Harmelin v. Michigan: Is Eighth Amendment Proportionality in Jeopardy?

Transcription

1 Harmelin v. Michigan: Is Eighth Amendment Proportionality in Jeopardy? I. INTRODUCTION From to 1983,2 the United States Supreme Court has addressed a host of challenges to the "cruel and unusual punishments" provision of the Eighth Amendment 3 to the United States Constitution in the context of both capital and non-capital sentencing. During this time, the Court has consistently recognized that penalties should be proportional to the crime committed. 4 Although this proportionality principle has withstood attack in the milieu of capital sentencing, 5 the Supreme Court's decision in the case of Harmelin v. Michigan 6 suggests that any principle of proportionality in the area of non-capital sentencing may be threatened. In Harmelin, the Supreme Court upheld a 1978 Michigan statute 7 - the toughest of its kind in the nation - mandating life imprisonment without the possibility of parole for anyone convicted of possessing 650 grams or more of a substance, not necessarily pure, containing heroine. The Court's decision, in effect, overrules Solem v. Helm,' the latest non-capital sentencing case which had effectively established a standard by which sentences could be evaluated for their proportionality. The Harmelin decision's importance to the future of Eighth Amendment jurisprudence cannot be overemphasized. The decision suggests that mandatory, non-capital sentences set by the legislature are not subject to review, thus severely curtailing the power of the 1. See Weems v. United States, 217 U.S. 349 (1910) (fifteen year sentence of hard labor for falsifying public documents was found to be in violation of the Eighth Amendment). 2. See Solem v. Helm, 463 U.S. 277 (1983) (under a state recidivist statute, a sentence of life imprisonment without the possibility of parole because of six prior felony convictions was held to be violative of the Eighth Amendment). 3. The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII. The Eighth Amendment applies to the states by virtue of the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660 (1962). 4. See, e.g., Solem v. Helm, 463 U.S. at 288; Weems v. United States, 217 U.S. at See, e.g., Coker v. Georgia, 433 U.S. 584 (1977) S. Ct (1991). 7. MICH. COMP. LAWS (2)(a)(i) (1978). As of June 28, 1991, more than 120 convicts were serving life terms under this law. Dennis Niemiec et al., Justices Uphold Life Sentence for Drug Possession, DET. FREE PRESS, June 28, 1991, at 1A U.S. 277 (1983).

2 CRIMINAL AND CIVIL CONFINEMENT [Vol. 18:1-2 courts to act as a check upon the legislature. As a consequence of this decision, the legislature would not in theory, for example, be prevented from making overtime parking a felony punishable by life imprisonment. 9 However, the Court's reasoning is not without its flaws and inconsistencies. As a result, the actual impact of Harmelin upon criminal sentencing is uncertain. Although Solem would appear to hold little, if any, authority in deciding future Eighth Amendment challenges, an analysis of the Harmelin Court's opinion also suggests that Solem should not yet be totally abandoned. This Comment begins by analyzing the reasoning of the Harmelin Court, with special emphasis on the Court's conclusion that Michigan's drug-lifer law is not in violation of the Eighth Amendment's ban on cruel and unusual punishment. The Comment will then proceed to discuss where the Court erred in its reasoning, and how it may better resolve future Eighth Amendment challenges to excessive sentencing. II. FACTS Defendant Ronald Allen Harmelin was arrested in Oak Park, Michigan during the early morning hours of May 12, Harmelin was stopped by two Oak Park police officers after failing to make a complete stop at a red light." 1 When the officers pulled behind Harmelin's vehicle with their cruiser's lights flashing, he pulled over in a reasonably prompt manner.12 Upon request, the defendant cooperatively produced his driver's license and vehicle registration to the officers. 13 In addition, he voluntarily informed the officers that he was carrying a pistol concealed in an ankle holster, but proceeded to produce a permit to carry the concealed weapon."' Although the papers produced by Harmelin appeared to be valid, the officers nonetheless conducted a pat-down search of his person. 5 In the process, the officers discovered that Harmelin was carrying marijuana cigarettes, various pills, three small vials of white powder, drug paraphernalia, and a telephone beeper Rummel v. Estelle, 445 U.S. 263, 274 n.11 (1980). 10. Brief of Petitioner at 2, Harmelin v. Michigan, 11 S. Ct (1991) (No ). 11. Id. 12. People v. Harmelin, 440 N.W.2d 75, 77 (Mich. App. 1989), aff'd, Harmelin v. Michigan, 111 S. Ct (1991). 13. Id. 14. Id. 15. Id. Despite the valid permit, a search was conducted by the officers because defendant appeared to be nervous, because he was armed, and because he had bulges in his pockets. Id. 16. Id.

3 1992] HARMELIN v. MICHIGAN After impounding and searching Harmelin's 1977 Ford, the police discovered a closed travel bag which contained $2900 and two bags containing grams of cocaine. 17 According to laboratory reports, the cocaine was pure and undiluted. I s The street value of the cocaine was worth between an estimated $67,000 and $100, Although Harmelin's fingerprints were found on a book inside the travel bag, his fingerprints were not found on the kit in which the cocaine was contained. 2 Harmelin, who had no previous criminal record of convictions, graduated from Sterling High School in Sommerdale, New Jersey in After graduating, he entered the United States Air Force and was stationed at Boling Air Force Base near Washington, D.C. 22 In addition, Harmelin served in the honor guard for four years, 23 and was honorably discharged in After his years of service, Harmelin, who was unemployed at the time of this offense, established his residence at an apartment in Detroit. 25 Other than the nine year old Ford automobile and $ in his pocket, he possessed no assets. 26 As a result of his actions on May 12, 1986, Harmelin was charged with possession of a controlled substance exceeding 650 grams and possessing a firearm during the commission of a felony. 27 III. PROCEDURAL HISTORY A. Oakland County Circuit Court Decision On February 26, 1987, Ronald Harmelin was convicted after a bench trial of possessing more than 650 grams of a substance containing cocaine' and possessing a firearm during the commission of a fel- 17. Id. at 78. The equivalent of grams of cocaine is approximately 1.5 lbs. Drug Lifer Law A Bad Law Should Be Struck Down Or Changed, DET. FREE PRESS, Nov. 5, 1990, at 6A [hereinafter Drug Lifer Law]. 18. Brief of Respondent at 1, Harmelin v. Michigan, 111 S. Ct (1991) (No ). 19. Id. 20. Brief of Petitioner at 3, Harmelin (No ). 21. Id. Petitioner's Brief, in an apparent typographical error, states that Harmelin graduated from high school in See id. 22. Id. 23. Id. 24. Id. 25. Id. 26. Id. 27. People v. Harmelin, 440 N.W.2d 75, 77 (Mich. App. 1989), aff'd, Harmelin v. Michigan, 111 S. Ct (1991). 28. Harmelin was convicted of violating MICH. COMp. LAWS (1)(i) (1978).

4 CRIMINAL AND CIVIL CONFINEMENT [Vol. 18:1-2 ony 29 by the Oakland County Circuit Court for the State of Michigan. 30 At his trial, Harmelin neither testified on his own behalf nor presented any witnesses in his defense. 31 On April 30, 1987, Harmelin was sentenced by the Oakland County Circuit Court to serve a mandatory term of two years in prison on the felony firearm charge and a mandatory term of life imprisonment without the possibility of parole on the cocaine charge. 32 B. Michigan Court of Appeals Decision In a per curiam decision, dated April 18, 1989, the Michigan Court of Appeals affirmed the holding of the lower court. 33 The defendant argued for a reversal of the Oakland County Circuit Court decision on three primary grounds. 34 First, he argued that the evidence was obtained against him by means of an unconstitutional search and seizure of his person and his automobile, 35 thus violating his Fourth Amendment rights. 36 Second, the defendant argued for a reversal on the grounds that he was deprived of the effective assistance of coun- 29. Harmelin was also convicted of violating MICH. COMP. LAWS b (1977). 30. Brief of Petitioner at 2, Harmelin (No ). 31. People v. Harmelin, 440 N.W.2d at Brief of Petitioner at 2, Harmelin (No ). The crimes committed by Harmelin occurred on May 12, Brief of Respondent at 3, Harmelin (No ). Prior to the amendments which took effect on March 30, 1988, MICH. COMP. LAWS provided in pertinent part: (1) A person shall not knowingly or intentionally possess a controlled substance... unless the controlled substance... was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this article. (2) A person who violates this section as to: (a) A controlled substance classified in schedule I or 2 which is either a narcotic drug or described in section 7214(a)(iv), and: (i) Which is an amount of 650 grams or more of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for life. MICH. COMP. LAWS (1978) (amended 1988). 33. People v. Harmelin, 440 N.W.2d at 80. Originally, the Michigan Court of Appeals had reversed Harmelin's conviction in an unpublished opinion dated January 9, 1989, stating that the search of his person and car were unconstitutional. But, in an order dated March 9, 1989, the court of appeals vacated that judgment, and retained the matter for reconsideration. Brief of Petitioner at 4, Harmelin (No ). 34. People v. Harmelin, 440 N.W.2d at 78. Harmelin also posed a fourth argument, in which he claimed that the warrantless search of his car was an unjustifiable intrusion on his Fourth Amendment rights and, as such, the evidence should have been suppressed. Id. at Id. at The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or

5 19921 HARMELIN v. MICHIGAN sel, a7 in violation of his Sixth Amendment rights." 8 Third, Harmelin argued, his sentence should be reversed on the grounds that a mandatory sentence of life without parole constitutes cruel and unusual punishment, in violation of his Eighth Amendment rights. 39 The Michigan Court of Appeals, in deciding the constitutionality of the officers' search and seizure, was faced with choosing between either adopting the present holding of Pennsylvania v. Mimms 4 or reviving the holding of Terry v. Ohio, 41 the case overruled by Mimms. In Mimms, the Court established that a police officer may order a driver to exit his car after being lawfully stopped for a traffic violation without violating the driver's Fourth Amendment rights. 4 2 The Court held that the officer could order the driver out of his car regardless of whether the officer suspected any wrong-doing at the time. 43 By contrast, in Terry, the Court held that a police officer could not order a driver to exit his car unless the officer had a reasonable suspicion that the driver committed, or was about to commit, a crime.' The court of appeals felt "obliged to follow the majority decision in Mimms" 45 over the Terry standard on the grounds that the Michigan Constitution afforded the driver protection only within the confines of his home, and not against evidence seized on an open highway." As a result, the only protection available to the driver was under the Federal Constitution. 47 However, under federal law, as was previously affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONsT. amend. IV. 37. People v. Harmelin, 440 N.W.2d at "In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." U.S. CONST. amend. VI. 39. People v. Harmelin, 440 N.W.2d at 77; see supra note U.S. 106 (1977) U.S. 1 (1968). 42. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977); see supra note Id. 44. Terry v. Ohio, 392 U.S. 1, 27 (1968). 45. People v. Harmelin, 440 N.W.2d 75, 78 (Mich. App. 1989), aff'd, Harmelin v. Michigan, Ill S. Ct (1991). 46. The Michigan Constitution provides: The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state. MICH. CONsr. of 1963, art. I, 11 (emphasis added). 47. People v. Harmelin, 440 N.W.2d at 78.

6 CRIMINAL AND CIVIL CONFINEMENT [Vol. 18:1-2 held in Mimms, there could be no violation of Harmelin's Fourth Amendment rights because the police had every right to order the driver out of the car. 48 Harmelin's second major argument, that he was deprived of the effective assistance of counsel and the right to plead not guilty, was likewise dismissed by the court of appeals. 9 Harmelin claimed that his attorney provided ineffective counsel by choosing to attack the State solely on the admissibility of evidence found in his car, instead of presenting some evidence in response to the State's case-in-chief, and in particular, by failing to argue that Harmelin was innocent of knowingly possessing the cocaine in question. 0 In rejecting the defendant's second argument, the court found that due to the overwhelming nature of the evidence against Harmelin, his attorney's choice of defense provided the most effective chance of acquittal."' Finally, Harmelin claimed that the mandatory sentence of life imprisonment without the possibility of parole was entirely out of proportion to the seriousness of the crime which he committed, and thus constituted cruel and unusual punishment in violation of his Eighth Amendment rights. 2 The court dismissed, without much elaboration or discussion, defendant's third argument based on a large body of case precedent which consistently held that mandatory life sentences for convictions of delivery of 650 grams or more of cocaine and other associated crimes, does not violate state and federal constitutional provisions prohibiting cruel and unusual punishment. 3 The courts' reasoning behind these rulings has been that such sentences prevent offenders from causing injuries to others, while also deterring these same individuals from engaging in the unlawfully proscribed conduct. 54 The court, in effect, stated that if a mandatory sentence of life imprisonment for delivery of over 650 grams of cocaine was constitu- 48. See id. 49. Id. at Id. 51. Id. 52. Id.; see supra note 3. Protection for criminal defendants under the Michigan Constitution differs in pertinent part from the Eighth Amendment to the United States Constitution by banning either cruel or unusual punishment. See MICH. CONsT. of 1963, art. I, 16 (emphasis added). 53. See, e.g., People v. Harding, 413 N.W.2d 777 (Mich. 1987) (conspiracy to deliver over 650 grams of cocaine and delivery of a controlled substance); People v. Ward, 351 N.W.2d 208 (Mich. 1984) (possession with the intent to distribute 650 grams or more of cocaine); People v. Harman, 333 N.W.2d 591 (Mich. 1983) (possession of 650 grams or more of cocaine); People v. McCarty, 317 N.W.2d 659 (Mich. 1982) (possession of 650 grams or more of cocaine). 54. People v. Harman, 333 N.W.2d at 592; People v. McCarty, 317 N.W.2d at 662; see People v. Harding, 413 N.W.2d at 791; People v. Ward, 351 N.W.2d at 213.

7 1992] 2HARMELIN v. MICHIGAN tional, then a similar sentence for possession of over 650 grams is likewise not violative of Harmelin's constitutional rights. 5 The Michigan Supreme Court denied leave to appeal on January 29, 1990,56 but the United States Supreme Court granted certiorari. 57 C. The United States Supreme Court Decision The sole issue on appeal before the United States Supreme Court was whether Ronald Harmelin's sentence of mandatory life imprisonment without the possibility of parole constituted cruel and unusual punishment, in violation of the Eighth Amendment of the United States Constitution. 5 " Harmelin raised two arguments in support of his claim. First, he asserted that his sentence was "significantly disproportionate" to the crime which he committed. 9 Secondly, he claimed that the sentencing judge was statutorily required to impose his sentence, and as such, was not allowed to consider any additional factors, such as the nature of the crime and the particular defendant involved.'" 1. Split Decision of the Majority a. Eighth Amendment Contains No Proportionality Guarantee In a 5-4 decision, the Supreme Court held that a mandatory sentence of life imprisonment without the possibility of parole for the possession of 650 grams or more of cocaine was not violative of the Eighth Amendment's ban on cruel and unusual punishment. 6 1 The majority of the Court, although in agreement that Harmelin's constitutional rights were not violated, was split with regard to its reasoning. Justice Scalia, with Chief Justice Rehnquist concurring, concluded that the Eighth Amendment contained "no proportionality guarantee." '62 In so doing, they specifically rejected the proportionality principle established in Solem v. Helm, 63 the latest case which spoke to the issue of proportionality. In Solem, the Court struck down as cruel and unusual punishment a sentence of life imprisonment without the possibility of parole under a South Dakota recidivist statute for a series of 55. See People v. Harmelin, 440 N.W.2d at People v. Harmelin, 434 Mich. 863 (1990). 57. Harmelin v. Michigan, 495 U.S. 956 (1990). 58. Harmelin v. Michigan, III S. Ct. 2680, 2681 (1991); see supra note Harmelin v. Michigan, 111 S. Ct. at Id. 61. Id. at Id. at Justices Kennedy, O'Connor, and Souter concurred in part and concurred in the judgment. See infra notes and accompanying text for discussion of the concurring opinion. Justices White, Blackmun, Stevens, and Marshall dissented. Id U.S. 277 (1983).

8 CRIMINAL AND CIVIL CONFINEMENT [Vol. 18:1-2 successive offenses. These crimes included three convictions of third degree burglary, and one offense each of obtaining money by false pretenses, grand larceny, third-offense driving while intoxicated, and writing a "no account" check with the intent to defraud. 4 The Solem Court concluded that a right to be free from disproportionate punishments came from the English Declaration of Rights, from which nearly the entire text of the Eighth Amendment of the United States Constitution was taken. 65 Writing for the majority, Justice Powell stated that when the Framers of the United States Constitution adopted the Bill of Rights language for the Eighth Amendment, it also adopted the proportionality principle which accompanied it. 66 The Solem Court's reasoning was based on the theory that because Americans had all the rights of English subjects, then the Framers use of the language from the English Bill of Rights was "convincing proof that they intended to provide at least the same protection-including 67 the right to be free from excessive punishments. The Harmelin Court, however, found fault in the Solem analysis. Justice Scalia reasoned that the drafters of the English Declaration of Rights did not explicitly prohibit "disproportionate" or "excessive" punishments, but instead only prohibited punishments which were "cruel and unusual. ' 68 Justice Scalia reasoned that the Solem Court's error was in assuming that the terms "cruel" and "unusual" necessarily included each other, because although a disproportionate punishment can always be considered "cruel," it is not always "unusual. '69 In coming to its conclusion that the Eighth Amendment contains no proportionality guarantee, the Court, through an historical analysis, traced the "Cruel and Unusual Punishments" Clause back to the late 1600's, and in particular to the actions of Lord Chief Jeffreys of the King's Bench during the Stuart Reign of James II of England. 70 At that time, Lord Jeffreys was presiding over the "Bloody Assizes," in which a special commission led by Jeffreys administered hundreds of executions to individuals suspected of aiding the Duke of Mamouth in his failed rebellion against the King in Lord Jeffreys was well-known at that time for inventing penalties 64. Id. at , Id. at The English Declaration of Rights of 1689 provided in pertinent part that "excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted." 1 W. & M., Sess. 2, ch. 2 (1689). 66. Solem v. Helm, 463 U.S. at Id. at Harmelin v. Michigan, Ill S. Ct. 2680, 2687 (1991). 69. Id. 70. Id. at (citations omitted). 71. Id. at 2687.

9 1992] HARMELIN v. MICHIGAN for the King's enemies which were neither authorized by any common law precedent nor by statute. 72 The concern for the illegal penalties imposed by Jeffreys is further reflected, according to the Court, in the preamble to the Declaration of Rights, which made specific reference to illegal sentences and King's Bench proceedings. 73 As a result of this historical background, the Court concluded that it must have been Lord Jeffreys' exercise of random and arbitrary sentencing power which led to the enactment of the "Cruel and Unusual Punishments" Clause. 74 The Court did acknowledge, however, that more important than the meaning of "cruel and unusual punishments" in the Declaration of Rights, was what the Framers of the United States Constitution intended it to mean in the context of our Eighth Amendment." s Justice Scalia reasoned that since the federal system contained no common law punishment, Americans who adopted the "Cruel and Unusual Punishments" Clause must have intended it to act as a "check not upon judges but upon the [l]egislature" to authorize particular modes of punishment. 76 Furthermore, the Court reasoned that evidence from the floor debates in the First Congress, debates at state ratifying conventions, historical commentary, and case precedent, also reinforced the view that the provision was only designed to prevent certain methods of punishment. 77 Another of Justice Scalia's primary reasons for affirming the decision by the Michigan Court of Appeals was his criticism of the Solem Court's three-factor test used to determine whether a sentence is disproportionate to the crime committed. Solem looked to (1) the inherent gravity of the offense; (2) the sentences imposed for similarly grave offenses in the same jurisdiction; and (3) the sentences imposed for the same crime in other jurisdictions. 78 Justice Scalia, again with Chief-Justice Rehnquist concurring, 72. Id. at Some of the punishments imposed by Jeffreys included drawing, quartering, burning of women felons, beheading, and disemboweling. Id. at Id. at The preamble stated: [w]hereas the late King James the Second, by the Assistance of diverse Evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion, and the Lawes and Liberties of this Kingdome... And excessive Fines have been imposed... [a]ll which are utterly and directly contrary to the knowne Lawes and Statutes and Freedome of this Realme. Id. (quoting 1 W. & M., Sess. 2, ch. 2 (1689)). 74. Id. 75. Id. at Id. 77. Id. at (citations omitted). 78. Solem v. Helm, 463 U.S. 277, 292 (1983).

10 CRIMINAL AND CIVIL CONFINEMENT [Vol. 18:1-2 rejected all three parts of the Solem analysis. The Court asserted that the first factor, the inherent gravity of the offense, is too difficult to accurately assess because there are inadequate textual or historical standards for determining which offenses are inherently grave. 79 The Court conceded that a certain category of crimes will "always and everywhere be regarded as serious crimes," but argued that there will likewise also be a certain category of crimes which will be treated differently by each jurisdiction." The Court further noted that whether it is "grossly excessive" to impose a mandatory sentence of life imprisonment without parole for merely possessing drugs really depends on how threatening one deems those drugs to be to their community. 81 This determination, according to the Court, is better made by the Michigan Legislature, since it can best evaluate the seriousness of the drug problem in Michigan's cities and towns. 8z The second element of the Solem analysis was similarly rejected by the Court. 83 Justice Scalia concluded that just as with the inherent gravity of the offense, the lack of an objective standard makes it impossible to compare sentences for similarly grave offenses. 84 The Court reasoned that there is difficulty in comparing sentences within the same jurisdiction because judges will naturally impose their own subjective values as to what "they" believe are comparable sentences. 8 As such, no singular or uniform definition of what constitutes a grave crime can be made. The Court further asserted that even if similarly grave crimes could be identified, the penalties for those crimes would unlikely be comparable, since certain crimes justifiably require different sentences based on their deterrent and rehabilitative needs. 8 6 Finally, the Court also rejected the third element of the Solem analysis. 8 7 The Court reasoned that although sentences imposed for the same crime can be applied with ease, this factor nonetheless has "no conceivable relevance to the Eighth Amendment., 88 Justice Scalia noted that due to the very nature of the federal system, "some state 79. Harmelin v. Michigan, 111 S. Ct. at Id. For example, in Massachusetts, sodomy is punishable by up to twenty years in prison, while assault and battery is only punishable by up to two and a half years; in several other states, by contrast, sodomy is not even a punishable offense. Id. (citations omitted). 81. Id. at Id. 83. Id. 84. Id. at Id. at Id. 87. Id. 88. Id.

11 1992] HARMELIN v. MICHIGAN will always bear the distinction of treating particular offenders more severely than any other state." '8 9 Moreover, nothing in the United States Constitution, according to the Court, requires the State of Michigan to follow the penological schemes of other states. 9 " Writing on behalf of the majority, Justice Scalia also rejected Harmelin's second claim that it was "cruel and unusual" to impose a mandatory sentence without consideration of any mitigating factors. 91 Specifically, Harmelin claimed the fact that he had had no prior felony convictions should have been weighed into the judge's sentencing decision. 92 Harmelin argued that an individualized determination of whether a sentence is grossly disproportionate should be used for noncapital sentence cases, just as it is used in capital sentence cases. 93 The Court, however, refused to extend the individualized capital sentencing scheme to non-capital cases because of the differences between the death penalty and all other penalties. 94 In Harmelin, the Court did find distinctions between the death penalty and life imprisonment without the possibility of parole in that the latter may still be modified by legislative action and leniency from the executive branch. 95 b. Proportionality Exists, but With Limitations Justice Kennedy, joined by Justices O'Connor and Souter, concurred in the Court's judgment and in the opinion in part, but wrote a separate opinion with respect to the Eighth Amendment analysis. 96 Justice Kennedy, unlike Justice Scalia, recognized that the Eighth Amendment does contain a narrow proportionality principle that applies to both capital and non-capital cases alike Id. at Id. 91. Id. at Id. 93. Id. at ; see, eg., Woodson v. North Carolina, 428 U.S. 280 (1976) (death sentence imposed upon defendants who were convicted of first degree murder under North Carolina's mandatory sentencing statute was held to be a violation of the Eighth Amendment). 94. Harmelin v. Michigan, 111 S. Ct. at The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity. Furman v. Georgia, 408 U.S. 238, 306 (1972). 95. Harmelin v. Michigan, 111 S. Ct. at Id. 97. Id. at 2703; see, eg., Enmund v. Florida, 458 U.S. 782 (1982) (capital sentence for

12 CRIMINAL AND CIVIL CONFINEMENT [Vol. 18:1-2 Despite acknowledging the existence of the proportionality principle in a non-capital sentence context, the concurring Justices found certain limitations in its use. First, the process of fixing prison terms for specific crimes involves a "substantive penological judgment that... is 'properly within the province of legislatures, not courts.' "98 The Court reasoned that determinations about the nature and purpose of criminal punishments involve difficult questions of morality, law, and the relationship between law and the social order; the effectiveness of such a system can only be assessed through an agreement of those penological purposes and objectives, the responsibility of which lies in the legislature. 99 Second, the Eighth Amendment does not require that any one penological theory be used." On the contrary, the criminal justice system has placed different degrees of emphasis on the goals of retribution, rehabilitation, deterrence, and incapacitation at different times throughout our nation's history. 101 Third, according to the Court, the nature of our federal system is such that sentencing theories and sentences will naturally be different State sentencing schemes, due to differences in philosophy, attitudes, and perceptions of local conditions, will inevitably lead to converging views on the appropriate length of prison terms for particular crimes. 0 Fourth, proportionality review should be determined by objective factors whenever possible, the most prominent of which is the type of punishment imposed." This factor also failed, according to the Court, because there is a "lack of clear objective factors to distinguish between sentences for different terms of years."' ' 0 5 murder conviction where defendant had not committed the actual murder nor had the requisite intent to kill was considered disproportionate); Coker v. Georgia, 433 U.S. 584 (1977) (sentence of death was disproportionate and excessive punishment for the crime of rape); Weems v. United States, 217 U.S. 349 (1910) (fifteen years of "cadena temporal," a form of punishment that included hard labor in chains and permanent civil disabilities, was held to be disproportional to the offense). 98. Harmelin v. Michigan, 111 S. Ct. at 2703 (quoting Rummel v. Estelle, 445 U.S. 263, (1980)). 99. Harmelin v. Michigan, 111 S. Ct. at Id. at Id. Compare Mistretta v. United States, 488 U.S. 361 (1989) (Sentencing Guidelines promulgated by the United States Sentencing Commission were held to be constitutional) with Williams v. New York, 337 U.S. 241 (1949) (sentencing judge was permitted to exercise a wide discretion as to the sources and types of information used to assist him in determining the sentence to be imposed within the limits fixed by the law) Harmelin v. Michigan, 111 S. Ct. at Id Id Id. at 2705.

13 1992].99]HARMELIN v. MICHIGAN As a result of the combination of these four factors, Justice Kennedy concluded that the Eighth Amendment does not mandate strict proportionality between the type of crime committed and the type of sentence imposed. "Rather, it forbids only extreme sentences that are 'grossly disproportionate' to the crime." 106 Having concluded that a narrow proportionality principle exists, the Court then went on to analyze Harmelin's two claims: the severity of his sentence and its mandatory nature. 107 With respect to Harmelin's claim of disproportionality, the Court compared the crimes committed in Solem and those committed by Harmelin.10 8 The Court characterized the crimes committed in Solem as relatively minor, non-violent, and victimless crimes.109 By contrast, Harmelin's crimes were deemed to be "far more grave" because drugs were involved." The Court reasoned that drug possession is not a victimless crime, as Harmelin had argued, since drugs relate to crime in a number of ways: (1) a drug user may commit more crimes as a result of the physiological and cognitive effects of taking those substances; (2) drug users are more inclined to commit crimes in order to sustain their habit; and (3) violent crimes are bound to occur due to the very nature of the business. 111 The Court presented empirical evidence to demonstrate that the nexus between drugs and crime has dramatically affected the State of Michigan, as well as the United States as a whole.i 2 While acknowledging that statistical proof in and of itself does not justify a mandatory sentence of life imprisonment without parole, the Court reasoned that these figures nonetheless show how the Michigan Legislature could warrant possession of an illegal substance serious enough to justify the imposition of such a harsh penalty. 1 3 In upholding the severity of Harmelin's sentence, the Court also made a comparison of Harmelin's case to that of Hutto v. Davis," 4 where a sentence of forty years imprisonment for possession of nine 106. Id Id Id Id Id Id. at Id. Fifty-seven percent of males arrested nationally for homicide in 1989 tested positively for drugs. Id. (citing National Institute For Justice, 1989 Drug Use Forecasting Annual Report 9 (June 1990)). In addition, in 1989, sixty percent of the homicides in Detroit were drug related, and a majority of those were cocaine related. Id. (citing U.S. Department of Health and Human Services, Epidemiologic Trends in Drug Abuse 107 (Dec. 1990)) Id U.S. 370 (1982).

14 CRIMINAL AND CIVIL CONFINEMENT [Vol. 18:1-2 ounces of marijuana with the intent to distribute withstood an attack of disproportionality."' 5 Justice Kennedy again reasoned that there is a reasonable basis for Michigan to conclude that possession of over 650 grams of cocaine is a more serious offense than possession of nine ounces of marijuana with the intent to distribute." 6 Justice Kennedy further asserted that given the severity of Harmelin's crime, no analysis of the second and third factors of the Solem test was needed." 7 The Court understood Solem to hold that although a comparative analysis between Harmelin's sentence and sentences imposed for other crimes in Michigan, and sentences imposed for the same crime in other jurisdictions, may be helpful, they are by no means required." 8 In short, the Court saw Solem as holding that "intra- and inter-jurisdictional analysis are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.'' 1 Justices Kennedy, O'Connor, and Souter saw no such gross 9 disproportionality in Harmelin's case to warrant the use of all three Solem factors.' 20 With respect to Harmelin's argument that the sentencing judge should have been allowed to consider mitigating factors, Justice Kennedy agreed with Justice Scalia in holding that there is no precedent for a requirement of individualized sentencing in non-capital cases.' 2 ' On the contrary, the Court reasoned that it has "never invalidated a penalty mandated by the legislature based on the length of sentence," and it certainly does not plan to do so in Harmelin's case, especially considering the severe nature of Harmelin's action.' 22 A. Proportionality Does Exist IV. ANALYSIS In the majority opinion, Justices Scalia and Rehnquist concluded that the Eighth Amendment contained no proportionality guarantee, in part, because historical evidence suggested that the cruel and unusual punishment provision must have been meant only as a check upon the legislature from authorizing particular "modes" of punishment Id Harmelin v. Michigan, 111 S. Ct. at Id. at Id Id See id Id Id. at Id. at 2691.

15 1992] HARMELIN v. MICHIGAN Although there is little evidence to determine exactly what the Framers intended the "Cruel and Unusual Punishments" provision to mean in the context of the Eighth Amendment, an historical analysis suggests that the clause was intended not only to limit punishments that are excessively barbaric and inhuman, but also to restrict government in its imposition of excessive sentencing on criminal defendants. 124 * Debates from early state ratification conventions provide one means of reference for analytical purposes. In the January 1788 Massachusetts Convention, for example, Mr. Oliver Wendell Holmes expressed his concern for Congress's responsibility of determining the manner and modes of punishment which are to be inflicted on criminal defendants because Congress is "nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them This same apprehension of unfettered congressional or legislative power was expressed by Patrick Henry at the Virginia Convention when he stated: [C]ongress, from their general powers, may fully go into [the] business of human legislation. They may legislate in criminal cases, from treason to the lowest offen[s]e- petty larceny. They may define crimes and prescribe punishments... But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives. What says our [Virginia] bill of rights?-'that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments infficted.' Are you not, therefore, now calling on those gentlemen who are to compose Congress, to... define punishments without this control? 126 In addition to an historical perspective of the Eighth Amendment, the majority's holding is refuted by a series of capital sentence cases which have held the death penalty to be disproportionate for certain crimes. 27 In Coker v. Georgia, 12 1 for example, the Court reaffirmed 124. See Furman v. Georgia, 408 U.S. 238, (1972). See also Anthony F. Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 CAL. L. REV. 839, 860 (1969) for a scholarly interpretation of the meaning of the cruel and unusual punishments provision of the Eighth Amendment Furman v. Georgia, 408 U.S. at (quoting 2 J. Elliot's Debates 111 (2d ed. 1854)) Id. at See, e.g., Coker v. Georgia, 433 U.S. 584 (1977) (death penalty is grossly disproportionate for the offense of rape); Gregg v. Georgia, 428 U.S. 153 (1976) (death penalty for the offense of murder may constitute cruel and unusual punishment); Furman v. Georgia, 408 U.S. 238 (1972) (death sentences for murder imposed under statutes that left juries with untrammeled discretion to impose or withhold the death penalty was violative of Eighth Amendment) U.S. 584 (1977) (the Court also held that the death penalty in and of itself

16 CRIMINAL AND CIVIL CONFINEMENT [Vol. 18:1-2 Gregg v. Georgia, 129 holding that a punishment may fail constitutional muster due to its excessiveness if it either "(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime."' ' 1 3 By virtue of the second standard, the plurality opinion concluded that the imposition of the death penalty for the rape of an adult woman "is grossly disproportionate and excessive punishment... and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment."'' A further illustration of the existence of a proportionality guarantee in the Eighth Amendment is found in Furman v. Georgia. 132 The Court outlined a series of principles which are inherent in the Cruel and Unusual Punishments Clause: first, a severe punishment cannot be acceptable to contemporary society; second, a state should not arbitrarily inflict a severe punishment; third, a punishment cannot be so severe as to degrade one's dignity; and fourth, "a severe punishment must not be excessive."' 133 Again, as the last element in Furman demonstrates, the principle of restricting excessive punishments is a recurrent theme which is irreconcilable with the holding of the Harmelin majority. Since the Eighth Amendment has been interpreted as having a proportionality principle, at the very least in the context of capital sentencing, the holding by Justices Scalia and Rehnquist that no proportionality is required in the Eighth Amendment must seriously be questioned. In addition to capital sentence jurisprudence, a large body of noncapital sentencing precedent is inconsistent with the notion that no proportionality principle exists in the Eighth Amendment. On the contrary, this case law strongly suggests that the ban on cruel and unusual punishments was geared towards excessive sentencing as well as preventing certain methods of punishment. In Robinson v. California,1 34 for example, the Court held that it would be cruel and unusual to impose even one day of imprisonment for the status of drug addiction. 35 Additionally, proportionality is was not invariably cruel and unusual punishment within the meaning of the Eighth Amendment) U.S. 153 (1976) Coker v. Georgia, 433 U.S. at Id U.S. 238 (1972) Id. at (Brennan, J., concurring) U.S. 660 (1962) Id. at 667. See also Ford v. Wainright, 477 U.S. 399, 410 (1986) (Eighth Amendment prohibits imposing the death penalty on the mentally insane).

17 1992] 1HARMELIN v. MICHIGAN reinforced in Trop v. Dulles, 136 where the Court held that the punishment of denationalization for a wartime deserter was too excessive although it involved neither "physical mistreatment" nor "primitive torture." '137 Since Trop does not involve the use of physical punishment, but instead focuses on the length of sentences, it further illustrates that the function of the Eighth Amendment is not merely to act as a check on cruel and unusual modes of punishment, but also to safeguard against excessive sentencing. Furthermore, in Weems v. United States, 38 Justice McKenna, adopting language from dissenting Justice Field in O'Neil v. Vermont, 139 acknowledged that the provision was traditionally meant to prohibit physically torturous methods of punishmentsy 4 However, McKenna further asserted that "the inhibition was directed not only against [those] punishments which inflict torture, 'but against all punishments which, by their excessive length or severity, are greatly disproportioned to the offenses charged.' ""4 Similarly, in the majority opinion of O'Neil, where the defendant was convicted of committing a series of unlawful acts, the principle of proportionality was further implied by Justice Blatchford, who stated that, "[i]f the penalty were unreasonably severe for a single offen[s]e, the constitutional question might be urged; but here the unreasonableness is only the number of offen[s]es which the respondent committed." 142 ' The constitutional question to which Justice Blatchford referred was most assuredly the Eighth Amendment's ban on cruel and unusual punishment. 143 In addition to the foregoing case law, Justices Scalia and Rehnquist display inconsistent views with their current stand on proportionality. For example, Justice Rehnquist, writing the majority opinion in Rummel v. Estelle,144 pointed out the paucity of successful challenges to the U.S. 86 (1958) Id. at U.S. 349 (1910) U.S. 323 (1892) (fine of over $6000 or, if defendant was unable to pay the fine, 54 years of hard labor while incarcerated for 307 offenses of selling intoxicating liquor without authority was not violative of the Eighth Amendment) Weems, 217 U.S. at 370. Punishments such as the rack, the thumbscrew, the iron boot, and the stretching of limbs were inflicted in England at one time but were eventually rendered excessive by the Declaration of Rights, and subsequently by the Bill of Rights. O'Neil, 144 U.S. at Weems, 217 U.S. at 370 (quoting O'Neil 144 U.S. at ) O'Neil, 144 U.S. at See id U.S. 263 (1980) (mandatory life imprisonment without the possibility of parole under a Texas recidivist statute for a third felony of obtaining money by false pretenses was not violative of the Eighth Amendment).

18 CRIMINAL AND CIVIL CONFINEMENT [Vol. 18:1-2 proportionality of particular sentences outside the context of capital punishment. 145 Nonetheless, Rehnquist acknowledged that the Supreme Court has on previous occasions "stated that the Eighth Amendment prohibits imposition of a sentence that is disproportionate to the severity of the crime." ' 146 Justice Rehnquist's view on the issue of proportionality in Rummel is also consistent with the concurring Justices in Harmelin who acknowledged that "Eighth Amendment proportionality also applies to noncapital sentences.' 4 7 Moreover, despite Justice Scalia's contention that no proportionality guarantee exists in Eighth Amendment jurisprudence, he contradicts himself several times later in the Harmelin opinion. The first inconsistency occurs during his analysis of Harmelin's claim that it is cruel and unusual to impose a mandatory sentence of life imprisonment without parole absent a consideration of the mitigating circumstances. 148 Scalia concedes that Harmelin's "'required mitigation' claim, like his proportionality claim, does find support in our deathpenalty jurisprudence."' 149 Scalia's position is in sharp polarity to his previous holding in the Harmelin opinion.' 50 A second contradiction occurs later in the Harmelin opinion. Justice Scalia, again retracting from his initial holding that a proportionality requirement was not required, stated that "[o]ur 20th-century jurisprudence has not remained entirely in accord with the proposition that there is no proportionality requirement in the Eighth Amendment, but neither has it departed to the extent that Solem suggests."'1 5 1 The antithetical views expressed by Justices Scalia and Rehnquist in both Harmelin and other Eighth Amendment jurisprudence, coupled with the overwhelming nature of capital and non-capital sentencing precedent and the view taken by the concurring Justices, simply cannot be reconciled with the holding that no proportionality guarantee exists. To do so would be to render decades of case law meaningless.' 5 2 In light of this evidence, it is not surprising that since the Harmelin decision, the Michigan Supreme Court has ruled that the lack of a parole provision within the statute under which Ronald 145. Rummel v. Estelle, 445 U.S. 263, 271 (1980) Id Harmelin v. Michigan, 111 S. Ct. 2680, 2703 (1991) (Kennedy, J., concurring) (citing Rummel v. Estelle, 445 U.S. at & n. 11) Id. at Id. (emphasis added). Justice Scalia then goes on to reject Harmelin's required mitigation argument on the grounds that individualized sentencing is not required outside of the capital sentencing arena. Id See id Id. at See id. at 2711 (White, J., dissenting).

19 1992] HARMELIN v. MICHIGAN Harmelin was convicted is "unjustifiably disproportionate." ' 153 B. Although Legislatures Are Granted Great Deference in Sentencing, the Michigan Statute May Be Struck Down Although the concurring opinion in Harmelin accepts the principle that proportionality does exist in both capital and non-capital sentencing, the opinion still finds proportionality review to have limited use Among the principles which give rise to the limited use of proportionality, according to Justice Kennedy, is the view that "the fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is 'properly within the province of legislatures, not courts.'" 155 Our system of government has, without dispute, consistently recognized that "it is the function of the legislative branch to define crimes and prescribe punishments, and that such questions are in the first instance for the judgment of the Legislature alone." ' 6 However, it is equally well settled that "legislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel and unusual punishments," and that "it is the difficult but imperative task of the judicial branch, as co-equal guardian of the Constitution, to condemn any violation of that prohibition." 157 Thus, although substantial deference is given to legislative judgments when assessing the proportionality of any punishment, the judiciary is by no means precluded from rendering a statute disproportional. 58 Appellate courts generally have been reluctant to overturn sentences within statutorily defined limits 15 9 unless they involve trial court abuses or failure to use discretion, 160 or involve procedural violations, People v. Bullock, 485 N.W.2d 866, 872 (Mich. 1992) Harmelin v. Michigan, 110 S. Ct. at Id. (citing Rummel v. Estelle, 445 U.S. 263, (1980)). See supra notes and accompanying text for discussion on the other limitations to non-capital sentencing In re Lynch, 503 P.2d 921, 923 (Cal. 1972) Id See Solem v. Helm, 463 U.S. 277, (1983) (Burger, C.J., dissenting) See, eg., Dorszynski v. United States, 418 U.S. 424, 431 (1974) (appellate review generally ends upon a determination that a sentence is within statutory limits); Gore v. United States, 357 U.S. 386, 393 (1958) (Supreme Court is without power to revise sentences because severity of punishment is a matter of legislative policy) See, eg., United States v. Johnson, 823 F.2d 840, 842 (5th Cir. 1987) (although the trial court is given broad discretion and the decision will not be overturned absenta finding of arbitrary or capricious action, the district court judge abused his discretion by adopting the government's version of certain facts with no evidentiary basis) See, ag., United States v. Martin, 788 F.2d 184, 187 (3d Cir. 1986) (sentence vacated when prosecution breached plea agreement by not informing court of defendant's cooperation).

20 CRIMINAL AND CIVIL CONFINEMENT [Vol. 18:1-2 or raise constitutional questions. t6 2 While the United States Supreme Court, due to the great deference and broad discretion accorded the legislature, has rarely struck down sentences on the ground that they were excessive in relation to the gravity of the offenses committed, both state and federal courts have been less reluctant to strike down offenses on such grounds. 163 An analysis of these cases demonstrates that prior to the new 1978 Michigan drug law at issue, Michigan courts sentenced drug offenders to punishments which were more in line with the "evolving standards of decency that mark the progress of a maturing society." 164 For instance, in People v. Lorentzen, 16 5 the Supreme Court of Michigan addressed the constitutionality of a prison sentence of twenty years for a first-time offender convicted of selling marijuana Although the court declined to hold that the punishment did not fit the defendant's crime, it was disturbed by the fact that the relevant statutory provision was "equally applicable to a first-time offender as it [was] to a wholesaling racketeer." ' 67 The court struck down defendant's sentence after comparing other crimes in Michigan involving the sale of other harmful substances, and after noting the differences between the defendant's crime and other crimes in the state involving 162. See, e.g., Solem v. Helm, 463 U.S. at 303 (gross disproportionality between crime and sentence constitutes cruel and unusual punishment) E.g., Davis v. Davis, 601 F.2d 153 (6th Cir. 1979) (en banc) (two consecutive 20- year sentences for sale and possession of marijuana); Rummel v. Estelle, 568 F.2d 1193 (mandatory life imprisonment upon third felony conviction), rev'd en banc, 587 F.2d 651 (5th Cir. 1978), cert. granted, 445 U.S. 263 (1980); Downey v. Perini, 518 F.2d 1288 (6th Cir. 1975) (30 to 60 year sentence for first possession and sale of marijuana), vacated on other grounds, 423 U.S. 993 (1975); Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973) (mandatory life imprisonment upon third felony conviction), cert denied, 415 U.S. 983 (1974); Thacker v. Garrison, 445 F. Supp. 376 (W.D.N.C. 1978) (48 to 50 years for safecracking); Carmona v. Ward, 436 F. Supp (S.D.N.Y. 1977) (life imprisonment for sale of small amount of cocaine), rev'd, 576 F.2d 405 (2d Cir. 1978), cert. denied, 439 U.S (1979); In re Lynch, 503 P.2d 921 (Cal. 1972) (indeterminate life sentence for second offense of indecent exposure); People v. Lorentzen, 194 N.W.2d 827 (Mich. 1972) (20 years for sale of marijuana) Trop v. Dulles, 356 U.S. 86, 101 (1958); see also Penry v. Lynaugh, 109 S. Ct. 2934, 2953 (1989). In determining whether a punishment comports with the evolving standards of decency, the Court has looked to the pattern of federal and state laws in search of objective evidence. Stanford v. Kentucky, 492 U.S. 361, 364 (1989). For example, the Court compared the nationwide treatment of teenage murderers before deciding whether it would be cruel and unusual punishment to impose the death penalty. Penry v. Lynaugh, 109 S. Ct. at It is this type of objective comparison which the Solem Court utilized in its three-factor test N.W.2d 827 (Mich. 1972) Id. By comparison, Ronald Harmelin was also a first-time offender who was convicted of the less severe offense of possession of a controlled substance Id. at 831.

21 1992] HARMELIN v. MICHIGAN harm to others. 168 Additionally, in the case of Carmona v. Ward,' 69 a District Court in New York struck down a mandatory life term for a forty-one year old mother who was convicted of possessing more than one ounce of cocaine The state made two principal arguments in response to defendant's Eighth Amendment challenge. Like the Harmelin Court, the state claimed that "it is the Legislature's prerogative to determine the relative gravity of offenses within its jurisdiction," and secondly, that the varying treatment of similar crimes between the states is permissible in order to deal with -the respective drug problems of the states. 171 Although the Carmona court was willing to recognize the principle behind the state's first argument, it posited that the state would still not be free to sentence someone to a life term for the simple crime of stealing five dollars. 172 Acknowledging that the example was extreme, the court nonetheless used it to reaffirm that "[tjhe judiciary must necessarily have some function in assuring that the chosen punishment scheme comports with the human dignity of the criminals who are subject to it." 17 1 In addition, while finding the state's second argument compelling, the court reasoned that regardless of "even the most enlightened and well motivated approach to the most intractable and corrosive social problems," such as drugs, each state's choice must comply with a constitutional limitation. 174 Downey v. Perini presents another example of a state's freedom to sentence. 175 In this case, the United States Court of Appeals for the Sixth Circuit struck down two Ohio prison sentences of ten to twenty years for possession of a controlled substance and twenty to forty years for the sale of a controlled substance, respectively. 176 In finding the sentences violative of the Eighth Amendment's ban on cruel and unusual punishment, the court, like Solem, Lorentzen, and Carmona, looked to other jurisdictions for guidance In this particular case, the court compared the marijuana laws of other jurisdictions with the 168. Id. at For instance, in Michigan, in 1972, manslaughter was punishable by 15 years imprisonment; carrying a firearm with the unlawful intent was punishable by five years; assault with the intent to do great bodily harm less than murder was punishable by 10 years, and assault and battery was punishable by 90 days. Id. (citations omitted) F. Supp (S.D.N.Y. 1977) Id. at Id. at Id Id Id F.2d 1288 (6th Cir. 1975) Id. at Id. at

22 CRIMINAL AND CIVIL CONFINEMENT [Vol. 18:1-2 Ohio marijuana laws, while also comparing the sentences to other crimes under Ohio law receiving similar sentences A further analysis of the cases in which sentences have been struck down for their excessiveness also reveals that courts have been successful in applying the proportionality test from the Fourth Circuit decision, Hart v. Coiner, 179 the first significant federal court case to extend proportionality reasoning to a term of years In Hart, the defendant was convicted under a West Virginia recidivist statute for committing three felonies: writing a check on insufficient funds for fifty dollars, transporting forged checks totalling one hundred and forty dollars across state lines, and committing perjury Similar to the Solem three-pronged analysis, the Hart test proposed that proportionality could best be determined by looking to the nature and gravity of the offense itself, making a comparison of defendant's punishment with punishments in other jurisdictions, and making a comparison of punishment available in the same jurisdiction for other offenses.' 82 In addition, however, the court also required assessment of a fourth element-the legislative purpose behind the punishment. 183 The Hart court posited that if significantly less severe punishments can also be applied to effectuate the legislative purpose or goals of the statute, then the punishment inflicted must be "unnecessary and therefore excessive."' 84 With this principle as a foundation, the court concluded that the punishment of life imprisonment without parole, the most severe penalty in the State of West Virginia, for the commission of three nonviolent crimes over a twenty year period was "excessive and wholly disproportionate In response to constantly changing social problems, conditions, and attitudes, legislators often pass laws which are the result of societal 178. Id. (citations omitted) F.2d 136 (4th Cir. 1973). For cases utilizing the Hart test see United States v. Wardlaw, 576 F.2d 932, 937 (1st Cir. 1978); Rummel v. Estelle, 568 F.2d 1193, 1198 (5th Cir. 1978); United States v. Williamson, 567 F.2d 610, 616 (4th Cir. 1977); United States v. Neary, 552 F.2d 1184, 1195 (7th Cir. 1977); Robert v. Collins, 544 F.2d 168, 170 (4th Cir. 1976); United States v. Stein, 544 F.2d 96, 104 (2d Cir. 1976); Davis v. Zahradnick, 432 F. Supp. 444, 453 (W.D. Va. 1977) Nancy Keir, Comment, Solem v. Helm: Extending Judicial Review Under the Cruel and Unusual Punishments Clause to Require 'Proportionality' of Prison Sentences, 33 CATH. U. L. REV. 479, 488 (1984) Hart v. Coiner, 483 F.2d 136, 138 (4th Cir. 1973) Id. at Id. at 141. The legislative purpose behind the punishment mandated by the West Virginia statute was to serve as a deterrent to others, while at the same time to protect society from the habitual criminal. Id Id. (quoting Furman v. Georgia, 408 U.S. 238, 279 (1972)) Id. at 143.

23 1992] HARMELIN v. MICHIGAN pressures. As such, legislative decisions are often made with a focus on what is advantageous and swift rather than on what is necessarily right."' While such decisions are not always improper, "[i]n the legislative assemblies the demands and excitement of the moment may occasionally becloud important long-term considerations. And because legislative analysis often deals with abstract and future problems, legislative actions sometimes have unanticipated and unintended side effects."'1 8 7 An example of impulsive legislative decision-making, analogous to the Michigan Legislature's response to its growing drug problem, existed in the 1960's in which the California Legislature attempted to respond to growing drug abuse by demanding stiffer penalties for drug possessors, users, and dealers."' 8 As a result, the legislature amended various sections of the Health and Safety Code to increase prison sentences for the aforementioned offenders. 1 9 More importantly, however, in an attempt to reduce the judiciary's power to reduce sentences, "judges were prohibited from striking any allegation of a prior conviction even in the most meritorious case without first bargaining with and securing the consent of the prosecutorial agency."' 19 The Supreme Court of California struck down this legislative action based on a violation of separation of powers.' 91 The court's decision was an appropriate one since several commissions eventually recommended that drug abuse be considered a medical problem rather than a penal one. 192 In short, our society should continue to adhere to the principles espoused in Marbury v. Madison 1 93 almost one hundred and ninety years ago. As Chief Justice John Marshall so aptly wrote, "[i]t is... the province and duty of the judicial department to say what the law is."' 19 Although there may be danger that the courts will prevent the will of the majority, it must be balanced against the will of the majority interfering "with the rights of individuals who, even when acting as 186. Donald R. Wright, The Role of the Judiciary: From Marbury to Anderson, 60 CAL. L. REv. 1262, 1266 (1972) Id Id Id Id Id. The court struck down the amendments based on People v. Tenorio, 473 P.2d 993 (Cal. 1970) (statute providing that in any proceeding under narcotics division of Health and Safety Code, no allegation of fact which, if admitted or found to be true, would change the penalty by the court, constituted invasion of judicial power and was violative of constitutional separation of powers) Wright, supra note 186, at U.S. (1 Cranch) 137 (1803) Id. at 177.

24 CRIMINAL AND CIVIL CONFINEMENT [Vol. 18:1-2 a group, may be unable to protect themselves through the political process. In this way, judicial review assures a government under the laws." 195 ' In harmony with Justice Marshall's famous words, we must remember that "[t]he high service rendered by the 'cruel and unusual' punishment clause.., is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups." 196 C. A Return to the Hart v. Coiner Proportionality Test The Harmelin Court, writing through Justice Scalia, rejected the three-pronged proportionality test set out in Solem due to the lack of objective standards for determining the gravity of crimes, and the danger of allowing judges to impose their own subjective values on any proportionality principle Meanwhile, the concurring opinion, through Justice Kennedy, reasoned that Solem's three factors can effectively be reduced to one, the gravity of the offense. 198 Contrary to the position taken by the Harmelin Court, the application of the Solem test has not been problematic for the courts, as indicated by the fact that few sentences have been struck down as being disproportional to the offenses committed.' 99 However, in order to satisfy the majority's concerns over the lack of objectivity in determining the gravity of an offense and the problems associated with comparing the crimes and penalties imposed in other jurisdictions, courts should consider a return to the four-part proportionality test established in Hart v. Coiner. 2 The four elements utilized in Hart v. Coiner, of which Solem v. Helm uses three, are "useful semantic tools" because they allow courts to determine whether the punishment fits the crime. 20 ' The "nature 195. Wright, supra note 186, at Furman v. Georgia, 408 U.S. 238, 256 (1972) (Douglas, J., concurring) Harmelin v. Michigan, Ill S. Ct. 2680, (1991) Id. at See, e.g., Naovarath v. State, 779 P.2d 944 (Nev. 1989) (court struck down a sentence of life without parole imposed on an adolescent who killed and robbed an individual who had repeatedly molested him); Ashley v. State, 538 So. 2d 1181 (Miss. 1989) (court had discretion to reduce a mandatory sentence for a defendant who burglarized a home to get $4.00 to pay a grocer for food eaten in the store); Clowers v. State, 522 So. 2d 762 (Miss. 1988) (trial court had discretion to reduce a mandatory sentence of 15 years without parole under a recidivist statute for a defendant who uttered a forged check); State v. Gilham, 549 N.E.2d 555 (Ohio 1988) (conviction of a greater offense of possessing criminal tools was unconstitutionally applied to defendant to enhance her underlying crime of solicitation for prostitution) See supra notes and accompanying text Robert v. Collins, 544 F.2d 168, 176 (4th Cir. 1976) (Markey, J., dissenting).

25 1992] HARMELIN v. MICHIGAN and gravity of the offense" element dictates how the punishment is to fit the crime. 202 By fixing the statutory scheme, the Legislature insures that the purpose of the punishment is not to seek vengeance The final two elements, a comparison of punishments for the same crime in other jurisdictions and a comparison of punishments for other crimes in the same jurisdiction, are also essential to the analysis in that they provide a guide for determining appropriate punishments under current social standards. 2 4 An application of the Hart proportionality test to Ronald Harmelin's case demonstrates the gross disproportionality of the sentence to the crime which he committed. The legislative purpose of the statute under which Harmelin was convicted is purportedly to further the incarceration of drug kingpins. 205 If so, then Ronald Harmelin, a firsttime offender whose total assets reflect his lowly status on the drugdealer totem pole, is not the intended target of this particular legislation. 206 Furthermore, the sentence imposed by the State of Michigan is unnecessary to accomplish the Michigan Legislature's goals. 2 7 It is implausible to conceive that there are no less restrictive alternatives, such as imposing a lengthy prison sentence or a life term with the possibility of parole, which can achieve the same deterrent effects as a mandatory life sentence without parole. Because life imprisonment is the "penultimate punishment," it has been reserved for those violent persons who are dangerous to others Ronald Harmelin has neither 202. Id. The nature and gravity of the offense element would appear to be an appropriate factor for proportionality analysis. Our society having settled, essentially, on fines, probationary supervision and incarceration as the only generally acceptable forms of non-capital punishment, the vast majority of such inquiries would appear to involve the relationship among the three forms, the amounts of differing fines, the varying lengths and stringencies of probations, and the differing periods of incarceration, all considered in the light of the totality of circumstances surrounding the criminal and the crime. Id. at 176 n Id Id See Brief of Petitioner at appendix 5, Harmelin v. Michigan, 111 S. Ct (1991) (No ). Michigan House Bill 4190, sponsored by Rep. Paul Rosenbaum, states that one of the apparent drug problems is that law enforcement officials appear to be arresting the same individuals over and over again, and are unable to arrest the top drug dealers because they are "so far removed from the 'street scene.'" H.R. 4190, 34th Leg., Sess. (1978) See supra text accompanying note 26. There is no evidence from the record to suggest that Ronald Harmelin was anything but a "mule of transport" who was working in order to support his own drug addiction. Brief of Petitioner at 17, Harmelin (No ) See United States v. Williamson, 567 F.2d 610, 616 (4th Cir. 1977); Hart v. Coiner, 483 F.2d 136, 141 (4th Cir. 1973) Hart v. Coiner, 483 F.2d at 141.

26 CRIMINAL AND CIVIL CONFINEMENT [Vol. 18:1-2 a history of violence, nor a criminal record. 2 9 Moreover, in the event that the legislative purpose of the statute is ambiguous, that ambiguity should be resolved in favor of the defendant. 21 When applying the other three factors of Hart to the case of Ronald Harmelin, the inequities and injustices become more glaring. First, with respect to the inherent gravity of the crime, possessing 650 grams of cocaine is not a violent crime in and of itself. 2 " 1 While the Harmelin Court argues that possession of narcotics is not a victimless crime because of its derivative effects, 212 a derivative effect can be readily found for every crime, including the transportation of forged checks, the writing of checks for insufficient funds, and forgery A comparison of the sentences for other crimes in the State of Michigan, the second factor used by Solem, reveals that only one other crime, first degree murder, is subject to a mandatory life prison term without the possibility of parole. 214 By contrast, crimes more serious than possession of 650 grams of cocaine, such as second degree murder, assault with the intent to murder, first degree criminal sexual conduct, armed robbery, assault with the intent to rob while armed, bank robbery, and kidnapping, carry lesser penalties, such as terms of life with parole or terms of years. 215 Moreover, the legislature has given 209. See supra note 21 and accompanying text See Ladner v. United States, 358 U.S. 169, 177 (1958). "[W]hen the choice has to be made between the readings of what Congress has made a crime, it is appropriate before we choose the harsher alternative, to require that Congress should have spoken in the language that is clear and definite..." "When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity." Id. (quoting U.S. v. Universal C.I.T. Credit Corp., 344 U.S. 218, (1952) and Bell v. U.S., 349 U.S. 81, 83 (1955)). The State implied that the legislation at issue was not necessarily designed to focus on "drug kingpins," but rather to address Michigan's drug problem in general. Brief of Respondent at 2-12, Harmelin v. Michigan, 111 S. Ct (1991) (No ) See Brief of Petitioner at 7, Harmelin (No ); see also Peter A. Rossi et al., The Seriousness of Crimes: Normative Structure and Individual Differences, 39 AM. Soc. REV. 224, 237 (1974) for the proposition that there are widely shared views on the relative seriousness of crimes See supra text accompanying notes See Hart v. Coiner, 483 F.2d 136, 148 (4th Cir. 1973) (Boreman J., dissenting). Although none of Hart's offenses were against the person, or involved violence to persons or property, Hart's perjury was committed during his son's trial for murder, a violent and severe crime. Id MICH. COMP. LAWS (1948); MICH. STAT. ANN (Callaghan 1990) Second-degree murder: MICH. COMp. LAWS (1948), MICH. STAT. ANN (Callaghan 1990); assault with the intent to murder: MICH. COMP. LAWS (1948), MICH. STAT. ANN (Callaghan 1990); first-degree criminal sexual conduct:

27 1992] HARMELIN v. MICHIGAN the courts freedom of discretion in the sentencing of these grave crimes, including the ability to grant parole. 216 Lastly, in comparing the sentences imposed in other jurisdictions for possession of over 650 grams of cocaine with that of Michigan, no other state imposes a mandatory life sentence without parole Only Alabama additionally mandates a sentence of life imprisonment without the possibility of parole for possession of cocaine. However, at least ten kilograms, or twenty-two pounds, is required to receive such a sentence V. CONCLUSION The detrimental effect which narcotics has had on the United States in recent years is alarming and worthy of our attention. Drugs have infiltrated all levels of our society, permeating both wealthy and impoverished communities. Drugs do not discriminate by race, color, or creed. As such, we as a society must firmly respond to the scourge of narcotics. One way, as the State of Michigan has attempted to do, is through tougher legislation. The Michigan legislature should be lauded for its efforts at stricter sentencing. Other states should follow in Michigan's path. Despite legislative efforts, however, each law should be analyzed on a case-by-case basis. The Michigan law at issue was passed in order to ostensibly deter drug "kingpins" from their illegal activities. Ironically, though, the individuals most affected by the law are the nonviolent, small-time dealers, many of whom, like Ronald Harmelin, are first-time offenders. The new law also affects America's youth, who MICH. COMP. LAWS (b) (1948), MICH. STAT. ANN (2) (Callaghan 1990); armed robbery: MICH. COMP. LAWS (1948), MICH. STAT. ANN (Callaghan 1990); assault with the intent to rob while armed: MICH. COMp. LAWS (1948), MICH. STAT. ANN (Callaghan 1990); bank robbery: MICH. COMp. LAWS (1948), MICH. STAT. ANN (Callaghan 1990); kidnapping: MICH. COMp. LAWS (1948), MICH. STAT. ANN (Callaghan 1990) Brief of Petitioner at 36, Harmelin (No ) See, eg., ALA. CODE 13A (2)(b) (1982) (mandatory minimum of 5 years and $100,000 fine); ALASKA STAT (1989) (no more than 10 years); ARIZONA REv. STAT. ANN (c) (1989) (4 years); ARK. CODE ANN (a)(1)(i) (Michie 1987) (not less than 40 years or life and $250,000 fine); CAL. HEALTH & SAFETY CODE (West 1991) (2-4 years for possessing to sell); GA. CODE ANN (a)(1)(c) (Michie 1988) (mandatory minimum of 25 years and $1 million fine); HAW. REv. STAT (b) (no more than 5 years, $5,000 fine or both); IDAHO CODE (a)(1)(A) (1987) (up to life, $25,000 fine or both with parole after 10 years); ILL. ANN. STAT. ch. 56 1/2 para. 1401, 401(a)(1)(c) (not less than 12 years and not more than 50 years); IND. CODE ANN (Bums 1985) (30 years exclusive of aggravating or mitigating circumstances); MASS. GEN. L. ch. 94C 32A (1991) ( years or 2.5 years and a $1,000-$10,000 fine) ALA. CODE 13A (2)(d) (1982).

28 CRIMINAL AND CIVIL CONFINEMENT [Vol. 18:1-2 are employed by the "kingpin," as a means of circumventing the stiff penalties imposed under the statute. 2 ' 9 As such, the purpose of this particular legislation is not being fulfilled. Neither Michigan nor the United States as a whole should tolerate existing drug activity and the incumbent social harms which accompany it. While we need stiffer laws and penalties for those who prey on our society, we must make certain that these laws comply with the constitutional protections as established by the Framers so that laws do not unjustly punish individuals like Ronald Harmelin. The Court's comparison between the death penalty and a life term in prison, with a stress on its dissimilarities, has some merits to it. 220 However, as the Harmelin Court fails to recognize, they are similar because they both reject rehabilitation as a purpose of our criminal justice system. For, although one escapes the jaws of death by being sentenced to a life term without parole, its effect is also to reject rehabilitation, since these criminals will never again be in the mainstream of society. Moreover, despite the Court's contention that a life term and the death sentence differ in that life sentences are subject to retroactive legislation and executive clemency, such post-sentencing actions are rarely exercised. 221 It is apparent that no test or standard for determining the proportionality of sentences will be free of inequities and devoid of scrutiny. In light of such reality, the real issue to focus on is whether the proportionality test from Solem v. Helm, or as this Comment has suggested a return to the Hart v. Coiner test to include a state's legislative purpose factor, is more equitable than to allow legislatures to simply impose sentences without appropriate judicial review. Considering the Court's hesitation to question legislative judgment, the utilization of the Hart proportionality test would provide a useful means of employing objective criteria, and yet allow for the retention of legislative deferrence as the Court would prefer. MICHAEL H. THEODORE* 219. Drug Lifer Law, supra note 17, at 6A See Furman v. Georgia, 408 U.S. 238, 306 (1972) Statistics have shown that in Michigan, until 1979, only those lifers convicted of murder in the first degree were ineligible for parole. Although there were no formal limitations on applications for commutation, inmates were routinely reviewed for release on parole. Their efforts to gain release by commutation, however, were greatly discouraged by the process. In a prison system of fifteen thousand prisoners, only an average of fortyfive applications were submitted and only four of those were granted annually from 1977 through Susan E. Martin, Commutation of Prison Sentences: Practice, Promise and Limitation, 29 CRIME & DELINQ. 593, 601 (1983). * This Article is dedicated to my parents, Harry and Maria Theodore, for their love and guidance, to my brother, George, for his inspiration and motivation, and to my uncles, Michael and Panos, for their support. I love and thank you all.