Antonin Scalia

“ Neither Congress nor any state legislature has ever set out with the objective of crafting a penalty that is "disproportionate," yet as some of the examples mentioned above indicate, many enacted dispositions seem to be so-because they were made for other times or other places, with different social attitudes, different criminal epidemics, different public fears, and different prevailing theories of penology. This is not to say that there are no absolutes; one can imagine extreme examples that no rational person, in no time or place, could accept. ”

“ The only difficulty is that it has no conceivable relevance to the Eighth Amendment. That a State is entitled to treat with stern disapproval an act that other States punish with the mildest of sanctions follows a fortiori from the undoubted fact that a State may criminalize an act that other States do not criminalize at all. Indeed, a State may criminalize an act that other States choose to reward-punishing, for example, the killing of endangered wild animals for which other States are offering a bounty. ”

“ At sentencing, Jeffreys complained that death was no longer available as a penalty and lamented that "a proportionable punishment of that crime can scarce by our law, as it now stands, be inflicted upon him." ”

“ Chief Justice Spencer assumed that the Eighth Amendment applied to the States, and in finding that it had not been violated considered the proportionality of the punishment irrelevant. "The disenfranchisement of a citizen," he said, "is not an unusual punishment; it was the consequence of treason, and of infamous crimes, and it was altogether discretionary in the legislature to extend that punishment to other offences." ”

“ They are examples of applying, not a proportionality principle, but rather the principle (curiously in accord with the original meaning of the phrase in the English Declaration of Rights, discussed above) that a punishment is "cruel and unusual" if it is illegal because not sanctioned by common law or statute. In Driver, the court had imposed a sentence of five years in county jail for the common-law offense of assault and battery, for which no statutory penalty had been established. ”

“ Rummel v. Estelle, 445 U.S., at 272, 100 S.Ct., at 1138.
"The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity." Furman v. Georgia, 408 U.S., at 306, 92 S.Ct., at 2760 (Stewart, J., concurring) .
It is true that petitioner's sentence is unique in that it is the second most severe known to the law ”

“ Petitioner acknowledges that a mandatory life sentence might not be "grossly excessive" for possession of cocaine with intent to distribute, see Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) . But surely whether it is a "grave" offense merely to possess a significant quantity of drugs-thereby facilitating distribution, subjecting the holder to the temptation of distribution, and raising the possibility of theft by others who might distribute depends entirely upon how odious and socially threatening one believes drug use to be. ”

“ Nor is it likely that the horrible example imagined would ever in fact occur, unless, of course, overtime parking should one day become an arguably major threat to the common good, and the need to deter it arguably critical-at which time the members of this Court would probably disagree as to whether the punishment really is "disproportionate," even as they disagree regarding the punishment for possession of cocaine today. ”

“ Breaking on the wheel, flaying alive, rending assunder with horses, various species of horrible tortures inflicted in the inquisition, maiming, mutilating and scourging to death, are wholly alien to the spirit of our humane general constitution. ”

“ The real function of a constitutional proportionality principle, if it exists, is to enable judges to evaluate a penalty that some assemblage of men and women has considered proportionate-and to say that it is not. For that real-world enterprise, the standards seem so inadequate that the proportionality principle becomes an invitation to imposition of subjective values. ”

“ As Solem observed, id., at 284-285, 103 S.Ct., at 3006-3007, the principle of proportionality was familiar to English law at the time the Declaration of Rights was drafted. The Magna Carta provided that " [a] free man shall not be fined for a small offence, except in proportion to the measure of the offense; and for a great offence he shall be fined in proportion to the magnitude of the offence, saving his freehold. ”

“ Petitioner's "required mitigation" claim, like his proportionality claim, does find support in our death-penalty jurisprudence. We have held that a capital sentence is cruel and unusual under the Eighth Amendment if it is imposed without an individualized determination that that punishment is "appropriate" whether or not the sentence is "grossly disproportionate." ”

“ This is not to say that a proportionality principle would not come into play in the extreme example mentioned by the dissent, . . . if a legislature made overtime parking a felony punishable by life imprisonment. ”

“ Absent a constitutionally imposed uniformity inimical to traditional notions of federalism, some State will always bear the distinction of treating particular offenders more severely than any other State. ”

“ In some cases, moreover, there will be negligible difference between life without parole and other sentences of imprisonment-for example, a life sentence with eligibility for parole after 20 years, or even a lengthy term sentence without eligibility for parole, given to a 65-year-old man. But even where the difference is the greatest, it cannot be compared with death. We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further. ”

“ Another commentator, after explaining (in somewhat convoluted fashion) that the "spirit" of the Excessive Bail and Excessive Fines Clauses forbade excessive imprisonments, went on to add:
"Under the [Eighth] amendment the infliction of cruel and unusual punishments, is also prohibited. The various barbarous and cruel punishments inflicted under the laws of some other countries, and which profess not to be behind the most enlightened nations on earth in civilization and refinement, furnish sufficient reasons for this express prohibition. ”

“ Rummel, supra, treated this line of authority as an aspect of our death penalty jurisprudence, rather than a generalizable aspect of Eighth Amendment law. We think that is an accurate explanation, and we reassert it. Proportionality review is one of several respects in which we have held that "death is different," and have imposed protections that the Constitution nowhere else provides. ”

“ In the legal world of the time, and in the context of restricting punishment determined by the Crown (or the Crown's judges) , "illegall" and "unusuall" were identical for practical purposes. Not all punishments were specified by statute; many were determined by the common law. Departures from the common law were lawful only if authorized by statute. ”

“ For example, since deterrent effect depends not only upon the amount of the penalty but upon its certainty, crimes that are less grave but significantly more difficult to detect may warrant substantially higher penalties. Grave crimes of the sort that will not be deterred by penalty may warrant substantially lower penalties, as may grave crimes of the sort that are normally committed once-in-a-lifetime by otherwise law-abiding citizens who will not profit from rehabilitation. ”

“ It seems to us no more reasonable to hold that the Eighth Amendment forbids "disproportionate punishment" because otherwise the State could impose life imprisonment for a parking offense, than it would be to hold that the Takings Clause forbids "disproportionate taxation" because otherwise the State could tax away all income above the subsistence level.↑ At the time we decided Graham, it was not clear that the Eighth Amendment was applicable to the States, but our opinion obviously assumed that it was. See Rummel v. ”

“ This becomes clear, we think, from a consideration of the three factors that Solem found relevant to the proportionality determination: (1) the inherent gravity of the offense, (2) the sentences imposed for similarly grave offenses in the same jurisdiction, and (3) sentences imposed for the same crime in other jurisdictions. 463 U.S., at 290-291, 103 S.Ct., at 3010. As to the first factor: Of course some offenses, involving violent harm to human beings, will always and everywhere be regarded as serious, but that is only half the equation. ”

“ By 1830 the class of offenses punishable by death was narrowed to include "only" murder, attempts to murder by poisoning, stabbing, shooting etc.; administering poison to procure abortion, sodomy, rape, statutory rape, and certain classes of forgery. See 1 Stephen, supra, at 473-474. It is notable that, during his discussion of English capital punishment reform, Stephen does not once mention the Cruell and Unusuall Punishments Clause, though he was certainly aware of it. ”

“ That as soon as they had set up this Pretence to a discretionary Power, it was observable how they put it in Practice, not only in this, but in other Cases, and for other Offences, by inflicting such cruel and ignominious Punishments, as will be agreed to be far worse than Death itself to any Man who has a sense of Honour or Shame. ”

“ Here, for the reasons we have discussed, there is no cause to believe that the provision was meant to exclude the evil of a disproportionate punishment. Justice WHITE's argument has force only for those who believe that the Constitution prohibited everything that is intensely undesirable-which is an obvious fallacy, see Art. ”

“ Rummel, 445 U.S., at 282, 100 S.Ct., at 1143. Diversity not only in policy, but in the means of implementing policy, is the very raison d'etre of our federal system. Though the different needs and concerns of other States may induce them to treat simple possession of 672 grams of cocaine as a relatively minor offense, see Wyo.Stat. ”

“ W.Va.Code § 60A-4-401 (c) (1989) (6 months) , nothing in the Constitution requires Michigan to follow suit. The Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling the States from giving effect to altered beliefs and responding to changed social conditions.
Our 20th-century jurisprudence has not remained entirely in accord with the proposition that there is no proportionality requirement in the Eighth Amendment, but neither has it departed to the extent that Solem suggests. In Weems v. ”