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ARGUMENT

I. Any standard governing Eighth Amendment
challenges to the proportionality of prison sentences
must be very deferential.

II. The conflicts between Solem and Rummel
should be resolved by extending the deference
accorded to punishment measures.

There are "tensions" between Solem v. Helm, 463 U. S. 277 (1983) and Rummel v. Estelle, 445 U. S. 263 (1980). See Harmelinv.Michigan, 501 U. S. 957, 998 (1991) (Kennedy, J., concurring). This conflict and Harmelin's divided opinion have left considerable confusion in the courts over the Eighth Amendment's proportionality guarantee. See Brief for Criminal Justice Legal Foundation, et al. as Amici Curiae in Lockyer v. Andrade, No. 01-1127, pp. 15-19 (available from http://www.cjlf.org/pdf/Andrade.pdf) ("CJLF Andrade Brief"). Further resolution is needed.

Justice Kennedy's concurrence in Harmelin sought to resolve the conflicts by identifying common principles in the proportionality cases. See 501 U. S., at 998. These principles reinforce the tradition of deference, and move the balance toward Rummel and away fromSolem. See CJLF Andrade Brief, at 12-15. This case provides the Court with an opportunity to continue this trend, while further clarifying proportionality review of prison sentences. A majority opinion that expands upon Justice Kennedy's Harmelin concurrence can do much to settle the law.

A. Philosophy.

Deference is more than being lenient to the state when comparing the severity of the punishment to the defendant's desert. An important component of an appropriate interpretation of the Eighth Amendment is nearly total deference to the sentencing philosophy behind the government's choice of sanctions. Any sentence can have a variety of motivations. Prevention, restraint, rehabilitation, deterrence, education and retribution can all play a part in a state's sentencing philosophy. See 1 W. LaFave & A. Scott, Substantive Criminal Law §1.5, pp. 30-36 (1986). The exact mix between these and other rationales involves policy choices that are inappropriate subjects for judicial review.

Rummel, supra, reflects this principle. The Rummel Court was unwilling to extend the Eighth Amendment's proscription much beyond the uniquely cruel and unusual cadena temporal of Weems v. United States, 217 U. S. 349 (1910), out of deference to policy choices behind any sentencing scheme. "But a more extensive intrusion into the basic line-drawing process that is pre-eminently the province of the legislature when it makes an act criminal would be difficult to square with the view expressed in Coker [v. Georgia, 433 U. S. 584 (1977)] that the Court's Eighth Amendment judgments should neither be nor appear to be merely the subjective views of individual Justices." Rummel, 445 U. S., at 275.

The Rummel Court gives form to this deference in its treatment of Texas' recidivist scheme. Rummel's life sentence was not based upon his comparatively minor crime of the theft of $120.75 by false pretenses, but due to his long criminal record. See id., at 266. This Court completely accepted the recidivist rationale justifying Rummel's long sentence.

"This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction." Id., at 284-285.

Some language in Solem, supra, is difficult to reconcile with these principles. The decision did recognize that courts should pay considerable deference to any legislative determination of the appropriate range of sentences. See 463 U. S., at 290. However, other language in Solem implies more exacting review than this Court held was proper in Rummel. Helm was sentenced to life without possibility of parole under a recidivist sentencing statute. See id., at 281-282. He had six prior nonviolent felony convictions, including three for third-degree burglary. See id., at 279-280. His current conviction was for uttering a "no account" check for $100. Id., at 281.

One reason given by the Solem Court for overturning Helm's sentence was that it foreclosed any possibility of his rehabilitation.

"Helm, who was 36 years old when he was sentenced, is not a professional criminal. The record indicates an addiction to alcohol, and a consequent difficulty in holding a job. His record involves no instance of violence of any kind. Incarcerating him for life without possibility of parole is unlikely to advance the goals of our criminal justice system in any substantial way. Neither Helm nor the State will have an incentive to pursue clearly needed treatment for his alcohol problem, or any other program of rehabilitation." Id., at 297, n. 22.

While the Solem decision recognized that South Dakota had an interest in punishing recidivists more severely, see id., at 296, unlikeRummel, it did not mention the state's incapacitation interest. The incapacitation theory of punishment is the common sense view that prison keeps criminals from continuing to commit crimes. See J. Wilson, Thinking About Crime 193-194 (1977). Some argue that rehabilitation must be coupled with incapacitation "as the vast majority of prisoners will ultimately be returned to society." See 1 LaFave & Scott, supra, §1.5(a)(2), at 32. Others recognize that some criminals pose too high a risk to justify extensive efforts at rehabilitation.

When an individual repeatedly demonstrates an inability to conform to the law, it is no more than common sense to question whether that person will ever conform to the law. Those repeat offenders who continue their habits outside of prison pose a significantly greater threat to society than the occasional lawbreaker. Significant or even lifetime imprisonment is the one sure way to protect society. "If much or most serious crime is committed by repeaters, separating repeaters from the rest of society, even for relatively brief periods of time, may produce major reductions in crime rates." Wilson, supra, at 194.

The proper mix of incapacitation and rehabilitation is a policy question that the Rummel Court left to the legislatures. Solem's intrusion into such disputes is unwarranted and should not continue. Justice Kennedy's Harmelin concurrence demonstrated a deference to the policy choices behind a sentence similar to Rummel's. See Harmelin, 501 U. S., at 1007 ("In asserting the constitutionality of this mandatory sentence, I offer no judgment on its wisdom"). This provides an appropriate starting point for this case.

B. Recidivism.

The defendant utilizes another potential conflict between Rummel and Solem in order to circumvent the deferential proportionality standard in the context of recidivist sentencing. The Solem Court made the following remarks when comparing the gravity of Helm's punishment with his culpability. "We must focus on the principal felony--the felony that triggers the life sentence--since Helm already has paid the penalty for each of his prior offenses. But we recognize, of course, that Helm's prior convictions are relevant to the sentencing decision." 463 U. S., at 296, n. 21.

The defense invokes this passage to split the analysis of Ewing's desert and punishment. It first compares Ewing's principle offense, grand theft, with his 25 years to life sentence and unsurprisingly finds an inference of gross disproportionality. The defense then argues that Ewing's criminal career is relevant only after this initial finding, where the State is allowed to use his recidivism to "rebut the inference of gross disproportionality." See Brief for Petitioner, part II B 2.

This approach cannot be squared with the deferential standard announced in Rummel, Solem, and the Harmelin concurrence. SeeHarmelin, 501 U. S., at 999 (Kennedy, J., concurring). The three strikes provision under which Ewing was sentenced is singularly focused on recidivism. As the preamble to the three strikes initiative states, "It is the intent of the People of the State of California in enacting this measure to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." See California Ballot Pamphlet, General Election, November 8, 1994, p. 64 (Proposition 184) (1994). The defense's analysis removes Ewing's sentence from its antirecidivist context and improperly shifts the burden of justification to the State.

The Constitution permits extraordinary increases in sentences based upon the defendant's prior criminal record. In California, a prior conviction of first- or second-degree murder is a special circumstance that elevates the penalty for first-degree murder from 25 years to life to life without possibility of parole or death. See Cal. Penal Code §§190(a), 190.2(a)(2). While 25 to life is a severe sentence, there is a qualitative difference between that and a death sentence that is constitutionally significant. See Lankford v. Idaho, 500 U. S. 110, 125, n. 21 (1991). Without this prior conviction a death sentence would be unconstitutional absent any other special circumstance. Cf.Tuilaepa v. California, 512 U. S. 967, 971-972 (1994) (must have at least one "aggravating factor" in order to be eligible for the death penalty). In this circumstance, like any other recidivist scheme, the sentence can only be analyzed in the context of the prior conviction. Examining the present conviction without looking at the criminal record which supports the sentence, tips the balance towards a finding of unconstitutionality.

Notwithstanding the footnote quoted above, Solem does not justify the loaded question asked by Ewing. It understood that "a State is justified in punishing a recidivist more severely than it punishes a first offender." Solem, 463 U. S., at 296. Recidivism "cannot be considered in the abstract" but rather is examined in light of the facts of the prior offenses. See ibid. Solem did not begin to answer whether the sentence was unconstitutionally disproportionate before examining Helm's record.

To the extent that Solem supports the defendant's approach, it is inconsistent with Rummel. "Moreover, given Rummel's record, Texas was not required to treat him in the same manner as it might treat him were this his first 'petty property offense.' Having twice imprisoned him for felonies, Texas was entitled to place upon Rummel the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State." 445 U. S., at 284.

As Rummel recognized, a sentence that is enhanced due to recidivism can only be analyzed in the context of the defendant's criminal history. Any conflict between this and the dicta of Solem's footnote 21 is best resolved in favor of Rummel. Ewing's approach subverts proportionality analysis of recidivist sentencing schemes, and thus should not stand.

C. Objective Factors.

There are other unresolved conflicts between Solem and Rummel. The Solem decision was derived from examining the sentence through three "objective" factors: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Solem, 463 U. S., at 292. These last two factors contradict Rummel's analysis.

The dissent in Rummel argued that the harshness of Rummel's sentence relative to the punishment for other crimes in Texas supported the unconstitutionality of his sentence. See 445 U. S., at 300-302 (Powell, J., dissenting). This is Solem's second factor, and it was dismissed by the Rummel majority in a footnote. See id., at 282-283, n. 27. The footnote correctly noted that any comparison with the punishment for different crimes within the state risked judicial second-guessing of legislative policy choices. "Other crimes, of course, implicate other societal interests, making any such comparison inherently speculative." Ibid. All crimes will not be punished alike; ranking the severity of crimes is a matter of legislative policy. As Justice Frankfurter noted for this Court, "Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, . . . these are peculiarly questions of legislative policy." Gore v. United States, 357 U. S. 386, 393 (1958); accord Rummel, 445 U. S., at 282, n. 27.

The third Solem factor, a comparison with sentences for similar crimes in other jurisdictions, is also contrary to Rummel. TheRummelCourt rejected the comparison in that case because recidivist statutes involved too many complex variables for any meaningful comparison. See id., at 279-280. Any differences between recidivist schemes are "subtle rather than gross." Id., at 279. Differences in parole policy and the exercise of prosecutorial discretion further complicate the inquiry. See id., at 280-281.

The Rummel Court also raised a more fundamental objection to comparing the sentences of different jurisdictions. In a nation with 51 different sentencing laws, ⁽³⁾ there are bound to be different approaches to sentencing. Those sentences at the upper end of the spectrum are automatically suspect under Solem's third factor. The leveling influence of this approach is inconsistent with the crucial federalism interest in allowing a state to punish crime in its own way. "Absent a constitutionally imposed uniformity inimical to traditional notions of federalism, some State will always bear the distinction of treating offenders more severely than any other State." Rummel, 445 U. S., at 282. Innovation is hampered if the most punitive statute is automatically suspect.

Rummel's analysis is superior to Solem's on these points. The second and third Solem factors do not add anything meaningful to proportionality analysis of prison terms. If a sentence appears to be grossly disproportionate after comparing punishment and culpability, then any comparison to other punishments within or outside that state are irrelevant. The fact that others punish similarly will not convert an already disproportionate sentence into a constitutionally valid punishment.

The only substantive effect that the second and third Solem factors could have is in close cases, where the Solem factors could tip the balance. An appellate court reviewing a sentence should not make so subtle a distinction. See Rummel, 445 U. S., at 279. In close cases, courts should defer to legislatures and resolve any doubts in favor of the constitutionality of the sentence.

Justice Kennedy's Harmelin concurrence took a big step in this direction by holding that a sentence is constitutional absent an inference of gross disproportionality, thus bypassing the second and third Solem factors. See Harmelin, 501 U. S., at 1005 (Kennedy, J., concurring). ⁽⁴⁾ The concurrence finds that considering the last two Solem factors is "appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Ibid. This use of the Solem factors does no more than "validate an initial judgment that a sentence is grossly disproportionate to a crime." Ibid. (emphasis added). The last two Solem factors are analytical appendages, reinforcing a conclusion that the Court would still reach in their absence. This is evident from the two noncapital cases that applied these factors, Solem and Weems v. United States, 217 U. S. 349 (1910). See Solem, 463 U. S., at 290-292 (Weems applied the three factors utilized in Solem).

In Weems, the defendant was convicted of the crime of falsifying a public document. His crime was to have knowingly entered a single piece of false information in a public record "though there be no one injured, though there be no fraud or purpose of it, no gain or desire of it." See 217 U. S., at 365. The punishment for the offense was the infamous cadena temporal, which included 12 years at hard labor in chains and a form of intensive parole for life. See id., at 366. No amount of comparison to other punishments within or outside the jurisdiction could save this penalty.

Such comparisons were also unnecessary in Solem even though it involved less egregious facts. Helm was convicted of uttering a "no account" check for $100, with six prior convictions. See 463 U. S., at 279-281. Because there was no record of the underlying facts of the prior convictions, see id., at 280, Helms' culpability had to be assessed assuming that he committed the crimes in the least culpable manner covered by the relevant statutes. He had three prior third-degree burglary convictions, but a third-degree burglary in North Dakota "covered entering a building to steal a loaf of bread." Id., at 297, n. 23. Helms' grand larceny conviction could be similarly minor. "It appears that the grand larceny statute would have covered the theft of a chicken." Ibid. His other two prior felonies were similarly trivial. There was no minimum amount for his theft by false pretenses conviction, see id., at 280, n. 2, and his final prior felony, third-offense drunk driving, see id., at 280, n. 4, is also minor.

When this long but apparently minor criminal record is compared to a sentence of life without possibility of parole for writing a $100 bad check, one can reasonably conclude that the punishment was grossly disproportionate to the crime. Analysis under the second and third Solem factors simply confirmed a conclusion that the Court would have made anyway.

While stare decisis is likely to keep the Solem factors available, it is important to clarify the potential dangers of these factors. Also, a comparison of culpability and the severity of punishment is the primary focus of proportionality analysis. Any inference of gross disproportionality must be substantial before proceeding to the Solem factors or any other objective measures of disproportionality. Courts should not use such factors to color their initial assessment of the punishment's proportionality.

Comparing culpability and the severity of the punishment is no panacea. Lacking other factors to focus the analysis, proportionality analysis is close to the "I know it when I see it" definition of obscenity. Cf. Jacobellis v. Ohio, 378 U. S. 184, 197 (1964) (Stewart, J., concurring). Unfortunately, proportionality analysis cannot aim much higher. "[A]ny judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise." United States v. Bajakajian, 524 U. S. 321, 336 (1998). Drawing constitutional lines between prison sentences is "troubling" at best. See Solem, 463 U. S., at 294.

"It is not the responsibility--or indeed even the right--of this Court to determine the appropriate punishment for particular crimes. It is the legislatures, the elected representatives of the people, that are 'constituted to respond to the will and consequently the moral values of the people.' " McCleskey v. Kemp, 481 U. S. 279, 319 (1987) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) (Burger, C.J., dissenting)). Therefore findings of disproportionality must be "exceedingly rare." See Rummel, 445 U. S., at 272. Thus, reviewing courts must make every reasonable presumption in favor of the punishment's constitutionality. Any less deference risks substituting judicial philosophy for the legislature's. The conflicts between Rummel and Solem should be resolved under this principle.

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2. See infra, at 15, n. 4.

3. The number is even larger if we count other state-like, largely self-governing entities such as the District of Columbia, Guam, and the Virgin Islands.

4. Harmelin was a split decision. Because Justice Kennedy's concurrence was the narrowest concurring opinion in Harmelin, it is the holding of the case. See Marks v. United States, 430 U. S. 188, 193 (1977).