for Rummel’s crimes

or it does not. If Rummel has a constitutional right to inter-

dict his prison term, this court must declare that right’s

existence without regard to the possibility that Texas, by an

act of executive grace, may grant him parole.

At the outset it is important to note that the critical factor

in determining how to regard Rummel’s life sentence is not

the Texas system for awarding good time credit but the

Texas system for granting parole. The majority refers to

the good time credit system and parole interchangeably,

and it relies to a large extent on the relative liberality of the

Texas good time credit system. The two systems embody

totally different concepts, however, and they have special

meanings in the context of a life sentence. Good time credit

results in the early release of a prisoner under a sentence to

a fixed term of years. For example, one serving a twenty-

year sentence may be released after only ten years actual

jail time if he has accumulated ten years of good time credit.

A person committed for life, however, cannot have his prison

term reduced by good time credit. Because the length of

his sentence is fixed by the span of his life, there is no fixed

term from which his credit can be subtracted. No amount

of accumulated good time credit entitles a man serving a

life sentence to a release from prison because of credit

‘accumulated.

The only chance for release such a life sentence prisoner

has is parole. Texas law specifically provides that parole

is not considered a reduction in sentence, Tex. Code Crim.

Pro.Ann. art 42.12 §22 (Vernon Supp. 1966-1977); the

sentence remains in effect during its entire period even if

parole is granted. Ex parte Lefors, 165 Tex.Cr.R. 51, 303

S.W.2d 394 (1957). Unlike good time credit, which is an

enforceable statutory entitlement subject to constitutional

due process protection, Wolff v. McDonnell, 418 U.S. 539,

94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) parole is a matter of

executive grace which constitutional due process does not

protect. See part B, infra.

Even under the court’s own premise that it Should measure

probabilities rather than legally enforceable rights, how-

ever, the court’s juxtaposition of Texas’ good time credit

system with its parole system tends both to confuse and to

understate Rummel’s plight. Although it is true that Texas’

good time credit system may benefit Rummel by causing his

eligibility for parole consideration to come earlier than may

be the case in other jurisdictions, Rummel’s chances for

parole once he becomes eligible are by no means better than

they would be in other places. According to the authority

quoted in the majority opinion, “Texas . . . gives the long-

est sentences and is the most reluctant to grant parole.”

Supra p. 658.

Ultimately, however, the constitutional issue should not

turn on how good Rummel’s chances for parole considera-

tion may be, but on the fact that they are only chances.

A convict is deemed to have been constitutionally deprived

of all right to liberty for the length of his sentence, subject

only to whatever legal entitlements he may have under state

or federal law. Meachum v. Fano, 427 U.S. 215, 96 S.Ct.

2532, 2538, 49 L.Ed.2d 451 (1976); Montanye v. Haymes,

427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976). The pos-

sibility of parole is not such an entitlement because it has

no legal effect on the right of Texas to confine Rummel.

a ee eee a

“Parole is an act of grace of the sovereign,” Clifford v

Beto, 464 F.2d 1191, 1195 (5th Cir. 1972), that “cannot be

demanded as a right.” Jay v. Boyd, 351 U.S. 345, 76 S.Ct.

919, 924-25, 100 L.Ed. 1242 (1956) ; Escoe v. Zerbst, 295 U.S.

490, 55 S.Ct. 818, 819, 79 L.Ed. 1566 (1935). Historically,

parole in the United States evolved from the practice of the

King of England to grant conditional pardons, C. Newman,

Sourcebook on Probation, Parole and Pardons 18-19 (3d

ed. 1972). In Texas, parole is still classified as a conditional

pardon. Ex parte Lefors, 165 Tex.Cr.R. 51, 303 S.W.2d 394

(1957) ; Clifford v. Beto, 464 F.2d 1191, 1194 (5th Cir. 1972).

Since parole is totally an act of grace by the state, there is

no legal basis for judicial intervention in the merits of

parole decisions. The Due Process clause of the Constitu-

tion only applies to property interests or liberty interests

that are established “entitlements.” E.g., Board of Regents

v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ;

Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d

570 (1972); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47

L.Ed.2d 405 (1976) ; Bishop v. Wood, 426 U.S. 341, 96 S.Ct.

2074, 48 L.Ed.2d 684 (1976). This court has repeatedly

emphasized that Texas prisoners do not have any entitle-

ment in the nature of a liberty or property interest in their

expectancy of release on parole. Johnson v. Wells, 566 F.2d

1016, 1018 (5th Cir. 1978) ; Craft v. Texas Board of Pardons

and Paroles, 550 F.2d 1054 (5th Cir. 1977). We have fre-

quently distinguished the mere hope of being granted parole

from the limited liberty interest that accrues after parole

has been granted by steadfastly refusing to extend the mini-

mal due process protection applicable to parole revocation

to the initial determination by parole boards on whether to

grant parole. Shaw v. Briscoe, 541 F.2d 489 (5th Cir. 1976) ;

Cook v. Whiteside, 505 F.2d 32 (5th Cir. 1974); Clifford v.

Beto, 464 F.2d 1191, 1196 (5th Cir. 1972). Thus, we have

refused to equate “the possibility of conditional freedom

‘with the right to conditional freedom.” Scarpa v. United

States Board of Parole, 477 F.2d 278 (5th Cir.), vacated

for consideration of mootness, 414 U.S. 809, 94 S.Ct. 79, 38

L.Ed.2d 44 (1973), dismissed as moot, 501 F.2d 992 (1973).

The most thorough statement of this position is in Brown v.

Iumdgren, 528 F.2d 1050, 1052-1053 (5th Cir. 1976) :

At the constitutional level, there is a clear distinction

between the loss of a statutory privilege once obtained

—

and the denial of that same privilege, never given. While

the threatened loss of a privilege may be “grievous” and

therefore require some degree of procedural due process

protection, see, e. g., Morrissey v. Brewer, 1972, 408 U.S.

471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484, the denial of that

_ privilege may only be subject to the procedural demands

of the particular enabling statute. Thus, while parole

revocation and prison discipline are clearly within the

ambit of the Due Process Clause of the Fifth and Four-

teenth Amendments, the mere expectation of parole re-

lease while still in otherwise lawful custody is not so

vested as to result in a “grievous loss” if denied by the

parole board... .

In any context where it is asserted that constitutional

due process is required, the basic, threshold question is

whether there is a “grievous loss” of either a liberty or

property interest. If there is no such loss, then the second

question of whether the particular challenged procedure

comports with fundamental fairness is never reached. In

short, we find that the denial of parole as distinguished

from the revocation of parole as in Morrissey, supra, is

not a “grievous loss,” and we therefore do not consider

whether the procedures of the parole board deny constitu-

tional due process.

Other circuits have taken the same position as Brown. The

Ninth Circuit has stated: _

The legally convicted prisoner has no vested right to de-

termination of his sentence at less than maximum, nor to

parole. . . . No rigid or even measurable criteria dictate

that a particular individual must have his sentence set at

less than the maximum term. These same principles apply

to the granting of paroles.

Dorado v. Kerr, 454 F.2d 892, 897-98 (9th Cir. 1972). The

Second Circuit has said that the prisoner seeking parole

“neither enjoys freedom from prison walls nor is entitled to

it.” Walker v. Oswald, 449 F.2d 481, 485 (2nd Cir. 1971). In

Menechino v. Oswald, 430 F.2d 403, 408-409 (2nd Cir. 1970),

that Circuit reasoned that a prisoner seeking parole was

like an alien seeking entry into the United States.

As a matter of law, Rummel’s sentence deprives him of

all right to liberty for the rest of his life. To treat Rum-

mel’s sentence as one to serve less than life is, analytically,

thw RK DN EO aU Be UBT Tk ow

no different fron: treating a death sentence as imposing ‘a

milder punishment because of the possibility of an executive

pardon. Carmona v. Ward, 576 F.2d 405, 420 (2nd Cir. 1978)

(Oakes, J., dissenting). Rummel’s future chance for parole

has no legal significance, it is merely a statistical possibility

of clemency, an unenforceable hope that he may someday

benefit from the grace of a parole board.’ The eighth amend-

ment demands that Rummel’s claim be judged by the law of

rights and duties, not the law of probabilities.

Not only is Rummel’s sentence not legally ameliorated by

the possibility of parole, but his actual chances of being

paroled have little to do with the crime for which he was

sentenced. They largely depend on his subsequent behavior

in prison. If he ever does gain parole, his subsequent be-

havior outside of prison, even if non-criminal, may result in

revocation and return to prison forever. Tex. Code Crim.

Pro.Ann. art. 42.12 § 22. (Vernon Supp. 1978).

Texas repeatedly emphasizes that Rummel has a good

chance of parole eligibility in 10 to 12 years, implying by its

protestations that 10 to 12 years would adequately serve the

1 The cases cited on this issue in our own circuit as well as the Ninth and

Second Circuits clearly rely on the classic right-privilege distinetion, a distine-

tion that has drawn scholarly and judicial attack. See, e.g., Morrissey v. Brewer,

408 U.S. 471i, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972); Goldberg v.

Kelly, 397 U.S. 254, 262 and n.8, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970) ;

Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional

Law, 81 Harv. 1. Rev. 1439 (1968). However, the Supreme Court’s more recent

pronouncements in the duc process area, Roth, Sindermann, and Bishop, supra,

clearly require the existence of a legal entitlement to a property or liberty

interest before the due process clause applies. The entitlement doctrine is in

fact the right-privilege distinction resurrected in new verbal garb. See generally

Note, Democratic Due Process: Administrative Procedure After Bishop v.

Wood, 1977 Duke L.J. 453. Whatever the hope of release on parole may be

labeled, under the cases cited in the text, it definitely does not rise to the level

of a ‘‘right’’ or an ‘‘entitlement’’ and it definitely confers no legally pro-

tectable interest on the prisoner.

? The California Supreme Court in In re Lynch, 8 Cal.3d 410, 419, 105 Cal.

Rptr. 217, 223, 503 P.2d 921, 926 (1972), held that a life sentence with parole

had to be treated as a life sentenee for the purposes of cighth amendment

analysis. One of the factors relied on by the court was the fact that the

penological function of parole is only to mitigate a punishment which would

otherwise be deserving. 105 Cal.Rptr. at 217, 503 P.2d at 921. The holding in

Lynch was followed by New York in People v. Broadie, 37 N.Y.2d 100, 110, 371

N.Y.8.2d 471, 474, 332 N.E.2d 338, 341 (1975).

state’s penological interests. The majority’s intimation that

Rummel’s case is an attractive one for relatively early

parole also suggests that insofar as Rummel’s punishment

is considered in connection with his crimes alone, a life sen-

tence would be disproportionate. Indeed, the court concedes

that if it considered his sentence one for life, it would be

grossly disproportionate. It relies on Rummel’s chances for

something less. The state’s equation then,.is that if Rum-

mel’s three crimes do not in themselves. justify life im-

prisonment, three crimes plus subsequent bad behavior in

prison would.

It is almost certain to the state that if Rummel does serve

the rest of his natural life in jail, it will not be for the crimes

for which his sentence was imposed, but rather for other

reasons. These reasons the world may never know. No

-publie record need show which of an infinite number of rea-

sons caused Rummel to fall into disfavor with the parole

board. He may by laziness or insolence make enemies of

prison authorities. His personality may cause trouble with

other prisoners. Many forms of behavior which bring disci-

pline in prison are not criminal in the outside world. Rum-

mel has no recourse if the parole board in its virtually un-

fettered discretion is never moved to release him or tell him

why it did not.*

Parole, if it does come, is in no way equivalent to the

freedom of an ordinary citizen. The conditions imposed on

the parolee are wide-ranging, and any violation may result

in a return to prison. The Supreme Court described typical

parole restrictions in Morrissey v. Brewer, supra, 92 S.Ct.

at 2598-99 :

Typically, parolees are forbidden to use liquor or to

have associations or correspondence with certain cate-

gories of undesirable persons. Typically, also they must

seek permission from their parole officers before engaging

in specified activities, such as changing employment or

living quarters, marrying, acquiring or operating a motor

3 The substantive standard applied by the board is ‘‘the best interest of

society,’’ Tex. Code Crim. Pr. Ann. art. 42.12 § 22. The situation is not novel.

In 1637, the annals of the General Court of the Massachusetts Bay Colony

record the following dialogue in the Benishment of Anne Hutchinson:

‘* Ms. Hutchinson: I desire to know wherefore I am banished.

‘*Gov. Winthrup: Say no more. The court knows wherefore and it is

satisfied. ’’

;

vehicle, traveling outside the community, and incurring”

substantial indebtedness. Additionally, parolees must

regularly report to the parole officer to whom they are

assigned and sometimes they must make periodic written

reports of their activities.

There is no way for this court to predict whether, in the

event that he is paroled, Rummel will run afoul of some

parole restrictions which again would not constitute crimi-

nal behavior. In Morrissey the Court stated that it is esti-

mated that 35-45 percent of all parolees are returned to

prison for parole violations. 92 S.Ct. at 2599, citing Presi-

dent’s Commission on Law Enforcement and Administration

of Justice, Task Force Report: Corrections 62 (1967). Rum-

mel will have to toe any line the parole board may draw dur-

ing his time in.prison to have any chance at parole, and he

will have to continue to toe its line for the rest of his life to

maintain any limited freedom he may gain as a parolee.

Rummel has no right to pay a constitutional penalty for his

crimes and be done with them. See Weems v. United States,

217 U.S. 349, 366-67, 30 S.Ct. 544, 54 L.Ed. 793 (1909).

A person who receives a twelve-year sentence for a crime

in Texas and is totally recalcitrant in his behavior while in

prison can do no worse than serve his whole twelve years.

The parole board may choose not to let him out early, but it

cannot make him stay longer than the term of his sentence.

What that person may do after his term is served, so long

as it is not criminal, is his own business. If Rummel’s of-

fenses, standing alone, only justify a maximum sentence to

a term of years, then he should be able to serve those years

and be done with them, no matter what the parole board

thinks of him. But that is not Rummel’s condition. Texas

has deprived Rummel of any legally enforceable right to his

freedom for his entire life and the chances for grace are

perilous and without protection of law.

The Constitution says that his sentence should not stand

if lifetime deprivation of freedom is grossly disproportion-

ate to his crimes.

. Although the Supreme Court has never dealt with the

proper construction of a sentence with a chance of parole

for the purposes of the eighth amendment, the Court has

treated the problem in reviewing sentences under the ex

post facto clause. U. S. Const. art. 1, § 10. In Lindsey v.

State of Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed.

1182 (1937), the Court reviewed a conviction from the State

of Washington. At the time the petitioner, Lindsey, had

committed his crime of larceny, the law provided for the

sentence to be fixed by the trial judge at a minimum of 6

months and a maximum of 15 years. Parole was authorized

in the discretion of the parole board at any point prior to

the expiration of the sentence received. At the time Lindsey

was sentenced, however, the law had been changed to a

scheme similar to the present Texas system. A mandatory

15-year sentence was provided. At the same time, however,

the statute provided that ‘‘a convicted person may be re-

leased on parole by the board after he has served the period

of confinement fixed by the board, less time credits for good

behavior and diligence.’’ 301 U.S. at 399, 57 S.Ct. at 798.

The Supreme Court held that in determining the constitu-

tionality of the sentence the contingent possibility of parole

was irrelevant; the constitutionality of the sentence had to

be measured by the mandatory statutory maximum of 15

years:

The effect of the new statute is to make mandatory

what was before only the maximum sentence. Under it

the prisoners may be held to confinement during the en-

tire fifteen-year period.. Even if they are admitted to

parole, to which they become eligible after the expiration

of the terms fixed by the board, they remain subject to its

surveillance and the parole may, until the expiration of

the fifteen years, be revoked at the discretion of the board

or canceled at the will of the governor. It is true that

petitioners might have been sentenced to fifteen years

under the old statute. But the ex post facto clause looks

to the standard of punishment prescribed by a statute,

rather than to the sentence actually imposed. |

301 U.S. at 400-401, 57 S.Ct. at 798-99. The Supreme Court

went on to acknowledge the difference between a release

from prison after a number of years at the end of a sentence

and release from prison after the same number of years on

parole: .

Removal of the possibility of a sentence of less than fif-

teen years, at the end of which petitioners would be

Se en ee ee ee ee ee en

freed from confinement and tutelage of a parole revo:

cable at will, operates to their detriment in the sense that

the standard of punishment adopted by the new statute

is more onerous than that of the old. . . . It is plainly to

the substantial disadvantage of petitioners to be de-

prived of all opportunity to receive a sentence which

would give them freedom from custody and control prior

to the expiration of the fifteen-year term.

Id. at 401, 57 S.Ct. at 799. The continued vitality of the

Lindsey holding was confirmed in the Supreme Court’s re-

cent opinion in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct.

2290, 53 L.Ed.2d 344 (1977), in which the Court said with

reference to Lindsey:

Even though under the new statute a convict could be

admitted to parole at a time far short of the expiration

of his mandatory sentence, the Court observed that even

on parole he would remain ‘‘subject to the surveillance”’

of the parole board and that his parole itself was subject

to revocation.

97 S.Ct. at 2301. Although Lindsey and Dobbert were de-

cided under the ex post facto clause and hot the eighth

amendment, their reasoning is fully applicable to Rummel’s

case.

When the petitioner’s punishment is correctly character-

ized as a life sentence, its excessiveness is striking even

with the greatest deference to the state’s legitimate inter-

ests in punishing recidivism. My views on the unconstitu-

tional disproportionality of the sentence were set forth in

the original panel opinion:

The legislative objective of punishing recidivists cer-

tainly is legitimate. However, in view of the dramatically

lower minimum penalties that Texas imposes upon de-

fendants who commit even the most violent crimes short

of capital murder and even upon defendants with a sec-

ond conviction and a prior offense involving violent sec-

ond-degree felonies, it clearly appears that a significantly

less severe penalty would fulfill the legislative objectives

of protecting citizens and deterring crime. The recent

‘reclassification of Rummel’s third offense as a misde-

meanor under Texas law buttresses this view. That at

most two other states and perhaps none would require

life imprisonment for a defendant in Rummel’s circum- .

stances confirms the constitutional disproportionality of

the sentence given Rummel.

Rummel v. Estelle, 568 F.2d 1193, 1200 (5th Cir. 1978).

The sentence which Texas imposed is society’s judgment

and, if upheld, society has every legal right to enforce it.

If Texas chooses to make good the threat which the sen-

tence itself imposes, no court may be a refuge for Rummel.

We may speculate as to Rummel’s likely fate, but these

guesses are without constitutional significance. ‘‘The threat

makes the punishment obnoxious.’’ Trop v. Dulles, 356 U.S.

86, 102, 78 S.Ct. 590, 599, 2 L.Ed.2d 630, 643 (1957).

It is true that Rummel’s severe sentence arises not

merely from the inherent nature of his crimes but from the

fact that his felonies were three in number. It is equally

true that Texas may treat recidivists more harshly than

other offenders and that the Texas statute on its face is

constitutional. Spencer v. Texas, 385 U.S. 554, 87 S.Ct.

648, 17 L.Ed.2d 606 (1967). But Rummel is not Spencer.

Nor is the constitutionality of Texas’ imposition of life im-

prisonment on Spencer a determination that life imprison-

ment can constitutionally be imposed on Rummel. Recidi-

vism is no talisman-that justifies life imprisonment for any

three felonies without regard to their underlying serious-

ness.

William Rummel is now sentenced to life imprisonment

because, in addition to a 1973 conviction for obtaining

$120.75 by false pretences, he had previously been convicted

in 1969 for passing a forged check for $28.36 and in 1964

for credit card fraud involving $80.00. Even when enhanced

by the fact that Rummel repeated his petty cheating con-

duct three times over a period of nine years, the action of

the State of Texas in ordering him imprisoned until he dies

is so shockingly disproportionate to his offenses that I am

obliged to respectfully dissent.

PE et ee eee eee ee eee ee

A GS ABI I IER AEN NIE 2 Nak Rate See et ee besa + wD

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 76-2946

WILLIAM JAMES RUMMEL,

Petitioner-Appellant,

versus

W. J. ESTELLE, JR., Director,

Texas Department of Corrections,

Respondent-Appellee.

Appeal from the United States District Court for the

Western District of Texas

ON PETITION FOR REHEARING

(March 9, 1979)

Before BROWN, Chief Judge, COLEMAN, GOLDBERG

AINSWORTH, GODBOLD, CLARK, RONEY, GEE,

TJOFLAT, HILL, FAY, RUBIN and VANCR, Cir.

cuit Judges*.

PER CURIAM:

ITIS ORDERED that the petition for rehearing filed in

the above entitled and numbered cause be and the same is

hereby Denied.

ENTERED FOR THE COURT:

CHIEF JUDGE

* Judge Thornberry was a judge in regular active service on the en bane court

when the decision in this cause was rendered. Subsequently Judge Thornberry

took Senior Status. On October 20, 1978 the Omnibus Judgeship Bill, Public

Law 95-486 (95th Congress) was approved. Judge Thornberry did not partici-

pate in this decision.

Unitep States Court or APPEALS

FOR THE FirtH Circuit

October Term, 19

No. 76-2946

D. C. DOCKET NO. SA-76-CA-20

WILLIAM JAMES RUMMEL,

Petitioner-Appellant,

versus

W. J. ESTELLE, JR., Director, Texas Department of

Corrections,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Texas

Before BROWN, Chief Judge, THORNBERRY, COLE-

MAN, GOLDBERG, .AINSWORTH, GODBOLD,

CLARK, RONEY, GEE, TJOFLAT, HILL, FAY,

RUBIN, and VANCE, Circuit Judges.

JUDGMENT ON REHEARING EN BANC

This cause came on to be heard on respondent-appellee’s

petition for rehearing en banc and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court en banc that the Dis-

trict Court’s denial of habeas corpus relief on the eighth

amendment issue in this cause be, and the same is hereby

affirmed. The sixth amendment issued is remanded to the

panel for its original consideration ;

December 20, 1978

Clark, Circuit Judge, dissenting, with whom Goldberg, God-

bold, Hill, Rubin and Vance, Circuit Judges, join.

Issued As Mandate: MAR 19 1979

Sencar

te ed

SuprREME Court or THE Unitep States ‘

No. 78-6386

William James Rummel,

Petitioner,

W. J. Estelle, Jr., Director, Texas

Department of Corrections

On Petition ror Writ or Certiorari to the United

States Court of Appeals for the Fifth Circuit.

On ConsiperaTion of the motion for leave to proceed

herein in forma pauperis and of the petition for writ of

certiorari, it is ordered by this Court that the motion to

proceed im forma pauperis be, and the same is hereby,

granted; and that the petition for writ of certiorari be,

and the same is hereby, granted.

May 21, 1979

tr U.S. Government. Printing Office::1979—297-170/35

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.