Eighth Amendment

'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.'

Cruel and Unusual Punishment

In Solem v. Helm (1983) 463 U.S. 277 a split court found a life sentence without the possibility of parole for a seventh nonviolent felony was unconstitutional. In Solem, a bare majority of the court held a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including 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. (Id. at 292.)

Solem is weakened by Harmelin v. Michigan (1991) 501 U.S. 957, in which a life sentence without possibility of parole for possessing 672 grams of cocaine was upheld. The case produced five separate opinions. While seven justices supported a proportionality review under the Eighth Amendment, only four favored application of all three factors cited in Solem. As one court has concluded, disproportionality survives; Solem does not. (McGruder v. Puckett (5th Cir.'92) 954 F.2d 313, 316.)

In Harmelin, Justice Scalia, joined by Chief Justice Rehnquist, determined Solem was wrongly decided and the Eighth Amendment contained no proportionality guarantee. (Harmelin v. Michigan, supra, 501 U.S. 957, 965.) Justice Kennedy, joined by Justices O'Connor and Souter, found the Eighth Amendment encompassed a narrow proportionality principle. (Id. at 997.) [T]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. (Id. at 1001.) Consideration of the first factor identified in Solem, supra, 463 U.S. 277 was sufficient to uphold the constitutionality of defendant's sentence; intra- and inter-jurisdictional analyses are appropriate only in rare cases. (Harmelin v. Michigan, supra, at 1004-05.) The defendant in Harmelin was sentenced to spend the rest of his life in prison for possessing a large quantity of drugs. Defendant here, a violent recidivist with 19 current felony convictions with weapon use enhancements, received essentially the same sentence. The sentence is not grossly disproportionate to defendant's more serious crimes.

Moreover, in Solem v. Helm, supra, 463 U.S. 277, 296 the court focused on the nonviolent nature of both the defendant's current offense of uttering a 'no account' check ('one of the most passive felonies a person could commit') and his prior offenses. The majority acknowledged a life sentence for fourth-time heroin dealers and other violent criminals would pass constitutional muster. (Id. at p. 299 and fn. 26.)

The California Constitution prohibits cruel or unusual punishment. (Cal. Const., art. I, 17, italics added.) We construe this provision separately from its counterpart in the federal Constitution. (Raven v. Deukmejian (1990) 52 Cal.3d 336, 355.) A punishment may violate the California Constitution although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424, footnote omitted.) The Lynch court identified three techniques courts used to administer this rule. First, they examined the nature of the offense and the offender. (Id. at 425.) Second, they compared the punishment with the penalty for more serious crimes in the same jurisdiction. (Id. at 426.) Third, they compared the punishment to the penalty for the same offense in different jurisdictions. (Id. at p. 427.)