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Crosby v. State5/30/2003
s imposed for commission of the same crime in other jurisdictions."
Eight years after Solem, the issue of proportionality was presented again to the United States Supreme Court in Harmelin. The factual context presented in Harmelin was a first-time offender convicted of possessing 672 grams of cocaine. He was sentenced to life in prison without possibility of parole. A majority of the United States Supreme Court rejected Harmelin's claim that his sentence was so grossly disproportionate that it violated the Eighth Amendment.
Justice Kennedy's concurring opinion in Harmelin, which was joined by Justice O'Connor and Justice Souter, set forth a revised proportionality test. In his concurrence, Justice Kennedy found four common principles in the United States Supreme Court's prior Eighth Amendment cases which "give content to the uses and limits of proportionality review." The first principle acknowledges that the fixing of penalties and prison sentences for specific crimes "involves a substantive penological judgment that, as a general matter, is properly within the province of legislatures, not courts." The second principle recognizes that the Eighth Amendment does not mandate the adoption of any particular penological philosophy. The third principle is an understanding that "marked divergences both in underlying theories of sentences and in the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure." Finally, the fourth principle is a belief that, to the maximum extent possible, proportionality review should be guided by "objective factors," including the framework established in Solem.
In the view of the concurring Justices, consideration of these four common principles inform the final principle, the one that "gives content to the uses and limits of proportionality review," that being: " he Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime." Justice Kennedy's concurrence also stated that Solem "did not mandate" comparative analysis "within and between jurisdictions." In the opinion of the concurring Justices, the proper purpose of a comparative analysis of sentences imposed for other crimes, both intra and inter jurisdictionally, is to either validate or dispel the initial inference of gross disproportionality.
The "rule of Harmelin " therefore, restricts proportionality review to the "rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." A few months ago, the United States Supreme Court in Ewing used the proportionality principles from Justice Kennedy's concurrence in Harmelin to guide its application of the Eighth Amendment in the context of California's three strikes law. Ewing argued that his three strikes sentence of 25 years to life was unconstitutionally disproportionate to his offense of "shoplifting three golf clubs."
In a plurality opinion written by Justice O'Connor, joined by Chief Justice Rehnquist and Justice Kennedy, the United States Supreme Court concluded that Ewing's sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the three strikes law, is not grossly disproportionate. Therefore, Ewing's sentence did not violate the Eighth Amendment's prohibition on cruel and unusual punishments. The United States Supreme Court's analysis in Ewing leads us to a different conclusion, however, in Crosby's case.
In weighing the gravity of Ewing's offense, the United States Supreme Court began with a determination that it must place on the scal
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