Petitioners Brief — Rummel v. Estelle

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AUG &

IN THE 7a

Supreme Cowt of the United States

OCTOBER TERM, 1978

No. 78-6386 \

WILLIAM JAMES RUMMEL,

Petitioner,

Vv.

W.J. ESTELLE JR., DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

| FIFTH CIRCUIT

BRIEF FOR THE PETITIONER

SCOTT J. ATLAS

VINSON & ELKINS

2100 First City National Bank

Building

Houston, Texas 77002

Court-appointed Counsel for

Petitioner

Of Counsel

CHARLES ALAN WRIGHT

2500 Red River

Austin, Texas 78705

PRESS OF BYRON S. ADAMS, INC., WASHINGTON, D.C.

Ee ee ee ee ee ee

SE a Ch As ces 6 a weeks Sees

QUESTION PRESENTED

CONSTITUTIONAL AND STATUTORY PROVISIONS

PE in Cinkwa hs a sdG KA eek eae noes

FE is be Se ak hw Oks Sarees ca

The Imposition of a Mandatory Life Sentence

Pursuant to the Texas Recidivist Statute Is

So Disproportionate to the Underlying Of-

fenses for Which Rummel Was Convicted

that It Constitutes Cruel and Unusual

IEE dies bai Vins tu eb Suen aes Gee

A. The Eighth Amendment Limits

Excessively Long Sentences ..........

B. Under the Coker v. Georgia Tests,

Rummel’s Sentence is Excessive. ......

1. A Mandatory Life Sentence Is

Grossly Disproportionate to the

Severity of the Offenses Alleged and

a. Rummel’s Offenses Do Not

Justify a Mandatory Life

A, C5 oo anes cn cek aed

Page

i The Three Petty Offenses for

Which Rummel Received a Life

Sentence Threatened Neither

Violence Nor Societal In-

GUTY once ccesescceeecces

ii. The En Banc Court Erred in

Refusing to Consider the

Nature of the Offenses Trigger-

ing Application of the Habitual

Offender Statute .......-.---

iii. The Mere Possibility of Parole

Is No Substitute for a Shorter

Sentence, Since Rummel Has

No Right to Parole and

Lifetime Parole Makes Him a

Perpetual Prisoner.......---

No Jurisdiction in the United

States or the Free World Punishes

Habitual Offenders as Hazshly as

Texas; and the Trend in Habitual

Offender Legislation Is Away

from Mandatory Life Sentences

and Toward a Requirement that at

Least One Offense Involve

ES Pee oo

_ Texas Punishes No Other

Criminal Except One Convicted of

a Capital Offense as Harshly as It

Page

Punishes a Three-Time Felon, and

It Punishes More Dangerous

Criminals Much Less Severely . . .

2. The Life Sentence Mandated by

Texas Law Makes a Negligible Con-

tribution to Acceptable Goals of

Punishment. ......cscccccccceses

a. Since Judges and Juries Give

Lengthy Sentences to Non-Petty

Offenders, Recidivist Laws Isolate

Only Petty Offenders, Who Re

main Incarcerated for a Much

Longer Period than Societal Pro-

tection Requires. ...........----

b. Since Non-Petty Offenders Can

Anticipate Lengthy Sentences

from Judges and Juries, Habitual

Offender Statutes Deter Only Pet-

ty Offenders, Who Would Be Ef-

fectively Deterred by a Much

Shorter Sentence............+--

c. Life Imprisonment Will Not

Rehabilitate... 1. cece c ec cwaes

d. Retribution Is Permissible Only if

Punishment Is Proportioned to

the Offenses Being Punished ....

e. A Mandatory Life Sentence that

Is Not Restricted in the Nature of

Page

the Offenses for Which It is Im-

posed Serves No Coherent Policy

Because It Is So Severe that

Judges, Prosecutors, and Juries

Restrict Enforcement of the

Statute Requiring Its

Imposition .......---++++ee+e

3 The Mandatory Nature of the Texas

Statute Deprived Rummel of Any Op-

portunity to Present Evidence of

Mitigating Circumstances at the

Punishment Stage of the Trial......

4. Subjectivity, Inherent in Many

Constitutional Principles, Has a

Negligible Effect on the Outcome of

this Case and Is No Justification for

Refusing to Examine Potentially Un-

constitutional Conduct....... ae

The Rational Basis Test Imposed by the

En Banc Court: Has No Place in an

Eighth Amendment Proportionality

Analysis ........-sssceeeeeeececees

Rummel Has Not Procedurally

Defaulted. the Right to Challenge His

Punishment as Cruel and Unusual by

Failing to Object on that Basis at the

Punishment Phase of His Trial ........

Page

1. The State Waived Its Right to Argue

Procedural Default by Not Raising

the Argument in the Lower Court . . .

2. The Texas Contemporaneous-

Objection Rule Does Not Apply to

Rummel’s Objection to His

capac cst sccciveces

The Prosecutor’s Discretion to Indict

Habitual Offenders Is Not an Issue in

EI ee oo

If the Court Agrees that Rummel’s Life

Sentence Is Unconstitutionally Ex-

cessive, Rummel Is Entitled to Im-

mediate Release ........--++++eeee%

COOPIGT ATI ow ne he rc ewes ccc cece cceseens

TABLE OF AUTHORITIES

Page

CASES:

Atlas Assurance Co. v. Standard Brick & Tile

Corp., 264 F.2d 440 (7th Cir. 1959) .....---- 69

Badders v. United States, 240 U.S. 391 (1916)... 22

Bailey v. Blackburn, No. 78-3306 (5th Cir., June

15, 1979) (per curiam).....----+++eeerree 34

Barnes v. State, 75 Tex. Crim. 188, 170 S.W. 548

Re pik aecs ce PN ER MeCN caNe 8 c98 6s 70

Bevill v. State, 573 S.W.2d 781 (Tex. Crim. App.

ESS onpirr Ss eee ee Oke 61

See | OTT. CEE 61

Bordenkircher v. Hayes, 434 U.S. 357 (1978)... 23, 25,

59, 73

Bullard v. State, 548 S.W.2d 13 (Tex. Crim. App.

Be evde eeces es cn sew eeee eestor. 74

J) ON Sere rere ii ee oe 57

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

cert. denied, U.S. ___, 99 S. Ct. 874

SS eerie ats a AS ie 20, 23, 64

Carmona v. Ward, U.S. __._, 99 S.Ct.

874 (1979), denying cert. to 576 F.2d 405 (2d

et a cloccsewgebeeseterorces 22

a RPTL APOIO PL LG

vii

Carvajal v. State, 529 S.W.2d 517 (Tex. Crim.

App. 1975), cert. denied, 424 U.S. 926 (1976). 57

Chapman v. Estelle, 593 F.2d 687 (Sth Cir.

IE is BEN PACs VERE RES OR 0 OS 63

Coker v. Georgia, 433 U.S. 584 (1977)....... passim

Cromeans v. State, 160 Tex. Crim 135, 268

S.W.2d 1383 (1954) 2.0... ce eee eet e cee eeene 57

Davis v. Davis, No. 77-1782 (4th Cir., June 29,

1979) (en banc), aff’g. Davis v. Zahradnick,

432 F. Supp. 444 (W.D. Va. 1977) .....-+--- 61

Doby v. State, 454 S.W.2d 411 (Tex. Crim. App.

BGR eo cs aces me wks bee Oe FO dew Pare ee 57

Ellison v. State, 432 S.W.2d 955 (Tex. Crim. App

a err ee ee a 74

Estelle v. Williams, 425 U.S. 501 (1976) ......-. 71

Ex parte Bagley, 509 S.W.2d 332 (Tex. Crim.

App. 1974) ....... FE see ie bb eke Mien 71

Ex parte Cesarez, 508 S.W.2d 620 (Tex. Crim.

App. 1974) .....scecccccccceesecccceses 70

Ex parte Ropollo, 558 S.W.2d 869 (Tex. Crim.

App. 1977) ....-ecceccereccrecceedecees 74

Ex parte Sanders, S.W.2d , No.

60,221 (Tex. Crim. App., Mar. 14, 1979)..... 70

Ex parte Scafe, 334 S.W.2d 170 (Tex. Crim. App.

ee Peeve te eri eee re ra ee Se 57

Page

Ex parte Swinney, 449 S.W.2d 101 (Tex. Crim.

App. 1978) ...-ceeeccccssssccscessecers 75

Francis v. Henderson, 425 U.S. 536 (1976) ....-- 71

Funding Systems Leasing Corp. V. Pugh, 530

F.2d 91 (5th Cir. 1976) ......-- eee ee eeees 69

Furman v. Georgia, 408 U.S. 238 (1972) ....- passim

Gann v. Keith, 151 Tex. 626, 253 S.W.2d 413

Gy 70

Gilmore v. Utah, 429 U.S. 1012 (1976).....----: 70

Goss v. Bomar, 337 F.2d 341 (6th Cir. 1964). .... 18

Graham v. West Virginia, 224 U.S. 616 (1912)... 18

Greenholtz v. Inmates, ___ U.S. ——, 99 S.Ct.

2100 (1979)... cece cc cccrcevescccsees® 33

Gregg v. Georgia, 428 U.S. 153 1) Ree passim

Griffin v. Warden, 517 F.2d 756 (4th Cir. 1975)... 64

Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), ap-

peal dismissed as untimely filed, 415 U.S. 938

OTS) ok snnenwers ay ae 28, 39, 47

Howard v. Fleming, 191 U.S. 126 CRORE. vccwess 18

Hutto v. Finney, 437 U.S. 678 (1978)......+-++-- 22

In re Kiemmler, 136 U.S. 436 (1890) ........--: 17

In re Lynch, 105 Cal. Rptr. 217, 503 P.2d 921

(EDTM ... oc io ohdedencsaehe a eehiss esas 56 63

In re Winship, 397 U.S. 358 (1970). ......-++-+-> 47

Ingraham v. Wright, 430 U.S. 651 ils) ee 22

et ts EE ELLIE LLL LEAD OE

Page

Jones v. Cunningham, 371 U.S. 236 (1936). ..... 36

Lockett v. Ohio, U.S. ___, 98 S.Ct. 2954

NS LG iy b's sted oe eee ee oe oe eins 61

McDonald v. Massachusetts, 180 U.S. 311

ES eee eee ee ee 17

Mason v. State, 459 S.W.2d 855 (Tex. Crim. App.

DG eke ta (veh Vs ee cess vee ea oe) 71

Moore v. Missouri, 159 U.S. 673 (1895).....-.-- 17

O’Neil v. Vermont, 144 U.S. 323 (1892)........- 22

Oyler v. Boles, 368 U.S. 448 SO cas ws e's -acke 17

People v. Broadie, 37 N.Y.2d 100, 332 N.E.2d 338

Se ee ee ee es he 63

Phoenix Assurance Co. v. Appelton City, 296

F.2d 787 (8th Cir. 1961) .... 2... eee eee eens 69

Robinson v. California, 370 U.S. 660 (1962) ..... 16

Rudolph v. Alabama, 375 U.S. 889 (2068)......%. 48

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

CS SN Per ee a passim

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

eS eC et er passim

Rummel v. Estelle, 590 F.2d 103 (5th Cir.

a ki Sh esa Seo alee acd 90 4 b.0 ie 8% 6 7

Rummel v. State, 509 S.W.2d 630 (Tex. Crim.

App. 1974) ...-...eeeeceeeeeeeecceee 6, Ti

Spencer v. Texas, 385 U.S. 554 ti?) Serer 17,18

Page

State v. Freeman, 223 Kan. 362, 474 P.2d 950

re Sikes ae APD REN SRR R RES OY 63

State v. Gibson, 16 Wash. App. 119, 553 P.2d 131

yi Soe k wu Ws ale ibaa Rem ns ¥ FM ' 7, 8 86 39

State v. Lee, 87 Wash. 2d. 982, 558 P.2d 236

(1976) (en banc), appeal dismissed, 432 U.S.

IIE, cava warnedhaivevereececeee® 39

Stovall v. Denno, 388 U.S. 293 (| ee 67

Trop v. Dulles, 356 U.S. 86 (1958) ...----- eee? 21

Tyra v. State, 534 S.W.2d 695 (Tex. Crim. App.

Sea ae Coe ee ee ee 40

Ullman v. United States, 350 U.S. 422 (1956).... 21

United States v. Addonizio, _— te ee

S.Ct. 2235 (1979) 2... eee cere reece ences 33

Wainwright v. Sykes, 433 U.S. 72 (19077) i. 0 ue 71,72

Weems v. United States, 217 U.S. 349 (1910). passim

Williams v. New York, 337 U.S. 241 (1949)......- 51

CONSTITUTIONS, STATUTES, AND LEGISLATIVE

HISTORIES

U.S. Const. amend. VIII .......--+-++++s: passim

Pub. L. 91-452, tit. X, §1001(a), 84 Stat. 948, 18

U.S.C. §3575 (1976) . 1... ee eee eres 26, 41

28 U.S.C. §1254 (1976) .. 0... eee eee eee 2

Fed. R. App. P.8.. 2.0.20 c cece eee e cee ecees 69

N.H. Const., Bill of Rights §18 (1783)......-.- 52, 54

Page

1856 Tex. Gen. Laws, Paschal, Digest of Texas

Laws (1866). .....ccccecccccccecccsseres 43

Tex. Penal Code art. 63 (1925) ......--.+-+- passim

Tex. Penal Code art. 979 (1925) .....---+-+-+5: 3, 28

Tex. Penal Code art. 996 (1925) ......----+++: 3, 28

Tex. Penal Code art. 1410 (1925) ......---+--- 4, 28

Tex. Penal Code art. 1413 (1925) ......---+--- 4, 28

Tex. Penal Code art. 1421 (1925) .......---++-: 4

Tex. Penal Code art. 1555 (1925) .....---+---- 4, 28

1967 Tex. Gen Laws, ch. 659, §22, art. 37.07..... 75

1973 Tex. Gen. Laws, ch.399, §6, Tex. Penal Code

Ann., Savings Provisions $6 (1974). .....--- 75

1973 Tex. Gen. Laws, ch.399, $31.03........--- 46

Tex. Rev. Civ. Stat. Ann. art. 61841 (Vernon

ITE). . cdc. caewece bess Sha eee eee ees es 31

Tex. Penal Code Ann. §1.02 (Vernon 1974) ...... 48

Tex. Penal Code Ann. §12.21 (Vernon 1974) ..... 46

Tex. Penal Code Ann. $12.32 (Vernon 1974) ..... 45

Tex. Penal Code Ann. §12.33 (Vernon 1974) ..... 45

Tex. Penal Code Ann. §12.42 (Vernon 1974). 3, 16, 45,

57, 59

Tex. Penal Code Ann. $19.03 (Vernon 1974) ..... 45

Tex. Penal Code Ann. $31.02 (Vernon 1974) ..... 46

Tex. Penal Code Ann. §31.03 (Vernon Supp.

TOUR), ccd sues vous + SaN epee ee emeee 27, 46

Tex. Code Crim. Pro. Ann. art. 37.07 (Vernon

Supp. 1978). ..... cece eec ee rreeccceeces 75

xii

Page

Tex. Code Crim. Pro. Ann, art 42.12 (Vernon

RN kkk wad ROs ARERR ARERR ENS 31, 36

Hearings on S.30 Before the Subcomm. on

Criminal Laws and Procedure of the Senate

Comm. on the Judiciary, 91st Cong., 1st Sess.

ria ices ves coe «ee atenN shoes 41

PUBLICATIONS

Advisory Council of Judges of the National Coun-

cil on Crime and Delinquency, Model Sentenc-

ing Act (1963)......+-seerrererereeees 37, 50

ABA Project on Standards for Criminal Justice,

Sentencing Alternatives and Procedures (Ap-

proved Draft 1968) ......+++++essreees 41, 60

ALI, Model Penal Code (1962)......+++++++++5 41

L Brandt, The Bill of Rights (1951)....----++: 21

Brown, West Virginia Habitual Criminal Law, 59

W.Va. L. Rev. 30 (1956)... 2... +e eer ee 56, 58

Cuomo, Mens Rea and Status Criminality, 40

U.S. Cal. L. Rev. 463(1967)....---+e seers 50

D‘x, Waiver in Criminal Procedure: A Brief for

More Careful Analysis, 55 Texas L. Rev. 193

OTE Sai ck en Vag eee nde nase eh sense ese 72

Erikson & Gibbs, On the Perceived Severity of

Legal Penalties, 170 J. Crim. Law &

Criminology 102 (1979) .....---+++reeeee: 36

D. Fellman, The Defendant's Rights Today (1976

MEE is casei er ewwes Coe ee wee pave ee oe es 63

xiii

Page

Ferguson, The Law of Recidivism in Texas, 13

McGill L.J. 663 (1967) .. 0... . eee eee ee eee 58

G. Fletcher, Rethinking Criminal Law (1978) . 18, 29,

27, 48, 55

Granucci, ‘““Nor Cruel and Unusual Punishments

Inflicted”’: The Original Meaning, 57 Cal. L.

SS nie eee eae 20

Grosman, The Treatment of Habitual Criminals

in Canada, 9 Crim. L.Q. 95 (1966-1967) 37, 49, 50,

H. Hart, Punishment and _ Responsibility 56

0 RES a sr ane ee ee eee 20

Jackson, Hard Times, Texas Monthly, Dec. 1978,

1 SNe ae a rere ee eee ee 20, 32

Jeffries & Stephan, Defenses, Presumptions, and

Burden of Proof in the Criminal Law, 88 Yale

Lid, LORE EIT ies cece ec ewees 23, 26, 28, 47

Johnson, Sentencing in the Criminal Courts, 9

Hous. L. Rev. 944 (1972) .........5-- 49, 58, 59

Katkin, Habitual Offender Laws: A Reconsidera-

tion, 21 Buffalo L. Rev. 99(1971)....... passim

Klein, Habitual Offender Legislation and the

Bargaining Process, 15 Crim. L.Q. 417

4 3) ree rk oo 37, 49, 53

Langbein, Torture and Plea Bargaining, 46 U.

Chi. L. Rev. S(1978). 0. ccc cece cc nvcvces 58

Lewis, The Humanitarian Theory of Punishment,

6 Res Judicatae 224 (1953). .......---2 eee 54

xiv

Page

Lynch, Parole and the Habitual Criminal, 138

McGill L.J. 632 (1967)... 6... ee eee eee eee 49

Mewett, Habitual Criminal Legislation Under the

Criminal Code, 39 Can. B. Rev. 43 (1961).. 58, 59

N. Morris, The Habitual Criminal (1951).....---. 42

Morris, Towards Principled Sentencing, 37 Md.

L. Rev. 267 (1977)... ..secceeccecereerees 56

Murrah, The Dangerous Offender Under the

Model Sentencing Act, 45 F.R.D. 161(1967). 49

Packer, Making the Punishment Fit the Crime, 77

Harv. L. Rev. 1071 (1964) ........ 19, 26, 48, 55

Radin, The Jurisprudence of Death: Evolving

Standards for the Cruel and Unusual

Punishments Clause, 126 U. Pa. L. Rev. 989

FUTON icc crest sswceevvccesace 21, 26, 48, 67

Robison, The Effectiveness of Correctional

Programs, 17 Crime & Delinquency 67 (1971) 54

S. Rubin, The Law of Criminal Correction (2d ed.

TT eda i wehbe ded sed aeecenaces 49

Schreiber, Indeterminate Therapeutic Incarcera-

tion of Dangerous Criminals: Perspectives

and Problems, 56 Va. L. Rev. 602 (1970)..... 53

T. Sellin & M. Wolfgang, Delinquency: Selected

Studies (1969). ..... cece cece cee eeeceeees 27

Snyder, Catecholamines in_ the Brain as

Mediators of Amphetamine Psychosis, 27 Ar-

chives of Gen. Psychiatry 169(Aug. 1972)... 64

Page

Tappan, Habitual Offender Laws in the United

States, 13 Fed. Prob. 28 (Mar. 1949).......-. 56

Tappan, Book Review, 65 Harv. L. Rev. 1092

eee Pre ee ee 42, 49, 54

Texas Board of Pardons and Paroles, 1978 Hana-

book on Parole, Mandatory Supervision and

Executive Clemency (1978) ......---+++++0> 35

Timasheff, The. Treatment of Persistent Offenders

Outside of the United States, in 40 J. Crim. L.

& Criminology 455 (1940) .....----+-+++: 42,44

Wechsler, Sentencing Innovations, in Sentencing

Institute: Violence Today—A Judicial Con-

cern, 46 F.R.D. 497 (1968) .....--- +e eee ee 27

Wheeler, Toward a Theory of Limited Punish-

ment: An Examination of the Eighth Amend-

ment, 24 Stan. L. Rev. 838 (1972)..... 51, 52, 53,

59, 64

Wheeler, Toward a Theory of Limited Punish-

ment II: The Eighth Amendment After Fur-

man v. Georgia, 25 Stan. L. Rev. 62 (1972)... 21

Williams, The Courts and Persistent Offenders,

10 Crim. L. Rev. 730 (1963) .... 25,49, 52, 54, 56

17 C. Wright, A Miller & E. Cooper, 17 Federal

Practice & Procedure: Jurisdiction (1978)... . 69

Note, 24 Baylor L. Rev. 153 (1972).......-++++: 58

1 The Bill of Rights (B. Schwartz ed. 1971).... 52,54

xvi

Page

. Comment, A Closer Look at Habitual Criminal

Statutes: Brown v. Paratt and Martin v.

Paratt, A Case Study of the Nebraska Law,

16 Am. Crim. L. Rev. 275 (1979) ...... 27, 59, 66

Comment, The Eighth Amendment, Beccaria, and

the Enlightenment: An Historical Justifica-

tion for the Weems v. United States Ex-

cessive Punishment Doctrine, ?4 Buffalo L.

el eee ere 21, 53, 55

Monograph, The Treatment of the Recidivist in

the United States, 23 Can. B. Rev. 638 (1945). 44,

51, 54-59

Note, Statutory Structures for Sentencing Felons

to Prison, 60 Colum. L. Rev. 1156 (1960) .. 51,55

Note, Court Treatment of General Recidivist

Statutes, 48 Colum. L. Rev. 238 (1948) . 44, 57-59

Note, The Cruel and Unusual Punishment Clause

-and the Substantive Criminal Law, 79 Harv.

1 rs are 22, 27

Note, Strict or Liberal Construction of Penal

Statutes, 48 Harv. L. Rev. 748 (1935)....... 56

Comment, Recidivism: The Treatment of the

Habitual Offender, 7 U. Rich. L. Rev. 525

ee ab ce waiewe sc 54

Comment, Texas Sentencing Practices: A

Statistical Study, 45 Texas L. Rev. 471 (1967) 50,

53, 64

XVii

Page.

Note, Recidivist Laws Under the Eighth Amend-

ment— Rummel v. Estelle, 10 Tol. L. Rev. 606

eT 05 a be None oebcaasaweds 25, 34

Note, 1978 Wis. L. Rev. 253...............0.. 25

5 Tex. Jur. 2d, Appeal and Error—Criminal Cases

se POE Pee ee ee eee eer Pee 70

OTHER AUTHORITIES

Brief for Petitioner, Coker v. Georgia, 433 U.S.

RY B65 en RNs ks x cas ch bn 20, 22

Brief for Petitioners, Oyler v. Boles, 368 U.S. 448

WOES di og Wh rc dk eG 05 a ods Sok Kk em 17

Record, Reed v. Beto, consolidated with Spencer

v. Texas, 385 U.S. 554 (1967).............. 18

Brief of Appelle, Rummel v. Estelle, 568 F.2d

ee 68

Appellee’s Responsive Supplemental Brief, Rum-

mel v. Estelle, 568 F.2d 1193 (5th Cir. 1978).. 68

Brief in Support of Motion for Rehearing in [sic]

Banc of the Criminal District Attorney of

Bexar County, Texas, as Amicus Curiae,

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

gg EE EE Ny an a ea 43

Respondent’s Opposition to Petitioner’s Amend-

ed Motion for Release,'Rummel v. Estelle,

568 F.2d 1193 (5th Cir. 1978).............. 27

XViil

Page

Appellee’s Second Supplemental Brief, Rummel

v. Estelle, 587 F.2d 657 (5th Cir. 1979)

eB eS Cee

Responderit’s Brief in Opposition, Rummel v.

Estelle, No. 78-6386 (cert. granted May 21,

0 EE Se ee ee eee ee 68, 70, 71, 73

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-6386

WILLIAM JAMES RUMMEL

Petitioner,

Vv.

W. J. ESTELLE DIRECTOR

TEXAS DEPARTMENT OF CORRECTIONS,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The en banc opinion of the court of appeals (A. 25)!

is reported at 587 F.2d 651. The panel opinion of the

‘ Throughout this Brief, references to the record on appeal will

be made as follows: “(R. ____ ).”” References to the separately

bound Appendix will be made as follows: ‘(A. ____).’’ References

to the separately bound charts submitted with this Brief, which

contain only data of which this Court can take judicial notice,

will be made as follows: ‘‘(C. _____).”’

court of appeals (A. 9) is reported at 568 F.2d 1193.

The opinon of the district court (A. 4) is not reported.

JURISDICTION

_ The judgment of the en banc court of appeals was

entered on December 20, 1978 (A. 56). A petition for

rehearing was denied on March 9, 1979 (A. 55). A

petition for a writ of certiorari was filed on March 19,

1979, with in 90 days of both dates, and was granted

on May 21, 1979 (A. 57). The jurisdiction of this Court

rests upon 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Whether the Texas habitual offender statute, which

mandates a life sentence upon conviction of a felony

with two prior felony convictons, constitutes cruel

and unusual punishment when applied to Rummel’s

conviction for theft by false pretext of $120.75, with

prior convictions for presenting a credit card with

intent to defraud of property worth approximately

$80.00 and passing a forged check with a face amount

of $28.36.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment to the United States Con-

stitution provides as follows:

_Excessive bail shall not be required, nor exces-

sive fines imposed nor cruel and unusuai punish-

ments inflicted.

Article 12.42(d) of the Texas Penal Code of 1974 -

provides:

If it be shown on the trial of any felony offense

that the defendant has previously been finally

convicted of two felony offenses, and the second

previous felony conviction is for an offense that

occurred subsequent to the first previous convic-

tion having become final, on conviction he shall

be punished by confinement in the Texas De-

partment of Corrections for life.

Article 63 of the Texas Penal Code of 1925, the

predecessor statute to article 12.42(d), 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 peniten-

tiary.

Article 979 of the Texas Penal Code of 1925 pro-

vides:

He is guilty of forgery who without lawful au-

thority, and with intent to injure or defraud, shall

make a false instrument in writing purporting to

be the act of another, in such manner that the

false instrument so made would (if the same were

true) have created, increased, diminished, dis-

charged or defeated any pecuniary obligation, or

would have transferred, or in any manner have

affected any property whatever.

Article 996 of the Texas Penal Code of 1925 pro-

vides:

If any person shall knowingly pass as true, or

attempt to pass as true, any such forged instru-

ment in writing as is mentioned and defined in

the preceding articles of this chapter, he shall be

confined in the penitentiary not less than two nor

more than five years.

Article 1410 of the Texas Penal Code of 1925 pro-

vides:

“Theft’’ is the fraudulent taking of corporeal per-

sonal property belonging to another from his pos-

session, or from the possession of some person

holding the same for him, without his consent,

with intent to deprive the owner of the value of

the same, and to appropriate it to the use or

benefit of the person taking.

Article 1413 of the Texas Penal Code of 1925 pro-

vides:

The taking must be wrongful, so that if the prop-

erty came into the possession of the person ac-

cused of theft by lawful means, the subsequent

appropriation of it is not theft, but if the taking,

though originally lawful, was obtained by any

false pretext, or with any intent to deprive the

owner of the value thereof, and appropriate the

property to the use and benefit of the person

taking, and the same is so appropriated, the of-

fense of theft is complete.

Article 1555b, section 1 of the Texas Penal Code of

1925 provides:

It shall be unlawful for any person to present a

credit card or alleged credit card, with the intent

to defraud, to obtain or attempt to obtain any

item of value or service of any type; or to present

such credit card or alleged credit card, with the -

intent to defraud, to pay for items of value or

services rendered.

STATEMENT OF THE CASE

The background proceedings, as stated in the Fifth

Circuit panel opinion and quoted in the en banc opin-

ion, are as follows:

In January 1973, a Texas grand jury indicted

Rummel for the felony offense of obtaining

$120.75 under false pretenses [(R. 79-80) in vio-

lation of articles 1410 and 1413 of the Texas

Penal Code of 1925].2 The indictment also

?On August 15, 1972, the complaining witness, David Lee

Shaw, gave Rummel a check for $120.75 in return for Rummel’s

promise to repair or replace a defective air conditioning com-

pressor (R. 140-43, 158, 163-66, 176-78; see R. 152, 171, 206, 249-

50). Although Rummel apparently attempted unsuccessfully to

both purchase a new compressor (R. 146, 154, 169, 175) and

retrieve the air conditioner (R. 171-73), he never performed the

repairs (R. 146, 150-51, 168-69) after cashing the check (see R.

180-81, 191). The jury was asked to determine whether Rummel

had intended to repair the air conditioner when he accepted

Shaw’s check (R. 107-09).

Rummel’s attorney attempted unsuccessfully (R. 214-15; see R.

132-34) to introduce a signed and notarized statement indicating

that Shaw had agreed to release Rummel from any claims con-

cerning the $120.75 check and that Shaw “‘ha[d] no knowledge of

any facts upon which any criminal prosecution could be based”’

(R. 214-16, 280). Shaw testified that a few days before trial,

Rummel’s parents had contacted Shaw and paid him $50.00 in

return for Shaw’s agreement to drop charges (R. 158-59).

charged him with having two prior felony con-

victions [(R.81)]: In 1964 he presented a credit

srd with the intent to defraud of approximately

), and in 1969 he passed a forged instrument

_ ha face value of $28.36. [A] jury found him

guilty as charged [of the false pretenses offense

(R. 113, 281)]. After the state proved his two

prior convictions [(R. 226-37, 255-78)], Rummel

received an enhanced sentence of life imprison-

ment [(R. 244, 288)] 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 convic-

tion. Rummel v. State, 509 S.W.2d 630 (Tex.

Crim. App. 1974). Rummel applied for postcon-

viction relief and raised in the Texas courts the

[issue presented here and an ineffective counsel

claim (R. 36-40)], but his application was denied

[by both the district court (R. 51-54) and the

Texas Court of Criminal Appeals (R. 31)] without

a hearing [(R. 53)]. Then Rummel sought habeas

corpus relief [on the same grounds} in the federal

district court [(R. 3-9)], which also denied his pe-

tition [(A. 4-6; R. 328-31)] without a hearing [(A.6;

R. 331)].

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

(panel opinion) (A. 10), quoted in Rummel v. Estelle,

587 F.2d 651, 653 (5th Cir. 1978) (en banc) (A. 26). By

a 2-1 vote, a Fifth Ciruit panel reversed the district

court decision and held that article 63’s automatic life

sentence was cruel and unusual as applied to the of-

fenses for which the sentence had been assessed. 568

F.2d 1193 (A. 9) (hereinafter referred to as ‘the panel

opinion”’).

a Ser ee EE ERI er A kL

sa iam, I i

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

vacated the panel opinion, affirmed the district

court’s denial of the petition on the Eighth Amend-

ment issue, and remanded the case to the panel for

reconsideration of the Sixth Amendment issue.’ 587

F.2d 651 (A. 25) (hereinafter referred to as “‘the en

banc opinion’’). The en banc court held, in short, that

while a severe sentence imposed for a minor offense

could be cruel and unusual solely because of its length,

587 F.2d at 655 (A. 30), Rummel’s automatic life sen-

tence does not violate the Eighth Amendment be-

cause Rummel failed to prove that the legislative

scheme has no rational basis and is totally and utterly

rejected in modern thought, id. at 655-56, 661-62 (A.

30-31, 40-41). The en banc court reasoned as follows:

(1) under Texas’ good time credit system, Rummel be-

comes eligible for parole in twenty years, or in twelve

years if he behaves while in prison, id. at 657-59 (A.

33-35); (2) the nature of the three offenses triggering

Rummel’s mandatory life sentence under article 63 is

irrelevant, because the purpose of article 63 is to pun-

ish all three-time felons, irrespective of the nature of

their underlying offenses, id. at 659 (A. 36); (3) Rum-

mel might have received a comparable sentence in

*On remand, the panel reversed the district court decision on

the Sixth Amendment issue and remanded the case to the district

court for an evidentiary hearing on that issue. Rummel v. Estelle,

590 F.2d 103 (5th Cir. 1979). No hearing has yet been held. The

second panel decision raises no issues presented to the Court in

the Petition for Certiorari or in this Brief.

several other jurisdictions, id. at 659-60 (A. 37-38); (4)

Rummel’s punishment cannot appropriately be com-

pared to the penalty for any single offense in Texas,

id. at 660 (A. 38-39); and (5) the test of ‘‘whether a

significantly less severe punishment could achieve the

purposes for which the challenged punishment is in-

flicted,’”’ id. at 660-61 (A. 39) (emphasis in original)

(quoting the panel opinion, 568 F.2d at 1198 (A. 16)),

has no role in Eighth Amendment analysis.

SUMMARY OF ARGUMENT

A. Application of the Eighth Amendment to

Lengthy Sentences

In Weems v. United States, 217 U.S. 349 (1910), the

Court held cruel and unusual a fine and 12-year sen-

tence at cadena temporal (hard labor with chains) for

falsifying a public record. While the decision rested in

part on the inherent cruelty of cadena temporal, it

also relied separately on the principle that the Eighth

Amendment requires sentence length to be propor-

tioned to the offense. Although Weems is the only

case in which the Court has ever invalidated as cruel

and unusual an excessively long prison term, frequent

references to Weems in recent cases attest to the con-

tinuing vitality of the Weems principle as a limit on

sentence length for relatively minor offenses.

B. The Coker Excessiveness Tests

Recently, the Court in Coker v. Georgia, 433 U.S. 58

(1977), indicated that a punishment exceeds the limits

of the Eighth Amendment if it ‘‘(1) makes no measu--

able contribution to acceptable goals of punishment

and hence is nothing more than the purposeless and

needless imposition of pain or suffering; or (2) is gross-

ly out of proportion to the severity of the crime.”’ Jd.

at 592. Holding capital punishment for rape invalid

on the second ground, the Court focused on three

indices of disproportionality: (1) the nature of the of-

fense, (2) the punishment for the same crime in other

jurisdictions, and (3) the penalty for comparable of-

fenses in the same jurisdiction.

1. Disproportionality

Rummel’s punishment easily qualifies as excessive

under all tl.ree criteria employed in the Coker Court’s

application of the “gross disproportionality”’ test.

a. Nature of the Offenses

First, Rummel’s three offenses—forging a check

with a face amount of $28.36, using another person’s

credit card to purchase approximately $80.00 in mer-

chandise, and taking a check for $120.75 in return for

a false promise to repair an air conditioner—lack the

elements of violence, threat of harm, skill in crime, or

moral depravity necessary to justify a life sentence.

The en banc court could justify its result only by

first exaggerating the seriousness of Rummel’s offen-

ses and then trivializing the length of his life sentence.

First, the court refused to consider the nature of Rum-

mel’s offenses and focused solely on the number of

Rummel’s offenses as they reflect his supposed ina-

bility to conform to societal norms. In this manner

the court precluded all challenges to sentences for

repeat offenders, no matter how trivial the offenses.

Second, the en banc court treated Rummel’s pun-

ishment as equivalent to a 12-year sentence because

he could become eligible for parole consideration at

the end of that period by obtaining the maximum

good time credit during his term. Such logic overlooks

several factors. First, Texas officials grant parole

sparingly. Second, the possibility of parole creates no

due process right to release, only ‘‘a mere hope.’’ Re-

liance on bare possibilities deprives Rummel of his

only opportunity for judicial review of his sentence

and delegates the judiciary’s responsibility for the

Eighth Amendment proportionality inquiry to parole

authorities, who rely on criteria unrelated to the na-

ture of the offenses. Third, “‘bad’’ but not illegal be-

havior in prison, which is punishable by a loss of good

time credit and a reduction in parole probabilities,

surely would not justify an otherwise indefensibly ex-

cessive sentence. Finally, lifetime parole is not com-

plete freedom; it is accompanied by lifetime

supervision and the threat of reincarceration for even

minor, noncriminal! parole violations.

b. Punishment for the Same Offenses in

Other Jurisdictions a

Measured by the second criterion highlighted in

Coker—punishment for the same offense in other ju-

risdictions—Rummel’s sentence stands out as even:

more grossly excessive. Except for one state whose

highest court has indicated serious Eighth Amend-

ment reservations about application of a recidivist

law to petty offenders, the law in no other American

jurisdiction mandates a life sentence upon conviction

of any three felonies. While statutes in three other

states impose a life sentence after a fourth felony

conviction, every other state law requires commission

of at least one violent crime, imposes a sentence less

than life, or grants sentencing discretion. Moreover,

_ the Texas law, first enacted in 1856, once shared com-

pany with mandatory life sentence statutes in other

states but now stands alone in the face of a marked na-

tional trend toward lighter and _ discretionary

sentences and a violent crime limitation.

c. Punishments for Similar Offenses in

Texas

The final Coker proportionality criterion-—the pen-

alty for similar offenses in the forum jurisdiction—

underscores the severity of Rummel’s sentence. Ex-

cept for capital murder, Texas law does not impose a

life sentence on even the most violent or depraved

single or two-time offender. Moreover, Rummel’s

third offense became a misdemeanor eight months

after his trial, carrying a maximum sentence of only

one year.

2. No Measurable Contribution to Acceptable

Penal Goals

Although the Court has never defined the contours

of the Coker ‘‘no measurable contribution”’ test, Rum-

mel’s sentence probably qualifies since the enhanced

punishment mandated by the Texas recidivist statute

contributes almost nothing to the four recognized: le-

gitimate penological objectives: isolation, deterrence,

rehabilitation, and retribution.

First, isolation of a repeat offender is an acceptable

objective only to the degree that the offender endan-

gers the public safety or welfare. But the true threat

to the social order—the professional, dangerous crim-

inal—often escapes detection or conviction and re-

ceives a long sentence upon first conviction.

Meanwhile, most petty thieves, who are a nuisance

but not a threat, have lost their propensity for crim-

inal conduct by the time they are apprehended and

convicted as habitual offenders.

Second, deterrence is a realistic expectation only

when the punishment is proportioned to the gravity

of the crime. And dangerous criminals anticipate

heavy sentences upon apprehension, irrespective of

enhancement statutes.

Third, long-term imprisonment, even if ultimately

combined with permanent parole, does not rehabili-

tate. Instead, it psychologically destroys the recipient

of the punishment.

Finally, retribution is a legitimate penal objective, -

if ever, only when the punishment fits the crime.

Indiscriminately harsh enhancement statutes such

as the Texas law advance no coherent policies because

judges sympathetic to the accused’s plight encumber

such statutes with restrictive prerequisites, prosecu-

tors plea bargain based on criteria unrelated to any

penal purpose, and juries, when given the opportuni-

ty, refuse to convict if the sentence is disproportion-

ately severe.

3. Mandatory Nature of the Texas Law

If a judge or jury had independently assessed Rum-

mel’s life sentence, his objections would lose their

force. Rummel’s jury had no opportunity to nullify

the prosecutor’s case or consider mitigating circum-

stances, however, because Texas law prohibits inform-

ing the jury about the punishment automatically

assessed a third offender once the factfinder deter-

mines that the defendant had been convicted of the

two previous felonies alleged in the indictment.

~ 4, Subjectivity

The en banc court objected to Rummel’s analysis

as subjective and predicted a flood of litigation. Al-

though application of the Eighth Amendment, as with

many constitutional rights, is inherently subjective,

the proportionality principle is sufficiently important

to sacrifice some objectivity. Moreover, the three cri-

teria used in Coker minimize subjectivity. Lower state

courts have employed similar tests for years without

being deluged by litigation. And the difficulty of de-

veloping objective measures argues for renewed effort

to fashion such criteria, not for surrender.

C. Rational Basis

The rational basis test interjected by the en banc

court is useless as a measure of punishment exces-

siveness since even torture has some rational basis as

retribution or deterrent. While courts properly defer

to legislative judgments, this Court has never im-

posed a rational basis standard in its Eighth Amend-

ment proportionality decisions. |

D. Procedural Default

By not raising the issue until afer the original panel

decision, the State waived its right to argue that Rum-

mel waived his Eighth Amendment objection by fail-

ing to raise it during the punishment stage of his trial.

Moreover, the State misconstrues the Texas rule that

objections must be made contemporaneous with the

first appearance of the objectionable practice. The rule

does not apply to an inadvertent or futile failure to

object, since the rule derives from Texas courts’ ef-

forts to prevent an accused from deliberately forego-

ing objection at trial to correctible matters in order

to preserve ammunition for an appeal if the trial con-

cludes unsuccessfully. Moreover, Rummel can meet

the ‘“‘good cause’’and ‘‘actual prejudice’’ exceptions -

to the procedural default doctrine. He had good cause

to believe that the state trial court would reject an

Eighth Amendment challenge to the state habitual

offender statute. And he has suffered actual prejudice

by serving a much longer sentence than would have

occurred if he had prevailed at trial on the Eighth

Amendment issue.

E. Prosecutorial Discretion

The State’s argument that a decision favoring

Rummel’s position requires finding an abuse of pro-

secutorial discretion is superfluous. Rummel chal-

lenges the legislature’s right to authorize the

prosecutor to indict a three-time petty offender under

the recidivist statute, not the prosecutor’s decision to

exercise that power.

F. Rummel’s Right to Immediate Release

Since Rummel requested jury sentencing at trial

and Texas law gives such a defendant the right to be

sentenced by the same jury that convicted him, re-

versal of his sentence would entitle Rummel to a new

trial. Since he would then exercise his right to be tried

an@ sentenced under the 1974 Texas Penal Code,

which reduces his third offense to a misdemeanor pun-

ishable by a maximum term of one year, Rummel

could not be retried because he has served longer than

the maximum possible sentence.

ARGUMENT

THE IMPOSITION OF A MANDATORY LIFE

SENTENCE PURSUANT TO THE TEXAS

RECIDIVIST STATUTE IS SO

DISPROPORTIONATE TO THE UNDERLYING

OFFENSES FOR WHICH RUMMEL WAS

CONVICTED THAT IT CONSTITUTES CRUEL

AND UNUSUAL PUNISHMENT.

Article 63 of the old Texas Penal Code mandates a

life sentence for anyone convicted of three noncapital

felonies. Tex. Penal Code Ann. art. 63 (1925).* Rummel

contends that the Texas recidivist statute’s manda-

tory life sentence as applied to him is so dispropor-

tionate to the seriousness of the three offenses

underlying his three felony convictions that it consti-

tutes cruel and unusual punishment forbidden by the

Eighth Amendment.

A. The Eighth Amendment Limits Excessively

Long Sentences.

Recidivist and enhancement statutes such as the

Texas law challenged here are apparently not uncon-

‘The 1974 Penal Code preserved article 63, with minor varia-

tion, in section 12.42(d). Tex. Penal Code Ann. § 12.42(d) (1974).

* It is well settled that the Eighth Amendment applies in full

force to the states through the Fourteenth Amendment. Furman

v. Georgia, 408 U.S. 238, 257-58 n.1 (1972) (Brennan, J., concur-

ring) (citing Robinson v. California, 370 U.S. 660 (1962)); id. at

328 n.34 (Marshall, J., concurring)(same).

stitutional per se under the Eighth Amendment.* But -

such statutes, as with any statute, are not insulated

® See Spencer v. Texas, 385 U.S. 554, 560 (1967) (citing cases).

The case most frequently cited as precedent for the proposition

that habitual offender statutes are not cruel and unusual per se,

Moore v. Missouri, 159 U.S. 673 (1895) (life sentence for burglary

of a home with prior conviction for grand larceny, based on

statute mandating maximum sentence upon conviction of second

offense punishable by imprisonment), barely touched on the issue

as an after-thought to an analysis of a Double Jeopardy claim.

The Court made the point that an extended punishment is given

not for the earlier crime but rather for the immediate offense as

aggravated by the earlier conviction. See id. at 677. The Court

also relied on Jn re Kemmler, 136 U.S. 436 (1890) (challenging

penalty of death by electrocution, imposed for first-degree mur-

der), which turned on the since-discredited assumption, see text

accompanying notes 9-11 infra; compare Robinson, 370 U.S. 660,

that punishments are cruel only when they involve torture and

lingering death, see Kemmler, 136 U.S. at 446-47.

In McDonald v. Massachusetts, 180 U.S. 311 (1901) (25 years for

forgery with prior convictions for perjury and theft imposed by

statute mandating 25-year sentence upon conviction of any crime

and a finding of prior convictions for any two offenses for which

prison terms of at least 3-years each had been served), the Court

summarily dismissed an Eighth Amendment claim, relying on

the same points made in Moore.

Subsequent cases merely assumed that McDonald and Moore

settled the issue. See, e.g., Oyler v. Boles, 368 U.S. 448, 451

(1962) (dicta)(life sentence for 2 petitioners convicted of the fol-

lowing sets of offenses: (1) murder with prior convictions for grand

larceny, breaking and entering, and burglary, see Brief for Peti-

tioners at 4-6, Oyler v. Boles, 368 U.S. 448 (1962); and (2) forgery

with prior convictions for forgery and forgery in the first degree,

from challenge as applied in a particular case. If the

Texas statute is applied to inflict punishment suffi-

see id. at 7-8, under a statute mandating a life sentence upon

third conviction of any offense punishable by imprisonment;

Eighth Amendment issue not raised); Graham v. West Virginia,

224 U.S. 616, 631 (1912) (life sentence for grand larceny with

prior convictions for burglary and grand larceny under same

statute as that involved in Oyler), The Court made the same

assumption in discussing article 63 in Spencer. 385 U.S. at 560

(dicta) (life sentence under the Texas statute for 3 petitioners

convicted of the following sets of offenses: (1) 2 murders with

malice, (2) robbery by assault and robbery, and (3) burglary with

prior convictions for burglary and theft, see Record at 36-37,

Reed v. Beto, consolidated with Spencer v. Texas, 385 U.S. 554

(1967); Eighth Amendment issue not raised) (citing McDonald,

Oyler, and a case, Howard v. Fleming, 191 U.S. 126 1903), in

which the Court examined a 10-year sentence for swindling and

conspiring to defraud in light of the nature of the offenses and

concluded that the sentence did not violate the Eighth Amend-

ment, id. at 136).

For criticism of the summary treatment of this issue in Spencer

and the cases on which it relies, see Katkin, Habitual Offender

Laws: A Reconsideration, 21 Buffalo L. Rev. 99, 113-15 (1971).

See also Goss v. Bomar, 337 F.2d 341, 342-43 (6th Cir. 1964).

Moore and Spencer may be the final word on per se Eighth

Amendment attacks, which is unfortunate since the primary ra-

tionale of those cases—i.e., that a State can increase punishment

for the most recent offense as aggravated by the prior offenses—

ignores the indiscriminately mandatory nature of the increaed

sentence. Cf. G. Fletcher, Rethinking Criminal Law §6.6.2, at

459-66 (1978) (criticizing such reasoning as inappropriate for a

democracy). But those cases dealt only with general application

of such statutes in cases brought by defendants who either had

ciently excessive and disproportionate to the under- -

lying offenses,’ such an application cannot stand.*

not raised the issue, had been convicted of potentially violent or

heinous crimes, or in one instance, McDonald, had been punished

by a term much shorter than life imprisonment. None of those

cases discussed—indeed, probably none of the prisoners in those

cases except Oyler even had standing to raise—the issue raised

here, i.e., whether a facially valid recidivist statute that man-

dates imposition of a life sentence can be unconstitutionally cruel

when applied to a person convicted of three petty property of-

fenses. .

"See Furman, 408 U.S. at 242 (Douglas, J., concurring); com-

pare Gregg v. Georgia, 428 U.S. 153, 173 (1976) (Stewart, Powell

& Stevens, JJ., pluralty opinion) (citing Weems v. United States,

217 U.S. 349, 367 (1910)):

When a form of punishment in the abstract (in this case,

whether capital punishment may ever be imposed as a sanc-

tion for murder) rather than in the particular (the propriety

of death as a penalty to be applied to a specific defendant

for a specific crime) is under consideration, the inquiry into

““excessiveness’’ has two aspects. First, the punishment

must not involve the unnecessary and wanton infliction of

pain.... Second, the punishment must not be grossly out

of proportion to the severity of the crime.

The issue whether an otherwise valid punishment can be un-

constitutionally applied when, inter alia, there is no actual or

potential danger of violence or personal injury requires an as-ap-

plied challenge. Compare Coker v. Georgia. 433 U.S. 584 (1977)

(holding death penalty for rape unconstitutionally excessive, at

least when rapist does not take victim’s life), with id. at 601

(Powell, J., dissenting) (indicating that declaring punishment un-

constitutionally cruel as applied to rapes committed with brutali-

ty or causing serious injury would require case-by-case examina-

tion of circumstances surrounding the offense), and Packer, Mak-

ing the Punishment Fit the Crime, 77 Harv. L. Rev. 1071, 1077

. 20

Weems v. United States, 217 U.S. 349 (1910) (fine

and 12 years at cadena temporal, i.e., hard labor with

(1964) (issue whether rapist who has not threatened human life

can be executed requires inquiry into justification of penalty in

each case rather than legislative decision to permit use of death

penality in general, and thus indeterminate, class of cases, which

is an ‘‘as applied”’ rather than a per se approach).

*.The concept of proportionality between crime and punishment

has considerable historical support. It was one of the earliest

principles systematically employed to limit punishment in West-

ern civilization. See Carmona v. Ward, 576 F.2d 405, 425 & n.1

(2d Cir. 1978), cert. denied, ___. U.S. , 99 S. Ct. 874 (1979)

(dissenting opinion); Granucci, ‘‘Nor Cruel and Unusual Punish-

ments Inflicted:’’ The Original Meaning, 57 Cal. L. Rev. 839,

844-45 (1969). The English source documents from which the

American Framers drew the Eighth Amendment reflect the Eng-

lish common law principle that prohibited disproportionate pun-

ishment. Carmona, 576 F.2d at 425-26 (dissenting opinion);

Granucci, supra, 57 Cal. L. Rev. at 845-47, 860. See generally id.

at 848-59; Gregg, 428 U.S. at 153 (plurality opinion). This con-

cept has survived in England to this day. See Brief for Petitioner

at 31-32 n.24, Coker v. Georgia, 433 U.S. 584 (1977) (quoting H.

Hart, Punishment and Responsibility 80 (1968): ‘‘we ... main-

tain a scale [of punishments] for different offenses which reflects,

albeit very roughly, the distinctions felt between the moral grav-

ity of these offenses’’).

The intent of the American Framers is unclear, since they adopt-

ed the Eighth Amendment with little discussion. Furman, 408

U.S. at 244 (Douglas, J., concurring); Weems, 217 U.S. at 368-

69; Granucci, supra, 57 Cal. L. Rev. at 842. While it is generally

accepted that the Eighth Amendment was directed primarily

against torture and barbarous methods of punishment, more

recent research suggests that the Framers may have included the

concept of proportionality in their understanding of the meaning

chains, plus lifetime restrictions for falsifying a public -

record), is the only case in which this Court has ever

applied the Eighth Amendment to invalidate an ex-

cessively long prison term.’ Although the Court has

of the Eighth Amendment. See Weems, 217 U.S. at 372

(‘‘[S}urely, [the Framers jealousy of power had a saner justifica-

tion than [a fear of abuses no longer practiced]"’; Carmona, 576

F.2d at 405 (dissenting opinion); I. Brandt, The Bill of Rights

464 (1951) (‘‘Beccaria[’s] essay On Crimes and Punishments [with

its emphasis on proportionality between crime and punishment]

helped shape our Fifth and Eighth Amendments’’). See also Ull-

man v. United States, 350 U.S. 422, 450 (1956) (Douglas, J.,

dissenting) (Beccaria and his followers influenced American

thought in the years following 1776); Wheeler, Toward a Theory

of Limited Punishment II: The Eighth Amendment After Fur-

man v. Georgia, 25 Stan. L. Rev. 62, 63-64 n.7 (1972); Comment,

The Eighth Amendment, Beccaria, and the Enlightenment: An

Historical Justification for the Weems v. United States Exces-

sive Punishment Doctrine, 24 Buffalo L. Rev. 783, 806-30 (1975)

(the Framers were influenced by the writings of many Enlight-

enment philosophers, including Beccaria, Montesquieu, and Vol-

taire, who argued based on Rousseau’s social contract theory for

the principle of proportional punishment). At the very least,

scholars have concluded that the Framers intended for the word

‘cruel’ to embody the moral concept of cruelty, in the expecta-

tion that the dimensions of that concept would evolve over time.

Radin, The Jurisprudence of Death: Evolving Standards for the

Cruel and Unusual Punishments Clause, 126 U. Pa. L. Rev. 989,

1031-33 (1978); see Trop v. Dulles, 356 U.S. 86, 101 (1958).

* Although the Weems Court based its decision in part on the

inherent cruelty of the punishment, it also relied on the separate

grounds that the Eighth Amendment prohibits excessively cruel

punishment as well as inherently cruel forms of punishment and

gO a mee

not held a sentence unconstitutionally disproportion-

that the length of punishment must be proportioned to the of-

fense. Gregg, 428 U.S. at 171-72 (Stewart, Powell & Stevens, JJ.,

plurality opinion); see Weems, 217 U.S. at 367-68, 371-73, 377;

accord, Hutto v. Finney, 437 U.S. 678, 685 (1978); Furman, 408

U.S. at 325 (Marshall, J., concurring); compare Weems, 217 U.S.

at 411 (dissenting opinion) (characterizing the majority opinion

as holding that ‘‘because of the mere term of imprisonment .. .

[the sentence can be reviewed for an abuse of legislative discre-

tion]’’). See also Ingraham v. Wright, 430 U.S. 651, 667 (1977).

The Weems opinion relied heavily on Justice Field’s dissent in

O’Neil v. Vermont, i44 U.S. 323, 339-40 (1892), which has been

characterized as ‘‘an unequivocal statement that the Constitu-

tion demands that the punishment fit the crime.’’ Carmona, 576

F.2d at 421 (dissenting opinion). Both federal and state courts

generally cite Weems for the principle that excessive sentence

length alone can render a punishment unconstitutionally cruel.

Katkin, supra note 6, 21 Buffalo L. Rev. at 117 & cases cited at

n.82; Comment, supra note 8, 24 Buffalo L. Rev. at 831-35 (dis-

cussing cases); Note, The Cruel and Unusual Punishment Clause

and the Substantive Criminal Law, 79 Harv. L. Rev. 635, 640

(1966); Brief for Petitioner at 34 n.30, Coker v. Georgia, 433 U.S.

584 (1977). .

The en banc court in this case refused to recognize Weems as

good law because of a subsequent decision in Badders v. United

States, 240 U.S. 391 (1916), which the court below characterized

as ‘‘summarily dismiss[ing] a proportionality attack on a five-

year sentence.’’ 587 F.2d at 655 n.7. But a five-year sentence

hardly compares to a life sentence. Moreover, Badders, which

does not mention Weems, is not even a disproportionality case:

the convicted defendant’s only Eighth Amendment objection

challenged the mail fraud statute’s making the deposit of each

letter a separate offense. See 240 U.S. at 393.

ate in length since Weems,'® recent decisions appear -

to endorse the continuing vitality of the Weems pro-

portionality principle as a restriction on excessively

long sentences.!!

B. Under the Coker v. Georgia Tests, Rummel’s

Sentence Is Excessive.

As pointed out recently by Justices Marshall and

Powell in dissenting from denial of certiorari. in Car-

mona v. Ward, U.S. : , 99S. Ct. 874, 877

(1979), denying cert. to 576 F.2d 405 (2d Cir. 1978)

'° The Court first applied the Eighth Amendment to the States

through the Fourteenth Amendment’s Due Process Clause in

1962. See cases cited in note 5 supra; cf. O'Neil, 144 U.S. at 331-

33 (rejecting an Eighth Amendment claim on grounds that the

issue was not properly presented and that the Eighth Amend-

ment does not apply to the States). Before 1962, the Court dis-

cussed the Eighth Amendment in only nine cases. Radin, supra

note 8, 126 U. Pa. L. Rev. at 997.

"' Jeffries & Stephan, Defenses, Presumptions, and Burden of

Proof in the Criminal Law, 88 Yale L.J. 1325, 1378 & n.164

(1979) (citing cases): see, e.g., Coker, 433 U.S. at 592 (White,

Stewart, Blackmun & Stevens, JJ., plurality opinion); Gregg, 428

U.S. at 173 (Stewart, Powell & Stevens, JJ., plurality opinion),

quoted approvingly in Ingraham, 430 U.S. at 691 n.9 (White,

Brennan, Marshall & Stevens, JJ., dissenting); Furman, 408 U.S.

at 272 n.14 (Brennan, J., concurring); id. at 457 (Powell, Burger,

Blackmun & Rehnquist, JJ., dissenting). See also Bordenkircher

v. Hayes, 434 U.S. 357, 370-71 (1978) (Powell, J., dissenting).

The general principle seems indisputable, since without it a stat-

ute mandating a life sentence upon conviction of one minor park-

ing violation could not be challenged.

(mandatory life sentence for possession of small

amount of cocaine):

Most recently, in Coker v. Georgia, 433 U.S.

58 ... (1977), the Court refined the test for as-

sessing Eighth Amendment challenges, conclud-

ing that

‘ta punishment is ‘excessive’ and uncon-

stitutional if it (1) makes no measurable

contribution to acceptable goals of pun-

ishment and hence is nothing more than

the purposeless and needless imposition

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

of proportion to the severity of the

crime.”’ Id. at 592....

In holding the Georgia death penalty for rape

invalid on the latter ground, the Court followed

the approach of Weems, focusing on the charac-

ter of the crime, the punishment for the same

offense in other jurisdictions, and the penalty for

similar crimes in the same jurisdiction.

As articulated in Coker, the two excessiveness tests

are disjunctive: a punishment that fails under either

standard is invalid. Rummel’s sentence easily quali-

fies as excessive under the second Coker test and

probably satisfies the first test.

1. A Mandatory Life Sentence Is Grossly

Disproportionate to the Severity of the

Offenses Alleged and Proved.

a. Rummel’s Offenses Do Not Justify a

Mandatory Life Sentence.

/25

(i) The Three Petty Offenses for Which

Rummel Received a Life Sentence

Threatened Neither Violence Nor

Societal Injury.

As the Fifth Circuit panel pointed out, 568 F.2d at

1198 (A. 16), none of the offenses for which Rummel

received his life sentence, singly or in sum," justify a

severe penalty. In none did Rummel carry a weapon,

employ sophisticated implements of crime, or dem-

onstrate any skill in crime. None involved violence or

even the threat of violence or danger to anyone."®

'? Since all three of Rummel’s offenses are petty, the issue

whether a proportionality test should consider all offenses or

only the most recent crime need not be decided in this case. See

Bordenkircher, 434 U.S. at 371 (Powell, J. dissenting) (charac-

terizing as having limited “societal implications” a conviction

for forging an $88.30 check and suggesting the inappropriateness

of applying a habitual offender statute to such an offender not-

withstanding prior convictions for detaining a female and rob-

bery); Note, Recidivist Laws Under the Eighth Amendment—

Rummel v. Es,velle, 10 Tol. L. Rev. 606, 637-39 (1979) (suggesting

that only the most recent offense should appear in the propor-

tionality equation); Note, 1978 Wis. L. Rev. 253, 264 (pointing

out that in Coker past criminality did not justify imposition of

capital punishment for subsequent rape). See also note 38 infra

& accompanying text. For a condemnation of the rationale that

punishment should be increased based on previous offenses, see

G. Fletcher, Rethinking Criminal Law § 6.6.2, at 459-66 (1978).

'’ Compare Williams, The Courts and Persistent Offenders, 10

Crim. L. Rev. 730,737 (1963) (quoting a 1911 memorandum that

originated the preventive detention system for recidivists ir» Eng-

land, which insists that preventive detention ought not apply to

— ”

ee ae! -_

las tt, eae. «tt nie so

ERs at, 4 ie FE Af ee Soe

Significantly, the primary offense caused no serious

harm, even financial, to the victim,'* as evidenced by

the victim’s testimony that he had agreed to drop

charges in return for partial reimbursement (R. 158-

59; see note 2 supra & accompanying text). Commen-

tators uniformly condemn the imposition of a life sen-

tence for comparatively petty offenders, even

incorrigible ones, as offensive to universal standards

of decency.'® The State’s previous suggestion that

petty thieves, absent violence, weapons, or skill); Pub. L. No. 91-

452, tit. X, § 1001(a), 84 Stat. 948, codified at 18 U.S.C. § 3575

(1976). authorizing enhanced sentence as ‘‘dangerous special of-

fenders” for defendants whose pattern of criminal conduct (1)

constitutes a substantial source of their income and (2) manifests

‘special skill or expertise,’ defined to include

manual dexterity, facilitating the initiation, organizing,

planning, financing, direction, management, supervision, ex-

ecution or concealment of criminal conduct, the enlistment

of accomplices in such conduct, the escape from detection

or apprehension for such conduct, or the disposition of the

fruits or proceeds of such conduct.

Id. § 3575(e)(2).

See Radin, supra note 8, 126 U. Pa. L. Rev. at 1055 (the

second Coker test focuses on whether the offender ‘‘deserves”’

the sanction imposed in light of the seriousness of the offense to

both the victim and society); Jeffries & Stephan, supra note 11,

88 Yale L.J. at 1378 n.168 (a relevant standard for determining

the ‘“‘nature’’ of the offense is “the directness of the harm to

others’’). asi

‘6 See, e.g., Katkin, supra note 6, 21 Buffalo L. Rev. at 120;

Packer, supra note 7, 77 Harv. L. Rev. at 1080-81. Theft in

particular is usually rated as one of the least serious crimes

because it is not an offense that ‘threatens the underpinnings of

Rummel’s conduct demonstrates ‘‘a real possibility |

that he would use a weapon to commit his next

crime,” Respondent’s Opposition to Petitioner’s

Amended Motion for Release at 2, Rummel v. Estelle,

568 F.2d 1193 (5th Cir. 1978), is ludicrous. The three

petty offenses triggering Rummel’s life sentence in no

way justify the inference that in the future he will

injure anyone or harm society. Whether considered in

relation to the actual or potential harm caused by the

offenses, Rummel’s motivation and the temptation he

faced before committing each offense, or his ‘moral

fault,”"’® the mandatory life sentence imposed here

cannot be justified.

the social order.’’ Wechsler, Sentencing Innovations, in Sentenc-

ing Institute: Violence Today—A Judicial Concern, 46 F.R.D.

497, 524-25 (1968). For a history of theft, see G. Fletcher, Re-

thinking Criminal Law ch. 1-2, at 1-113 (1978). It would be dif-

ficult to find three felonies less serious than Rummel’s. Compare

Tex. Penal Code § 31.03 (d)(4)(A) (Vernon Supp. 1978) (making

pig and goat theft a felony, regardless of value); id. § 31.07

(making the intentional unconsented use of another’s boat or car

a felony). See also Comment, A Closer Look at Habitual Criminal

Statutes: Brown v. Paratt and Martin v. Paratt, A Case Study

of the Nebraska Law, 16 Am. Crim. L. Rev. 275, 292 & n. 113

(1979)(citing Rummel as an example of defendants treated un-

fairly by application of a statute assessing high minimum man-

datory penalties).

For an attempt to develop measures of the seriousness of offen-

ses, see T. Sellin & M. Wolfgang, Delinquency: Selected Studies

(1969).

'® Compare Coker, 433 U.S. at 600 (comparing murder and rape

in the severity of harm caused and the ‘‘moral depravity”’ of the

Moreover, such harsh punishment for petty thieves

is illogical. As the Fourth Ciruit noted in Hart v.

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

untimely filed, 415 U.S. 938 (1974) (holding grossly

excessive a mandatory life sentence for writing $50

check on insufficient funds, interstate transportation

of forge’ checks totaling $140, and perjury at son’s

murder trial):

Is it a rational exercise of state police power to

put a man away for life—at tremendous expense

to the state—because over a 20-year period he

passed or transported three bad checks and

might do it again? Life imprisonment is the pen-

ultimate punishment. Tradition, custom, and

common sense reserve it for those violent persons

who are dangerous to others. It is not a practical

solution to crime in America. Aside from the pro-

portionality principle, there aren’t enough pris-

ons in America to hold all the Harts that afflict

us.

Td. at 141.

offender). See generally Note, supra note 9, 79 Harv. L. Rev. at

636; Jeffries & Stephan, supra note 11, 88 Yale L.J. at 1371-72,

1378 n.168. Although Rummel concedes that intent is an element

of all three of his offenses, see Tex. Penal Code arts. 979, 996,

1410, 1413, 1555b (1925), intent to defraud of small amounts of

money can hardly compare under any criteria with intent to

injure or kill. ;

(ii) The En Banc Court Erred in

Refusing to Consider the Nature of

the Offenses Triggering Application

of the Habitual Offender Statute.

Although the en banc court conceded that propor-

tionality analysis requires consideration of the nature

of the offense, it justified its rejection of Rummel’s

claim in part by refusing to consider the nature of the

underlying offenses for which the habitual statute

mandated Rummel’s life sentence on the grounds that

(1) the sentence was imposed for the commission of

any three separate and distinct felonies, irrespective

of the nature of those felonies, and (2) because Rum-

mel has demonstrated that he cannot conform to so-

ciety’s rules, Texas can brand him a habitual criminal

and imprison him for life, subject only to the Parole

Board’s exercise of its virtually unfettered discretion

to parole him if he behaves. 587 F.2d at 659 (A. 36).

But the issue is not whether Texas can classify Rum-

mel a habitual offender or enhance his punishment,

which Rummel concedes, but whether Texas can en-

hance his punishment by so much for so little.'’ By

refusing to consider the nature of the underlying of-

'7 The en banc opinion challenges Rummel’s assertion that his

offenses are more trivial than most others and asks ‘“‘by what

authority does Rummel denegrate [sic] the interest society has

in punishing his crimes?”’ 587 F.2d at 662 n.29 (A. 41 n.29). But

Rummel does not challenge the State’s right to punish him; he

questions only the excessiveness of that punishment for such

petty offenses.

nail eka

fenses, the en banc court converted Rummel’s as-ap-

plied challenge into a per se challenge and in effect

precluded any as-applied challenge to the habitual of-

fender statute, regardless of the triviality of the of-

fenses, as long as those offenses are punishable as

criminal. Under the en banc court’s rationale, if the

State can punish a trivial traffic offense as a crime,

then it can punish the third commission of such an

offense with a life sentence.

(iii) The Mere Possibility of Parole Is

No Substitute for a Shorter

Sentence, Since Rummel Has No

Right to Parole and Lifetime Parole

Makes Him a Perpetual Prisoner.

In comparing the seriousness of Rummel’s three

offenses with the harshness of his sentence, the en

banc court discounted the length of Rummel’s sen-

tence by the probability of parole based on Texas’

liberal system of awarding good time credits, 587 F.2d

at 657-59 (A. 33-35), and considered only the consti-

tutionality of an undefined, possibly lesser sentence.

The court ultimately conceded that “‘if the court is

forced to assume that Rummel’s sentence is automat-

ically and invariably one for his natural life, then the

[panel] majority’s assertion [that Rummel’s sentence

is grossly disproportionate to his offenses] is probably

accurate.”’ Jd.at 659 (A. 37). Thus, if the en banc court

had viewed Rummel’s sentence as the term he ac-

tually received, it probably would have decided the ©

case differently.

Several reasons dictate against consideration of

good time credit and parole possibilities, especially in

the manner in which the en banc court relied on the

Texas system. First, as pointed out numerous times

by the en banc dissent, see, e.g., 587 F.2d at 666-69

(A. 45-51), accumulation of good time credit is useless

to someone given a life sentence, except with respect

to determining when one first becomes eligible for

parole consideration.'* Even parole eligibility is of

'® The en banc court explained the operation and interaction of

the Texas good time credit and parole programs:

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 accruing

credit for twenty years. Texas employs a well-developed

system of awarding good time credits. Class I prisoners earn

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

ten days “‘good time” per month, Tex. Civ. Stat. Ann. art.

61841 (Vernon 1974), and State-approved trusties earn thir-

ty days credit for each thirty days service. Tex. Penal Code

Ann. art. 61847 (Vernon 1974) [sic]. Thus, a State-approved

trusty can serve a life sentence in ten years.

... As a popular journal has stated:

... State Approved Trusties (SAT)—half the inmate pop-

ulation—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

negligible importance since, as a source quoted by the

en banc court points out, “Texas ... is the most re-

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 disciplinary: 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 I, which draws fifty days

for every thirty served.

Texas has the most liberal good-time laws in the coun-

try, which is curious since Texas also gives the longest

sentences and is the most reluctant to grant parole.

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.

587 F.2d at 657-59 (A. 34-35) (footnotes omitted).

The en banc court, in stating that ‘‘a [prisoner earning maximum

good time credit] can serve a life sentence in ten years,”’ id. at

658 (A. 34), apparently misconstrued the interplay between the

good time credit and parole systems. With maximum good time

credit, a prisoner can become eligible for parole in ten years, but

he can never serve a life sentence, even if paroled. See text

accompanying notes 23-24 infra. Thus, the example given by the

court below, 587 F.2d at 660 (A. 38), of two states—one that

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

year sentence with good time credit that makes actual time

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

given a life sentence, since no amount of good time credit permits

one to completely discharge a life sentence.

luctant (State in the country] to grant parole.” Jd. at

658 (A. 35).

Second, this Court recently held in Geenholtz v.

Inmates, ___ U.S. ___, 99 S. Ct. 2100 (1979), that

the possibility of parole creates no liberty interest

protected by Due Process, only ‘‘a mere hope’’ that

parole will be obtained, Jd. at 2105. Consequently, a

convicted person has ‘‘no constitutional or inherent

right ... to be conditionally released before the expi-

ration of a valid sentence.”’ Jd. at 2104.'°

Thus, to deny Rummel his constitutional claim

merely because he becomes eligible for parole in twen-

ty years, or less with good behavior, and might even-

tually be paroled deprives him permanently of the

only forum in which he can seek vindication of his

constitutional objection to actually serving a life sen-

tence, acknowledged as legitimate by the en banc

court. No court will ever again consider his excessive

sentence claim before the unconstitutional harm oc-

curs.”” Accepting the mere possibility of parole as the

'? Compare United States v. Addonizio, ____ U.S. thease

99 S. Ct. 2235, 2242 (979) (judge has no ‘‘enforcible [sic] expec-

tations”’ concerning actual release of sentenced defendant short

of expiration of statutory term).

Board repeatedly deny Rummel parole, waiting to see how the

Parole Board will respond is only slightly less useless than re- _

lying on the possibility of intervention by the Governor as an

excuse for refusing to prevent an unconstitutionally prescribed

proper measure of sentence length even though the

legislature mandates a life sentence ‘‘make[s] prose-

cutors, prison wardens, and parole boards the ulti-

mate arbiters in eighth amendment analysis, in which

their discretion in enforcing the legislative mandate

is substituted by the judiciary for its own.’””'

Such a delegation of the Eighth Amendment deter-

mination neither guarantees nor justifies even a re-

alistic expectation that the criteria used by the Parole

Board will conform to the Eighth Amendment's pro-

portionality requirement. The Parole Board’s decision

will depend largely on Rummel’s behavior in prison,

as well as several other factors not entirely within

death penalty until after the execution: eventual Court action in

either situation occurs too late to prevent the unconstitutional

injury.

If Texas law mandated a life sentence for a first offense parking

violation, surely the possibility of parole within twenty-four

hours would not prevent such a statute from being branded

grossly disproportionate. Compare Bailey v. Blackburn, No. 78-

3306 (5th Cir., June 15, 1979) (per curiam) (affirming dismissal

without prejudice for failure to exhaust state remedies on Eighth

Amendment claim against Louisiana habitual offender statute—

which upon fourth felony conviction mandates sentence of be-

tween 20 years (or maximum, whichever is greater) and life—on

ground that case may be distinguishable from Rummel’s claim

because Louisiana law denies parole to prisoner assessed life

sentence unless sentence is first commuted by Governor to term

of years).

*1 Note, supra note 12, 10 Tol. L. Rev. at 633 (criticizing the

Rummel en banc decision).

Rummel’s control, and only insignificantly on the of- -:

fenses for which he was sentenced. Rummel, 587 F.2d

at 668-69 (A. 49-51) (en banc dissenting opinion).”

Third, if a life sentence without possibility of parole

for three petty, nonviolent offenses would be uncon-

stitutional, as the en banc court apparently conceded,

587 F.2d at 659 (A. 37), then surely the added ‘‘crime’”’

of a ‘‘bad attitude” in prison, virtually guaranteeing

rejection of a prisoner’s parole application and assur-

ing him of lifetime imprisonment, should not make

the sentence any less constitutionally infirm. No one

would argue that a “bad attitude’’ makes more ac-

** The Parole Board has indicated some of the factors it con-

siders in determining an inmate’s readiness for parole:

A clear conduct record is not, in itself, sufficient grounds

for granting parole. [T]he traditional prison program of re-

ligion, work education and discipline, even at its best, will

not guarantee rehabilitation nor genuine readiness for pa-

role. A prisoner may participate zealously in the religious

program, he may work hard and he may achieve in education

programs; he may keep a spotless conduct record and yet

not be genuinely ready for parole. What he achieves in pris-

on in these areas may not be indicative of real feelings, real

attitudes and readiness for society. The inmate must be

studied from all possible angles to determine if his good

behavior is for the benefit of the Parole Board or is actually

indicative of a real desire to change.

Texas Board of Pardons and Paroles, 1978 Handbook on Parole,

Mandatory Supervision and Executive Clemency 23 (1978). See

generally id. at 23-26 (listing other considerations, including the

number of prior commitments, age at time of first arrest, per-

sonal habits, friends, family background, and the readiness of

family and community to receive a parolee).

ceptahle the rack or some other cruel method of tor-

ture, even if a ‘“‘good attitude’’ carried with it the

possibility of a reprieve.

Finally, the en banc court treated a trusty’s eligi-

bility for parole after serving twelve years not only

as a guarantee of parole but also as the equivalent of

complete freedom, see id. at 658, 660 (A. 34, 38); cf. id

at 659 n.19 (A. 36 n. 19), which it is not, see id. at 666,

668-70 (A. 45-46, 48-49, 52-53) (dissenting opinion).

Parole in Texas means release only from incarcera-

tion, not from State custody.*”* If paroled, Rummel

would be subject to rules and conditions adopted by

the Board of Pardons, Tex. Code Crim. Pro. Ann. art.

42.12, §§ 2c, 15(g), 20 (1979), for life, see id. § 23, with

the threat of prison hanging over him for even minor,

noncriminal parole violations, compare id. §§ 2c, 15(g),

with id. $$ 21-22."

*8 Tex. Code Crim. Pro. Ann. art. 42.12, § 2c (1966); cf. Jones

v. Cunningham, 371 U.S. 230, 241-43 (1963) [holding that a state

prisoner placed on parole is ‘‘in custody’’ within the meaning of

the habeas corpus statute because of “‘significant restraints’’ on

a parolee’s liberty).

* Cf. Erikson & Gibbs, On the Perceived Severity of Legal

Penalties, 70 J. Crim. Law & Criminology 102 (1979). Such sanc-

tions smack of those condemned as excessive in Weems:

His prison bars and chains are removed, it is true, after [his

term of imprisonment ends], but he goes from them to a

perpetual limitation of his liberty. He is forever kept under

the shadow of his crime, forever kept within the voice and

view of the criminal magistrate, not being able to change

his domicile without giving notice to the ‘‘authority imme-

Thus, Rummel is a perpetual prisoner. No matter .

how much he rehabilitiates during the next approxi-

mately 13,770 days of his life expectancy, he will

either die in prison or live on perpetual parole, with

the ever-present possibility of re-incarceration. Such

a depressing prospect will inevitably breed hopeless-

ness and preclude effective treatment and rehabil-

itation.”> In the words of one expert:

If he qualifies for parole he may be allowed to

participate in the life of society but he must suf-

diately in charge of his surveillance,’’ and without permis-

sion in writing. He may not seek, even in other scenes and

among other people, to retrieve his fall from rectitude. Even

that hope is taken from him and he is subject to tormenting

regulations that, if not so tangible as iron bars and stone

walls, oppress as much by their continuity, and deprive of

essential liberty. No circumstance of degradation is omitted.

Such penalties [including chains and hard, painful labor] for

such offenses amaze those who have formed their conception

of the relation of a state to even its offending citizens from

the practice of the American Commonwealths, and believe

it is a precept of justice that punishment for crimes should

be graduated and proportioned to offense.

217 U.S. at 366-67.

** Grosman, The Treatment of Habitual Criminals in Canada,

9 Crim. L.Q. 95, 104 (1966-1967); Klein, Habitual Offender Leg-

islation and the Bargaining Process, 15 Crim. L.Q. 417, 424-25

(1972-1973); compare Advisory Council of Judges of the National

Council on Crime and Delinquency, Model Sentencing Act § 5

(1963) [hereinafter cited as ‘‘Model Act’’] (providing a life term

for no offense execpt first-degree murder), with id. §§ 5-6, com-

ment (‘‘A life term, even though the offender is subject to release,

is a psychological setback against any treatment other than the

passage of time’’).

fer the degrading experience of knowing that he

will never be free from penal sanctions. For no

matter how rehabilitated he may become he must

live the rest of his life on parole with the real

possibility of re-internment if he violates any of

the conditions of his parole. It is not within this

man’s power to serve his sentence, pay his pen-

alty and enter society again as a free and effec-

tive citizen.”

Of course, the State cannot guarantee that Rummel

will ever be released. The length of time he will serve

depends not on the sentencing court or this Court,

but on the Parole Board. If the mere possibility that

an administrative agency might someday correct an

injustice could stay the Court’s proper exercise of its

power to protect constitutional rights, no sentence ©

would be too harsh, even if the Board never again

paroled even a first-offender petty check forgerer. The

fact that Rummel will never fully regain his freedom

from the threat of life imprisonment and has no ju-

dicial recourse if prison and parole authorities choose’

to require that he serve his entire life sentence for

trivial property offenses involving only $230.11 is the

cruel and unusual punishment that he challenges here.

*® Grosman, supra note 25, 9 Crim. L.Q. at 100.

b. No Jurisdiction in the United States or

the Free World Punishes Habitual

Offenders as Harshly as Texas; and the

Trend in Habitual Offender Legislation Is

Away from Mandatory Life Sentences

and Toward a Requirement that at Least

One Offense Involve Violence.

An examination of punishment in other jurisdic-

tions for the same offense”’ reveals that currently only

one other state—Washington—retains the statutory

authority to impose a mandatory life sentence upon

those convicted of any three felonies,”* and the Wash-

ington Supreme Court has indicated that it probably

would not permit application of the statute in a case

like Rummel’s.” Every other state and territorial ha-

bitual offender statute requires commission of more

offenses, at least one violent crime, or both; imposes

7 See Table 3 (C. 28-112), which lists for each state and terri-

tory and under federal law, in chronological order, the minimum

and maximum punishments prescribed by each felony habitual

offender statute in effect since 1800; Table 4 (C. 113-37), which

categorizes—by length and type of punishment and number and

type of triggering offenses—and lists all current habitual offend-

er legislation.

*® The Fourth Circuit in Hart, 483 F.2d 136, limited the appli-

cation of West Virginia’s law requiring a life sentence after any

three felony convictions.

* State v. Lee, 558 P.2d 236, 240 n.4 (Wash. 1976) (en banc)

(dictum) (distinguishing and impliedly approving Hart, see note

28 supra). See also State v. Gibson, 553 P.2d 131, 135-36 (Wash.

App. 1976) (same).

a sentence substantially less than life; or grants dis-

cretion to the sentencing authority.*° Congress limits

% The en banc opinion’s suggestion that (1) six states might

sentence Rummel automatically to a life term and (2) judges and

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

sentence, 587 F.2d at 659-60 (A. 37), is inaccurate or irrelevant

for the following reasons:

(1) it incorrectly equates discretionary and mandatory sen-

tences, see cases cited at 587 F.2d at 669-70 (A. 51-53)

(dissenting opinion) (discussing cases decided under the Ex

Post Facto Clause);

(2) it considers an alleged fourth felony conviction, 587 F.2d

at 659 (A. 37), on the basis of a few documents contained in

the record (A. 1-3) but never introduced or explained at trial,

that could not have been used for enhancement since that

conviction occurred, if at all, on the same day as Rummel’s

conviction under article 63 (see A. 3) and since there is no

evidence that it was sustained on appeal, see, e.g., Tyra v.

State, 534 S.W.2d 695, 697-98 (Tex. Crim. App. 1976), and

that is irrelevant in any event since it was not one of the of-

fenses named in Rummel’s indictment (see R. 80-81);

(3) it misconstrues eight state statutes—those of Arkansas,

Idaho, Louisiana, New Jersey, New Mexico, North Carolina,

South Dakota, and Vermont, 587 F.2d at 659-60 & nn.21-23

(A. 37 & nn.21-23)—that could not apply to Rummel because

of either the nature of his offenses, when they occurred, or

both, see Table 4 (C, 113-37); and

(4) it includes two states—West Virginia and Washington,

587 F.2d at 659 & n.20 (A. 37 & n.20)—in which prosecutors

are limited by judicial decision, see note 29 & text accom-

panying note 28 supra.

The en banc court attempted to demonstrate that the mandatory

maximum ten-year sentence that Georgia courts must assess a

habitual offender whose last offense is theft is “‘approximately

the same” as Rummel’s life sentence because Rummel might be

enhanced punishment for violations of federal laws to”

only twenty-five years in prison, requires a finding of

dangerousness, and insists that the term be ‘‘not dis-

proportionate in severity to the maximum term other-

wise authorized by law for such felony.”” Pub. L. No.

91-452, tit. X, § 1001(a), 84 Stat. 948, codified at 18

U.S.C. § 3575(b) (1976).*" All major model legislation

and reports condemn life imprisonment and recom-

mend long terms only for those who have committed

particularly reprehensible crimes. Indeed, it appears

paroled in twelve years if (and only if) (1) he remains a trusty

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

parole. 587 F.2d at 660 (A. 38). But even if Rummel were assured

of parole, a lifetime of restrictions can hardly be dismissed as

insignificant when compared to the unconditional release after

ten years that a Georgia convict would receive. Moreover, Geor-

gia assesses a mandatory maximum of ten years for theft only

on someone convicted four times and only if the fourth offense

was committed after the third conviction, so that Rummel could

not be sentenced under that provision of Georgia law.

* For the origin of this proportionality language, see Hearings

on S. 30 Before the Subcomm. on Criminal Laws and Procedure

of the Senate Comm. on the Judiciary, 91st Cong., 1st Sess. 185

(1969); Katkin, supra note 6, 21 Buffalo L. Rev. at 118.

* See e.g., ABA Project on Standards for Criminal Justice,

Sentencing Alternatives and Procedures § 2.5(c), at 81; § 3.3, at

160-62 (Approved Draft 1968) [hereinafter cited as ‘‘ABA Sent-

encing Alternatives”’}; ALI, Model Penal Code §§ 6.06(1), 6.07(1),

7.03 (1962); Model Act, supra note 25, §§ 5, 7-9.

42°

that no other nation in the Free World punishes re-

cidivists as severely as Texas does.*

It has been argued that the uniqueness in the se-

verity of the punishment Texas mandates for three-

time felons should not weigh against the State. Ac-

cording to this argument, if the Texas approach suc-

ceeds in reducing the incidence of recidivism, other

States will eventually choose to adopt our method:

[Ojur federal system .. . allows state legislatures

within broad limits, to experiment with laws,

both criminal and civil, in the effort to achieve

socially desirable results... .

Statutory provisions in criminal justice applied

in one part of the country can be carefully

watched by other state legislatures, so that the

experience of one State becomes available to

Texas will not remain one of the few jurisdictions

imposing a “‘life’’ sentence with possibility of pa-

role on habitual criminals if in the future the

incidence of recidivism drops relative to States

without such a statute. Social change in such

matters generally reveals itself slowly. The cur-

rent view of other states may be altered on the

83 Compare Timasheff, The Treatment of Persistent Offenders

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

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

passim (1952) (reviewing N. Morris, The Habitual Criminal

(1951)). See generally Coker, 433 U.S. at 596 n.10 (indicating

that the penalties imposed by foreign nations are relevant to a

proportionality analysis).

basis of Texas’ success or failure with the habit--

ual statute.

Brief in Support of Motion for Rehearing in [sic] Banc

of the Criminal District Attorney of Bexar County,

Texas, as Amicus Curiae at 4-5, Rummel v. Estelle,

568 F.2d 1193 (5th Cir. 1978) (emphasis added).

This argument overlooks several historical factors.

First, there is no proof that habitual offender statutes

have ever worked as effective deterrents. Compare

text accompanying notes 55-58 infra. Second, if Texas

hopes eventually to demonstrate success in deterring

recidivism, it may have long to wait, since Texas has

punished third-felony offenders with a mandatory life

sentence since 1856. See 1856 Tex. Laws, Paschal,

Digest of Texas Laws art. 2464 (1866). Moreover, sev-

enteen states have already ‘‘experimented’’ with a

mandatory life sentence for an average of more than

forty years apiece, apparently concluded that such a

harsh penalty is either ineffective, counterproductive,

or inhumane, and revised their laws by either (1) mak-

ing the sentence discretionary [9 States], (2) limiting

the statute’s application to violent felonies [1 State],

(3) both (i) and (2) [2 States], (4) reducing the man-

datory sentence to a term less than life [4 States], or

(5) both (1) and (4) [1 State].** This trend toward light-

** Compare Table 5 (C. 138-41) (listing every State that has

ever enacted a recidivist statute mandating a life sentence with-

out a violent-crime requirement, giving the years during which

each statute applied, and describing each statute), and Table 8

(C. 204) (categorizing and totaling the current statutes), with

44 ©

er, discretionary sentences and a violent-crime limi-

tation, beginning in the mid-1920’s,* is nationwide.*

To suggest that the Texas habitual offender statute

will serve as a model for other states ignores history

and defies logic. Such reasoning would justify the

cruelest torture. But the Eighth Amendment, while

not denying states the right to experiment, imposes

outer limits on what they may do in the laboratories.

C. Texas Punishes No Other Criminal

Except One Convicted of a Capital

Offense as Harshlv as It Punishes a

Three-Time Felon, and It Punishes More

Dangerous Criminals Much Less

Severely.

Table 3 (C. 28-112), Tables 6A-E (C. 142-97), and Tables 7A-F (C.

198-203).

%* General recidivist statutes were a popular legislative re-

sponse to the dramatic increase in crime—especially gangsterism

and racketeering under Prohibition—that occurred after World

War I. Monograph, The Treatment of the Recidivist in the

United States, 23 Can. B. Rev. 638, 642, 660 (1945); see Note,

Court Treatment of General Recidivist Statutes, 48 Colum. L.

Rev. 238, 238 (1948). For the European origin of recidivist leg-

islation, see Katkin, supra note 6, 21 Buffalo L. Rev. at 99-101;

Timasheff, supra note 33, passim. For the early American stat-

utes, see Monograph, supra, 23 Can. B. Rev. at 641-45.

% See Tables 6-8 (C. 142-204), which categorize, list, and total—

by length and type of punishment and type of triggering offen-

ses—the federal, state, and territorial jurisdictions with habitual

offender statutes at each five-year interval since 1900.

An examination of punishment imposed in Texas -

for other offenses” ‘“‘highlights the irrational severity

of the life sentence mandated by Article 63."’ Rummel,

568 F.2d at 1199 (A. 17) (panel opinion). As the panel

opinion points out, id. at 1199 & n.9 (A. 17 n.9), only

capital murder is punishable by a mandatory life sen-

tence (or death), Tex. Penal Code Ann. § 19.03 (Vernon

1974). The contrast between even a one-time murderer

and a three-time petty offender like Rummel is star-

tling.

First-degree felonies, which include many serious

crimes of violence, are punishable by a discretionary

term of between 5 and 99 years. Tex. Penal Code Ann.

§ 12.32 (Vernon 1974); Rummel, 568 F.2d at 1199 &

n.10 (A. 17 & n.10) (panel opinion). Second-degree fe-

lonies—many only marginally less violent than first-

degree felonies—are punishable by a discretionary

term of between 2 and 20 years and a fine not exceed-

ing $10,000. Tex. Penal Code Ann. $ 12.33(a) (Vernon

1974); Rummel, 568 F.2d a 1199 & n.11. After the

second commission of any felony, the punishment is

that of the next highest category of felony. Tex. Penal

Code Ann. $12.42(a)-(c) (Vernon 1974). Thus, such a

repeater can be sentenced to a term of between 2 and

20 years if the second conviction is for a third-degree

felony, and between 5 and 99 years if for a second-

degree felony. Although ninety-nine years is equiva-

*” For a list of offenses under Texas law, categorized by degree,

see Table 2 (C. 22-27).

46°

lent to a life sentence, its imposition for a second-

degree felon with a prior felony conviction is discre-

tionary, not mandatory.

The en banc court refused to compare the punish-

ment for various single offenses in Texas with the life

sentence Rummel received for three petty offenses, on

the ground that Rummel’s sentence resulted from his

status as a habitual criminal, not from the commission

of any one offense. 587 F.2d at 660 (A. 36). Rummel’s

status, however, is already based in part on the nature

of each offense (i.e., all must be felonies), and surely

no one would contend that Rummel’s repetitive but

petty, cheating conduct caused more harm to society

than the commission of one or two murders, rapes, or

kidnappings.

In further contrast, since 1974 Rummel’s last of-

fense has carried a maximum sentence in Texas of

only one year, even for a person with two prior felony

convictions.*

8 If Rummel’s theft by false pretext had been committed after

January 1, 1974, it would have been only a misdemeanor, 1973

Tex. Gen. Laws, c. 399, § 31.03(d)(3), at 930, as amended, Texas

Penal Code § 31.03(d)(3) (Vernon Supp. 1978) (theft of property

valued between $20 and $200); see Texas Penal Code § 31.02

(Vernon 1974) (theft as defined in section 31.03 includes [in sub-

section (b)(1) | the offense previously called theft by false pretext),

carrying a maximum punishment of only one year in prison and

a $2,000 fine, id. § 12.21. Even under the new Penal Code’s

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

anyone on trial for a Class A misdemeanor who has a prior

2. The Life Sentence Mandated by Texas Law

Makes a Negligible Contribution to

Acceptable Goals of Punishment.

After rejecting Rummel’s claim that his life sen-

tence is grossly disproportionate to his crimes, the en

banc court refused to consider the statutory purposes

of the Texas recidivist law,*® even though Coker

makes clear that a punishment may be excessive if it

fails to make a measurable contribution to any legit-

imate penal goal. 433 U.S. at 592; see id. n.4 (the

converse applies).“° Every conceivable legislative pur-

conviction for a Class A misdemeanor or for any felony, Rum-

mel’s prison term could not exceed one year.

This reduced sentence highlights both the relatively trivial na-

ture of the offenses and the public's increasingly more sophisti-

cated enlightenment concerning incarceration and treatment of

habitual offenders. Compare Weems, 217 U.S. at 378 (the cruel

and unusual punishment clauses is ‘‘progressive, and is not fas-

tened to the obsolete but may acquire meaning as public opinion

becomes enlightened by a humane justice’’) (quoted in Furman,

408 U.S. at 242 (Douglas, J., concurring)).

** 587 F.2d at 661 (A. 39). See also note 57 infra.

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

(pointing out that the standard as expressed in Coker incorpo-

rates the standard as expressed in Hart, 483 F.2d 136). See also

id. at 300, 311, 331 (views of Justices Brennan, White, and Mar-

shall, respectively, on the need for a ‘‘least drastic means”’ test);

Jeffries & Stephan, supra note 11, at 1365-66 (discussing Jn re

Winship, 397 U.S. 358 (1970), which held that Due Process re-

quires for conviction proof beyond a reasonable doubt of every

element of the offense charged, and arguing that the purpose of

48 ©

pose behind Rummel’s life sentence—whether isola-

tion, deterrence, rehabilitation,’ or retribution*—

either is undermined by article 63 or is served so

irrationally by the law’s application to Rummel that

the objective becomes unacceptable.“

a. Since Judges and Juries Give Lengthy

Sentences To Non-Petty Offenders,

Recidivist Laws Isolate Only Petty

Offenders, Who Remain Incarcerated for a

Much Longer Period than Societal

Protection Requires.

Isolation of the habitual criminal for societal pro-

tection is an acceptable objective only to the extent

the presumption of innocence as embodied in the reasonable

doubt standard can be served effectively only if the State is

required to prove beyond a reasonable doubt a ‘constitutionally

adequate basis for imposing the punishment authorized”’).

*’ Rudolph v. Alabama, 375 U.S. 889, 891 (1963) (Goldberg,

Douglas & Brennan, JJ., dissenting from denial of certiorari);

Spencer, 385 U.S. at 571 (Warren, C.J., concurring and dissent-

ing); Tex. Penal Code Ann. § 1.02(1) (A)-(C) (Vernon 1974); id.,

Practice Commentary; see Packer, supra note 7, 77 Harv. L. Rev.

at 1079-81; Radin, supra note 8, 126 U. Pa. L. Rev. at 1028 &

n.153.

Jd; G. Fletcher, Rethinking Criminal Law § 6.3.2, at 414-15

(1978).

“3 See generally Radin, supra note 8, 126 U. Pa. L. Rev. at

1053, 1055 (the Coker ‘‘measurable contribution” test appears to

require that punishment yield some social gain, perhaps even a

net gain compared to the harm caused by the pain inflicted on

the offender).

that the punishment prescribed in penal statutes en- -

acted for that purpose appears reasonably necessary

to preserve public safety. Most recidivist laws, how-

ever, even those more rationally selective in their ap-

plication than the Texas statute, are ineffective and

superfluous to society’s legitimate concern for protec-

tion. Studies consistently reveal that such statutes

fail to isolate the true threat to the social order—the

professional, dangerous criminal.‘ Such gangsters, by

escaping detection or conviction, often have no prior

record upon which to base a habitual offender charge“

or shrewdly plea bargain for lighter sentences.** More-

““Grosman, supra note 25, 9 Crim. L.Q. at 101-04; Katkin,

supra note 6, 21 Buffalo L. Rev. at 106-08, 112; Klein, supra note

25, 15 Crim. L.Q. at 421, 433-35; Lynch, Parole and the Habitual

Criminal, 13 McGill L.J. 632, 633-34, 638, 644 (1967); Murrah,

The Dangerous Offender Under the Model Sentencing Act, 45

F.R.D. 161, 165 (1967); Tappan, supra note 33, 65 Harv. L. Rev.

at 1094; Williams, supra note 13, i0 Crim. L. Rev. at 730-31

737; Monograph, supra note 35, 23 Can. B. Rev. at 663-64. |

Statistics indicate that ‘“‘most serious offenders never repeat

their crimes.’ S. Rubin, The Law of Criminal Correction 466 (2d

ed. 1973); ef. Lynch, supra, 13 McGill L.J. at 643 (parolees con-

victed for unpremeditated crimes have the lowest rate of recidi-

viam). Thus, most nonprofessional convicts who commit one

serious crime rarely become recidivists.

* Klein, supra note 25, 15 Crim. L.Q. at 423; Monograph; supra

note 35, 23 Can. B. Rev. at 665.

** Johnson, Sentencing in the Criminal District Courts, 9 Hous.

I,. Rev. 944, 981 (1972); Katkin, supra note 6, 21 Buffalo L. Rev.

at 109 (since cases involving professional criminals tend to be

complex, prosecutors prefer to plea bargan for a lighter sentence);

50 ©

over, judges and juries assess an offender with prior

convictions indicating dangerousness such a long sen-

tence for the most recent offense that the automati-

cally enhanced sentence is superfluous.*’

Instead, recidivist laws typically ensnare mostly

the petty thief, who may be a nuisance but threatens

no one.** Ironically, by the time most such petty

thieves are imprisoned as habitual criminals, their

propensity for criminal activity has declined with age

and maturity.*® The result is a needless drain on state

resources and the loss of potentially productive citi-

zens. Even though society has a legitimate interest in

removing such misfits from the general population for

a time, when the actual sentence greatly exceeds that

normally imposed on others with similar convictions

who have not been charged as habitual offenders,”

see Cuomo, Mens ‘Rea and Status Criminality, 40 S. Cal. L. Rev.

463, 469 (1967).

‘’ Katkin, supra note 6, 21 Buffalo L. Rev. at 106; Klein, supra

note 25, 15 Crim. L.Q. at 423.

48 See authorities cited in note 44 supra.

note 25, 15 Crim. L.Q. at 435; see Model Act, supra note 25, $§

5-6, comment (‘‘The surge of aggression, of violent action, is a

characteristic of the young rather than the old offender.’’).

6° A study indicates that with two prior convictions, Rummel

probably would have received a 10-year sentence if he had not

been convicted as a habitual offender. See Comment, Texas Sent-

encing Practices: A Statistical Study, 45 Texas L. Rev. 471, 482-

83, 485, 491-93 (1967).

one can assume that societal protection does not war- -

rant a large portion of the longer sentence*! and that

the sentence thus serves no legitimate purpose.

b. Since Non-Petty Offenders Can Anticipate

Lengthy Sentences from Judges and

Juries, Habitual Offender Statutes Deter

Only Petty Offenders, Who Would Be

Effectively Deterred by a Much Shorter

Sentence.

Even accepting the dubious assumption that the

potential offender understands the nuances in each

State’s habitual offender statute,*? a punishment de-

ters effectively only if it is proportioned to the gravity

of the crime.** When petty theft and forgery are pun-

ished like armed robbery and murder, a criminal has

*' Accord, Note, Statutory Structures for Sentencing Felons to

Prison, 60 Colum. L. Rev. 1156, 1159 (1960). Penologists gener-

ally recognize that a diagnosis of incorrigibility should grow out

of a study of the offender’s personality, not merely the number

of prior convictions. E.g., Monograph, supra note 35, 23 Can. B.

Rev. at 639 (forward by T. Sellin); accord, Williams v. New York,

337 U.S. 241, 247 & authorities cited in n.8 (1949).

* See generally Note, supra note 51, 60 Colum. L. Rev. at

1159-60 (expressing skepticism).

*8 See Wheeler, Toward a Theory of Limited Punishment: An

Examination of the Eighth Amendment, 24 Stan. L. Rev. 838,

848-50 (1972).

52.

no incentive to commit the less serious offense, and

real distinctions between offenses blur:

All penalties ought to be proportioned to the

nature of the offense. ... [W]here the same un-

distinguishing severity is exerted against all of-

fenses, the people tend to forget the real

distinction in the crimes themselves, and to com-

mit the most flagrant with as little compunction

as they do those of lightest dye.”

Moreover, habitual offender laws do not deter com-

mission of serious offenses, since dangerous criminals

surely harbor no illusions that upon apprehension and

conviction they would be sentenced lightly if the en-

hancement statute did not exist. At best, a harsh

sentence like that imposed by article 63 deters only

petty offenders who in and of themselves do not de-

serve long-term confinement and would be deterred,

if at all, by the prospect of a much less severe sen-

tence.’ More likely, however, is that fear of the ex-

traordinary severity of a mandatory life sentence

*N. H. Const., Bill of Rights § 18 (1783), in 1 The Bill of

Rights 377 (B. Schwartz ed. 1971); see Wheeler, supra note 8, 25

Stan. L. Rev. at 75; Williams, supra note 13, 10 Crim. L. Rev. at

737-38.

86 Accord, Katkin, supra note 6, 21 Buffalo L. Rev. at 106.

Statistics on sentencing in Texas document the severity of sen-

tences imposed on violent felony offenders. See Comment, supra

note 50, 45 Texas L. Rev. at 482-83, 485, 491-92.

6 Accord, Katkin, supra note 6, 21 Buffalo L. Rev. at 106.

*" The en banc court rejected this ‘‘lack of necessity”’ rationale

based on the fear that the State could never prove that a sentence

would induce a previously convicted felon who com-.

mits a relatively trivial third offense to perpetrate a

more serious crime (e.g., inflicting serious injury while

resisting arrest) to avoid apprehension out of fear of

a mandatory life sentence.

c. Life Imprisonment Will Not Rehabilitate.

No one could seriously contend that the prospect of

permanent incarceration, or long-term confinement

followed by permanent parole, serves a rehabilitative

function. To the contrary, such a sentence psycholog-

ically devastates the recipient.*® Even were this not

of one length deterred more effectively than a shorter sentence.

587 F.2d at 661 (A. 39-40) (quoting Wheeler, supra note 8, 25

Stan. L. Rev. at 77-78). But this criticism fails to recognize that

(1) reserving the issue of who bears the burden of proof, Rummel

has demonstrated that the punishment imposed is grossly exces-

sive, and (2) if the inquiry is limited to whether a significantly

less severe punishment would accomplish the purpose equally as

well, the comparison would not require such fine distinctions.

** See Comment, supra note 8, 24 Buffalo L. Rev. at 809-10.

** Klein, supra note 25, 15 Crim. L. Q. at 424-25; see Williams,

supra note 13, 10 Crim. L. Rev. at 731; Schreiber, Indeterminate

Therapeutic Incarceration of Dangerous Criminals: Perspectives

and Problems, 56 Va. L. Rev. 602, 604 (1970); text accompanying

notes 25-26 supra. In the graphic words of one prisoner who had

undergone extensive psychotherapeutic treatment:

To be taken without consent from my home and friends; to

lose my liberty; to undergo all those assaults on my person-

ality which modern psychotherapy knows how to deliver; to

be re-made after some pattern of ‘‘normality’’ hatched in a

so, it is unclear how a third, longer term of impris-

onment will rehabilitate the recidivist when it has

twice failed.’ Nonetheless, in the words of one com-

mentator, the traditional method of treating the ha-

bitual criminal has been “‘to increase the severity of

his punishment as if the remedy lay in increasing the

dosage of medicine which failed to cure in small quan-

tities.’

d. Retribution Is Permissible Only if

Punishment Is Proportioned to the

Offenses Being Punished.

Viennese laboratory to which I never professed allegiance;

to know that this process will never end until either my

captors have succeeded or I grown wise enough to cheat

them with apparent success—who cares whether this is

called Punishment or not?

Schreiber, supra, 56 Va. L. Rev. at 612.

% Accord, Lewis, The Humanitarian Theory of Punishment, 6

Res Judicatae 224, (1953); Comment, Recidivism: The Treatment

_ of the Habitual Offender, 7 U. Rich. L. Rev. 525, 527 (1973);

compare Tappan, supra note 33, 65 Harv. L. Rev. at 1094 (dis

cussing the European system of imprisonment followed by a

more lenient period of treatment). See generally Robison, The

Effectiveness of Correctional Programs, 17 Crime & Delinquency

67, 71-72 (1971) (research suggests imprisonment does not reha-

bilitate a criminal and may cause positive harm); Schreiber, supra

note 59, 56 Va. L. Rev. at 604 n.12. See also Monograph, supra

note 35, 23 Can. B. Rev. at 638 (foreword by T. Sellin).

$1 Td. at 637.

Rejected as a legitimate penal goal by many,” re-

tribution is a basic purpose of recidivist statutes.®

The ancient doctrine of revenge recognizes that pun-

ishment for its own sake is acceptable, but only to the

extent that it is proportional to the offense commit-

ted.*

*? See, e.g., Comment, supra note 8, 24 Buffalo L. Rev at 809;

compare Rudolph, 375 U.S. at 891.

- Monograph, supra note 35, 23 Can. B. Rev. at 640. Although

true in general, the accuracy of this observation as the recidivist

statute is applied must be questioned, since community outrage

is usually a reaction to a defendant’s most recent crime, virtually

unaffected by the existence of prior convictions. See Note, supra

note 51, 60 Colum. L. Rev. at 1158-59. Moreover, the victim in

this case apparently does not desire revenge, since he was willing

to agree not to prosecute. See note 2 supra.

. * Packer, supra note 7, 77 Harv. L. Rev. at 1078; Wheeler

supra note 53, 24 Stan. L. Rev. at 846. After all, ‘“{tJhe ‘ie

design of all punishments [is] to reform, not to exterminate [or

permanently isolate] mankind.” N. H. Const. Bill of Rights § 18

(1973), in 1 The Bill of Rights 377 (B. Schwartz ed. 1971). See

also G. Fletcher, Rethinking Criminal Law § 6.3.2, at 416-17

(1978).

e. A Mandatory Life Sentence that Is Not

Restricted in the Nature of the Offenses

for Which It Is Imposed Serves No

Coherent Policy Because It Is So Severe

that Judges, Prosecutors, and Juries

Restrict Enforcement of the Statute

Requiring Its Imposition.

Habitual offender statutes, especially those like ar-

ticle 63 that by their terms apply indiscriminately

irrespective of the nature of the underlying offenses,

almost by definition advance no coherent policy, for

several reasons. First, as revealed by studies in more

than a dozen states and in other countries,” recidivist

statutes are seldom used by judges, who consider

them too harsh and invariably fashion cumbersome

65 See N. Morris, Towards Principled Sentencing, 37 Md. L.

Rev. 267, 279 (1977) (‘“‘{llegislation [providing for mandatory min-

imum sentences] is unprincipled and morally insensible: it cannot

encompass the factual and moral distinctions between crimes

essential to a just and rational sentencing policy’); compare

Furman, 408 U.S. at 402-03 (Burger, C.J., dissenting) (it is

“widely accepted that mandatory sentences do not best serve

[legitimate penal purposes]’’).

* Grosman, supra note 25, 9 Crim. L.Q. at 104; Monograph,

supra note 35, 23 Can. B. Rev. at 658-59, 661 663-64; see Wil-

liams, supra note 13, 10 Crim. L. Rev. at 733. See generally

Brown, West Virginia Habitual Criminal Law, 59 W. Va. L. Rev.

30, 37-42 (1956); Tappan, Habitual Offender Laws in the United

States 13 Fed. Prob. 28, 29-31 (Mar. 1949); Note, Strict or Liberal

Construction of Penal Statutes, 48 Harv. L. Rev. 748, 750 (1935).

rules to restrict application of such laws.*’ Due partly -

to such artificial judicial constructs, habitual offender

laws neither measurably deter nor isolate most of

those covered by a literal reading of the statute.

*? Monograph, supra note 35, 23 Can. B. Rev. at 661-63; Note,

supra note 35, 48 Colum. L. Rev. at 249-53. In the 1920’s, when

New York prosecutors heavily used that State’s recidivist pro-

vision, which then mandated a life sentence upon third conviction

for any felony, judges openly defied the Legislature by using

strained interpretations to circumvent the statute. Finally, the

Legislature relented and revised the law to give courts discretion.

Similar criticisms convinced lawmakers in other states to do

likewise. Monograph, supra note 35, 23 Can. B. Rev. at 660-664;

Note, supra note 35, 48 Colum. L. Rev. at 238-39.

Texas judges have also interpreted article 63 and its successor,

section 12.42(d), strictly. See, e.g. Tyra, 534 S.W.2d at 697-98

(no enhancement under article 63 unless State proves each suc-

ceeding conviction was subsequent to both commission of and

conviction for immediately preceding offense); Carvajal v. State,

529 S.W.2d 517, 521 (Tex. Crim. App. 1975), cert. denied, 424

U.S. 926 (1976) (prior convictions cannot be used more than once

to enhance punishment under section 12.42(d)); Cain v. State,

468 S.W.2d 856, 858-59 (Tex. Crim. App. 1971) (to prove prior

felonies, mere introduction of certified copies of prior judgments

and sentences are insufficient to show identity); Doby v. State,

454 S.W.2d 411, 413 (Tex. Crim. App. 1970) (prior conviction for

capital offense cannot be used for enhancement under article 63);

Ex parte Scafe, 334 S.W.2d 170, 171 (Tex. Crim. App. 1960) (no

enhancement unless both prior convictions were for acts illegal

in Texas); Cromeans v. State, 268 S.W.2d 133, 135 (Tex. Crim.

App. 1954) (no enhancement if defendant received suspended

sentence for either of two prior convictions).

* Note, supra note 35, 48 Colum. L. Rev. at 238.

Second, studies indicate clearly that prosecutors

nullify recidivist statutes by plea bargaining.® This

may place undue pressure on the innocent to plead

guilty” and often results in both private negotiations

not subject to meaningful court review for fairness”

and a sentence related to neither the specific facts of

the case, the defendant’s rehabilitative needs, nor the

societal interest in vigorous prosecution.” The effect

* Klein, supra note 25, 15 Crim. L.Q. at 426, 429; see Mewett,

Habitual Criminal Legislation Under the Criminal Code, 39 Can.

B. Rev. 43, 44 (1961); Monograph, supra note 35, 23 Can. B. Rev.

at 664. Texas prosecutors commonly plea bargain in burglary,

robbery, and theft cases, dropping the habitual count in return

for a guilty plea. Ferguson, The Law of Recidivism in Texas,

13 McGill L.J. 663 n.4 (1967); Johnson, supra note 46, 9 Hous.

L. Rev. at 969. :

” Accord, Langbein, Torture and Plea Bargaining, 46 U. Chi.

L. Rev. 3, 13 n.24 (1978) (arguing that to determine whether a

potentially harsh sentence can coerce guilty pleas from the in-

nocent, one need only imagine ‘‘a differential so great (e.g., death

versus a fifty-cent fine) that any reasonable defendant would

waive the strongest defenses’’); id. at 16.

1 Johnson, supra note 46, 9 Hous. L. Rev. at 980. See generally

Langbein, supra note 70, 46 U. Chi. L. Rev. at 18 (warning

against concentration in the prosecutor’s hands of the accusa-

tory, adjudicatory, and sanctional phases of criminal procedure).

7 Id. at 978; Note, 24 Baylor L. Rev. 153, 156 (1972); see

Comment, supra note 15, 16 Am. Crim. L. Rev. at 295, 305 &

n.132. For example, prosecutors often choose to ignore non-forum

state convictions for enhancement to avoid cumbersome eviden-

tiary requirements. Brown supra note 50, 59 W. Va. L. Rev. at

46; compare note 67 supra.

of the statute and its application depend on each pros- -

ecutor’s belief in the soundness of the recidivist stat-

ute in general or as to a particular defendant, with

radically uneven enforcement among jurisdictions.”

Finally, as the minimum sentence imposed by a

habitual offender statute increases, historically the

incidence of jury nullifications has also risen.”

Thus, the more severe the recidivist sentence, the

greater the incidence of nullification by individual

judges, prosecutors, and jurors. This commensurately

** Mewett, supra note 69, 39 Can. B. Rev. at 44-45; compare

Ferguson, supra note 69, 13 McGill L.J. at 663 n.1. Several

studies and reported cases indicate that prosecutors rarely in-

voke recidivist statutes. Comment, supra note 15, 16 Am. Crim.

L. Rev. at 277 n.4.

One can reasonably surmise that the weaker the case, the greater

the incentive for the prosecutor to press plea bargaining. Accord,

Johnson, supra note 46, 9 Hous. L. Rev. at 979; see Note, supra

note 72, 24 Baylor L. Rev. at 156; cf. Gregg, 428 U.S. at 225

(White J. concurring) (in deciding whether to request the death

penalty, prosecutors are motivated primarily by the strength of

their cases).

“* Monograph, supra note 35, 23 Can. B. Rev. at 661; Wheeler,

supra note 53, 24 Stan. L. Rev. at 850; Note, supra note 35, 48

Colum. L. Rev. at 250-51. But cf. text accompanying note 77

infra (jury cannot be informed of punishment that would be

imposed under old article 63 or new section 12.42(d)). See also

Bordenkircher, 434 U.S. at 369 n.2 (Blackmun, Brennan & Mar-

shall, JJ., dissenting).

increases the incidence of potentially arbitrary varia-

tions in application standards” and shatters any il-

lusions that habitual offender statutes, especially

those mandating life imprisonment for a fixed number

of crimes that include petty property offenses, con-

tribute constructively to any legitimate penal objec-

tive.”

3. The Mandatory Nature of the Texas Statute

Deprived Rummel! of Any Opportunity to

Present Evidence of Mitigating

Circumstances at the Punishment Stage of

the Trial.

If a judge or jury had a range of sentencing discre-

tion under the Texas habitual offender statute and

the defendant had a fair opportunity to produce mit-

igating evidence during the punishment phase of trial,

a life sentence imposed under such a procedure, re-

flecting a rejection of the defendant’s mitigating evi-

dence by the factfinder, should be virtually immune

7’ Accord, ABA Sentencing Alternatives, supra note 32, id. §

3.3(d), at 167.

6 The Texas Legislature, by amending the laws governing theft

to raise from $50 to $200 the amount necessary to constitute a

felony, see note 38 supra, apparently concluded that for a person

with two prior felony convictions who commits a theft of less

than $200, life imprisonment serves no critical penological objec-

tive.

from attack on Eighth Amendment grounds.” But -

the mandatory nature of the Texas statute eliminates

the opportunity to present mitigating circumstances

and occasionally produces incongruous sentences like

Rummel’s. The only question open during the punish-

ment stage of an article 63 case is whether the State

has proved that the defendant committed the two

prior felony convictions alleged in the indictment. See,

e.g., Blackwell v. State, 510 S.W.2d 952, 954-55 (Tex.

Crim. App. 1974). Neither the judge nor the parties

can inform the jury that an affirmative answer con-

demns the defendant to an automatic life sentence.”

It is now settled law that a mandatory death pen-

alty is impermissible ‘‘in all but the rarest kind of

capital case.’’® Despite the unique severity of the

death penalty,® the disproportionality rationale em-

ployed in capital punishment cases applies equally to

" But see Davis v. Davis, No. 77-1782 (4th Cir., June 29, 1979)

(en banc), aff'g Davis v. Zahradnick, 432 F. Supp. 444 (W.D. Va.

1977) (ruling unconstitutionally excessive a jury-assessed 40-year

sentence and $20,000 fine for possession and distribution of 9

ounces of marijuana).

* Bevill v. State, 573 S.W.2d 781, 783-84 (Tex. Crim. App.

1978) (en banc).

® Lockett v. Ohio, 438 U.S. 586, 604 n.11 (1978) (reserving

opinion with respect to murder by a person serving a life term).

* Admittedly, the Court has carefully distinguished capital

and non-capital cases. E.g., id. at 2964-65 & n.11. But non-capital

cases rarely raise the mandatory-discretionary inquiry in a set-

ting as extreme as this case. Moreover, Rummel asks not that

this case and argues that the Court should reject as

cruel and unusual the mandatory life sentence Rum-

mel received for his three petty property offenses. See

also Rummel, 587 F.2d at 664-70 (dissenting opinion)

(discussing Ex Post Facto cases).

Article 63 is a statute lacking both compassion and

the possibility of compassion. When applied to offen-

ses as trivial as those for which Rummel was con-

victed, it serves no function but a mindless, vindictive

retribution that has no place in a civilized society.

4, Subjectivity, Inherent in Many

Constitutional Principles, Has a Negligible

Effect on the Outcome of this Case and Is

No Justification for Refusing to Examine

Potentially Unconstitutional Conduct.

The en banc court, apparently concerned about the

inevitably subjective nature of the Coker test, criti-

cized Rummel’s characterization of his offenses as

trivial, suggested that his analysis gives no indication

of a usable standard but the amount of money in-

volved, and predicted a flood of litigation taking this

Court down the ‘‘slippery slope.” See id. at 662 & n.29

(A. 40-41 & n.29); accord, Rummel, 568 F.2d at 1201-

02 & n.3 (A. 21-23 & n.3) (panel dissenting opinion).

his sentence be invalidated solely because it was imposed auto-

matically, but only that the mandatory nature of his punishment

be viewed as an additional factor tipping the scales towards

disproportionality.

Admittedly, like many other constitutional stand--

ards, no Eighth Amendment analysis can be wholly

objective, given the nature of the issue and its relation

to evolving standards of decency. See, e.g., note 38

supra. Accordingly, criteria selected to evaluate pro-

portionality should be viewed as limiting judicial sub-

jectivity, not replacing it. The critical issue is not

whether a proportionality determination is subjective,

but rather whether proportionality is a sufficiently

important objective that its attainment justifies some

sacrifice in objectivity. To this issue, the Court has

clearly answered in the affirmative. See, e.g., text ac-

companying notes 9-11 supra.

The standard articulated in Coker is a workable

one, as other federal and state courts that have em-

ployed a similar analysis for years in reviewing

lengthy sentences can testify.*! The test turns on po-

*! See, e.g., In re Lynch, 105 Cal. Rptr. 217, 503 P.2d 921, 929

& n.13, 930-31, 933 (1973) (en banc) (discussing cases in Alaska,

California, New Jersey, New York, North Carolina, Oregon,

South Carolina, Washington and West Virginia); State v. Free-

man, 223 Kan. 362, 574 P.2d 950, 956 (1978); People v. Broadie,

37 N.Y.2d 100, 332 N.E.2d 338 (1975); cf. D. Fellman, The De-

fendant’s Rights Today 405-06 (1976 ed.) (describing cases in

numerous states).

Although the en banc court pointed to the difficulty of distin-

guishing between thousands of combinations of offenses, 587

F.2d at 662 n.29 (A. 41 n.29), neither the Fifth nor Fourth Cir-

cuits have had difficulty drawing the line. See, e.g., Chapman v.

Estelle, 593 F.2d 687, 688 n.1 (5th Cir. 1979) (Thornberry, Clark

tential violence and societal harm, not a dollar sign;

if Rummel had taken the same amount by violent

means or caused grievous injury to a victim,” he

& Roney, JJ.) (two burglaries and forgery; ‘‘[e]ven the original

panel in Rummel . . . would likely reject [the Eighth Amendment]

claim’’); Griffin v. Warden, 517 F.2d 756 (4th Cir.), cert. denied,

423 U.S. 990 (1975) (grand larceny, breaking and entering grocery

store, and burglary of residence; held not disproportionate).

8 To characterize crimes involving potential violence as signif-

icantly more serious than nonviolent property offenses can be

justified on the ground that, almost without exception, crimes

involving great danger to the physical well-being of others carry

the severest sentences. Wheeler, supra note 53, 24 Stan. L . Rev.

at 862 & n.107; see, e.g., Comment, supra note 50, 45 Texas L.

Rev. at 482-83, 491-93 (statistically demonstrating such a rela-

tionship between violence and assessed term of incarceration in

Texas, except for a wide disparity between the expected sentence

upon conviction for a third nonviolent property felony if not

sentenced under article 63—approximately ten years—and the

life sentence assessed under that statute); compare Table 2 (C.

22-27), which lists all felonies under Texas law, by degree, dem-

onstrating that only violent.crimes are classified as first-degree

felonies and that few nonviolent crimes are classified as second-

degree felonies.

Even the so-called ‘‘victimless’’ crime of narcotics use, according

to experts, may induce a user to commit violent acts and lead

ultimately to a disintegration of the social order. E.g., Snyder,

Catecholamines in the Brain as Mediators of Amphetamine Psy-

chosis, 27 Archives of Gen. Psychiatry 169, 171 (Aug. 1972)

(discussing amphetamine and cocaine psychosis). See generally

Carmona, 576 F.2d at 411-12 (discussing the threat to society

posed by narcotics use); Broadie, 332 N.E.2d at 342-43 (mari-

juana).

would likely have forfeited any constitutional objec--

tion to his sentence.

Moreover, under the Coker rationale, the require-

ment that the sentence be grossly disproportionate to

the offenses rather than merely disproportionate cir-

cumscribes this inevitable subjectivity by drastically

reducing the number of cases in which the punishment

will appear even arguably excessive. In this case,

where Rummel’s mandatory life sentence is grossly

excessive by any measure, subjectivity is a false issue.

In any event, however, criticism that the propor-

tionality test (and, in particular, its nature-of-the-of-

fense element) is subjective can be answered only by

acknowledging that observation’s partial accuracy,

demanding adherence to criteria that minimize sub-

jectivity, and recognizing that imperfections in the

best available test do not justify “abdication of fun-

damental responsibility in the guise of judicial re-

straint.’’ Rummel, 568 F.2d at 1202 (A. 22) (panel

dissenting opinion).** As the Weems court recognized,

when the legislature’s exercise of its ‘legislative pow-

er to define crimes and fix their punishment ... en-

counters in its exercise a constitutional prohibition[,]

... not our discretion but our legal duty, strictly de-

fined and imperative in its direction, is invoked.”’ 217

** The legitimate concern that judges not substitute their own

“conceptions of wisdom and propriety,’’ Rummel, 568 F.2d at

1202 (A. 22) (dissenting opinion), does not preclude the courts

from assessing the gravity of the crimes. The court’s ability to

U.S. at 378; accord, Furman, 408 U.S. at 313-14

(White, J., concurring).

C. The Rational Basis Test Imposed by the En

Banc Court Has No Place in an Eighth

Amendment Proportionality Analysis.

The en banc court demanded that a punishment, to

be unconstitutionally disproportionate, have no ra-

tional basis. 587 F.2d at 655-56, 661-62 (A 30-31, 40-

41). In doing so, it effectively supplanted the dispro-

portionality test of Coker with the rational basis

review statutory punishments would be meaningless without

such judgments. As Justice Brennan observed in Furman:

Judicial enforcement of the [Cruel and Unusual Punishment]

Clause, then, cannot be evaded by invoking the obvious

truth that legislatures have the power to prescribe punish-

ments for crimes.

That is precisely the reason the Clause appears in the Bill

of Rights.

408 U.S. at 269 (concurring. opinion).

Nor need this Court fear a flood of litigation. No jurisidiction in

which courts have reversed sentences based on a proportionality

rationale has experienced such a problem. Cf. Comment, supra

note 15, 16 Am. Crim. L. Rev. at 285 & n.70 (citing the 20 lower

court cases to date in 17 different jurisdictions holding sentences

grossly excessive).

Moreover, if the Court agrees that the line should be drawn at

three nonviolent property offenses, few cases will qualify. Taking

the number of reported opinions in the Texas Court of Criminal

Appeals as an approximation, not many more than 380 inmates

have received life sentences as habitual criminals since 1965, see

test."* The burden the en banc court thus imposed is

an impossible one to discharge, since the opinion re-

fuses to examine the nature of the underlying offen-

ses, see id. at 659 (A. 36); pt. Bla(ii), at 29-30 supra,

and it is inappropriate for Eighth Amcadment anal-

ysis, since even the most reprehensible torture has

some rational basis as retribution or deterrent.*

Moreover, the “rational basis’’ standard has no sup-

port in this Court’s Eighth Amendment decisions,

which require at most that the courts give deference

to the legislative judgment. See, e.g., Gregg, 428 U.S.

at ‘~ (Stewart, Powell & Stevens, JJ., plurality opin-

ion).

Table 1 (C. 1-21), and . -en if a favorable Eighth Amendment

decision in this case applies retroactively, cf. Stovall v. Denno

388 U.S. 293, 297 (1967), only a handful of those can point »

three nonviolent property offenses with no potential violence as

the basis for their sentence, see Table 1 (C. 1-21), listing every

reported habitual offender case in the Texas Court of Criminal

Appeals since 1965, grouping first all cases involving prisoners

with three or more convictions for violent crimes, in descending

order approximately according to degree of potential violence

listing last (C. 21) those cases—only 8 of 380 cases (.02105 we

2.1%)—in which the prisoner committed only nonviolent prop-

erty crimes). There will be no flood, just a trickle. This further

highlights the gross injustice that Rummel’s sentence repre-

sents.

“* See Radin, supra note 8, 126 U. Pa. L. Rev. at 1001-09.

* Jd. at 1011.

D. Rummel Has Not Procedurally Defaulted the

Right to Challenge His Punishment as Cruel and

Unusual by Failing to Object on that Basis at

the Punishment Phase of His Trial.

For the first time in this habeas proceeding,” the

State argued in the en banc court*’ and again in this

Court®* that because Rummel failed to obj ect to his

sentence during the punishment stage of his trial (see

R. 118-20, 243-45), the combination of the federal

“procedural default doctrine” and the Texas “contem-

poraneous objection rule” bars Rummel. from object-

ing in a habeas corpus petition that his punishment

is unconstitutionally cruel and unusual. This argu-

ment must fail because (1) the State waived it by not

raising it below and (2) Texas law permits a consti-

tutional objection of this nature to be made at any

time.

—

& The State did not raise this issue in proceedings in either the

state courts (see R. 40-45), the federal district court (see R. 12-

21), or the Fifth Circuit panel, see Brief of Appellee, Rummel v.

Estelle, 568 F.2d 1193 (5th Cir. 1978); Appellee s Responsive

Supplemental Brief, 568 F.2d 1193 (5th Cir. 1978).

87 Appellee’s Second Supplemental Brief at 36-40, Rummel v.

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

* Respondent’s Brief in Opposition, Rummel v. Esteile, No.

78-6386, at 8-9, cert. granted, 47 U.S.L.W. 3760 (U.S. May 21,

1979).

1. The State Waived Its Right to Argue

Procedural Default by Not Raising the

Argument in the Lower Court.

Rule 8(c) of the Federal Rules of Civil Procedure,

which applies in habeas corpus cases,* requires that

all affirmative defenses be alleged in responsive trial

pleadings: ‘‘In pleading to a preceding pleading, a

party shall set forth affirmatively . . . waiver, and any

other matter constituting an avoidance or affirmative

defense.” Fed. R. Civ. P. 8(c). The lower courts unan-

imously agree that failure to plead an affirmative de-

fense waives it” and that it cannot be raised for the

first time on appeal.*! Having failed to raise the pro-

cedural default issue below, the State cannot raise it

now.

2. The Texas Contemporaneous-Objection Rule

Does Not Apply to Rummel’s Objection to

His Sentence.

In support of its position that Rummel waived his

right to object to the life sentence by failing to object

* Rule 11, Rules Governing Section 2254 Causes; 17 C. Wright,

A. Miller & E. Cooper, Federal Practice & Procedure: Jurisdiction

ch. 12, § 4268, at 694 (1978).

” See, e.g., Funding Systems Leasing Corp. v. Pugh, 530 F.2d

91, 96 (5th Cir. 1976); Phoenix Assurance Co. v. Appleton City,

296 F.2d 787, 792 (8th Cir. 1961).

*! E.g., Atlas Assurance Co. v. Standard Brick & Title Corp.,

264 F.2d 440, 443 (7th Cir. 1959).

at trial, the State weakly cites 5 Tex. Jur. 2d, mjnten

and Error—Criminal Cases § 22, at 42-43 (1959), =

in Respondent’s Brief in Opposition at 8, a in

Estelle, No. 78-6386, cert. granted, 47 U.S.L.W.

(U.S. May 21, 1979), but fails to cite the next pean

id. § 23, which provides that failure to raise a a

mental error at trial does not preclude raising nee

appeal. According to this authority, among those ‘ n

damental errors that can be raised at any a :

objection that the statute under which the de art ge

was convicted is violative of the constitution. : a

44 (citing Barnes v. State, 170 S.W. 548, 550 p =

Crim. App. 1914), cited approvingly in Gann v. J ¥ :

253 S.W.2d 413, 417 (Tex. 1952)). On this se

en banc court rejected the State’s argument. 587 : ;

at 653-54 (A. 27). Moreover, Texas courts do not

waiver when the defendant fails to object on a groun

“not yet established as a defect of constitutional =

nitude,” Ex Parte Sanders, S.W.2d ___., =

60,221, Slip Op. at ____ (Tex. Crim. App., vamp ’

1979); Ex parte Casarez, 508 S.W.2d 620, 622 | si

Crim. App. 1974), recognized as part of the ee

rule that waiver of fundamental constieations rights

must be clear, see Sanders, Slip Op. at __.

% Cf Gilmore v. Utah, 429 U.S. 1012, 1013 (1976) sri

stay of execution based on “knowing and intelligent pcre

any and all federal rights’’); id. at 1014-15 (Burger, ste wi oe

J., concurring) (same); id. at 1018 (White, Brennan asst e

JJ., dissenting) (arguing that objection ‘to a aga nae

Eighth Amendment grounds cannot be waived); id. at

shall, J., dissenting) (same).

That Texas courts have created such an exception

is not surprising. The contemporaneous objection rule

was devised to prevent an accused from seeking a new

trial if unsuccessful in the current one by raising for

the first time on appeal correctible trial errors.® This

rationale explains why every case cited by the State

in which the rule was applied, see cases cited in Re-

spondent’s Brief in Opposition at 8, Rummel v. Es-

telle, No. 78-6386, cert. granted, 47 U.S.L.W. 3760

(U.S. May 21, 1979), concerns objections to eviden-

tiary or other matters that can be corrected by in-

struction or mistrial. Since such a policy has no

application to Rummel’s claim, the contemporaneous-

objection rule does not apply here.

Even if it did apply, the two grounds justifying an

exception to the procedural default doctrine recog-

nized in Francis v. Henderson, 425 US. 536, 542

** Mason v. State, 459 S.W.2d 855, 858 (Tex. Crim. App. 1970);

see Ex parte Bagley, 509 S.W.2d 332, 334 (Tex. Crim. App.

1974). As described by Justice Powell in Estelle v. Williams, 425

U.S. 501 (1976), one of the “situations in which a conviction

should be left standing despite the claimed infringement of a

constitutional right ... arises when a defendant has made an

‘inexcusable procedural default’ in failing to object at a time

when a substantive right could have been protected.”’ Id. at 513-

14 (concurring opinion) (emphasis added); see Wainright v. Sykes,

433 U.S. 72, 88-90 (1976) (the contemporaneous-objection rule

prevents “‘sandbagging”’ by defense lawyers gambling on a not-

guilty verdict in state court while preserving their constitutional

claims for the federal habeas court).

(1976); accord, Wainwright v. Sykes, 433 USS. 72, ~

91 (1976)—‘‘good cause’’ and “actual prejudice =

would protect Rummel. ‘“‘Good cause’”’ is present if

the defendant can show that no reasonable person

would have freely elected not to object. Surely no

one can dispute that Rummel had no reasonable ex-

pectation of prevailing in state court on his Eighth

Amendment claim, given the long line of Texas cases

upholding the habitual offender provision from

Eighth Amendment attack, as pointed out by the en

banc court below, 587 F.2d at 653 & n.2 (A. 27 & n.2),

and further confirmed in the summary rejection by

the Texas Court of Criminal Appeals (R. 31) of Rum-

mel’s appeal from the denial by the lower state court

of his application for habeas corpus relief on the same

issue (R. 51-54). Moreover, Rummel obviously had no

tactical reason for withholding his objection, since (1)

he did not raise the issue in his direct appeal, see 509

S.W.2d 630, and (2) he would have received no greater

relief from a successful appeal than from a successful

trial court ruling.

‘Actual prejudice’’ is likewise easily demonstrated,

since Rummel is serving a significantly longer sen-

tence than he would have if the trial judge had ruled

the sentence excessive.

* Aacorting to one authority, ‘“‘a defendant may avoid _—

dural default] by showing not only that he did not ‘waive the

right by free and intelligent choice but also that no reasonaiio

person would, under the circumstances, have done so.’ Dix,

Waiver in Criminal Procedure: A Brief for More Careful Analy-

sis, 55 Texas L. Rev. 193, 211 (1977).

E. The Prosecutor’s Discretion to Indict Habitual

Offenders Is Not an Issue in this Case.

The State claims that a ruling that Rummel’s sen-

tence is unconstitutionally excessive requires holding

that the prosecutor abused his discretion in the charg-

ing process, Respondent’s Brief in Opposition at 12,

Rummel v. Estelle, No. 78-6386, cert. granted, 47

U.S.L.W. 3760 (U.S. May 21, 1979), and that the State

should be given the opportunity to demonstrate all

factors bearing on the prosecutor’s original decision,

id. at 13. But Rummel challenges the Texas Legisla-

ture’s right to confer the power to punish a three-time

petty property offender under the habitual offender

statute, not the prosecutor’s decision to exercise that

power,” as even the en banc court below apparently

recognized, see 587 F.2d at 660 n.24 (A. 37 n.24).

Moreover, the factors upon which the State requests

an opportunity to justify the prosecutor’s exercise of

discretion are matters that were not a part of the

* In upholding as constitutional a prosecutor’s threat to in-

voke a state recidivist law in his attempt to obtain a guilty plea,

the Court in Bordenkircher based its decision on the need for

broad prosecutional discretion in plea bargaining. See 434 U.S.

at 361-65. This case poses no threat to the exercise of that dis-

cretion. Rummel seeks merely to remove one weapon from the

prosecutor's arsenal in a limited number of cases; prosecutorial

discretion to threaten use of available punishments would be

unaffected.

original record but were first raised in an eleventh-

hour amicus curiae brief filed shortly before oral ar-

gument in the Fifth Circuit en banc. The State’s at-

tempt to shift the issue from legislative power to

prosecutorial discretion and to rely on matters outside

the record exposes the weakness of the State’s posi-

tion.

F. If the Court Agrees that Rummel’s Life Sentence

Is Unconstitutionally Excessive, Rummel Is

Entitled to Immediate Release.

Under Texas law, if an appellate court determines

that reversible error occurred in the punishment

phase of a trial, then the proper remedy depends on

whether the penalty was assessed by judge or jury. If

determined by a judge, the case must be remanded to

the trial court for proper resentencing. Bullard v.

State, 548 S.W.2d 13, 18 & cases cited therein (Tex.

Crim. App. 1977). If assessed by the jury, the appel-

late court cannot order a new trial on the punishment

issue alone or a new punishment hearing before a

different jury, id., but must remand for a new trial.®

% E.g., Ex parte Ropollo, 558 S.W.2d 869, 871 (Tex. Crim. App.

1977); Ellison v. State, 432 S.W.2d 955, 957 (Tex. Crim. App.

1968) (since Texas statutes give a criminal defendant who re-

quests sentencing by a jury the right to be sentenced by the

same jury that convicted him, a defendant whose sentence is

invalidated on appeal cannot be resentenced but must be granted

a new trial).

In this case, Rummel requested that his punish-

ment be assessed by the jury (see R. 119, 226, 241-43)

pursuant to 1967 Tex. Gen. Laws, ch. 659, § 22, art.

37.07, § 2(b)(3), at 1739; compare Tex. Code Crim.

Proc. Ann. art. 37.07, § 2(b)(3) (Vernon Supp. 1978),

which provides that a judge assesses punishment

after a guilty verdict, unless the defendant requests

that the sentence be assessed by the jury. With the

punishment fixed by law under article 63, the jury

merely verified the existence of the two prior convic-

tions (see R. 115-17, 119, 239-41).

Thus, a ruling for Rummel on the Eighth Amend-

ment issue would require a new trial. And by the

terms of the 1974 Texas Penal Code, 1973 Tex. Gen.

Laws, C. 399, § 6(c), at 996, Tex. Penal Code Ann.,

Savings Provisions, § 6(c) (Vernon 1974), if again

found guilty Rummel could elect to have his punish-

ment assessed under that Penal Code and thus face a

maximum one-year sentence, see note 38 supra, which

he has long since served, thus entitling him to im-

mediate release.*”

*” Compare, e.g., Ex parte Swinney, 499 S.W.2d 101, 104 (Tex.

Crim. App. 1973) (if maximum possible sentence upon retrial is

less than time already served, prisoner is entitled to immediate

release).

CONCLUSION

The judgment of the en banc court of appeals

should be reversed and Rummel released from con-

finement.

Respectfully submitted,

/s/ SCOTT J. ATLAS

Scott J. Atlas

VINSON & ELKINS

2100 First City National

Bank Building

Houston, Texas 77002

(713) 651-2024

Court-appointed Counsel

for Petitioner

Of Counsel

CHARLES ALAN WRIGHT

2500 Red River

Austin, Texas 78705

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