The Supreme Court's excessive deference to legislative bodies under Eighth Amendment sentencing review.

• Author: Brennan, James J.

Ewing v. California, 538 U.S. 11 (2003)

1. INTRODUCTION

   In Ewing v. California, (1) five Justices of the Supreme Court held that the Eighth Amendment does not prohibit the State of California from sentencing a repeat felon to life imprisonment without the possibility of parole for the first twenty-five years of the term for the theft of $1,200 worth of golf clubs under the State's "Three Strikes and You're Out Laws." (2) Nonetheless, seven Justices restated that the Eighth Amendment forbids prison sentences that are grossly disproportionate to the crime. (3) The Court's plurality opinion applied the analytical framework introduced in Justice Kennedy's concurring opinion in Harmelin v. Michigan, (4) which counsels judges to consider four principles when assessing disproportionate sentencing claims. (5) First, criminal punishment determinations are normally the province of legislative bodies. (6) Second, the Eighth Amendment allows a variety of legitimate penological theories beyond retribution. (7) Third, the nature of our federal system allows diverse sentencing determinations among the States. (8) Finally, proportionality review should be guided by objective factors. (9) The Court held that California's policy decision to incapacitate criminals who have already been convicted of at least one serious or violent crime was constitutional. (10)

   This Note argues that the Supreme Court's decision was wrong because it gives too much deference to legislative bodies. The Court needs to assert a more active role in protecting an individual's Eighth Amendment protection from excessive prison sentence. In addition, the Court needs to define the elements it considers under prison sentence review. This Note will examine: (1) the legal history and Supreme Court case law on the issue of proportionality in criminal sentencing; (2) the background and procedural history of Ewing's disproportionate sentencing claim; (3) the positions taken by the Justices in their final determination of the case; (4) the effect the Court's decision will have on sentence proportionality claims; and (5) the Court's sentence proportionality jurisprudence.

2. BACKGROUND

   1. THE EIGHTH AMENDMENT

      The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (11) The language of the Eighth Amendment can be traced back to the English Declaration of Rights of 1689. (12) However, commentators dispute what punishments were barred under the English Declaration of Rights. (13) In addition, commentators dispute how Americans interpreted the text of the Eighth Amendment when they adopted it in 1791. (14)

      The English common law prohibited excessive punishments when the English Declaration of Rights was adopted in 1689. (15) Originally, English law punished criminal activity not with imprisonment but with financial fines called amercements. (16) The Magna Carta required that the amercement imposed on a criminal not to exceed the severity of his crime. (17) When prison sentences began replacing amercements during the 1400s as the common mode of criminal punishment in England, English courts extended the protection from excessive punishments to prison sentences. (18)

      The English Declaration of Rights was adopted after the turbulent regime of King James II ended in 1688. (19) James II provoked the anger of Anglicans with his sympathy to English Catholics. (20) In 1685, the King's Anglican nephew attempted an unsuccessful overthrow of the King. (21) Afterwards, the King established a special commission to prosecute those who aided the rebellion. (22) Many of the rebels were executed by brutal means, such as disemboweling. (23) Thus, many commentators argue that the "Cruel and Unusual Punishments" Clause was meant to prohibit cruel modes of punishments like those imposed by the special commission. (24) Other commentators disagree, observing that the special commission was only mentioned once during the adoption of the Declaration of Rights. (25) Instead, Parliament was concerned about common law courts imposing punishments on religious matters that should have been decided by ecclesiastical courts. (26) Thus, these commentators argue that the Declaration of Rights affirmed the English common law prohibition against excessive punishment with the addition of the "Cruel and Unusual Punishments" Clause to forbid punishments not within a court's jurisdiction. (27)

      The historical evidence surrounding the adoption of the Eighth Amendment indicates that people were mainly concerned about methods of punishments. (28) Historians only note two references to the Eighth Amendment during the proposal and adoption of the Federal Bill of Rights. (29) In both cases, the references refer to kinds of punishments, not proportionality. (30) Thus, most commentators believe the American Framers only meant to forbid cruel types of punishment under the Eighth Amendment. (31) However, some commentators note that Americans believed they retained the same rights as English citizens, including the English common law prohibition against excessive prison sentences. (32) They argue that these debates merely indicate that Americans wanted to extend the "Cruel and Unusual Punishments" Clause to include the harsh punishments they experienced under English rule. (33)

   2. SUPREME COURT JURISPRUDENCE ON PROPORTIONALITY REQUIREMENTS TO SENTENCING

      The Supreme Court first discussed a proportionality requirement in sentencing under the Eighth Amendment in 1892 in O'Neil v. Vermont. (34) In O'Neil, a county court sentenced the defendant to over fifty-four years of hard labor in the house of corrections for 307 offenses of selling liquor without authority. (35) The majority's opinion declined to consider the question of whether the sentence violated the Eighth Amendment because the defendant had not raised the issue in his appeal, and because the Eighth Amendment did not apply to states at the time. (36) Justice Field dissented, arguing that the "Cruel and Unusual Punishments" Clause protects "against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged." (37) Justices Harlan and Brewer also contended that the sentence must be found cruel and unusual in view of the offense committed. (38)

      Eighteen years later in Weems v. United States, (39) the Supreme Court indicated that the Eighth Amendment requires proportionality in sentencing. (40) A trial court sentenced Weems to the statutorily required fifteen years labor in prison with a chain attached to his ankle for falsifying a government document. (41) The sentence also subjected Weems to loss of civil rights and surveillance after his release. (42) The Supreme Court found both the method of punishment and the relationship between the crime committed and the punishment imposed to offend the "Cruel and Unusual Punishments" Clause. (43) On proportionality, the Court stated, "it is a precept of justice that punishment for crime should be graduated and proportioned to offense." (44) Justice McKenna refused to interpret the Eighth Amendment narrowly by only prohibiting certain modes of punishment used before the adoption of the Bill of Rights. (45) He argued that the Eighth Amendment should not "be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth." (46)

      In 1962, the Supreme Court held in Robinson v. California (47) that the Eighth Amendment applied to states through the Fourteenth Amendment, and that imprisoning a defendant because he was addicted to drugs violated the "Cruel and Unusual Punishments" Clause. (48) The Court agreed that the state had a legitimate interest in combating narcotic traffic, but held that this was not a legitimate means for combating the problem. (49) Courts should determine whether a punishment violates the "Cruel and Unusual Punishments" Clause by a proportional comparison between the offense and sentence, and not on an abstract assessment of the punishment: "To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold." (50)

      In 1980, the Court in Rummel v. Estelle (51) held that the federal courts are not to apply proportionality review of prison sentences for felony crimes except in the most extreme situations imaginable. (52) The trial court sentenced Rummel to a mandated life sentence under a Texas recidivist statute for his third felony conviction with eligibility for parole in twelve years. (53) Rummel's case was notable because his convictions were all property-related and involved modest sums: fraudulent use of a credit card to obtain $80 worth of goods and services, passing a forged check for $28.36, and obtaining $120.75 by false pretenses. (54) In a five to four decision, Justice Rehnquist stressed that determining proportional prison sentences is a subjective determination best decided by legislative bodies. (55) The Court rejected Rummel's argument that his sentence was disproportionate because no other jurisdiction punished habitual offenders as harshly as Texas. (56) First, the Court was unconvinced that Texas's recidivist statute was clearly harsher than other jurisdictions. (57) Second, the Court noted that parole and prosecutorial discretion made comparative analysis of recidivist statutes across states too complex. (58) Finally, the Court noted that federalism naturally leads some states to have harsher penalties than other states due to differences in local interests, and courts should not forbid such states from protecting unique interests. (59)

      The Court...