Harmelin v. Michigan

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1991 United States Supreme Court case

Harmelin v. Michigan, 501 U.S. 957 (1991), was a case decided by the Supreme Court of the United States under the Eighth Amendment to the United States Constitution . The Court ruled that the Eighth Amendment's Cruel and Unusual Punishment Clause allowed a state to impose a life sentence without the possibility of parole for the possession of 672 grams (23.70 oz) of cocaine .

The Court's narrow ruling left a major question of Eighth Amendment law unresolved. Since the Court's decision in _Gregg v. Georgia _, the Court had incorporated a detailed proportionality analysis into the cruel and unusual punishment analysis required in capital cases. The defendant Ronald Harmelin directly asked the Court to extend the reach of that analysis to noncapital cases such as his. Although five Justices agreed that Harmelin's sentence was not unconstitutionally cruel and unusual, six Justices agreed that the Cruel and Unusual Punishment Clause bore some kind of proportionality analysis. Yet among those six, three supported a proportionality principle that is highly deferential to legislative judgments, while three others supported a more searching proportionality analysis that would have struck down Michigan's mandatory life-without-parole sentence for possessing more than 650 grams (22.93 oz) of cocaine (672 grams or 23.70 ounces).

The State of Michigan was represented by Richard Thompson and Michael Modelski. Thompson's other credits include serving as a prosecutor of Dr. Jack Kevorkian . Various state attorneys general, as well as the United States Solicitor General , filed amicus curiae briefs on behalf of the State of Michigan. The Court-appointed counsel for Harmelin, the ACLU and a group of criminal defense attorneys filed briefs in support of the defendant's position.

The majority ruling

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The only aspect of the decision that garnered the vote of five Justices was the ultimate conclusion that the mandatory life without parole sentence required by the Michigan law forbidding the possession of more than 650 grams of cocaine was not cruel and unusual punishment. "Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation's history." Nor did the Eighth Amendment require a sentencing court to consider mitigating factors in noncapital cases. It was enough that Michigan law allowed for executive clemency, or that the legislature might at some later date retroactively reduce the sentence for Harmelin's crime.

The proportionality debate

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The Justices could not agree, however, whether and to what extent the Eighth Amendment imposed a proportionality requirement in noncapital sentencing proceedings. Justice Antonin Scalia , as is typical of his originalist interpretation of the Constitution, introduced historical evidence in support of his argument that the Eighth Amendment imposes no proportionality requirement at all. Justice Anthony Kennedy argued in favor of a vague proportionality principle that allowed the Court to uphold Harmelin's sentence. And Justice Byron White argued that Harmelin's sentence was the sort of "excessive" sentence forbidden by the Eighth Amendment.

Scalia's originalist argument

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Through his opinion in Harmelin, Justice Scalia voiced his disagreement with the Court's decision in _Solem v. Helm _, 463 U.S. 277 (1983), which was decided before he was appointed to the Court. He first identified the English Bill of Rights of 1689 as the source of the Eighth Amendment's ban on cruel and unusual punishment. According to Scalia, Solem assumed that the Americans who adopted the Eighth Amendment in 1791 understood that language in the same way as the English of 1689. Scalia disputed this hypothesis. He pointed to a dispute among historians about which royal abuses the Declaration was intended to combat. Some historians contend that these abuses were the harsh punishments for treason —drawing and quartering , beheading , disemboweling —meted out by the Bloody Assizes . Other historians contend that the Declaration was meant to rein in the enormously arbitrary sentencing power the king had exercised in sentencing a notorious perjurer. Regardless, Scalia argued that those who wrote the Declaration considered a punishment to be "cruel and unusual" only if it were outside of the judge's power to impose. The phrase "'cruel and unusual' is treated as interchangeable with 'cruel and illegal.'" For this reason, the English of the 17th century did not believe a "cruel and unusual" punishment was a disproportionate one.

For Scalia, though, the more important question was what the words "cruel and unusual" meant to the Framers of the Bill of Rights in 1791 when the Eighth Amendment was adopted. "Even if one assumes that the Founders knew the precise meaning of that English antecedent..., a direct transplant of the English meaning to the soil of American constitutionalism would in any case have been impossible." Because federal common law incorporated no common-law crimes, the Framers could only have meant to check legislative power. They understood the word "unusual" to refer to things that were "not regularly or customarily employed." Furthermore, if the Framers had meant to outlaw 'disproportional' punishments, they would have used that word, as many contemporary state constitutions did. "There is little doubt that those who framed, proposed, and ratified the Bill of Rights were aware of such provisions [outlawing disproportional punishments], yet chose not to replicate them." Finally, the scant direct evidence available from state ratifying conventions confirmed for Scalia the view that an "unusual punishment" was a particular mode of punishment that was infrequently imposed, not one that was excessively lengthy in comparison to other punishments imposed for similar crimes.

For these reasons, Scalia argued that the proportionality test from Solem should be overruled. Solem had held that a particular punishment was unconstitutionally disproportional if (1) the crime was relatively minor in comparison to the punishment, (2) the sentence imposed in the jurisdiction for similarly grave offenses was less, and (3) other jurisdictions impose a lesser sentence for the same crime. Scalia argued that (1) it was difficult to assess the gravity of a particular crime, and thus (2) it would be difficult to determine whether similarly grave crimes carried a lesser sentence. As for whether other jurisdictions imposed a lesser sentence for the same crime, Scalia conceded that it is easy to figure this out, but that this inquiry has "no conceivable relevance to the Eighth Amendment." If a mode of punishment was "unusual" because it was infrequently imposed, the three factors of the Solem test hardly mattered to Scalia. In a federal system, moreover, some state will always have the distinction of imposing the harshest punishment for a particular crime. "The Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling the States from giving effect to altered beliefs and responding to changed social conditions." Because the proportionality requirement was of recent vintage, "issued 185 years after the Eighth Amendment was adopted," and then only in capital cases, Scalia reasoned it should be abandoned entirely, or at least limited only to capital cases.

White's proportionality argument

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Justice White's point of departure was that "the Amendment does not refer to proportionality in so many words, but it does forbid 'excessive' fines, a restraint that suggests that a determination of excessiveness should be based at least in part on whether the fine imposed is disproportionate to the crime committed." Accordingly, the Eighth Amendment imposed a strong proportionality requirement not simply on fines, but on all criminal punishments, including prison terms.

White took issue with three premises of Scalia's argument. First, for White, the fact that the Framers were not as plain-spoken as Scalia would have preferred was no obstacle to concluding that the Eighth Amendment did indeed contain a proportionality requirement. Second, although the newly formed federal government did not, in 1791, have any "track record with respect to criminal law," they had lived under the regime of the several states for some time, and so there would be some benchmarks by which to evaluate proportionality of punishments. Third, even if the original understanding of the Eighth Amendment did not include a proportionality requirement, 20th-century decisions of the Court had imposed one. White takes Scalia to task for claiming at once that the Eighth Amendment must have no proportionality guarantee whatsoever and then th

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