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SUGARCOATING THE EIGHTH
AMENDMENT: THE GROSSLY
DISPROPORTIONATE TEST IS SIMPLY
THE FOURTEENTH AMENDMENT
RATIONAL BASIS TEST IN DISGUISE
“Our Court has struggled with whether and how to apply the Cruel
and Unusual Punishments Clause to sentences for noncapital crimes.”1
I.
INTRODUCTION
In 2002 a California jury convicted Cecilio Gonzalez for failing to
update his sex offender registration, and the court imposed a twenty-eightyear-to-life sentence.2 In his petition for habeas corpus relief, Gonzalez
argued that his sentence was an unconstitutional imposition of cruel and
unusual punishment.3 Remarkably, the Ninth Circuit agreed, holding that
the sentence was “grossly disproportionate” to the offense and therefore
violated the Eighth Amendment.4
Although the Ninth Circuit’s holding in Gonzalez v. Duncan appears
reasonable, successful Eighth Amendment challenges to noncapital
sentences are exceedingly few and far between.5 According to the United
1. Graham v. Florida, 130 S. Ct. 2011, 2036 (2010) (Roberts, C.J., concurring).
2. Gonzalez v. Duncan, 551 F.3d 875, 878-79 (9th Cir. 2008).
3. Id. at 879.
4. Id. at 889.
5. Since 1980, the Supreme Court has considered six Eighth Amendment challenges to
terms of years sentences, and the Court upheld all but one of those sentences. Compare Lockyer v.
Andrade, 538 U.S. 63 (2003), Ewing v. California, 538 U.S. 11 (2003) (plurality opinion),
Harmelin v. Michigan, 501 U.S. 957 (1991), Hutto v. Davis, 454 U.S. 370 (1982) (per curiam),
and Rummel v. Estelle, 445 U.S. 263 (1980) (plurality opinion) (affirming life sentences
challenged under the Eighth Amendment), with Solem v. Helm, 463 U.S. 277 (1983) (invalidating
a life sentence challenged under the Eighth Amendment). To gauge the volume of lower court
decisions declining to invalidate noncapital sentences under the Eighth Amendment, see infra
533
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States Supreme Court, the length of a sentence violates the Cruel and
Unusual Punishment Clause only if the sentence is “grossly
disproportionate to the offense.”6 This standard offers little guidance,
however, because the few Supreme Court opinions addressing the grossly
disproportionate test are imprecise and inconsistent.7 In the context of its
Eighth Amendment jurisprudence, the Supreme Court even admits that it
has bit off more than it can chew.8 Consequently, it is not surprising that
lower courts render remarkably inconsistent opinions when reviewing
noncapital sentences under the grossly disproportionate test.9 What is
consistent, however, is that a fundamental question remains unanswered:
what is the precise standard of review that courts apply to determine
whether the length of a sentence is grossly disproportionate to the offense?10
This Comment answers this question by demonstrating that the Eighth
Amendment grossly disproportionate test is simply the Fourteenth
Amendment rational basis test in disguise. More pointedly, the precise
standard of review applied under the grossly disproportionate test is as
follows: when reviewing the length of a sentence under the Eighth
Amendment, the court will uphold the sentence so long as it furthers a
conceivable penological purpose. As demonstrated below, this standard is
Appendix.
6. See Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring).
7. Robert Clinton Peck, Ewing v. California: Upholding California’s Three Strikes Law, 32
PEPP. L. REV. 191, 193 (2004); Lisa Ann Tatulli, Casenote, Eighth Amendment-Cruel and
Unusual Punishment-Sentence of Life Imprisonment Without Parole for the Crime of Possessing
More than 650 Grams of Cocaine is Not Cruel and Unusual in Violation of the Eighth
Amendment- Harmelin v. Michigan, 111 S. Ct. 2680 (1991), 2 SETON HALL CONST. L.J. 409, 444
(1991); Sara J. Lewis, Comment, The Cruel and Unusual Reality of California’s Three Strikes
Law: Ewing v. California and the Narrowing of the Eighth Amendment’s Proportionality
Principle, 81 DENV. U. L. REV. 519, 529 (2003).
8. See Graham v. Florida, 130 S. Ct. 2011, 2036-37 (2010) (Roberts, C.J., concurring)
(“[The Court] has struggled with whether and how to apply the Cruel and Unusual Punishments
Clause to sentences for noncapital crimes. . . . [and has] [N]ot established a clear or consistent
path for courts to follow in applying the highly deferential narrow proportionality analysis.”)
(internal quotation marks omitted).
9. Compare Rios v. Garcia, 390 F.3d 1082, 1086 (9th Cir. 2004) (affirming a Three Strikes
life sentence for petty theft after considering the defendant’s lengthy criminal history), with
Ramirez v. Castro, 365 F.3d 755, 768 (9th Cir. 2004) (invalidating a Three Strikes life sentence
for petty theft after considering the defendant’s lengthy criminal history).
10. See Gonzalez v. Duncan, 551 F.3d 875, 882 (9th Cir. 2008) (“[The Supreme Court]
declined to clarify the ‘gross disproportionality’ standard, leaving [lower courts] with a principle,
but no explanation.”); United States v. Wellman, 716 F. Supp. 2d 447, 456 (S.D. W. Va. 2010)
(“[T]he law regarding proportionality review . . . is confusing at best.”); Richard H. Andrus,
Which Crime is it? The Role of Proportionality in Recidivist Sentencing after Ewing v. California,
19 BYU J. PUB. L. 279, 289 (2004); Richard S. Frase, Excessive Prison Sentences, Punishment
Goals, and the Eighth Amendment: “Proportionality” Relative to What?, 89 MINN. L. REV. 571,
588 (2005).
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virtually identical to the Fourteenth Amendment rational basis test under
which the court will uphold social and economic laws so long as they serve
a conceivable government purpose.
Unfortunately, neither courts nor commentators have articulated the
grossly disproportionate test so precisely,11 at least with respect to the
rational-basis-type language traditionally applied under the Fourteenth
Amendment.12 Indeed, the bulk of scholarship addressing the Eighth
Amendment focuses on an array of issues, including (1) the Court’s varied
proportionality approach to capital versus noncapital sentences,13 (2) which
punishment theory should control proportionality review,14 (3) the level of
deference that courts afford the legislature,15 and, most commonly, (4) the
utter chaos that surrounds the Court’s Eighth Amendment jurisprudence.16
11. See Kenneth A. Sprenger, Note, Pass the Discretion Please-The Supreme Court Defers to
State Legislatures in Interpreting What Is Left of the Eighth Amendment’s Proportionality
Principle, 58 ARK. L. REV. 425, 436 (2005) (“Although the proportionality doctrine has existed
for over a century, no concrete, workable, and lasting plan for assessing challenged sentences has
been formulated.”) (footnotes omitted).
12. Some commentators have identified similarities between the Supreme Court’s use of the
grossly disproportionate test and the rational basis test. See, e.g., Chris Baniszewski, Supreme
Court Review of Excessive Prison Sentences: The Eighth Amendment’s Proportionality
Requirement, 25 ARIZ. ST. L.J. 929, 959 (1993); Margaret Gibbs, Eighth Amendment – Narrow
Proportionality Requirement Preserves Deference to Legislative Judgment, 82 J. CRIM. L. &
CRIMINOLOGY 955, 975 (1992); Adil Admad Haque, Lawrence v. Texas and the Limits of the
Criminal Law, 42 HARV. C.R.-C.L. L. REV. 1, 20 n.133 (2007); Samuel B. Lutz, The Eighth
Amendment Reconsidered: A Framework for Analyzing the Excessiveness Prohibition, 80 N.Y.U.
L. REV. 1862, 1890-91 (2005); Alice Ristroph, Proportionality as a Principle of Limited
Government, 55 DUKE L.J. 263, 306 (2005) [hereinafter Ristroph, Proportionality]. It is the
purpose of this Comment, however, to demonstrate that lower courts actually do apply a rational
basis test.
13. Carol S. Steiker & Jordan M. Steiker, Opening a Window or Building a Wall? The Effect
of Eighth Amendment Death Penalty Law and Advocacy on Criminal Justice More Broadly, 11 U.
PA. J. CONST. L. 155, 184-91 (2008).
14. Compare, e.g., Frase, supra note 10, at 588-97 (summarizing the various proportionality
theories that support proportionality review), with Stephen T. Parr, Symmetric Proportionality: A
New Perspective on the Cruel and Unusual Punishment Clause, 68 TENN. L. REV. 41, 59-64
(2000) (arguing that retribution is the only punishment theory that supports proportionality
principle).
15. See, e.g., Louis D. Bilionis, Process, the Constitution, and Substantive Criminal Law, 96
MICH. L. REV. 1269, 1272-99 (1998); Erwin Chemerinsky, Justice O’Connor and Federalism, 32
MCGEORGE L. REV. 877, 877 (2001).
16. The Scholarship is legion. See Erwin Chemerinsky, The Constitution and Punishment,
56 STAN. L. REV. 1049 (2004) [hereinafter Chemerinsky, The Const. & Punishment]; Donna H.
Lee, Resuscitating Proportionality in Noncapital Criminal Sentencing, 40 ARIZ. ST. L.J. 527, 528
(2008) [hereinafter Lee, Resuscitating Proportionality]; Bidish Sarma, Furman’s Resurrection:
Proportionality Review and the Supreme Court’s Second Chance to Fulfill Furman’s Promise,
2009 CARDOZO L. REV. DE NOVO, 238, 242-43 (2009); Tom Stacy, Cleaning up the Eighth
Amendment Mess, 14 WM. & MARY BILL RTS. J. 475, 476 (2005); (“The Court’s jurisprudence
under the Eighth Amendment’s Cruel and Unusual Punishment Clause stands in disarray.”);
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Relatively few commentators, however, have focused a great deal of
attention on the analytical standard of review that the lower courts apply to
Eighth Amendment challenges to noncapital sentences,17 and virtually none
focus on precisely articulating what that standard is.18
The purpose of this Comment is to identify and articulate the standard
that courts actually apply when reviewing sentences under the grossly
disproportionate test. Only when the standard of review can be articulated
as a precise rule of law–that a sentence is upheld so long as it serves a
conceivable penological purpose–will courts and commentators have
something concrete to discuss, critique, or even scrutinize. More
importantly, by acknowledging the precise Eighth Amendment standard of
review,19 courts and commentators can pick up where this Comment leaves
off. Specifically, if the grossly disproportionate test is merely the
Fourteenth Amendment rational basis test, then that means it is merely a
safeguard against arbitrariness, and it is unlikely that such a lenient standard
aligns with the fundamental principles embedded in the Eighth
Amendment.
Part I consists of a brief background of the Eighth Amendment and an
examination of the leading Supreme Court decisions addressing the grossly
disproportionate test. Part II highlights the substantial deference that lower
courts afford the legislature when reviewing noncapital sentences, and
demonstrates that such deference creates a presumption that the length of a
sentence is constitutional. Part III offers a brief summary of the current
rational basis test applied to challenges under the Fourteenth Amendment.
Finally, Part IV illustrates that the Courts’ application of the grossly
disproportionate test can be condensed into a precise standard of review,
one that is virtually identical the Fourteenth Amendment rational basis.
Rachel A. Van Cleave, Mapping Proportionality Review: Still a “Road to Nowhere”, 43 TULSA L.
REV. 709, 711 (2008).
17. See Chemerinsky, The Const. & Punishment, supra note 16, at 1050; Doyle Horn,
Lockyer v. Andrade: California Three Strikes Law Survives Challenge Based on Federal Law that
is Anything but “Clearly Established”, 94 J. CRIM. L. & CRIMINOLOGY 687, 712 (2004) (arguing
the grossly disproportionate test is an ambiguous standard).
18. See Allyn G. Heald, Note, United States v. Gonzales: In Search of a Meaningful
Proportionality Principle, 58 BROOK. L. REV. 455, 478 (1992) (“[T]he key to a meaningful
proportionality guarantee is the articulation of a sensible and workable . . . standard to review
sentencing challenges.”).
19. For the purposes of this comment, Eighth Amendment review implicates the grossly
disproportionate test and not, for example, Eighth Amendment challenges in the context of capital
punishment or excessive fines.
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II. THE EIGHTH AMENDMENT20
The Eighth Amendment provides that “[e]xcessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.”21 Despite the seemingly broad implications of the phrase “cruel
and unusual punishment,” the Court has never clearly defined what it
means.22 In fact, determining what constitutes “cruel and unusual
punishment” has troubled the Supreme Court since the nineteenth century.23
The Court has, on occasion, used the clause to invalidate select areas of
criminal punishment;24 however, even these decisions have been read
narrowly.25
A. Overview of the Cruel and Unusual Punishment Clause
The roots of the Cruel and Unusual Punishments Clause can be traced
back to the English Declaration of Rights of 1689 and the Magna Carta. 26
According to the United States Supreme Court, the Framers included a
prohibition upon cruel and unusual punishment in the Bill of Rights
“precisely because the legislature would otherwise have had unfettered
power to prescribe punishments for crimes.”27 The Court also recognized
that the Framers intended to establish a safeguard against arbitrary
20. The United States Supreme Court held that the Eighth Amendment applies to the states
through the Due Process Clause of the Fourteenth Amendment. See Robinson v. California, 370
U.S. 660, 675 (1962).
21. U.S. CONST. amend. VIII.
22. See Frase, supra note 10, at 588 (“The Supreme Court has never made clear what it
means by proportionality in the context of prison sentences.”); See Roderick Oxford, Eighth
Amendment ETS Claims: A Matter of Human Dignity, 18 OKLA. CITY. U.L. REV. 505, 512 n. 34
(1993) and cases cited therein.
23. See Wilkerson v. Utah, 99 U.S. 130, 135-36 (1878) (“Difficulty would attend the effort to
define with exactness the extent of [what is] cruel and unusual.”).
24. See, e.g., Hope v. Pelzer, 536 U.S. 730, 737-38 (2002) (restraining a prison inmate to a
pole for longer than was necessary to restore order); Robinson v. California, 370 U.S. 660, 667
(1962) (criminalizing the status of being a drug addict); Trop v. Dulles, 356 U.S. 86, 101 (1958)
(revoking the defendant’s citizenship); Weems v. United States, 217 U.S. 349, 382 (1910)
(sentencing a defendant to a fifteen-year punishment of hard labor in shackles for fraud).
25. Compare, e.g., Robinson, 370 U.S. 666-67 (invalidating a statute that made it a crime to
be an addict), with Powell v. Texas, 392 U.S. 514, 532 (1968) (plurality opinion) (distinguishing
Robinson because the defendant was an alcoholic charged with public intoxication, not merely the
status of being an alcoholic).
26. See Harmelin v. Michigan, 501 U.S. 957, 966 (1991) (plurality opinion). For a detailed
discussion regarding the history of the Eighth Amendment, see Stephen E. Meltzer, Harmelin v.
Michigan: Contemporary Morality and Constitutional Objectivity, 27 NEW ENG. L. REV. 749,
752-64 (1993).
27. Furman v. Georgia, 408 U.S. 238, 263 (1972) (Brennan, J., concurring) (internal
quotation marks omitted).
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punishments.28 In this respect, the Cruel and Unusual Punishment Clause
acts as a constitutional check that ensures legislation that defines crimes and
punishment is subject to a degree of judicial scrutiny.29
The notion that “the punishment must fit the crime” has been a
fundamental concept underlying Eighth Amendment case law for
centuries.30 As a result, the Cruel and Unusual Punishment Clause has been
used to limit criminal punishment under several select circumstances: (1) it
prohibits criminalization and punishment of one’s status, where the
defendant is nearly void of culpability, e.g., being a drug addict;31 (2) it
forbids certain kinds of punishment, either altogether or applied to
particular crimes,32 e.g., it prohibits torture33 and limits the imposition of
capital punishment to adults convicted for aggravated murder;34 (3) it
prohibits inhuman conditions of confinement;35 and (4) it prohibits
28. Id. at 242 (Douglas, J., concurring) (“[T]he Eighth Amendment was . . . concerned
primarily with selective or irregular application of harsh penalties and that its aim was to forbid
arbitrary and discriminatory penalties of severe nature.”); Id. at 274 (Brennan, J., concurring)
(“The Framers had] a particular concern with the establishment of a safeguard against arbitrary
punishments.”). But see Baniszewski, supra note 12, at 936-38 (arguing that the Framers may
have misinterpreted the English Declaration of Rights).
29. See Gregg v. Georgia, 428 U.S. 153, 174 (1976) (plurality opinion) (“[T]he Eighth
Amendment is a restraint upon the exercise of legislative power.”); Fuhrman, 408 U.S. at 261
(“[The Framers] called for a constitutional check that would ensure that when [it comes] to
punishments, no latitude ought to be left, nor dependence put on the virtue of representatives.”)
(internal quotation marks omitted); Trop, 356 U.S. at 100 (“While the State has the power to
punish, the [Eighth Amendment] stands to assure that this power be exercised within the limits of
civilized standards.”).
30. See Payne v. Tennessee, 501 U.S. 808, 819 (1991) and sources cited therein; see also Ian
P. Farrell, Gilbert & Sullivan and Scalia: Philosophy, Proportionality, and the Eighth
Amendment, 55 VILL. L. REV. 321, 321 (2010) (“PROPORTIONALITY – ‘the notion that the
punishment should fit the crime’ – is one of the most fundamental ingredients of our sense of just
punishment.”) (quoting Ewing v. California, 538 U.S. 11, 31 (2003) (Scalia, J., concurring))
(internal footnote omitted).
31. See Robinson v. California, 370 U.S. 660, 667 (1962) (holding that it is unconstitutional
to punish someone for their status).
32. See, e.g., Hutto v. Finney, 437 U.S. 678, 685 (1978) (recognizing that certain conditions
of solitary confinement might violate the Eighth Amendment); Jackson v. Bishop, 404 F.2d 571,
579 (8th Cir. 1968) (holding that the use of “strap” in prison constituted cruel and unusual
punishment).
33. See, e.g., In re Kemmler, 136 U.S. 436, 447 (1890) (recognizing the Eighth Amendment
prohibits inhumane and barbarous punishments); Wilkerson v. Utah, 99 U.S. 130, 136 (1878)
(recognizing the Eighth Amendment forbids punishment of “torture” and “unnecessary cruelty”).
34. See, e.g., Coker v. Georgia, 433 U.S. 584, 592 (1977) (holding that the crime of rape is
not grounds for capital punishment).
35. See, e.g., Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (establishing that prison
conditions cannot “involve the wanton and unnecessary infliction of pain”); Estelle v. Gamble,
429 U.S. 97, 103 (1976) (holding that denying medical care to an inmate violates the Eighth
Amendment because it furthers no penological).
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noncapital sentences that are grossly disproportionate to the offense.36
Although there is some debate as to whether the Eighth Amendment
was intended to prohibit disproportionate punishment,37 the Supreme Court
has nonetheless established that such a prohibition exists.38 As the
following section illustrates, however, the Court has had difficulty
articulating a precise, consistent grossly disproportionate test.
B. Supreme Court Case Studies
There are only a handful of Supreme Court decisions addressing the
Eighth Amendment grossly disproportionate test, and, even within this
limited field, the decisions are unquestionably inconsistent.39 There are,
however, a number of identifiable principles that consistently flow from
these few opinions. As discussed in the following sections, these principles
are evidenced by the lower courts’ interpretation and application of the
Supreme Court’s precedent.
First, courts grant substantial deference to legislative determinations
regarding what conduct to criminalize and the appropriate sentence to
impose upon violators.40 Second, in the face of an Eighth Amendment
challenge to the length of a sentence, a court will uphold the length of a
sentence so long as the sentence furthers a conceivable penological
purpose.41 In order to identify these characteristics and principles, it is
important to briefly summarize the primary United States Supreme Court
decisions addressing the grossly disproportionate test.
The United States Supreme Court first considered the Eighth
Amendment’s proportionality principle in 1892.42 In O’Neil v. Vermont,
the defendant challenged a sentence of nearly 20,000 days of hard labor for
36. See Weems v. United States, 217 U.S. 349, 371 (1909) (explaining that the Eighth
Amendment is a general prohibition “against all punishments which, by their excessive length or
severity, are greatly disproportional to the offenses charged.”) (quoting O’Neil v. Vermont, 144
U.S. 323, 339-340 (1892) (Field, J., dissenting)).
37. See Nancy J. King & Susan R. Klein, Essential Elements, 54 VAND. L. REV. 1467, 1517
n.183 (2001) (“Justices and scholars continue to disagree as to whether the Framers, when
modeling the Cruel and Unusual Punishments Clause upon the English Declaration of Rights of
1689, had proportionality in mind.”).
38. See Harmelin v. Michigan, 501 U.S. 957, 977 (1991); Solem v. Helm, 463 U.S. 277, 28586 (1983).
39. Compare e.g., Solem, 463 U.S. at 277, 303 (invalidating a life sentence imposed upon a
habitual offender where the underlying crime was uttering a no account check for $100), with
Rummel v. Estelle, 445 U.S. 263, 285 (1980) (plurality opinion) (validating a life sentence where
the defendant’s underlying crime was forging a check in the amount of $28.36).
40. See infra Part III.A.
41. See infra Part III.B.
42. O’Neil v. Vermont, 144 U.S. 323 (1892).
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307 counts of selling liquor without a license.43 Although the majority did
not address the defendant’s Eighth Amendment argument, the issue was
raised by Justice Field in his dissenting opinion.44 According to Justice
Field, the Cruel and Unusual Punishment Clause applies to “all
punishments which by their excessive length or severity are greatly
disproportioned.”45
In 1910, the United States Supreme Court explicitly considered the
proportionality principle.46 In Weems v. United States,47 the Court held that
a sentence of hard physical labor and carrying an ankle chain was
disproportionate to the crime of falsifying documents. For the first time,
the Court acknowledged that the Eighth Amendment contains a
proportionality principle, explaining that the Eighth Amendment contains a
“precept of justice that punishment for crime should be graduated and
proportioned to offense.”48 The underlying rationale of these early cases
seemed to focus on human dignity. In recent opinions, however, it appears
that the Court placed human dignity on the backburner as it prepared for the
main entrée – Deference ala Legislature.49
In 1980, the modern gross disproportionality test began to take shape in
a series of cases beginning with Rummel v. Estelle.50 In Rummel, the
defendant was sentenced to life in prison for passing a forged check in the
amount of $28.36.51 A closely divided Supreme Court held that the
sentence did not violate the Eighth Amendment.52 Essentially, the Court
punted, explaining that “the length of the sentence actually imposed is
purely a matter of legislative prerogative.”53 Moreover, the Court
recognized that society had an interest in incapacitating repeat offenders
who are incapable of ceasing their criminal behavior.54 Although the Court
43. Id. at 330.
44. Id. at 338-39.
45. Id. at 339-40 (Field, J., dissenting).
46. Weems, 217 U.S. at 367.
47. Id.
48. Id. Seven decades later, the Supreme Court relied on Weems, but emphasized that Weems
involved both a grossly disproportionate sentence and improper modes of punishment. See
Rummel v. Estelle, 445 U.S. 263, 273 (1980) (plurality opinion).
49. See Gibbs, supra note 12 at 965.
50. 445 U.S. at 263.
51. Id. at 265-66.
52. Id. at 285.
53. Id. at 274.
54. The Court explained that the statute was “nothing more than a societal decision that when
such a person commits yet another felony, he should be subjected to the admittedly serious
penalty of incarceration for life, subject only to the State’s judgment as to whether to grant him
parole.” Id. at 278.
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recognized the sentence was severe, it nonetheless deferred to the
legislature55 and, as a result, left two questions unanswered: (1) does the
Eighth Amendment actually contain a viable proportionality principle for
noncapital sentences;56 and (2) if so, what is the standard for applying such
a principle?57
Several years later, in Solem v. Helm, the Supreme Court invalidated a
life sentence.58 This landmark decision was the first and only decision to
date in which the Supreme Court held that the length of a sentence was
grossly disproportionate to the offense.59 In Solem, the defendant received a
life sentence without the possibility of parole for uttering a no account
check for $100.60 The Court granted substantial deference to the legislature
and recognized that the defendant was a repeat offender,61 but, remarkably,
the Court held that the sentence constituted cruel and unusual punishment.62
Most notably, the Court explained that the Eighth Amendment
“prohibits . . . sentences that are disproportionate to the crime committed.”63
The Court’s opinion thus ushered in an Eighth Amendment proportionality
principle that has since been recognized by the lower courts.64
Additionally, the Solem Court listed three factors to consider when
determining whether the length of a sentence violates the Eighth
Amendment: “(i) [T]he 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.”65 Applying these factors, the Court explained
that the gravity of the offense was relatively minor66 and the severity of the
55. Id. at 284. The Court also relied on the fact that the defendant would be eligible for
parole within twelve years. See id. at 280.
56. The Court suggested that a proportionality principle might apply in the extreme case of a
statute that made overnight parking a felony punishable by life imprisonment. Id. at 274 n.11.
57. See Lewis, supra note 7, at 526 (“[Rummel] did little to answer the question of whether
the proportionality principle applies to non-capital cases.”).
58. 463 U.S. 277, 303 (1983).
59. Chemerinsky, The Const. & Punishment, supra note 16, at 1058.
60. Solem, 463 U.S. at 281-82.
61. See id. at 279-80 (recognizing the defendant was previously convicted three times of third
degree burglary, in addition to money laundering, grand larceny, and driving while intoxicated).
62. Id. at 284.
63. Id. at 284.
64. See, e.g., Nunes v. Ramirez-Palmer, 485 F.3d 432, 438 (9th Cir. 2007); United States v.
Marks, 209 F.3d 577, 583 (6th Cir. 2000); United States v. Gonzales, 121 F.3d 928, 942 (5th Cir.
1997).
65. Solem, 463 U.S. at 292.
66. Id. at 296-97. The Court considered several factors, including: (1) the felony was
extremely passive; (2) society did not view the crime as severe enough to justify utilitarian
principles of punishment; and (3) the triggering offense and the defendant’s entire criminal history
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sentence was excessively harsh compared to other jurisdictions.67 Thus, the
sentence was grossly disproportionate and therefore unconstitutional.68
Eight years after Solem, the Supreme Court reconsidered the
proportionality issue in Harmelin v. Michigan.69 In Harmelin, the Court
upheld a mandatory life sentence imposed on a first time offender convicted
of possessing more than 650 grams of cocaine.70 In his concurring opinion,
Justice Kennedy recognized the proportionality test set forth in Solem, but
at the same time, restricted its application.71 According to Justice Kennedy,
courts should only consider the second and third factors of the Solem test72
if “a threshold comparison of the crime committed and the sentence
imposed leads to an inference of gross disproportionality.”73 As Justice
Kennedy explained, certain principles embedded in proportionality review74
suggest that “[t]he Eighth Amendment does not require strict
proportionality between crime and sentence” and only forbids “extreme
sentences that are ‘grossly disproportionate’ to the crime.”75
Applying this standard, Justice Kennedy concluded that the defendant’s
sentence did not lead to an inference of gross disproportionality. 76 First,
Justice Kennedy granted substantial deference to the Michigan legislature.77
He explained that “[t]he efficacy of any sentencing system cannot be
assessed absent agreement on the purposes and objectives of the penal
system [and] the responsibility for making these fundamental choices and
were neither violent nor crimes against people. Id.
67. The Court considered the fact that the sentence was the most severe sentence the state
could have imposed on any criminal for any crime. Id. at 297.
68. Id. at 303.
69. 501 U.S. 957, 965 (1991) (plurality opinion).
70. Id. at 961, 994-96.
71. Justice Kennedy’s concurrence is currently the test recognized and applied in the context
of non-capital sentences. See, e.g., Ewing v. California, 538 U.S. 11, 20 (2003); United States v.
Snype, 441 F.3d 119, 152 (2d Cir. 2006); United States v. Chauncey, 420 F.3d 864, 876-77 (8th
Cir. 2005).
72. See Solem, 463 U.S. at 292.
73. Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring) (emphasis added).
74. See id. at 1001 (“[T]he primacy of the legislature, the variety of legitimate penological
schemes, the nature of the federal system, and the requirement that proportionality review be
guided by objective factors.”).
75. Id. A number of lower courts considering Eighth Amendment challenges to harsh
sentences imposed on drug offenders simply rely on Harmelin to justify upholding the sentence.
See, e.g., United States v. Odeneal, 517 F.3d 406, 414 (6th Cir. 2008) (upholding a life sentence
for conspiracy to distribute fifty grams of cocaine “[i]n light of Harmelin”); Untied States v.
Looney, 532 F.3d 392 (5th Cir. 2008) (per curiam); United States v. Whiting, 528 F.3d 595, 59697 (8th Cir. 2008) (per curiam). For an illustration of the severe sentences imposed on drug
offenders that have withstood Eighth Amendment challenges, see infra Appendix.
76. Harmelin, 501 U.S. at 1004-05 (Kennedy, J., concurring).
77. Id. at 998.
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implementing them lies with the legislature.”78
Second, Kennedy identified a penological theory furthered by the
sentence.79 According to Kennedy, there was a “rational basis” to conclude
that the threat to society for possession of large quantities of drugs “is
momentous enough to warrant the deterrence and retribution of a life
sentence without parole.”80 In sum, Kennedy upheld the sentence because:
(1) he recognized that it is within the province of the legislature to severely
punish what it considers a serious crime,81 and (2) he determined that the
legislature’s chosen sentence conceivably furthered a penological theory.82
In 2003, the Supreme Court again considered the grossly
disproportionate test, specifically in the context of recidivist statutes.83 In
Ewing v. California, the state of California sentenced the defendant to
twenty-five-years-to-life for stealing three golf clubs.84 The Court held that
the sentence did not violate the Eighth Amendment,85 resting its decision on
two fundamental principles: (1) deference to the legislature; and (2)
identifying the sentence’s penological purpose.86 Justice O’Connor’s
plurality opinion recognized that determining which conduct society
condemns and the appropriate punishment for such conduct is primarily the
role of the legislature.87 According to Justice O’Conner, the Court is not a
“superlegislature,”88 and the Court should be reluctant to second guess
78. Id. at 998.
79. Id. at 1003.
80. Id. at 1003-04. Perhaps Justice Kennedy used the phrase “rational basis” for a specific
reason, as some scholars have recognized. See, e.g., Steiker, note 13, at 187 (“The use of the
phrase rational basis is particularly telling here, because it echoes the Court’s lowest tier of
scrutiny for equal protection challenges to legislative classifications challenges that almost never
succeed.”) (emphasis added) (internal quotation marks omitted).
81. Harmelin, 501 U.S. at 1004 (Kennedy, J., Concurring).
82. Id. at 1003 (furthering the penological theory of deterrence and retribution). Although the
United States Supreme Court declined to invalidate the sentence under the Eighth Amendment,
the Michigan Supreme Court did provide relief, holding that the Michigan statute violated the
Michigan constitution. See People v. Bullock, 485 N.W.2d 866, 868-873 (Mich. 1992). For a
brief discussion of Bullock, see Scott Peterson, Note, The Punishment Need Not Fit the Crime:
Harmelin v. Michigan and the Eighth Amendment, 20 PEPP. L. REV. 747, 792-93 nn.350-52
(1993), and sources cited therein.
83. Ewing v. California, 538 U.S. 11, 20 (2003) (plurality opinion); Lockyer v. Andrade, 538
U.S. 63, 76-77 (2003). These two cases are the most recent Supreme Court decisions considering
non-capital punishment under the Eighth Amendment.
84. Ewing, 538 U.S. at 28, 30.
85. Id. at 30.
86. Id. at 29-30.
87. See id. at 24 (“[D]eferring to state legislatures in making and implementing such
important policy decisions is longstanding.”).
88. Id. at 28. Additionally, the plurality explained that “federal courts should be reluctant to
review legislatively mandated terms of imprisonment.” Id. at 22. Such language suggests a
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legislative policy decisions.89
Applying these principles, the Court had little difficulty upholding the
sentence, reasoning that it was enough that California had “a reasonable
basis” for believing that severe sentences imposed on career criminals
substantially advances the goals of its justice system.90 In this respect, the
Court was very lenient in indentifying the conceivable penological theories
furthered by the sentencing scheme.
The Court recognized that
“[r]ecidivism has long been . . . a legitimate basis for increased
punishment.”91 The Court further explained that punishing repeat offenders
so severely served the penological purposes of deterrence and
incapacitation.92 Although the Court identified two particular penological
justifications for this particular sentencing scheme,93 it also recognized
other penological theories and the wide array in which those theories might
be used to justify a sentence, including retribution and rehabilitation.94
Moreover, the Court identified additional penological justifications for
the defendant’s sentence, focusing primarily on the defendant’s criminal
history.95
The Court explained, “[i]n weighing the gravity of [a
defendant’s] offense, we must place on the scales not only his current
felony, but also his long history of recidivism.”96 In this respect, the
defendant was not sentenced merely because he stole golf clubs; rather, the
sentence was for “felony grand theft for stealing nearly $1,200 worth of
merchandise after previously having been convicted of at least two ‘violent’
or ‘serious’ felonies.”97 The Court recognized that the sentence was long;98
however, it was “justified by the State’s public-safety interest in
incapacitating and deterring recidivist felons . . . .”99 In essence, the Court
indicated that courts may use their imaginative powers in search of a
mandated sentence might be presumed constitutional. See infra Part II.
89. Ewing, 538 U.S. at 28.
90. Id. (emphasis added).
91. Id. at 25.
92. Id. at 25-27.
93. Id. at 25-26.
94. Id. at 25.
95. Id. at 28-30.
96. Id. at 29.
97. Id. at 28.
98. Id. at 30.
99. Id. at 29; see also id. at 31-32 (Scalia, J., concurring) (agreeing with the plurality that the
state’s interest in public safety justified the harsh sentence). But see United States v. Jackson, 835
F.2d 1195, 1198-1199 (7th Cir. 1987) (Posner, J., concurring) (arguing a life sentence is not
justified on either deterrence or retributive grounds against a defendant convicted of armed
robbery, even though such a crime would be considered more serious that those presented to the
Court in Ewing).
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penological theory to justify a sentence.100
The second 2003 Supreme Court decision addressing the grossly
disproportionate test was Lockyer v. Andrade.101 In Andrade, the Court
upheld two consecutive twenty-five-year-to-life sentences imposed on a
defendant convicted of stealing $150 worth of video tapes from two
different stores,102 and the defendant sought habeas corpus relief.103 The
Court held that the lower courts correctly relied on Rummel in concluding
the sentence was constitutional.104 According to the Court, the defendant’s
situation rested somewhere between Solem and Rummel, but is “not
materially indistinguishable from either.”105 Therefore, according to the
Court, relying on either holding was reasonable.106 Though the opinion
was relatively short, the Court did express its insecurities regarding the
Eighth Amendment grossly disproportionate test, explaining “we have not
established a clear or consistent path for the courts to follow”107 and
“precedents in this area have not been a model of clarity.”108
Ewing and Andrade are the two most recent Supreme Court decisions
addressing Eighth Amendment challenges to noncapital sentences.
However, these decisions failed to articulate a precise standard that courts
can use to determine whether a sentence is grossly disproportionate to the
offense.109 The decisions also significantly reduced the Court’s role in
determining Eighth Amendment violations.110 In effect, the Supreme Court
gave reviewing courts a channel to avoid a meaningful grossly
disproportionate test altogether,111 and, as discussed below, courts uphold
100. See infra Part IV.A.
101. Lockyer v. Andrade, 538 U.S. 63 (2003).
102. Id. at 66, 77.
103. In order to prevail, the defendant was required to show that the lower courts incorrectly
applied “clearly established federal law.” See Weeks v. Angelone, 528 U.S. 225, 237 (2000).
104. Andrade, 538 U.S. at 73-74.
105. Id. at 74.
106. Id. at 73-74.
107. Id. at 72.
108. Id.
109. Sprenger, supra note 11, at 426 (“[The Court’s] recent proportionality decisions have
consciously indentified a vagueness in the cruel and unusual punishment analysis, which makes
the principle’s application problematic.”).
110. See Chemerinsky, supra note 15, at 1050 (“Andrade and Ewing will make it very
difficult, if not impossible, for courts to find any prison sentence to be grossly disproportionate . . .
.”) (emphasis added). As one commentator recognized, Ewing is “perhaps the most appalling
example of the startling results possible under the Court’s current proportionality standard.”
Ricardo N. Cordova, Note, Extending Gore and State Farm’s Promise of Fairness in Punishment
to a Criminal Context, 58 DRAKE L. REV. 819, 831 (2010).
111. See Erik G. Luna, Forward: Three Strikes in a Nutshell, 20 T. JEFFERSON L. REV. 1, 65
(1998) (arguing that the Eighth Amendment challenges to noncapital sentence “will almost
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the vast majority of sentences reviewed under the Eighth Amendment
grossly disproportionate test.112
III. LEGISLATIVE DEFERENCE
The handful of Supreme Court cases addressing the grossly
disproportionate test fail to offer a clear standard that lower courts can
apply when confronted with Eighth Amendment challenges to noncapital
sentences.113 There is one principle, however, that the Court consistently
emphasized114 and lower courts unanimously recognize:115 legislative
deference. When determining whether a noncapital sentence violates the
Eighth Amendment, courts first grant substantial deference to legislative
determinations regarding what conduct to criminalize and the severity of the
punishment to impose.116 Such extensive deference, however, forms
significant obstacles for defendants challenging the length of their
sentence.117
Recently, Chief Justice Roberts recognized that the Eighth Amendment
“emphasize[s] the primacy of the legislature in setting sentences, the variety
of legitimate penological schemes, [and] the state-by-state diversity
protected by our federal system.”118 This quite accurately summarizes the
Court’s mantra that (1) courts should sparingly use the Eighth Amendment
certainly fall upon deaf ears”); Michael Romano, Striking Back: Using Death Penalty Cases to
Fight Disproportionate Sentences under California’s Three Strikes Law, 21 STAN. L. & POL’Y
REV. 311, 329 (2010) (“[The] Eighth Amendment’s prohibition of disproportionate prison
sentences remain[s] in name only.”); James J. Brennan, Note, The Supreme Court’s Excessive
Deference to Legislative Bodies Under Eighth Amendment Sentencing Review, 94 J. CRIM. L. &
CRIMINOLOGY 551, 573-74 (2004).
112. See supra Part II.
113. See Steven Grossman, Proportionality in Non-Capital Sentencing: The Supreme Court’s
Tortured Approach to Cruel and Unusual Punishment, 84 KY. L.J. 107, 172 (1995); Tatulli, supra
note 7, at 442-43.
114. See Ewing v. California, 538 U.S. 11, 24 (2003) (plurality opinion); Harmelin v.
Michigan, 501 U.S. 957, 998 (1991); Solem v. Helm, 463 U.S. 277, 290 (1983); Rummel v.
Estelle, 445 U.S. 263, 274 (1980) (plurality opinion).
115. See, e.g., United States v. Polk, 546 F.3d 74, 76 (1st Cir. 2008); United States v.
MacEwan, 445 F.3d 237, 247-48 (3d Cir. 2006); Alford v. Rolfs, 867 F.2d 1216, 1222 (9th Cir.
1989); Adaway v. State, 902 So. 2d 746, 750 (Fla. 2005); State v. Harris, 844 S.W.2d 601, 602
(Tenn. 1992); Johnson v. Morgenthau, 505 N.E.2d 240, 243 (N.Y. 1987).
116. Ewing, 538 U.S. at 23-25.
117. Eva S. Nilsen, Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to
Constitutional Discourse, 41 U.C. DAVIS L. REV. 111, 147 (2007) (“[T]he Supreme Court has
forsaken this basic requirement of the Eighth Amendment by placing impossible burdens on the
defendant.”); Steiker, supra note 13, at 186.
118. See, e.g., Graham v. Florida, 130 S. Ct. 2011, 2037 (2010) (Roberts, C.J., concurring).
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as a restraint on legislative power,119 and (2) courts should defer to the
legislature’s penological determinations.120 The Court’s application of
these principles, however, appears more like complete abstinence,121 and, as
a result, the court’s role in ensuring the historical “punishment fits the
crime” principle122 has been replaced with the modern “hands off”
principle.123
A. Justifying the Legislative Deference
The most common justification for deferring to legislative penological
determinations is the separation of powers doctrine. A central concern
prompting the Court’s “hands-off” approach is that judicial proportionality
determinations require subjective comparisons and arbitrary line-drawing to
distinguish between sentences that do and do not violate the Eighth
Amendment.124 As courts contend, such determinations require a court to
partake in judicial activism that is beyond the scope of the court’s
constitutional authority.125 In principle, this makes sense, but is it realistic?
According to Professor Ristroph, “courts and scholars have tended to
overstate the degree to which proportionality review requires judges to
meddle in affairs traditionally and properly left to legislative bodies.”126
119. See e.g., Gregg v. Georgia, 428 U.S. 153, 174 (1976) (plurality opinion).
120. Solem v. Helm, 463 U.S. 277, 290 (1983).
121. The scholarship supporting this notion is legion. See, e.g., Brian J. Foley, The Mass
Incarceration Crisis as an Opportunity to Rethink Blame, 9 CONN. PUB. INT. L.J. 1, 10 (2009)
(“The Supreme Court’s Eighth Amendment review in non-death penalty cases is so limited that it
seems like a post-modern, anything-goes approach.”); Frase, supra note 10 , at 48-49; cf. G. David
Hackney, Recent Development, A Trunk Full of Trouble: Harmelin v. Michigan, 11 S. Ct. 2680
(1991), 27 HARV. C.R.-C.L. L. REV. 262, 262 (1992) (“The need for federal review of state
punishments is especially necessary in light of the apparent irrationality sometimes manifested in
administering criminal sanctions.”).
122. See James Headley, Proportionality Between Crimes, Offenses, and Punishments, 17 ST.
THOMAS L. REV. 247, 248 n.7 (2004) and sources cited therein.
123. Lee, Resuscitating Proportionality, supra note 16, at 530 (“[T]he principle of legislative
primacy has been too easily interpreted as absolute deference to legislatively imposed sentencing
protocols.”).
124. See Barry L. Johnson, Purging the Cruel and Unusual: The Autonomous Excessive Fines
Clause and Desert-Based Constitutional Limits on Forfeiture After United States v. Bajakajian,
2000 U. ILL. L. REV. 461, 504 (2000); Aisha Ginwalla, Note, Proportionality and the Eighth
Amendment: And Their Object Not “sublime, to make the punishment fit the crime”, 57 MO. L.
REV. 607, 625-26 (1992).
125. Solem, 463 U.S. at 290 n.16 (“In view of the substantial deference that must be accorded
legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended
[proportionality] analysis ….”); United States v. Gonzales, 121 F.3d 928, 942 (5th Cir. 1997)
(“[W]e may not substitute our own judgment concerning the appropriateness of a particular
sentence.”).
126. Ristroph, Proportionality, supra note 12, at 266; see also Brennan, supra note 111, at 578
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Overstated or not, the Supreme Court wants to actively avoid secondguessing legislative penological decisions.127
The federal system recognizes the independent power of a legislature to
articulate societal views through criminal law,128 and it is well settled that
each state and the federal government have the sovereign authority to enact
and enforce criminal laws that are individually tailored to fit their respective
jurisdiction.129 It has even been suggested that criminal laws are the
clearest evidence of contemporary values.130 In other words, penal systems
accurately reflect the severity levels that individual states place on certain
criminal conduct.
The Supreme Court also recognized that the legislature is best equipped
to determine the severity of particular crimes and the appropriate sentence
to impose upon violators to further a penological purpose.131 Under this
rationale, it appears reasonable that the complexity inherently involved in
measuring such social concepts should be left to the branch of government
best equipped to reflect society’s interests.132 As a result, the Supreme
Court has made it clear that courts must refrain from invaliding sentences,
even when the sentence appears to be harsh or unwise, because it affords
the legislature this unfettered discretion.133
(“The Court gives too much deference to legislative bodies to determine whether a sentence falls
within the bounds of the Constitution.”).
127. See Graham v. Florida, 130 S. Ct. 2011, 2037 (2010) (Roberts, C.J., concurring) (“[The]
narrow proportionality principle does not grant judges blanket authority to second-guess decisions
made by legislatures or sentencing courts.”) (internal quotation marks omitted).
128. McClesky v. Zant, 499 U.S. 467, 491 (1991).
129. Furman v. Georgia, 408 U.S. 238, 259 (1972) (Brennan, J., concurring) (“[L]egislatures
have the power to prescribe punishments for crimes.”); Alexander A. Reinert, Eighth Amendment
Gaps: Can Conditions of Confinement Litigation Benefit from Proportionality Theory?, 36
FORDHAM URB. L.J. 53, 71 (2009) (“[L]egislatures should be given as much leeway to punish
particular crimes as they are given to define them.”).
130. See Gomez v. U.S. Dist. Court for N. Dist. of Cal., 503 U.S. 653, 657 (1992) (“Nowhere
is . . . moral progress better demonstrated than in the decisions of the state legislatures.”) (Stevens,
J., dissenting); Penry v. Lynaugh, 492 U.S. 301, 330 (1989) (“The clearest and most reliable
objective evidence of contemporary values is the legislation enacted by the country’s
legislatures.”), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002).
131. See Ewing, 538 U.S. at 24-26 (plurality opinion); McClesky, 499 U.S. at 491; Harmelin v.
Michigan, 501 U.S. 957, 998 (1991) (Kennedy, J., concurring); Solem, 463 U.S. at 290; Hutto v.
Davis, 454 U.S. 370, 374-75 (1982); Rummel v. Estelle, 445 U.S. 263, 274 (1980).
132. According to Justice Kennedy, “[d]eterminations about the nature and purposes of
punishment for criminal acts implicate difficult and enduring questions respecting the sanctity of
the individual, the nature of law, and the relation between law and the social order.” Harmelin,
501 U.S. at 998 (Kennedy, J., concurring). But see Foley, supra note 121, at 13 (“At [a] point, we
might ask if the [sentencing] law is even truly expressive of community norms and values when it
appears to operate as a machine out of our control.”).
133. See Rummel, 445 U.S. at 285 (Stewart, J., concurring) (explaining that the question for
the Court is not whether the Court applauds the sentence or even approves the sentence but,
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Moreover, uniformity is not required among penal codes and, not
surprisingly, legislative penological decisions vary from state to state.134
This variance, however, remains uncontested. Society expects legislatures
to generate criminal codes that differ from each other because they reflect
different societal values.135 Some commentators argue that the severity of a
particular crime and its respective sentence would, should, and does differ
between states, especially where those differences result from rigorous and
precise penological determinations made by the legislature.136 As Justice
Kennedy explained, “differing attitudes and perceptions of local conditions
may yield different, yet rational, conclusions regarding the appropriate
length of prison terms for particular crimes.”137 Little did Justice Kennedy
know, but this rationale has since been used as a judicial sword–or, more
accurately, a judicial “Get Out of Jail Free Card”–to eradicate various
challenges to extremely severe sentences.138
To illustrate the extreme deference courts grant to the legislature in
deciding criminal penalties, consider two cases. In United States v.
Angelos, the defendant sold bags of marijuana to government informants
on several occasions.139 During two of these drug transactions, a gun was
visible, although there was no evidence that the defendant used the gun or
threatened to use it.140 Pursuant to federal law, the judge reluctantly
instead, whether the sentence falls below the minimum standards set by the Constitution); Gregg,
428 U.S. at 175 (“[Courts] may not require the legislature to select the least severe penalty
possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime
involved.”).
134. See Rummel, 445 U.S. at 282 (“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.”).
135. JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 38 (4th ed. 2006). As Justice
Powell recognized, however, it is possible that differences is sentences are not a result of statutory
sentencing schemes, but, instead, the different ways trial courts use to sentencing schemes. See
Hutto, 454 U.S. at 380 (Powell, J., concurring) (contending that sentencing disparity is
“inevitable,” not because of varying statutory limits among the states, but because sentencing
decisions are vested in trial courts).
136. See, e.g., Robert Heglin, A Flurry of Recidivist Legislation Means: “Three Strikes and
You’re Out,” 20 J. LEGIS. 213, 227 (1994) (explaining that, where society fears future crimes from
repeat offenders, it is reasonable for the state to punish such offenders more severely); Allison
Leigh Cowan, Governor Vows to Push Again for “Three Strike” Law in Connecticut, N.Y.
TIMES, Feb. 7, 2008, at B4 (illustrating the legislature’s quick response to public outcry after the
murder of a mother and her two daughters by career criminals by revising the state’s recidivist
statute).
137. Harmelin, 501 U.S. at 1000 (Kennedy, J., concurring).
138. For a spirited critique of the various methods courts use to avoid subjective sentencing
decisions, see Foley, supra note 121, at 4-6.
139. 345 F.Supp.2d at 1231, aff’d, 433 F.3d 738 (10th Cir. 2006).
140. Id.
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imposed a fifty-five year sentence.141 Had the defendant been charged in
state court, his sentence would likely have been four to seven years.142 The
trial judge stated: “While the sentence appears to be cruel, unjust, and
irrational, in our system of separated powers Congress makes the final
decisions as to appropriate criminal penalties.”143
In United States v. Yirkovsky, the Eighth Circuit held that a fifteen-year
sentence for possession of a single bullet was not cruel and unusual
punishment.144 The defendant agreed to help his landlord remodel a house
in exchange for exonerating his rent.145 In the process of removing carpet,
the defendant found a .22 caliber bullet between the carpet and the
floorboards and placed the bullet in a box in his bedroom.146 Later, the
defendant’s ex-girlfriend filed a complaint alleging the defendant possessed
her property.147 When the defendant authorized the police to search his
room for his ex-girlfriend’s property, the police found the .22 caliber
bullet.148 Because he had previously been convicted of three felonies, the
possession of the bullet subjected the defendant to a fifteen-year mandatory
sentence, which the Eighth Circuit upheld.149 The court recognized that the
penalty was extreme under the facts, but, according to the court, its “hands
[were] tied . . . by the mandatory minimum sentence which Congress
established.”150
The excessive deference illustrated in Angelos and Yirkovsky brings the
court’s role as a check on the legislature’s power into question. In Furman
v. Georgia, the Court explained that the Cruel and Unusual Punishment
141. Id. at 1263 (applying 18 U.S.C. § 924(c) (2006)).
142. Id. at 1242-43.
143. Id. at 1230. Some courts go further and suggest possible reasons to justify harsh
sentences. See, e.g., Terrebonne v. Butler, 848 F.2d 500, 504 (5th Cir. 1988) (en banc)
(articulating a possible legislative rationale to severely punish drug convictions).
144. 259 F.3d 704, 705 (8th Cir. 2001). The sentence was imposed pursuant to federal law
which provides that it is unlawful for a person convicted of a felony to possess ammunition. See
18 U.S.C. § 922(g) (2006).
145. Yirkovsky, 259 F.3d at 705.
146. Id.
147. Id.
148. Id.
149. Id. at 705-06.
150. Id. at 707 n.4. It is important to note that four years after Yirkovsky, the United States
Supreme Court held that sentencing guidelines must be advisory, not mandatory, in order to be
constitutional. See United States v. Booker, 543 U.S. 220, 245 (2005). However, it is unclear
whether Booker has any relevance where mandatory sentences are challenged under the Eighth
Amendment. See Stephen F. Smith, Essay, Proportional Mens Rea, 46 AM. CRIM. L. REV. 127,
144 (2009). For a detailed discussion regarding Booker and its effect on mandatory sentencing
schemes, see J. KELLY STRADER, UNDERSTANDING WHITE COLLAR CRIME §§ 21.04[A]-[B] (3d
ed. 2011).
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Clause “require[s] legislatures to write penal laws that are evenhanded,
nonselective, and nonarbitrary.”151 The Court also pointed out that Eighth
Amendment protection “cannot be evaded by invoking the obvious truth
that legislatures have the power to proscribe punishments for crimes.”152
Clearly, when courts afford the legislature unfettered discretion, the court’s
role as a safeguard against cruel and unusual punishment is evaded and, as a
result, any Eighth Amendment protection becomes obsolete.153
B. Presuming a Sentence is Constitutional
Cases resembling Angelos and Yirkovsky raise a growing concern as to
whether the Eighth Amendment even applies to noncapital sentences. This
question is continually asked because the Court has made virtually no
indication that the Eighth Amendment is a viable weapon against severe
sentencing.154 In fact, the substantial deference that courts grant to the
legislature and the extreme reluctance of the courts to question the
constitutionality of a sentence indicate a cohesive principle: a sentence is
presumed constitutional so long as it is within the statutory boundaries
prescribed by the legislature.
In Gregg v. Georgia, the Supreme Court indicated that it will presume
a punishment selected by the legislature is valid.155 Regarding the grossly
disproportionate test, however, the Supreme Court denied this principle.156
In Solem, the Court pronounced that “no penalty is per se constitutional . . .
[and] a single day in prison may be unconstitutional in some
circumstances.”157 This does not imply that a sentence may not be
presumed constitutional, but instead, may be presumed constitutional unless
properly rebutted.158 In other words, at most, there is a rebuttable
presumption that a sentence is constitutional. Lowers courts have caught on
151. 408 U.S. at 256 (Douglas, J., concurring).
152. Id. at 269 (Brennan, J., Concurring).
153. See Lee, Resuscitating Proportionality, supra note 16, at 558-59.
154. See Robert Batey, The Costs of Judicial Restraint: Forgone Opportunities to Limit
America’s Imprisonment Binge, 33 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 29, 51 (2007)
(recognizing that, since the mid-1980s, the Court has “deprived [the proportionality principle] of
almost all its force.”); Leo M. Romero, Punitive Damages, Criminal Punishment, and
Proportionality: The Importance of Legislative Limits, 41 CONN. L. REV. 109, 142-43 (2008)
(describing the gross proportionality test set out in Harmelin as “an almost impossible standard”
which “almost entirely remove[s] courts from any proportionality review”).
155. 428 U.S. at 175 (plurality opinion).
156. See Solem v. Helm, 463 U.S. 277, 290 (1983) (plurality opinion).
157. Id. (emphasis added)
158. Id.
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to this principle,159 and, as a result, a general rule has emerged: a sentence is
presumed constitutional so long as it is within the statutory limits.160
To illustrate this presumption, consider the Fifth Circuit’s holding in
United States v. Looney.161 In that case, the court affirmed a 548-month
sentence for possession of drugs with the intent to distribute.162 The
defendant was a woman in her fifties who had no prior convictions, and the
crime did not involve violence.163 The court recognized that the sentence
was exceedingly harsh but nonetheless declined to invalidate the
sentence.164 According to the Fifth Circuit, the sentence was the statutorily
proscribed mandatory minimum, and the defendant did not offer adequate
evidence to overcome the legislature’s mandate.165
Some courts are reluctant to even review a sentence that falls within the
statutory limits due to such high deference to the sentence’s validity. 166
According to the Supreme Court of Montana, for example, “a sentence that
is within the statutory maximum guidelines does not violate the prohibition
against cruel and unusual punishment.”167 Such courts conclude that the
mere fact that the sentence is legislatively mandated or within the statutory
limits renders the sentence valid under the Eighth Amendment.168 Several
159. See, e.g., United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (affirming a
sentence “[b]ecause the district court sentenced [the defendant] within the statutory limits” and he
failed to make the threshold showing of disproportionality); United States v. Parker, 241 F.3d
1114, 1117 (9th Cir. 2001) (recognizing that a sentence that does not exceed the statutory limit
will, generally, not violate the Eighth Amendment); State v. DeSalvo, 903 P.2d 202, 207 (Mont.
1995) (the sentence was within the statutory parameters).
160. See, e.g., United States v. Atteberry, 447 F.3d 562, 565 (8th Cir. 2006); United States v.
Albino, 432 F.3d 937, 938 (9th Cir. 2005); United States v. Moriarty, 429 F.3d 1012, 1024 (11th
Cir. 2005). Professor Crocker raised concerns that the system is backwards; the burden should be
on the state to justify the sentence instead of on the offender to show that it is not justified. See
Lawrence Crocker, The Upper Limit of Just Punishment, 41 EMORY L.J. 1059, 1099-1102 (1992).
161. 532 F.3d at 392 (per curiam).
162. Id. at 397.
163. Id. at 396.
164. Id. at 396-97.
165. Id. at 397.
166. See, e.g., United States v. Collins, 340 F.3d 672, 679 (8th Cir. 2003) (“It is well settled
that a sentence within the range provided by statute is generally not reviewable by an appellate
court.”); Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000) (“A sentence within the statutory
maximum set by statute generally does not constitute cruel and unusual punishment.” (quoting
United States v. Organek, 65 F.3d 60, 62 (6th Cir. 1995) (citation omitted)); United States v.
Saunders, 973 F.2d 1354, 1365 (7th Cir. 1992) (“[E]ighth amendment challenges to sentences that
are within the statutory maximums established by Congress . . . are looked at with disfavor.”).
167. State v. Rickman, 183 P.3d 49, 52 (Mont. 2008).
168. See, e.g., United States v. Kiderlen, 569 F.3d 358, 369 (8th Cir. 2009) (“The Eighth
Amendment does not proscribe the punishment authorized by Congress and selected by the district
court.”); United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (“[A] sentence within the
statutory limits generally does not violate the Eighth Amendment ….”); United States v. Baker,
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circuits take this legislative deference even further. According to the
Fourth, Sixth, and Eighth Circuits, proportionality review is not required
unless the sentence is life-imprisonment without the possibility of parole.169
Most courts, however, do not accord such outlandish legislative
deference, and the mere fact that a sentence is within the statutory limits
does not, in and of itself, end the Eighth Amendment inquiry.170 According
to these courts, the availability of parole is merely one factor to consider,171
and an additional finding is required to uphold the length of a sentence in
the face of an Eighth Amendment challenge: the sentence must further a
conceivable penological theory.172 In other words, if a court decides to
review the length of a sentence, there is a rebuttable presumption that the
sentence is constitutional. This presumption can only be overcome if the
court determines the sentence does not further any conceivable penological
theory.173
The requirement that a sentence must further a conceivable penological
theory under the Eighth Amendment is identical to the requirement that a
law must further a conceivable government interest under the Fourteenth
Amendment.174 In order to accurately illustrate this premise, it is important
to first summarize the well-established principles of the Fourteenth
Amendment rational basis test. Once these principles are articulated, a
comparison to the Eighth Amendment’s grossly disproportionate test will
demonstrate that the two standards of review are virtually identical.
IV. THE FOURTEENTH AMENDMENT RATIONAL BASIS TEST
In general, social and economic laws that are challenged under the
415 F.3d 880, 882 (8th Cir. 2005) (“[M]andatory minimum penalties for drug offenses do not
violate the Eighth Amendment’s prohibition of cruel and unusual punishments.” (quoting United
States v. Collins, 340 F.3d 672, 679 (8th Cir. 2003)).
169. See, e.g., United States v. Malloy, 568 F.3d 166, 180 (4th Cir. 2009); United States v.
Organek, 65 F.3d 60, 63 (6th Cir. 1995); United States v. Meirovitz, 918 F.2d 1376, 1381 (8th Cir.
1990).
170. See, e.g., Hawkins v. Hargett 200 F.3d 1279, 1284 (10th Cir. 1999) (“While we
recognize that the availability of parole is a relevant consideration, we are not willing to make it
dispositive.”); Barber v. Gladden, 309 P.2d 192, 196 (Or. 1957) (en banc) (“The bare fact that a
sentence is within the maximum . . . does not prevent it from violating the constitutional provision
forbidding the imposition of cruel and unusual punishments.”).
171. See, e.g., Gutierrez v. Moriarty, 922 F.2d 1464, 1473 (10th Cir. 1991) (upholding a lifesentence considering, among other things, that the defendant would be eligible for parole after
seven years).
172. See infra Part IV.
173. See infra Part IV.
174. See, e.g., ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 700
(4th ed. 2011) [hereinafter CHEMERINSKY, PRINCIPLES AND POLICIES].
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Fourteenth Amendment are reviewed under the rational basis test.175 As the
following section illustrates, there are several well-established principles
associated with the rational basis test, principles that are remarkably similar
to the application of the Eighth Amendment’s grossly disproportionate test.
A. The Fourteenth Amendment – Overview
According to the United States Supreme Court, the Fourteenth
Amendment was intended to prevent the state and federal government
“from abusing [its] power, or employing it as a means of oppression.”176
Government conduct may violate the Fourteenth Amendment if it infringes
on a fundamental liberty interest or discriminates against a suspect class.177
However, when a law does not fall into one of these categories, the law is
reviewed under the very deferential rational basis test.178 Under this test, a
law is upheld if it is rationally related to any conceivable government
interest,179 and this standard is exceptionally hard to fail.180 In fact, a court
will only invalidate a law under the rational basis test if the court concludes
the law is completely “irrational”181 or arbitrary.182 According the Supreme
Court, this standard properly aligns with the Fourteenth Amendment
because “the touchstone of due process is protection of the individual
against arbitrary action of government.”183
175. See, e.g., id. at 695 (quoting Hodel v. Indiana, 452 U.S. 314, 331-32 (1981)).
176. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989) (citation
omitted) (quoting Davidson v. Cannon, 474 U.S. 344, 348 (1986)).
177. See, e.g., CHEMERINSKY, PRINCIPLES AND POLICIES, supra note 174, at 691.
178. Romer v. Evans, 517 U.S. 620, 631 (1996); see also Flemming v. Nestor, 363 U.S. 603,
611 (1960) (“Whether wisdom or unwisdom resides in [a statutory scheme] . . . it is not for [the
court] to say. The answer to such inquiries must come from Congress, not the courts.” (quoting
Helvering v. Davis, 301 U.S. 619, 644 (1937))).
179. See, e.g., Williamson v. Lee Optical of Okla., 348 U.S. 483, 488 (1955); see also
Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911) (explaining that a court will uphold
the law “if any state of facts reasonably can be conceived that would sustain [the law]” (emphasis
added)).
180. See, e.g., Romer, 517 U.S. at 633 (holding that a Colorado law was irrational because its
only conceivable purpose was “disadvantaging the group burdened by the law”); Zobel v.
Williams, 457 U.S. 55, 59-63 (1982) (holding a law unconstitutional because it lacked a rational
basis for discriminating on the basis of residency duration).
181. See Vance v. Bradley, 440 U.S. 93, 97 (1979) (explaining that a law must be so unrelated
to any governmental interest that it can only be described as “irrational”).
182. See Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 527 (1959) (recognizing that a
law will be upheld if it is neither “capricious” nor “arbitrary”).
183. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (quoting Wolff v. McDonnell,
418 U.S. 539, 558 (1974).
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B. The Lenience of the Rational Basis Test
Courts grant extensive deference to the legislature when reviewing
laws under the rational basis test, and courts should refrain from imputing
subjective contentions as to the reasonableness or rationale of the law.184
The United States Supreme Court explained that reviewing laws under the
rational basis test does not authorize the court to “sit as a superlegislature to
judge the wisdom or desirability of the legislative policy
determinations . . . .” 185 Such judicial restraint embodies the notion that
legislation is presumed constitutional.186
The language used when reviewing a law under the rational basis test is
relatively straightforward: a law is upheld so long as the court determines
that the law furthers a conceivable government purpose.187 Even if the
legislature does not specify the particular government purpose that the law
furthers, the court will still uphold to law if it can conceive of a possible
government purpose for the law.188 As a result, a plaintiff challenging a law
bears the heavy burden to negate every conceivable basis which might
support the legislation,189 and the government has no obligation to justify
the law and may rely entirely on speculation.190
According to the Supreme Court, the legislature should be given a large
degree of latitude to pass laws it deems reasonable,191 and the court is
required to “accept a legislature’s generalizations even when there is an
imperfect fit between means and ends.”192 A law does not have to be the
184. See FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993) (“[The rational basis test] is
not a license for the courts to judge the wisdom, fairness, or logic of legislative choices . . . .”).
185. See City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976).
186. See Kadrmas v. Dickerson Pub. Schs., 487 U.S. 450, 462 (1988); McDonald v. Bd. of
Election Comm’rs, 394 U.S. 802, 809 (1969); see also Panama City Med. Diagnostic Ltd. v.
Williams, 13 F.3d 1541, 1545 (11th Cir. 1994) (“[The court] must give great deference to the
[state] legislature because lawmakers are presumed to have acted constitutionally.”).
187. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 262 (1964) (explaining
that laws challenged under the rational-basis test are “subject only to one caveat – that the means
chosen by it must be reasonably adapted to the end permitted”).
188. See Beach, 508 U.S. at 313 (explaining that a court should not invalidate a law “if there is
any reasonably conceivable state of facts that could provide a rational basis for the
classification”).
189. See Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973); Hadix v.
Johnson, 230 F.3d 840, 843 (6th Cir. 2001).
190. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981) (“States are not
required to convince the courts of the correctness of their legislative judgments.”).
191. Lehnhausen, 410 U.S. at 359 (“[S]tates have large leeway in making classifications and
drawing lines which in their judgment [are] reasonable . . . .”).
192. City of Chicago v. Shalala, 189 F.3d 598, 606 (7th Cir. 1999); see also Romer v. Evans,
517 U.S. 620, 632 (1996); (explaining that a law can be upheld “even if the law seems unwise or
works to the disadvantage of a particular groups, or if the rationale for it seems tenuous”).
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most suitable means to achieve the desired result, but need only be related
to achieving the desired result.193 Such a deferential standard prevents the
court from imputing its own judgment regarding proper public policy.194
The touchstone case illustrating degree of deference embodied within
the rational basis test is Williamson v. Lee Optical.195 In that case, the
plaintiff challenged an Oklahoma law that regulated the eye care
industry.196 The law required that opticians have a prescription in order to
fit or duplicate eyeglasses.197 Other eye care specialists, however, such as
optometrists and sellers of ready-to-wear glasses, were not subject to the
same requirement.198 The Court rejected the plaintiff’s equal protection
argument that the law was blatantly discriminatory, explaining that it is the
legislature’s role to balance the advantages and disadvantages of the law’s
requirements, not the court’s role.199 The Court reasoned that “reform takes
one step at a time,” and even though a law may be unwise or unfair, a court
should not invalidate it so long as it is rationally related to some
government purpose.200
Moreover, the Court speculated as to what government purpose might
have been related to Oklahoma’s law, noting that “the legislature may have
concluded that eye examinations were so critical . . . that every change in
frames and every duplication of a lens should be accompanied by a
prescription from a medical expert.”201 Further, the Court explained that
“[i]t is enough that there is an evil at hand for correction, and that it might
be thought that the particular legislative measure was a rational way to
correct it.”202
The Court’s decision in Lee Optical illustrates that, under the rational
193. See Clements v. Fashing, 457 U.S. 957, 969 (1982) (“[A] classification is not deficient
simply because the State could have selected another means of achieving the desired ends.”).
194. See United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 175-76 (1980) (recognizing that it
is not the court’s role to “[D]etermine whether the Congressional judgment expressed . . . is sound
or equitable . . . [because] the answers to such inquiries must come from Congress, not the
courts.”) (quoting Flemming v. Nestor, 363 U.S. 603, 611 (1960)); Michael J. Phillips, The
Nonprivacy Applications of Substantive Due Process, 21 RUTGERS L.J. 537, 587 (1990). Cf.
James M. McGoldrick, Katzenbach v. McClung: The Abandonment of Federalism in the Name of
Rational Basis, 14 BYU J. PUB. L. 1, 33 (1999) (questioning whether the rational basis test offers
any real protection of constitutional rights).
195. 348 U.S. at 483.
196. Id. at 484-56.
197. Id. at 485.
198. Id.
199. Id. at 487.
200. Id.
201. Id.
202. Id. at 488.
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basis test, a law will be upheld so long as the law relates to a conceivable
government interest.203 In a later decision, the Supreme Court extended this
standard even farther, explaining that the government purpose ascertained
by the court does not even have to be the actual purpose intended by the
legislature.204 The Court’s discretion and willingness to speculate suggests
that the rationality requirement has been drained of any meaningful
content.205 However, on several occasions, the Supreme Court has
invalidated legislation under the rational basis test.206 In these cases, as the
following section illustrates, the Fourteenth Amendment is triggered as a
protection against arbitrary legislation where the Court tends to conclude
that the legislation furthers no conceivable state interest.
C. The Rare Cases That Fail the Rational Basis Test
In City of Cleburne v. Cleburne Living Center, the Supreme Court
invalidated a city regulation under the rational basis test.207 In that case, the
city of Cleburne denied landowners a permit to build a housing facility for
the mentally handicapped.208 The challengers argued that, because the city
approved permits for other housing facilities,209 the city violated their rights
under the Equal Protection Clause. The Court agreed, explaining that the
denial of the housing permit was not supported by any rational basis.210
Contrary to what might have been expected under the Lee Optical
rational basis standard, the Court rejected every legitimate interest that the
city argued was furthered by denying the permit.211 The Court concluded
that the city’s actions were based on prejudice and irrational fear of the
mentally handicapped.212 According to the Court, such a bias or ill-will is
not a rational basis for government decisions and a “law cannot, directly or
203. See Butler v. Apfel, 144 F.3d 622, 625 (9th Cir. 1998) (per curiam) (“All that is required
is that there be a rational basis for the legislation, hypothetical or actual” and “any number of
rationales could be put forth.”).
204. See Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528-29 (1959).
205. See Richard B. Saphire, Equal Protection, Rational Basis Review, and the Impact of
Cleburne Living Center, Inc., 88 KY. L.J. 591, 605 (1999-2000).
206. See infra Part III.C.
207. 473 U.S. at 448.
208. Id. at 437.
209. Id. at 447.
210. Id. at 450. Specifically, the Court concluded that the only reason for the city’s decision
to deny the housing permit was “irrational prejudice,” which is not considered to be a legitimate
government interest. See id.
211. See id. at 448-50.
212. Id.
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indirectly, give them effect.”213
Although the city argued that its decision furthered a number of
government interests, the Court determined that denying the permits was in
no way rationally related to furthering any of those interests.214 For
example, the city argued that the housing facility would be located across
the street from a junior high school, where students were likely to harass the
mentally handicapped people.215 However, the Court recognized that thirty
mentally handicapped students attended the junior high school where they
were already subject to harassment, and thus, denying the housing permit
would not eliminate the problem.216 The city also argued that denying the
permit would further the city’s interest in avoiding congestion of the streets
and concentration of the population.217 However, according to the Court,
“[t]hese concerns failed to explain why apartment houses, fraternity and
sorority houses, hospitals and the like, may freely locate in the area without
a permit.”218
By rejecting all of the city’s proffered government interests, the Court
made clear that government action fails the rational basis test if it does not
further any conceivable government interest. In Cleburne, the city’s
decision was invalidated because the Court determined that the only interest
the law furthered was not a legitimate state interest, i.e., the desire to harm
an unpopular group.219 Thus, if government conduct rests upon this
prohibited consideration, the judicial deference generally afforded to
government conduct dissipates, and the court should intervene.220
Accordingly, the Court has, from time to time, invalidated laws and
regulations under the rational basis test because it is unable to ascertain any
213. See id. at 448 (citing Palmore v. Sidoti, 446 U.S. 429, 433 (1984)).
214. Id.
215. Id. at 449.
216. According to the Court, if the city was really concerned about the interests at stake, they
could have passed a better-tailored law without the arbitrary side effect of excluding the mentally
handicapped. See id.
217. Id. at 450.
218. Id. Among the other interests argued by the city but rejected by the Court were: (1)
negative attitudes toward the mentally handicapped by neighboring landowners; (2) that the
housing facility would be near a flood plain; and (3) concerns about the legal responsibility for the
conduct of the mentally handicapped. Id. at 448-50.
219. This concept that prejudicial motivations are not legitimate government interests is well
established. See, e.g., United States Dept. of Agric. v. Moreno, 413 U.S. 528, 534 (1973) (“[The]
desire to harm a politically unpopular group cannot constitute a legitimate government interest.”).
220. See Louis D. Bilionis, The New Scrutiny, 51 EMORY L.J. 481, 481 (2002) (“Judges will
defer to the judgment of other governmental actors so long that judgment might be characterized
as a rational and not plainly forbidden means to pursue an objective that the Constitution does not
clearly prohibit.”).
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legitimate interest other than prejudice.221
Although the principles set forth in Cleburne suggest that the rational
basis test actually carries weight, the holding itself has carried little weight
in subsequent cases.222 Indeed, if the Court had applied the deferential
rational basis test articulated in Lee Optical, the outcome would have likely
been different.223 Regardless, the ends sought in both the Lee Optical
approach and the Cleburne approach are the same: if the court concludes a
law does not further a conceivable government purpose, therefore making it
arbitrary, then the law will fail the rational basis test. As discussed below,
these principles are remarkably similar to the Eighth Amendment grossly
disproportionate test.
V. THE EIGHTH AMENDMENT RATIONAL BASIS TEST
Under the Eighth Amendment grossly disproportionate test, a court will
uphold the length of a sentence so long as the court determines the sentence
serves a conceivable penological purpose.224 As discussed below, this
standard is extremely easy to satisfy.
A. Serving a Penological Purpose
It is well established that punishment must serve a penological
purpose.225 Despite such a fundamental principle, however, it appears that
the court’s role is merely to ensure that the length of a sentence furthers any
conceivable penological purpose.
In other words, the grossly
disproportionate test is entirely objective. In Ewing, the Court indicated it
will uphold a sentence so long as the state has a “reasonable basis for
believing” that the sentence serves a penological purpose.226 Under this
standard, however, courts easily uphold sentences by merely identifying
221. For example, in Romer v. Evans, the Supreme Court invalidated a state amendment that
denied homosexuals the right to invoke common democratic processes to protect themselves
against discrimination. 517 U.S. at 620 (1996). The amendment was clearly based on animosity
toward a particular group and, as a result, the Court had little difficulty finding the amendment
furthered no conceivable government interest. See id. at 635-36. The Court explained, “[w]e
cannot say [the law] is directed to any identifiable legitimate purpose or discrete objective.” Id. at
635.
222. See, e.g., Powers v. Harris, 379 F.3d 1208, 1223-24 (10th Cir. 2004).
223. Cleburne, 473 U.S. at 456 (Marshall, J., concurring in part and dissenting in part)
(recognizing that the “ordinance surely would be valid under the traditional rational-basis test
applicable to economic and commercial regulation,” i.e., the Lee Optical rational-basis test).
224. See infra Part IV.A.
225. See, e.g., Ewing v. California, 538 U.S. 11, 28 (2003) (plurality opinion).
226. Id.
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any conceivable penological purpose; and this purpose can be proffered by
the state or suggested by the court. Moreover, courts must refrain from any
subjective analysis into whether the sentence does, in fact, further that
conceivable purpose.227
Justice Kennedy’s concurring opinion in Harmelin illustrates how this
objective standard can be used to virtually eliminate Eighth Amendment
restraints on noncapital sentences. Kennedy opined that the defendant’s
crime of possessing cocaine was a particularly serious one, not only
because of the direct dangers posed to the individuals who ingest the drugs,
but because “drugs create a threat to public safety.”228 According to
Kennedy, the defendant’s life sentence served deterrent, rehabilitative, and
incapacitating purposes.229 In other words, Kennedy concluded that the
sentence did not create an inference of gross disproportionality because
there were conceivable penological purposes for the sentence.230 Similarly,
in Rummel, the Court recognized that the primary goals of Texas’s
recidivist statute were to deter repeat offenders and incapacitate those who
are incapable of ceasing their criminal behavior.231
The language and reasoning of these cases suggest a central principle: a
court may impute its own judgment to identify a sentence’s conceivable
penological purpose.232 Under this standard, courts can sidestep rigorous
227. See Gregg v. Georgia, 428 U.S. 153, 182-83 (1976) (quoting Furman v. Georgia, 408
U.S. 238, 451 (1972) (“[We] cannot ‘invalidate a category of penalties because we deem less
severe penalties adequate to serve the ends of penology,’ [however,] the sanction imposed cannot
be totally without penological justification.”).
228. Harmelin v. Michigan, 501 U.S. 957, 960 (1991) (“[I]he Michigan legislature could with
reason conclude that the threat posed to the individual and society by possession of [a] large
amount of cocaine [justifies] a life sentence without parole.”).
229. Id.
230. See id. at 959-60. Even Justice Stevens, in his dissenting opinion, focused on the
penological justifications for the sentence. Justice Stevens would have held that the sentence
violated the Eighth Amendment, but this conclusion stemmed from his arguments that the
sentence was “irrational” and failed to “even purport to serve a rehabilitative function. Id. at 1028
(Stevens, J., dissenting).
231. Rummel v. Estelle, 445 U.S. 263, 284-85 (1980) (plurality opinion).
232. Whether or not the Court intended to establish this objective standard, lower courts apply
it. See, e.g., United States v. Nagel, 559 F.3d 756, 764 (7th Cir. 2009) (upholding a mandatory
sentence for the attempted sexual enticement of a minor because the legislative history indicated
Congress’s belief that the offense “is a serious offense even where a law enforcement agent poses
as a minor victim”); United States v. Whitehead, 487 F.3d 1068, 1070-71 (8th Cir. 2007)
(upholding a life sentence for possession of drugs with intent to distribute, reasoning that
defendant “had been convicted of five prior felony drug offenses . . . and because [drug]
distribution represents a grave threat to society”); United States v. Couch, 291 F.3d 251, 255 (3d
Cir. 2002) (“It is likely that Congress meant . . . to protect our communities from violent criminals
who repeatedly demonstrate a willingness to employ deadly weapons by punishing them more
harshly.”) (emphasis added).
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proportionality review by using its limitless power of speculation to identify
possible penological purposes for a sentence.233 For example, a court could
conclude that any sentence imposed with the possibility of parole
conceivably serves rehabilitative and deterrent purposes, i.e., a convict who
knows he is eligible for parole might (1) be encouraged to rehabilitate and
(2) be deterred from engaging in conduct that may be detrimental to his
parole chances.234 Notwithstanding, the wide range of possible penological
theories that courts can use to justify harsh sentences is unsettling,
particularly because some penological theories can always conceivably
further a sentence, deterrence for example.235 Although most courts do no
take this seemingly-pretextual approach, case law clearly illustrates that
many extreme sentences are upheld by courts rigorously searching for a
conceivable penological purpose to justify the sentence.236
There are a number of penological theories that courts commonly use
to justify harsh sentences; the most common justifications are deterrence,
incapacitation, and considering the defendant’s criminal history under
recidivist statutes.237 More importantly, still, courts have made it
abundantly clear that the legislature need not precisely identify the
particular penological theory that the sentence is intended to serve.238
233. See Lee, Resuscitating Proportionality, supra note 16, at 530; see also Alice Ristroph,
State Intentions and the Law of Punishment, 98 J. CRIM. L. & CRIMINOLOGY 1353, 1377 (2008)
[hereinafter Ristroph, State Intentions]; Hackney, supra note 121, at 277.
234. In fact, several courts have held that the possibility of parole negates Eighth Amendment
protection under the grossly disproportionate test altogether. See, e.g., United States v. Lockhart,
58 F.3d 86, 89 (4th Cir. 1995); United States v. Organek, 65 F.3d 60, 63 (6th Cir. 1995); United
States v. Meirovitz, 918 F.2d 1376, 1381. Other courts, however, decline to apply such a standard.
See, e.g., Hawkins v. Hargett, 200 F.3d at 1284 (explaining that the possibility of parole should
merely be one factor to consider).
235. See Herbert L. Packer, Making the Punishment Fit the Crime, 77 HARV. L. REV. 1071,
1076 (1964) (“There is nothing irrational about boiling people in oil; a slow and painful death may
be thought more of a deterrent to crime than a quick and painless one.”).
236. See, e.g., Nagel, 559 F.3d at 764-65 (upholding a mandatory twenty-year sentence for the
attempted sexual enticement of a minor because the legislative history indicated Congress’s belief
that the offense “is a serious offense even where a law enforcement agent poses the minor victim .
. . “); State v. Berger, 134 P.3d 378, 382 (Ariz. 2006) (en banc) (“Criminalizing the possession of
child pornography is tied to the state efforts to deter its production and distribution.”).
237. Ewing v. California, 538 U.S. 11, 28 (2003) (plurality opinion). See, e.g., Muscarello v.
United States, 524 U.S. 125, 132 (1998) (recognizing that the purpose behind a federal statute
governing felony possession of firearms was to “persuade the man who is tempted to commit a
Federal felony to leave his gun at home”); United States v. Moriarty, 429 F.3d 1012, 1025 (11th
Cir. 2005) (upholding a life sentence of supervised release imposed on a twenty-one-year-old
defendant convicted of possession of child pornography because it served a rehabilitative end);
United States v. Chauncey, 420 F.3d 864, 877 (8th Cir. 2005) (deferring to the legislature’s desire
to incapacitate career offenders in upholding a one-hundred-month sentence for possession with
intent to distribute one ounce of marijuana).
238. Harmelim v. Michigan, 501 U.S. 957, 999 (1991) (Kennedy, J., concurring).
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According to Justice Kennedy’s concurring opinion in Harmelin, the
Constitution does not mandate any particular penological theory,239 and, in
this respect, courts do not need to engage in detailed scrutiny.240 Instead, a
reviewing court need only conceive of a possible penological purpose for
the sentence.241
The requirement that a sentence need only further a conceivable
penological purpose is not surprising. According to the Supreme Court, a
sentence is not required to be “strictly proportionate” to the offense.242 The
Eighth Amendment merely contains a “narrow proportionality” principle
that applies to sentences for a term of years and forbids only “extreme
sentences.”243 Lower courts apply this standard literally, and, as a result,
harsh sentences are routinely upheld even when the offender does not seem
to be the ideal offender that the legislature targeted.244
For example, in Young v. Miller, the defendant, a first time offender,
was convicted of possessing 1,300 grams of heroin and sentenced to life
imprisonment without the possibility of parole.245 The Sixth Circuit upheld
the sentence, reasoning that such a large quantity of drugs might be harmful
to society, and therefore, such a severe punishment may act as a deterrent.246
Thus, the court upheld the sentence because it conceivably served a
deterrent purpose. Although the court recognized that the defendant may
not have been the exact target of the legislature, it nonetheless explained
that sometimes, “the tiger trap may [spring] upon a sick kitten” and “it is
not the court’s role to interfere with the hunters.”247
The most common factor that courts use to justify long sentences is the
defendant’s criminal history.248 This consideration is so common because
239. Id.
240. Some commentators agree with the notion that a sentence must further a penological
purpose. However, they argue the court needs to identify a specific penological purpose. See,
e.g., Ristroph, State Intentions, supra note 233, at 1376 (explaining that Supreme Court precedent
deemed it “necessary to consider what goal the sentence was intended to serve”). This Comment
argues that courts do not make such considerations and, instead, speculate as to conceivable
penological purposes that a sentence potentially serves.
241. See, e.g., United States v. Couch, 291 F.3d 251, 255 (3d Cir. 2002) (“It is likely that
Congress meant . . . to protect our communities from violent criminals who repeatedly
demonstrate a willingness to employ deadly weapons by punishing them more harshly.”)
(emphasis added).
242. Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring).
243. Id. at 996-98 (Kennedy, J., concurring).
244. See, e.g., Young v. Miller, 883 F.2d 1276, 1285 (6th Cir. 1989).
245. See id. at 1283.
246. See id. at 1284.
247. Id.
248. See United States v. Lyons, 403 F.3d 1248, 1256 (11th Cir. 2005).
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every state has some form of recidivist sentencing law under which
enhanced sentences are based one’s criminal record.249 In Ewing, the Court
recognized that “[r]ecidivism has long been . . . a legitimate basis for
increased punishment.”250 The reasoning behind this contention is that,
where an offender has committed crimes in the past and continues to
commit such crimes, an enhanced sentence is justified because the offender
has demonstrated that he cannot control his criminal tendencies.251 In this
respect, punishing habitual offenders more severely than first-time
offenders serves deterrent interests,252 and such a deterrent interest makes
courts more reluctant to second-guess such sentences.253
For example, in Taylor v. Lewis, the Ninth Circuit upheld a Three
Strikes sentence for possession of .036 grams of cocaine.254 The court
illuminated the defendant’s criminal history, which included burglary,
vehicle theft, voluntary manslaughter, and robbery with the use of a
firearm.255 The court indicated that removing an offender with such an
249. See Erwin Chemerinsky, Cruel and Unusual: The Story of Leandro Andrade, 52 DRAKE
L. REV. 1, 4 (2003-2004).
250. Ewing v. California, 538 U.S. 11, 12 (2003) (plurality opinion).
251. See Brown v. Mayle, 283 F.3d 1019, 1026 (9th Cir. 2002), overruled on other grounds,
538 U.S. 901 (2003). See U.S. SENTENCING GUIDELINES MANUAL ch. 4, pt. A, intro. cmt. (2011)
(“A defendant with a record of prior criminal behavior is more culpable than a first time offender
and thus more deserving of greater punishment.”) available at http://www.ussc.gov/guidelines
/2011_Guidelines/Manual_PDF/Chapter_4.pdf.
252. See, e.g., Carissa Bryne Hessick, Why are only Bad Acts Good Sentencing Factors?, 88
B.U. L. REV. 1109, 1115 (2008) (“[There is] a public consensus that a prior conviction ought to
result in a longer sentence.”); Melanie Deutsch, Comment, Minor League Offenders Strike Out in
the Major League: California’s Improper Use of Juvenile Adjudications as Strikes, 37 SW. U. L.
REV. 375, 386 (2008) (“[The state’s] [t]hree Strikes law seeks to deter future criminals by
imposing harsh punishments on habitual offenders.”).
253. See, e.g., United States v. Paton, 535 F.3d 829, 837-38 (8th Cir. 2008) (relying heavily on
the defendant’s criminal history to affirm a life sentence for production of child pornography);
United States v. Rivera, 546 F.3d 245, 255 (2d Cir. 2008) (upholding a life sentence for
production of child pornography in light of the defendant’s “recidivist nature”); Untied States v.
Walker, 473 F.3d 71, 79 (3d Cir. 2007) (“Congress had a rational basis for treating second or
subsequent offenses under [the statute] more harshly than first offenses and for imposing sever
mandatory punishments for such offenses.”); United States v. Huskey, 502 F.3d 1196, 1200 (10th
Cir. 2007) (finding the defendant’s challenge to a life sentence for conspiring to distribute fifty
grams of cocaine to be “simply untenable” in light of the defendant’s two prior drug felony
convictions); United States v. Collins, 340 F.3d 672, 680 (8th Cir. 2003) (upholding a life
sentence imposed on a career criminal because “the repeated nature of similar crimes . . . does not
warrant a finding of disproportionality under the Eighth Amendment”).
254. 460 F.3d at 1095, 1099.
255. Id. at 1100-01. The court may have come to a very different conclusion had the
defendant’s criminal history been relatively minor or nonexistent. Compare, e.g., id. at 1094
(upholding a Three Strikes life sentence where the defendant was a repeat offender), with
Henderson v. Norris, 258 F.3d 706, 714 (8th Cir. 2001) (invalidating a life sentence imposed on a
first time offender convicted of delivery of .238 grams of cocaine).
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extensive history of criminal activity was a rational basis for upholding the
sentence.256 If all courts applied similar reasoning, a lengthy sentence
imposed on a career criminal for a minor offense will presumptively further
a penological theory of, at the very least, incapacitation.257
Many courts apply reasoning similar to Taylor, but take it a step further
by considering the defendant’s criminal history as the determinative
penological justification for upholding a sentence.258 As the Supreme Court
explained in Rummel, recidivist statutes further the legitimate penological
theories of deterrence and incapacitation by imposing harsh sentences on
criminals that “are simply incapable of conforming to the norms of society
as established by its criminal law.”259 Some courts generously apply this
principle and simply point out that the defendant is a repeat offender in
order to avoid detailed grossly disproportionate review altogether.260 By
doing so, these courts fail to take into account whether the defendant’s
punishment aligns with his culpability, despite the fact that the Supreme
Court frequently considers culpability in Eighth Amendment cases.261
256. Taylor, 460 F.3d at 1100-01.
257. Generally, an enhanced sentence under a habitual offender statute that furthers the
penological theory of incapacitation rests on the theory that these criminal are “unamenable to
rehabilitation during their ‘crime-prone years.’” Deutsch, supra note 252, at 388. However,
whether or not habitual offender statutes are effective, is still a matter in debate. See, e.g., Lewis,
supra note 7, at 542 (pointing out that California’s Three Strikes law “has barely put a dent in
California’s violent crime rate”).
258. See, e.g., United States v. Lyons, 403 F.3d 1248, 1256-57 (11th Cir. 2005) (upholding a
235-month sentence for possession of a single bullet in light of the defendant’s criminal history);
United States v. Cardoza, 129 F.3d 6, 18 (1st Cir. 1997) (“[The defendant was] sentenced to such
a term because . . . he had previously been convicted of at least three violent felonies.”);
Smallwood v. Johnson, 73 F.3d 1343, 1346 (5th Cir. 1996) (upholding a fifty-year sentence for
petty theft because it did not create an inference of gross disproportionality in light of the
defendant’s criminal history); Brown v. State, 99 P.3d 489, 498 (Wyo. 2004). But see Ewing v.
California, 538 U.S. 11, 41 (2003) (Breyer, J., dissenting) (arguing that the recidivism should
merely be relevant, “but not necessarily determinative” when considering whether a sentence is
grossly disproportionate).
259. Rummel v. Estelle, 445 U.S. 263, 276 (1980) (plurality opinion).
260. See United States v. James, 564 F.3d 960, 964 (8th Cir. 2009); United States v. Strahan,
565 F.3d 1047, 1052-53 (7th Cir. 2009); Cardoza, 129 F.3d at 18. See, e.g., United States v.
Gurule, 461 F.3d 1238, 1247 (10th Cir. 2006) (explaining that the court was “certain” a sentence
was not grossly disproportionate when the defendant had twice been convicted of serious and
violent felonies).
261. See, e.g., Cooper Indus. v. Leatherman Tool Group, 532 U.S. 424, 435 (2001)
(recognizing culpability as important criteria for an Eighth Amendment excessive fines claim);
Harmelin v. Michigan, 501 U.S. 957, 1022 (1991) (White, J., dissenting) (“[I]n evaluating the
gravity of the offense, it is appropriate to consider the harm caused or threatened to the victim or
society . . . and the culpability of the offender, including the degree of requisite intent and the
offender’s motive . . . .”) (internal quotation marks omitted); Penry v. Lynaugh, 492 U.S. 302, 319
(1989) (“[P]unishment should be directly related to the personal culpability of the criminal
defendant.”), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002).
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Another approach courts take to sidestep disproportionality review is
bootstrapping the challenged sentence to a sentence that has been
previously upheld. For example, the Third Circuit upheld a life sentence
reasoning that the defendant’s robbery and drug charges “were at least as
serious as those committed by Lockyer, Rummel, Hutto, and Ewing, whose
proportionality challenges were rejected by the Supreme Court.”262 These
types of cases essentially impute the penological justifications found by
other courts to justify a sentence, instead of identifying the particular
penological theories furthered by the sentence at issue.
Justice Powell feared such a bootstrapping approach in his dissenting
opinion in Rummel.263 According to Justice Powell, “[t]he reach of the
Eighth Amendment cannot be restricted only to those claims previously
adjudicated under the Cruel and Unusual Punishment Clause.”264 However,
Justice Powell’s concern is often ignored by courts. In fact, some courts’
comparisons go beyond just comparing crimes. These courts will uphold a
sentence if they recognize any mitigating variances or similarities between
the challenged sentence and another sentence that was upheld. For example,
courts have upheld sentences where the challenged sentence is shorter than
or similar to a previously upheld sentence,265 or where the underlying
crime’s harm to society is similar to the underlying crime’s harm in a
previously upheld sentence.266
As illustrated above, courts maintain substantial discretion in the face
of an Eighth Amendment challenge to the length of a sentence. As a result,
the vast majority of courts can uphold a sentence by simply identifying a
conceivable penological purpose for the sentence.267 In this respect, the
lower courts’ application of the grossly disproportionate test has created a
262. Untied States v. Walker, 473 F.3d 71, 83 (3d Cir. 2007).
263. Rummel v. Estelle, 445 U.S. 263, 307 (1980) (Powell, J., dissenting).
264. Id.
265. See, e.g., United States v. Garcia-Carrasquillo, 483 F.3d 124, 135 (1st Cir. 2007)
(holding a 210-month sentence for drug possession did not violate the Eighth Amendment because
longer sentences had been upheld for lower quantity of drugs); United States v. Meiners, 485 F.3d
1211, 1213 (9th Cir. 2007) (per curium) (upholding a fifteen-year sentence for advertisement and
distribution of child pornography, reasoning that it was “a lesser sentence than the defendant’s in
Hutto and Harmelin”); Untied States v. Gamble, 388 F.3d 74, 77 (2d Cir. 2004); United States v.
Mitchell, 932 F.2d 1027, 1029 (2d Cir. 1991) (per curium).
266. See, e.g., United States v. MacEwan, 445 F.3d 237, 249 (3d Cir. 2006) (upholding a
fifteen-year sentence for receiving child pornography because the crime was “at least as serious as
those committed by the appellants challenging their life sentences in Rummel and Ewing”);
Coleman v. Dewitt, 282 F.3d 908, 915 (6th Cir. 2002) (“[A] jurisprudence that finds mandatory
life sentences for the non-violent possession of cocaine constitutionally permissible . . . would be
hard-pressed to find nine years for [the defendant’s] violent act beyond the constitutional pale.”).
267. See, e.g., Ewing, 538 U.S. at 29, 30 (noting that the Defendant’s sentence is justified “by
the State’s public-safety interest in incapacitating and deterring recidivist felons”).
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rational basis test virtually identical to the Fourteenth Amendment rational
basis test. Under this Eighth Amendment rational basis test, a court will
uphold a sentence so long as the court determines that the sentence furthers
a conceivable penological theory.268 However, just as the Supreme Court
recognized that the Fourteenth Amendment rational basis test is not
“toothless,”269 some courts, as discussed below, also recognize that the
grossly disproportionate test is not toothless.
B. Serving No Penological Purpose
Courts rarely conclude that the length of a sentence violates the Eighth
Amendment’s prohibition against cruel and unusual punishment. Indeed,
Solem is the sole United States Supreme Court decision invalidating the
length of a sentence under the Cruel and Unusual Punishment Clause.270
Solem’s application, notwithstanding, appears archaic, as courts continue to
grant deference to the legislatures and uphold harsh sentences.271
According to the Supreme Court, a sentence is unconstitutional if it
“makes no measurable contribution to acceptable goals of punishment and
hence is nothing more than the purposeless and needless imposition of pain
and suffering.”272 In this respect, the Eighth Amendment may limit the
length of a sentence where the sentence serves absolutely no purpose, is
totally arbitrary, or is utterly irrational.273 In order for a court to make such
a determination, however, the court must acknowledge two principles.
First, the court must disregard its eagerness to defer to the legislature. 274
Second, the court must recognize the possibility that a sentence may not
further any conceivable penological purpose under some circumstances.275
In Lockyer v, Andrade, the defendant was convicted of two counts of
petty theft for stealing VHS tapes from two separate stores within a single
268. See supra Part IV.A.
269. See supra Part III.B.
270. Chemerinsky, The Const. & Punishment, supra note 16, at 1058 (“Solem v. Helm remains
the only case in which the Supreme Court has found a prison sentence to be grossly
disproportionate.”).
271. See Harmelin v. Michigan, 501 U.S. 957, 1020 (1991) (White, J., dissenting)
(“[A]bandonment of the second and third factors set forth in Solem makes any attempt at an
objective proportionality analysis futile.”).
272. Coker v. Georgia, 433 U.S. 584, 592 (1977).
273. See id.
274. See Baniszewski, supra note 12, at 955.
275. The Supreme Court has only articulated this principle in the context of capital
punishment. See, e.g., Atkins v. Virginia, 536 U.S. 304, 318-19 (2002) (recognizing that mentally
retarded offenders are not deterred); Thompson v. Oklahoma, 487 U.S. 815, 838 (1988)
(recognizing that juvenile offenders under the age of sixteen are not deterred).
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night.276 The Supreme Court upheld the defendant’s two consecutive life
sentences because each of the petty theft convictions triggered separate
application of the Three Strikes law.277 According to Justice Souter, the
holding was inconsistent with the principle that a sentence must further
some penological theory.278 Justice Souter explained that even if the Court
grants deference to the policy choices of the state, “that policy cannot
reasonably justify the imposition of a consecutive 25-year minimum
[sentence] for a second minor felony committed soon after the triggering
offense [because the defendant] did not somehow become twice as
dangerous to society.”279 In other words, the consecutive sentences did not
further any deterrent or retribution purpose.280 Justice Souter would have
invalidated the sentence because imposing consecutive sentences for the
crimes committed furthered no penological purpose. The exceedingly few
courts that do invalidate a sentence under the Eighth Amendment do so
under the reasoning similar to Justice Souter’s dissent in Andrade, i.e., that
the sentence violates the Eighth Amendment because it does not further any
conceivable penological purpose.281
Recently, in Gonzalez v. Duncan, the Ninth Circuit invalidated a
twenty-eight-year-to-life sentence imposed on a defendant for failing to
update his annual sex offender registration.282 In the face of an Eighth
Amendment challenge, the court acknowledged that the defendant had
previously been convicted of a number of crimes, including cocaine
possession, committing a lewd act on a child under the age of fourteen,
attempted forcible rape, and auto theft.283 The court further recognized that
the state had an interest in “deterring recidivism [and] [i]ncarceration . . .
would incapacitate Gonzalez and thus prevent him from committing
276. Lockyer v. Andrade, 538 U.S. 63, 66, 68 (2003).
277. Id. at 77.
278. See Frase, supra note 10, at 629 (suggesting that Andrade indicates that “a sentence only
violates the Eighth Amendment if it is grossly disproportionate in relation to all traditional
sentencing purposes, or at least all purposes asserted by the State”).
279. Andrade, 538 U.S. at 81, 82 (Souter, J., dissenting).
280. See id.
281. See, e.g., Ramirez v. Castro, 365 F.3d 755, 769-70 (9th Cir. 2004); Hart v. Coiner, 483
F.2d 136, 141 (4th Cir. 1973); State v. Davis, 79 P.3d 64, 72 (Ariz. 2003) (en banc); Crosby v.
State, 824 A.2d 894, 912 (Del. 2003); Faulkner v. State, 445 P.2d 815, 818-19 (Alaska 1968); In
re Antonio De Jesus Nunez, 93 Cal. Rptr. 3d 242, 265 (Ct. App. 2009).
282. 551 F.3d at 877.
283. Id. at 886 (describing the defendant’s criminal history as “extensive, including
convictions for possession of a controlled substance and auto theft in 1988, attempted forcible
rape and lewd conduct with a child under the age of fourteen in 1989, robbery in 1992, and
spousal abuse in 1999.”).
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additional felonies against the general population.”284 Despite these
considerations, the court held the sentence was grossly disproportionate to
the offense and was therefore unconstitutional.285
According to the Ninth Circuit, failing to register was an entirely
passive, harmless, and technical violation.286 As a result, the court was
“unable to discern any rational relationship between [the defendant’s]
failure to update his sex offender registration annually and the probability
that he will recidivate as a violent criminal or sex offender.”287 The court
explained that the registration requirement was “only tangentially related to
the state’s interest,” and failure to comply with it was merely a technical
violation.288
As discussed above, reliance on a defendant’s criminal history allows
many courts to uphold harsh sentences.289 However, the Ninth Circuit
declined to utilize this consideration. Indeed, the court explained that the
touchstone penological theory common to recidivist sentences–
incapacitating habitual criminals whose conduct indicates that they are
incapable of conforming to society’s laws–did not even justify the three
strikes sentence.290 According to the court, because there was no
connection between the defendant’s criminal history, the triggering offense,
and his propensity to commit future acts, it “[could not] conclude that [the
state’s] interest in deterring and incapacitating recidivist offenders
justifie[d] the . . . life sentence.”291
Arguably, the court could have upheld the sentence had it inquired into
the legislative interest in surveillance of convicted sex offenders.292 Had
the court illuminated such a state interest, it might have concluded that the
284. Id. at 886-87.
285. Id. at 887.
286. Id. at 885. In fact the court explained that “failure to update his sex offender registration
annually is a crime of omission, which is by definition the most passive felony a person could
commit.” Id. at 890.
287. Id. at 888 (emphasis added).
288. Gonzalez, 551 F.3 at 884. The court explained that the triggering offense was “based on
a violation of a technical regulatory requirement that resulted in no social harm and to which little
or no moral culpability attache[d]” and the offense did not “reveal any propensity to recidivate.”
Id. For a spirited critique of the modern sex offender registry requirements, see Amanda
Moghaddam, Popular Politics and Unintended Consequences: The Punitive Effect of Sex Offender
Residency Statutes from an Empirical Perspective, 40 SW. L. REV. 223, 227-33 (2010).
289. See supra Part IV.A.
290. See Gonzalez, 551 F.3d at 887.
291. Id.
292. Several cases following Gonzalez recognize this and use it to distinguish Gonzalez. See,
e.g., Calloway v. White, 649 F. Supp. 2d 1048, 1054 (N.D. Cal. 2009); People v. Nichols, 97 Cal.
Rptr. 3d 702, 708 (Ct. App. 2009).
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severe penalty imposed on the defendant might deter others from engaging
in similar conduct. The court could have justified the sentence on
incapacitation grounds, i.e., incapacitating individuals who are incapable of
conforming to the requirements set forth by the legislature. However, by
choosing to ignore the excessive deference commonly afforded to the
legislature and declining to speculate as to the vaguely conceivable
penological theories that the sentence might further, the Ninth Circuit’s
decision may be the landmark case articulating fundamental principles of
the Eighth Amendment grossly disproportionate test.
In Gonzalez, the Ninth Circuit declined to follow the rational-basistype test commonly used by other courts confronted with Eighth
Amendment challenges to noncapital sentences. The court applied
meaningful proportionality review that focused on the facts of the case
itself,293 instead of punting via the “any conceivable penological purpose”
standard. According to Professor Strader, “a criminal law, with its
attendant deprivation of liberty and imposition of stigma, cannot survive
without a meaningful rational basis grounded in fact.”294 In Gonzalez, the
court applied the grossly disproportionate test in this very manner.295
Perhaps such meaningful review is more consistent with Eighth
Amendment principles than a rational basis test, considering what is at
stake is an individual’s liberty and not merely social and economic
regulations.296 Although outside the scope of this Comment, the issue is
finally ripe for debate because there is now a precise, articulable standard
for reviewing noncapital sentences under the grossly disproportionate test.
293. Gonzalez, 551 F.3d at 883.
294. J. Kelly Strader, Lawrence’s Criminal Law, 16 BERKELEY J. CRIM. L. 41, 73 (2011).
Some commentators argue that greater constitutional limits should be placed upon criminal law
and punishment. See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF
JUDICIAL REVIEW 73-104 (1980); Chemerinsky , The Const. & Punishment, supra note 16, at
1070-71; Markus Dirk Dubber, Toward a Constitutional Law of Crime and Punishment, 55
HASTINGS L.J. 509, 509 (2004) (“[T]here are no meaningful constitutional constraints on
substantive criminal law.”); Frase, supra note 10, at 648 (“[S]entencing is an area in which it is
particularly important for federal courts to play a limiting role . . . [because] [c]riminal defendants
are precisely the sort of powerless and despised subgroup who will not be adequately protected
through the democratic political process.”); Eric Tennen, Is the Constitution in Harm’s Way?
Substantive Due Process and Criminal Law, 8 BOALT J. CRIM. 3, 47 (2004) (“Because
criminalization involves more drastic consequences, the State must provide a more compelling
justification for, e.g., imprisonment rather than taxation.”) (emphasis added).
295. Gonzalez, 551 F.3d at 886-87.
296. Andrus, supra note 10, at 295 (“Although clear guidelines are essential, the Court should
also allow proportionality assessment on a case-by-case basis and an analysis of the total factual
circumstances in each individual case.”).
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VI. CONCLUSION
The United States Supreme Court precedent regarding the grossly
disproportionate test is unclear and inconsistent. The lower courts’
application of that precedent, however, has made the standard of review
very clear, to the point where it could be considered black-letter-law. When
a court reviews the length of a sentence in the face of an Eighth
Amendment challenge, the court will uphold the sentence so long as the
sentence serves a conceivable penological purpose. In fact, it is so lenient
that the length of a sentence is presumed constitutional, and the burden is
on the challenger to displace every penological purpose that might
conceivable justify the sentence. As illustrated in section III, these
characteristics are virtually identical to the Fourteenth Amendment rational
basis test.
In 1993, Justice Stevens described the Fourteenth Amendment rational
basis test as “tantamount to no review at all.”297 It is time for the Court to
accept that the grossly disproportionate test is no different, and, by doing
so, the Court must admit that the grossly disproportionate test is simply a
rational basis test in disguise. More importantly, the Court will have to
address the issue of whether Eighth Amendment protection of excessive
sentences should comport with the today’s weak rational basis review of
social and economic regulation.
This comment clearly articulates the standard of review that was once
thought to be an ambiguous, roll-of-the-dice standard of review. By
condensing the grossly disproportionate test into a precise standard,
meaningful Eighth Amendment questions and concerns now rest on
something expressly concrete. Furthermore, by demonstrating that the
grossly disproportionate test is simply the Fourteenth Amendment rational
basis test, and, in this respect, merely a safeguard against outright
arbitrariness, courts and commentators may finally address whether such a
standard properly aligns with the Eighth Amendment.
297 FCC v. Beach Communications, Inc., 508 U.S. 307, 323 n.3 (1993) (Stevens, J.,
concurring).
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– Christopher J. DeClue 
 B.A., Political Science, 2006, University of California, San Diego; J.D., 2011, with Honors,
Southwestern Law School. First and foremost, I would like to thank Professor J. Kelly Strader for
encouraging the development of this article, offering valuable advice on countless drafts, and,
most importantly, making law school truly meaningful. Also, I am deeply appreciative of Eric
Anthony, Alan Hart, Nathan Howser, Justin Rogal, Shaili Pezeshki, and, especially, Danielle
Foster, for their helpful comments on previous drafts, and James Greaves, Jeffrey Harris, and
Matthew Mann for making law school manageable, not to mention humorous. Last, but certainly
not least, I want to thank my family, especially my fiancée, Karen Randel, for their unconditional
love and support.
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APPENDIX
SELECTED CASES HOLDING THAT THE SENTENCE IMPOSED IS NOT
GROSSLY DISPROPORTIONATE TO THE OFFENSE
FIRST CIRCUIT COURT OF APPEALS
Campusano, United States v., 947 F.2d 1, 3-4 (1st Cir. 1991) (5 years
for possession of a firearm).
Cardoza, United States v., 128 F.3d 6, 18-19 (1st Cir. 1999) (235
months for being a felon in possession of ammunition).
Frisby, United States v., 258 F.3d 46, 47 (1st Cir. 2001) (151 months
for distribution of heroin).
Gilliard, United States v., 847 F.2d 21, 27 (1st Cir. 1988) (15 years for
possession of a firearm).
Graciani, United States v., 61 F.3d 70, 76-77 (1st Cir. 1995) (280
months for distribution of cocaine and possession of a firearm).
Polk, United States v., 546 F.3d 74, 77-78 (1st Cir. 2008) (15 years for
attempting to produce child pornography).
Saccoccia, United States v., 58 F.3d 754, 789 (1st Cir. 1995) (660 years
for racketeering and money laundering).
SECOND CIRCUIT COURT OF APPEALS
Bellavia v. Fogg, 613 F.2d 369, 373-74 (2d Cir. 1979) (15 years for
being an occupant of a vehicle where drugs were found).
Bullock, United States v., 550 F.3d 247, 252 (2d Cir. 2008) (15 years
for possessing ammunition).
Chabot, United States v., 70 F.3d 259, 260 (2d Cir. 1995) (per curiam)
(57 months for reentering the United States after being deported).
Gamble, United States v., 388 F.3d 74, 77 (2d Cir. 2004) (15 years for
possession of cocaine and a firearm).
Jackson, United States v., 59 F.3d 1421, 1421 (2d Cir. 1995) (per
curiam) (10 years for possession of cocaine).
Rivera, United States v., 546 F.3d 245, 255 (2d Cir. 2008) (life
sentence for producing child pornography).
Snype, United States v., 441 F.3d 119, 152 (2d Cir. 2006) (life sentence
for conspiracy to commit bank robbery).
Whidbee, United States v., No. 08-1612-cr, 2009 WL 137022, at *1 (2d
Cir. Jan. 21, 2009) (182 months for being a felon in possession of a
firearm).
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THIRD CIRCUIT COURT OF APPEALS
MacEwan, United States v., 445 F.3d 237, 248-49 (3d Cir. 2006) (15
years for receipt of child pornography).
Salmon, United States v., 944 F.2d 1106, 1130-31 (3d Cir. 1991) (210
months for drug offenses).
Walker, United States v., 473 F.3d 71, 84 (3d Cir. 2006) (55 years for
robbery and drug offenses).
FOURTH CIRCUIT COURT OF APPEALS
Butt, United States v., No. 92-5701, 1994 WL 4671, at *5 (4th Cir. Jan.
6, 1994) (per curiam) (14 years for assault) (unpublished decision).
Kratsas, United States v., 45 F.3d 63, 68-69 (4th Cir. 1994) (life
sentence for money laundering and conspiracy to distribute cocaine).
Lockhart, United States v., 58 F.3d 86, 89 (4th Cir. 1995) (120 months
for possession of cocaine with the intent to distribute).
Malloy, United States v., 568 F.3d 166, 180 n.14 (4th Cir. 2009) (15
years for sexual exploitation of a minor).
Pavlico, United States v., 961 F.2d 440, 447-48 (4th Cir. 1992) (40
years for mail fraud).
Reyes-Valencia, United States v., No. 98-4902, 1999 WL 754025, at
*1-2 (4th Cir. Sept. 23, 1999) (per curiam) (94 months for reentering the
United States after being deported) (unpublished opinion).
Wells, United States v., No. 94-5259, 1995 WL 50174, at *1 (4th Cir.
Feb. 9, 1995) (per curiam) (120 months for possession of cocaine with the
intent to distribute) (unpublished decision).
FIFTH CIRCUIT COURT OF APPEALS
Burt v. Puckett, 933 F.2d 350, 353 (5th Cir. 1991) (15 years for
forgery).
Gonzales, United States v., 121 F.3d 928, 934-44 (5th Cir. 1997) (438
months for possession of cocaine with the intent to distribute).
Helm, United States v., 502 F.3d 366, 368-69 (5th Cir. 2007) (180
months for being a convicted felon in possession of a firearm).
Looney, United States v., 532 F.3d 392, 396-98 (5th Cir. 2008) (548
months for conspiracy and possession of methamphetamine with intent to
distribute).
Martin, United States v., 431 F.3d 846, 853 (5th Cir. 2005) (life
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sentence for bank robbery).
McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 192) (life sentence
for burglarizing an automobile).
Moreno v. Estelle, 717 F.2d 171, 180-81 (5th Cir. 1983) (life sentence
for aggravated assault).
Parker, United States v., 505 F.3d 323, 331-32 (5th Cir. 2007) (life
sentence for conspiracy to distribute cocaine).
Smallwood v. Johnson, 73 F.3d 1343, 1347-48 (5th Cir. 1996) (50
years for theft).
Thomas, United States v., 627 F.3d 146, 159-60 (5th Cir. 2010) (1,435
months for conspiracy, bank robbery, and weapons possession).
SIXTH CIRCUIT COURT OF APPEALS
Chandler v. Jones, 813 F.2d 773, 780 (6th Cir. 1987) (life sentence for
burglary).
Coleman v. DeWitt, 282 F.3d 908, 915 (6th Cir. 2002) (9 years for
assault).
Graham, United States v., 622 F.3d 445, 461-62 (6th Cir. 2010) (life
sentence for conspiracy to distribute cocaine).
Hayes v. Bordenkircher, 621 F.2d 846, 848-49 (6th Cir. 1980) (life
sentence for forging a check in the amount of $ 88.30).
Layne, United States v., 324 F.3d 464, 473-74 (6th Cir. 2003) (87
months for conspiracy to manufacture and distribute methamphetamine).
Moore, United States v., 643 F.3d 451, 455-56 (6th Cir. 2011) (15
years for possession of a firearm).
Odeneal, United States v., 517 F.3d 406, 414 (6th Cir. 2008) (life
sentence for conspiracy to distribute and possess cocaine base and
possessing firearms).
Olan-Navarro, United States v., 350 F.3d 551, 554-55 (6th Cir. 2003)
(57 months for reentering the United States after having been deported).
Watkins, United States v., 509 F.3d 277, 282 (6th Cir. 2007) (1,772
months for armed robbery, conspiracy to commit armed robbery, and using
a firearm).
Young v. Miller, 883 F.2d 1276, 1285 (6th Cir. 1989) (life sentence
without the possibility of parole for a first-time drug offender).
SEVENTH CIRCUIT COURT OF APPEALS
Brucker, United States v., 646 F.3d 1012, 1018-19 (7th Cir. 2011) (10
years for attempting to entice a minor to engage in sexual activity).
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Davey, United States v., 550 F.3d 653, 658 (7th Cir. 2008) (126 months
for attempting to induce a minor to engage in criminal sexual activity).
Gross, United States v., 437 F.3d 691, 694 (7th Cir. 2006) (15 years for
distribution of child pornography).
Jones, United States v., 600 F.3d 847, 853 (7th Cir. 2010) (life sentence
for conspiring to distribute narcotics).
Nagel, United States v., 559 F.3d 756, 762-65 (7th Cir. 2009) (10 years
for first-time offender attempting to entice a minor to engage in sexual
activity).
Saunders, United States v., 973 F.2d 1354, 1365 (7th Cir. 1992) (262
months for conspiracy and possession of cocaine with the intent to
distribute).
Seritt v. Alabama, 731 F.2d 728, 736 (7th Cir. 1984) (life without
parole for robbery).
Strahan, United States v., 565 F.3d 1047, 1052-53 (7th Cir. 2009) (life
sentence for conspiracy to distribute cocaine and distribution of cocaine).
EIGHTH CIRCUIT COURT OF APPEALS
Baker, United States v., 415 F.3d 880, 881-82 (8th Cir. 2005) (20 years
for conspiring to distribute cocaine).
Carroll, United States v., 207 F.3d 465, 472-73 (8th Cir. 2000) (life
sentence for armed robbery).
Chauncey, United States v., 420 F.3d 864, 876-77 (8th Cir. 2005) (100
months for possession of marijuana with the intent to distribute).
Collins, United States v., 340 F.3d 672, 683 (8th Cir. 2003) (life
sentence for possession of methamphetamine with the intent to distribute).
Ferguson v. United States, 623 F.3d 627, 632-33 (8th Cir. 2010) (60
months for possession of contraband in prison).
Kiderlen, United States v., 569 F.3d 358, 369 (8th Cir. 2009) (240
months for one count of transporting child pornography).
Lee, United States v., 625 F.3d 1030, 1038 (8th Cir. 2010) (life
sentence for possession of a firearm and possession of stolen firearms).
Meirovitz, United States v., 918 F.2d 1376, 1381-83 (8th Cir. 1990)
(life sentence for conspiracy to distribute cocaine and possession with intent
to distribute).
Paton, United States v., 535 F.3d 829, 837-38 (8th Cir. 2008) (life
sentence for production of child pornography).
Robinson, United States v., 617 F.3d 984, 990-91 (8th Cir. 2010) (423
months for six drug related offenses).
Scott, United States v., 610 F.3d 1009, 1018 (8th Cir. 2010) (life
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sentence for conspiracy to distribute cocaine).
Whitehead, United States v., 487 F.3d 1068, 1069 (8th Cir. 2007) (life
sentence for manufacture and possession of cocaine).
Weis, United States v., 487 F.3d 1148, 1149 (8th Cir. 2007) (15 year
sentence for receipt of child pornography).
Wiest, United States v., 596 F.3d 906, 911-12 (8th Cir. 2010) (57 years
for bank robbery and three counts of possession of a firearm).
Yirkovsky, United States v., 259 F.3d 704, 706-07 (8th Cir. 2001) (15
years for possession of a single bullet).
NINTH CIRCUIT COURT OF APPEALS
Albino, United States v., 432 F.3d 937, 938 (9th Cir. 2005) (per curiam)
(10 years for growing marijuana).
Alford v. Rolfs, 867 F.2d 1216, 1222 (9th Cir. 1988) (life sentence for
possession of stolen property).
Baker, United States v., 850 F.2d 1365, 1372 (9th Cir. 1988) (15 years
for being a convicted felon in possession of a weapon).
Barajas-Avalos, United States v., 377 F.3d 1040, 1060-61 (9th Cir.
2004) (360 months for conspiracy to manufacture methamphetamine, and
attempting to manufacture and manufacturing methamphetamine).
Cupa-Guillen, United States v., 34 F.3d 860, 864 (9th Cir. 1994) (100
months for being a deported alien found in the United States).
Gomez, United States v., 472 F.3d 671, 674 (9th Cir. 2006) (60 months
for conspiracy to distribute cocaine).
Hungerford, United States v., 465 F.3d 1113, 1114 (9th Cir. 2006) (417
months for conspiracy, robbery, and use of a firearm).
Jensen, United States v., 425 F.3d 698, 700 (9th Cir. 2005) (life
sentence for possession of methamphetamine with intent to distribute).
McDoucherty, United States v., 920 F.2d 569, 576 (9th Cir. 1990) (262
months for distribution of drugs near a school).
Meiners, United States v., 485 F.3d 1211, 1212 (9th Cir. 2007) (per
curiam) (15 years for advertising, distributing, and possessing child
pornography).
Norris v. Morgan, 622 F.3d 1276, 1295-96 (9th Cir. 2010) (life
sentence without the possibility of parole for child molestation).
Nunes v. Remirez-Palmer, 485 F.3d 432, 439-40 (9th Cir. 2007) (25
years to life for petty theft).
Rios v. Garcia, 390 F.3d 1082, 1086 (9th Cir. 2004) (life sentence for
petty theft).
Taylor v. Lewis, 460 F.3d 1093, 1099-1102 (9th Cir. 2006) (25 years to
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life for possession of 0.036 grams of cocaine).
Whiting, United States v., 528 F.3d 595, 596 (8th Cir. 2008) (per
curiam) (life sentence for conspiracy to distribute cocaine within 100 feet of
a playground and possession of a firearm).
Williams, United States v., 636 F.3d 1229, 1232-34 (9th Cir. 2011) (15
years in prison and a life term of supervised release for receipt of child
pornography).
TENTH CIRCUIT COURT OF APPEALS
Angelos, United States v., 433 F.3d 738, 753 (10th Cir. 2006) (55 years
for drug, firearm, and money laundering offenses).
Gurule, United States v., 461 F.3d 1238, 1248 (10th Cir. 2006) (life
sentence for carjacking).
Hawkins v. Hargett, 200 F.3d 1279, 1284-85 (10th Cir. 1999) (100
years for burglary and sexual crimes).
Huskey, United States v., 502 F.3d 1196, 1200 (10th Cir. 2007) (life
sentence for conspiracy to distribute methamphetamine).
Hutchinson, United States v., No. 92-6379, 1993 WL 451379, at *1
(10th Cir. Nov. 5, 1993) (life sentence for various drug offenses).
McKneely, United States v., 69 F.3d 1067, 1081 (10th Cir. 1995) (life
sentence for possession of cocaine with the intent to distribute).
Robertson, United States v., 45 F.3d 1423, 1447-48 (10th Cir. 1995)
(life sentence for involvement in a drug conspiracy).
Santos-Garcia, United States v., No. 99-2118, 2000 WL 275551, at *1
(10th Cir. March 14, 2000) (77 months for reentering the United States after
being convicted of a felony) (unpublished decision).
Yeley-Davis, United States v., 632 F.3d 673, 682 (10th Cir. 2011) (life
sentence for conspiracy to possess with intent to distribute, and to
distribute, methamphetamine).
ELEVENTH CIRCUIT COURT OF APPEALS
Brant, United States v., 62 F.3d 367, 368 (11th Cir. 1995) (15.66 years
for manufacturing marijuana).
Farley, United States v., 607 F.3d 1294, 1345-46 (11th Cir. 2010) (30
years for crossing a state line to engage in sexual activity with a minor,
reversing lower court’s contrary decision).
Moriarty, United States v., 429 F.3d 1012, 1024-25 (11th Cir. 2005)
(life sentence for various child pornography related crimes).
Lyons, United States v., 403 F.3d 1248, 1256-57 (11th Cir. 2005) (235
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months for being a felon in possession of ammunition).
McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir. 1992) (life
sentence for burglary and sexual assault).
Reynolds, United States v., 215 F.3d 1210, 1214 (11th Cir. 2000) (per
curiam) (15 years for possession of a firearm by a convicted felon).
Willis, United States v., 956 F.2d 248, 251 (11th Cir. 1992) (life
sentence for possession of cocaine with the intent to distribute).
DISTRICT OF COLUMBIA CIRCUIT COURT OF APPEALS
Garrett, United States v., 959 F.2d 1005, 1009 (D.C. Cir. 1992) (30
years for possession of cocaine base and cocaine with the intent to
distribute).
McLean, United States v., 951 F.2d 1300, 1303 (D.C. Cir. 1991) (17
1/2 years for distribution of crack cocaine).
Walls, United States v., 70 F.3d 1323, 1330 (D.C. Cir. 1995) (life
sentences for selling cocaine).
UNITED STATES DISTRICT COURTS
Allen v. Stratton, 428 F. Supp. 2d 1064, 1078 (C.D. Cal. 2006) (54
years to life for pimping).
Delgado v. Yates, 622 F. Supp. 2d 854, 863-64 (N.D. Cal. 2008) (25
years to life for assault and possession of a controlled substance).
Edwards v. Ollison, 621 F. Supp. 2d 863, 870-74 (C.D. Cal. 2008) (30
years to life for possession of methamphetamine).
Howard v. McGinnis, 632 F. Supp. 2d 253, 282-83 (W.D. N.Y. 2009)
(12 1/2 to 25-years for several counts of assault).
Walker v. Walker, No. CV 08-7768-JSL(E), 2009 WL 3763997, at *1114 (C.D. Cal. Nov. 10, 2009) (25 years to life for possession of a firearm)
(unpublished decision).
STATE SUPREME COURTS
Adaway v. State, 902 So.2d 746, 753 (Fla. 2005) (life without parole
for sexual battery on a minor).
Berger, State v., 134 P.3d 378, 383 (Ariz. 2006) (en banc) (20
consecutive 10 year sentences for sexual exploitation of a minor).
Blair, State v., 721 N.W.2d 55, 72-73 (S.D. 2006) (58 years for filming
a minor engaging in a sexual act).
Bunch v. State, 43 S.W.3d 132, 138 (Ark. 2001) (life sentence for
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robbery and theft).
Castaneira, State v., 502 N.W.2d 112, 115 (S.D. 1993) (70 years for
kidnapping).
Close v. People, 48 P.3d 528, 543 (Colo. 2002) (75 years for robbery
and assault).
Cook v. United States, 932 A.2d 506, 508 (D.C. 2007) (12 years for
possession of heroin with the intent to distribute).
Deroulet, People v., 48 P.3d 520, 528 (Colo. 2002) (36 years for
burglary).
DeSalvo, State v., 903 P.2d 202, 206-07 (Mont. 1995) (15 years for
possession of drugs).
Dodd v. State, 879 P.2d 822, 827 (Okl. Cr. 1994) (life without parole
for possession of a controlled substance with the intent to distribute).
Dunigan, People v., 650 N.E.2d 1026, 1032 (Ill. 1995) (life sentence
for sexual assault).
Green, State v., 502 S.E.2d 819, 834 (N.C. 1998) (life sentence for
various sexual offenses and burglary).
Harris, State v., 844 S.W.2d 601, 603 (Tenn. 1992) (20 years for
sexual assault).
Hill, State v., 827 S.W.2d 196, 198 (Mo.1992) (30 years for trafficking
drugs).
Hopson v. State, 625 So.2d 395, 405 (Miss. 1993) (30 years for
possession of cocaine with the intent to distribute).
Johnson v. State, 573 S.E.2d 362, 366-67 (Ga. 2002) (10 years for
various sexual crimes).
Manussier, State v., 921 P.2d 473, 486 (Wash. 1996) (en banc) (life
without parole for robbery).
Riley, State v., 497 N.W.2d 23, 27 (Neb. 1993) (14 to 30 years for
robbery).
Rivers, State v., 921 P.2d 495, 503 (Wash. 1996) (life without parole
for robbery).
Thompson, People v., 633 N.E.2d 1074, 1079-81 (N.Y. 1994) (15 years
to life for sale of a controlled substance).
Wheeler, State v., 175 P.3d 438, 454 (Or. 2007) (en banc) (life sentence
for various sexual crimes upheld under Oregon’s Cruel and Unusual
Punishments Clause).