To illustrate how to use the test to weigh whether a sentence is grossly disproportionate, I will use it to analyze the fact patterns from Solem v. Helm, Ewing v. California, Harmelin v. Michigan, and Hutto v. Davis:
a. Solem v. Helm
In Solem, Helm was convicted for writing a no-account check for $100, a felony under South Dakota law.
[58] He had been convicted of six, non-violent felonies: three convictions for third-degree burglary, one conviction for obtaining money under false pretenses, one conviction for grand larceny, and one conviction for a third DWI offense.
[59] Under South Dakota’s recidivist statute, if a person had been convicted of three prior felony offenses, after being convicted of a fourth, he would be sentenced to life imprisonment without the possibility of parole.
[60] And Helm was sentenced to life imprisonment without the possibility of parole.
[61] Using the test to analyze Helm’s sentence, it is obvious that it was grossly disproportionate:
(1) Helm would spend the rest of his life in prison because he wrote a no-account check for $100 (about $284 in 2007 after an adjustment for inflation). (2)(a.) His crime did not involve violence or the threat of violence; (b.) writing fraudulent checks for small amounts poses only localized threats to the businesses and people who receive them as payment, and it would take dozens if not hundreds of small-amount, fraudulent checks to put one business in financial trouble; (c.) compared to other crimes, Helm’s crime was a relatively minor offense and posed a minimal threat to society, and (d.) society considers writing a bad check as a less serious offense.
[62] (3) Helm had been convicted of multiple, non-violent, relatively minor felonies which proved he would continue to commit fraudulent crimes. Weighing these factors, the gross disproportion of Helm’s sentence compared to his offense is glaringly obvious. Surely, his criminal history allowed a sentence longer than a first-time offender convicted of writing a no-account check for $100 would receive, but life without parole was too much.
Because Helm’s sentence was grossly disproportionate, a reviewing court would then consider “the sentences imposed on other criminals in the same jurisdiction; and the sentences imposed for commission of the same crime in other jurisdictions.”
[63] b. Ewing v. California
But in Ewing v. California, it is not as easy to determine whether the sentence was grossly disproportionate. Ewing was convicted for stealing three golf clubs, a felony under California law.
[64] Ewing had a long criminal record of misdemeanor convictions and had been convicted for three felonies for burglary (one armed) and for one felony theft.
[65] Because of his criminal record, California sentenced Ewing pursuant to its recidivist statute for twenty-five years to life imprisonment; that is, Ewing could serve up to life in prison but would be eligible for parole after twenty-five years.
[66] Using the test to weigh Ewing’s sentence against the severity of his offense, the outcome is not as glaringly obvious as in Helm’s case, but the Court reasonably concluded twenty-five years to life was not grossly disproportionate:
(1) At most, Ewing will be parole eligible after twenty-five years, but time off for good time served and participation could make Ewing parole eligible after sixteen years and eight months in the California penitentiary.
[67] (2) Ewing was sentenced for the felony theft of three golf clubs; (a.) Ewing did not commit or threaten violence to anyone during the theft; (b.) stealing golf clubs is hardly a proximate threat to society unless you consider more people spending time at home with their families a threat to society; (c.) Ewing’s crime had no impact on society: he stole three golf clubs from a country club, and his victim could easily have replaced them, and (d.) society considers theft to be a less serious offense. (3) Ewing had committed a long list of misdemeanor convictions, had four convictions for felony offenses, and California had given him numerous opportunities to reform his behavior, including downgrading a felony for grand theft auto to a misdemeanor.
[68] Yet despite his opportunities, Ewing continued committing offenses which had escalated from being typically misdemeanors to felonies.
[69]Outside the context of Ewing’s criminal history, serving at least sixteen years and eight months to twenty-five years in prison for stealing golf clubs appears disproportionate. But in context of Ewing’s long criminal history and opportunities to reform his behavior, a sentence of approximately twenty years does not appear as disproportionate, and certainly not grossly disproportionate, to his offense. Thus, the Court reasonably concluded Ewing’s sentence was not grossly disproportionate to Ewing’s offense.
c. Harmelin v. Michigan
Like Helm, Harmelin received a life sentence without the possibility for parole, but unlike Helm, Harmelin’s sentence was not grossly disproportionate to his crime. Harmelin was convicted for the possession of 672 grams of cocaine and received a mandatory life sentence without the possibility of parole, even though he had never been convicted for any prior felony offenses.
[70] But using the test to analyze Harmelin’s sentence, the Court reasonably concluded his sentence was not grossly disproportionate to his offense:
(1) Harmelin will spend the rest of his life in prison and is not eligible for parole. (2) Harmelin was convicted for the possession of a large quantity of cocaine capable of producing 32,000 to 65,000 hits
[71] or of being converted into large amounts of crack cocaine; (a.) this crime did not involve violence or threats of violence; (b.) however, drug use is one of the greatest plagues in American society and often results in drug-induced crimes, crimes to obtain money to buy drugs, and crimes common to the drug-business culture;
[72] (c.) the large amount of cocaine Harmelin possessed posed a serious threat to his immediate community and society: Users high on the some of Harmelin’s cocaine or crack made from the cocaine could commit crimes; addicts needing to buy cocaine or crack from Harmelin may commit burglaries, robberies, or theft to obtain money, and the money Harmelin used to purchase the cocaine supports drug cartels which smuggle drugs into the United States and continue to threaten our society; finally, (d.) society views drug crimes as extremely serious.
[73] (3) Harmelin had never been convicted of any other crimes.
[74]Considering the serious nature of Harmelin’s crime and the grave threat it posed to society, the fact he had not been convicted previously does not make his sentence of life without parole grossly disproportionate.
d. Hutto v. Davis
Hutto v. Davis is unique in that the defendant was not sentenced to life imprisonment. In Hutto, Davis was convicted for two counts of possessing small amounts of marijuana with the intent to distribute, received a twenty year sentence for each count to run concurrently, and was fined $10,000.
[75] He could have been sentenced to forty years in prison for each count and could have been fined $25,000.
[76] Applying the test to Davis, the Court’s decision to uphold Davis’ sentence appears as obvious as it was to overturn Helm’s sentence:
(1) Without good-time credit, Davis would be eligible for parole after five years,
[77] and with good-time credit, he could be parole eligible within two-and-one-half years.
[78] (2) Davis was convicted for possessing marijuana with the intent to distribute;
[79] (a.) his crime did not involve violence or threats of violence; (b.) however, drug use is one of the greatest plagues in American society and often results in drug-induced crimes, crimes to obtain money to buy drugs, and crimes common to the drug-business culture;
[80] (c.) Davis was a drug dealer caught with nine ounces of marijuana; although he was just one of thousands of dealers, Davis was an exceptionally active drug dealer whose activities included smuggling drugs into prison,
[81] and (d.) society views drug crimes as extremely serious.
[82] (3) Although it is unclear from the cases the degree and number of his prior offenses, Davis had spent time in prison.
[83]As evidenced by this analysis, a minimum of two-and-one-half to five years imprisonment for a repeat-offending, drug dealer hardly appears grossly disproportionate to the crime of two counts of possession of marijuana with the intent to distribute.
Texas Disproportionate Sentencing Recent Case Summaries
And Texas does not extend any greater protection against disproportionate sentencing than the United States Constitution provides. The following cases consider whether an offender’s sentence violates either the Eighth Amendment to the United States Constitution or article I, § 13 of the Texas Constitution, and all conclude no violation occurred:
Willis v. State
Willis was convicted for the possession of greater than 400 grams of cocaine, a first degree felony, and received a sentence of forty years.
[84] The court compared Willis’ sentence to the sentence Rummel received in Rummel v. Estelle and reasoned because Rummel received a harsher sentence for less-serious crimes than Willis, the sentence of forty years did not violate either the United States or Texas constitutions.
[85]Williamson v. State
Williamson was convicted for three counts of aggravated sexual assault on a child, received three consecutive life sentences.
[86] Williamson argued the three consecutive sentences were disproportionate to his offenses.
[87] The court referred to the Solem test but did not perform any in-depth analysis as to whether the sentence was grossly disproportionate.
[88] Rather, the court simply said the imposition of consecutive sentences was not grossly disproportionate to Williamson’s crimes.
[89]Trevino v. State
Trevino was arrested for the aggravated sexual assault of a child and was placed on deferred adjudication.
[90] Later, Trevino violated the conditions of his deferred adjudication, was adjudicated guilty, and sentenced to twenty-five years in the penitentiary.
[91] Trevino challenged his sentence, stating it was grossly disproportionate, but the court refused to consider his claim because he failed to object to the sentence at trial.
[92]Delacruz v. State
Delacruz was convicted of driving while intoxicated while carrying a passenger younger than fifteen years old, a state jail felony.
[93] She was sentenced to six months in state jail and was assessed a $100 fine.
[94] Noting Delacruz had received practically the minimum sentence possible for the offense, the court held her sentence was not grossly disproportionate to her offense.
[95]Atchison v. State
Atchison was arrested for recklessly causing injury to a child for shaking his infant daughter to death and was placed on deferred adjudication.
[96] He later violated the conditions of deferred adjudication, was adjudicated guilty, and received a sentence of twenty years imprisonment.
[97] The court reasoned that as long as the sentence was within the statutorily approved limits for the reckless injury of a child, it could not be disproportionate.
[98]Davis v. State
Davis was convicted of stalking and received a sentence of eight years.
[99] He had never been convicted of other crimes but had threatened to “disassemble [his victim’s] body parts, and it would be a bloody massacre.”
[100] Considering the facts of the case, the court held Davis’ sentence was not grossly disproportionate to the sentence.
[101]Ray v. State
Ray, a man in his forties, pleaded guilty to three counts of aggravated sexual assault of a child which involved giving a thirteen-year-old girl drugs in exchange for sex acts.
[102] The court sentenced him to sixty years for each count.
[103] Ray failed to object to the sentence at trial, but the court considered his appeal because a “defect which renders a sentence void may be raised at any time.”
[104] But the court considered the disparity between the age of the victim and of the offender and concluded a sixty-year sentence was not grossly disproportionate.
[105]Jacobs v. State
Jacobs was convicted of aggravated robbery.
[106] His sentence range was enhanced to a possible twenty-five to ninety-nine years or life because he had been convicted previously of a burglary of a building and another aggravated robbery, and he received a sentence of fifty years.
[107] The court compared Jacobs to Rummel and noted Jacobs’ offenses were much more serious than Rummel’s while Jacobs only received a fifty year sentence and Rummel received a life sentence.
[108] Therefore, the court concluded Jacobs’ sentence was not grossly disproportionate.
[109]Baldridge v. State
Baldridge was convicted for intoxication manslaughter resulting from a hit and run.
[110] He had been convicted previously of family violence assaults, and after he hit the victim, he fled through Houston at speeds up to 100 miles per hour.
[111] Baldridge received a fifteen-year sentence.
[112] Despite expressing remorse, pointing out he was only twenty-nine, and was supporting seven children, the court affirmed his sentence.
[113]Fluellen v. State
Fluellen was placed on deferred adjudication after being convicted for aggravated robbery.
[114] After violating the conditions of his deferred adjudication eleven times, the court adjudicated Fluellen guilty and gave him a fifty-year sentence.
[115] The court cited precedent and affirmed Fluellen’s sentence.
[116]Moore v. State
Moore was convicted of burglary of a habitation with the intent to commit indecency with a child, a first degree felony
[117] and had been convicted for committing indecency with a child.
[118] Therefore, Moore received a mandatory life sentence.
[119] The court noted the statute authorizing the mandatory life sentence was valid and Moore could have received a life sentence without considering his past offense.
[120] Furthermore, the victim of the crime was an eleven year old girl, and the crime posed great harm to the victim and to society.
[121] With these considerations, the court affirmed Moore’s sentence.
[122]Endnotes
[1] Ewing v. California, 538 U.S. 11, 20 (2003).
[2] Solem v. Helm, 463 U.S. 277, 290 (1983); Rummel v. Estelle, 445 U.S. 263, 272 (1980).
[3] Solem, 463 U.S.. at 292.
[4] Harmelin v. Michigan, 501 U.S. 957, 980 (1991).
[5] Id. at 1004-05 (Kennedy, O’Connor, and Souter, Justices, Concurring in the judgment).
[6] Id. at 1009, 1027.
[7] Id. at 980, 1004-05; See also McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992).
[8] Ewing v. California, 538 U.S. 11, 21& 33 (2003).
[9] 445 U.S. 263, 266 (1980).
[10] This statute no longer exists in Texas. The current version of Texas’ recidivist statute is section 12.42 of the Texas Penal Code.
[11] Rummel, 445 U.S. at 265-266.
[12] Id. at 266.
[13] Id. at 266-68.
[14] Id. at 285.
[15] Solem v. Helm, 463 U.S. 277, 281 (1983).
[16] Id. at 279-80.
[17] Id. at 281-82.
[18] Id. at 282-83.
[19] Id. at 303.
[20] In Ewing v. California, Justice O’Connor emphasized that Solem did not overrule Rummel and that the Court in Solem “explicitly declined” to do so. 538 U.S. 11, 22-23 (2003).
[21] The court in Solem also noted this distinction. 463 U.S. at 297.
[22] See generally 538 U.S. 11.
[23] Id. at 17-18.
[24] Id. at 18-19.
[25] Id.
[26] Id. at 28-29.
[27] Id. at 21-22.
[28] Id. at 30-31.
[29] See id. at 21-22.
[30] See generally Harmelin v. Michigan, 501 U.S. 957 (1991).
[31] Id. at 961.
[32] Id. at 996. Justice Scalia and Chief Justice Rehnquist argued the Eighth-amendment was a check on legislative power prohibiting certain modes of punishment and not the length of punishment, Id. at 975-76, while Justices Kennedy, O’Connor, and Souter recognized a guarantee against disproportionate lengths of punishment but did not believe Harmelin’s sentence violated it. Id. at 996.
[33] Id. at 1002.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id. at 1004.
[39] See generally Hutto v. Davis, 454 U.S. 370 (1982).
[40] Id. at 370-71.
[41] Va. Code Ann. §§ 53.1-151(G), 53.1-193 (2006).
[42] Hutto, 454 U.S. at 370-71
[43] Id. at 375.
[44] Id. at 373 (citing Rummel v. Estelle, 445 U.S. 263, 274 (1980)).
[45] Id. at 374 (citing Rummel, 445 U.S. at 272-74).
[46] Harmelin v. Michigan, 501 U.S. 957, 1000 (1991); Hutto, 454 U.S. at 374; Rummel, 445 U.S. at 272-74; Coker v. Georgia, 433 U.S. 584, 591 (1977)
[47] Neither Justice Scalia nor Justice Thomas recognizes a proportionality guarantee in the Eighth Amendment. Ewing v. California, 538 U.S. 11, 32 (2003). But Justices Kennedy, O’Connor, Souter, Harmelin, 501 U.S. at 996, and Chief Justice Rehnquist, Ewing v. California, 538 U.S. 11, 14 (2003) all accepted Kennedy’s proportionality test. Additionally and interestingly, Justice Breyer, joined by Justices Stevens, Ginsberg, and Souter, dissented in Ewing and used Kennedy’s proportionality test but came to a different result than the majority. See Ewing, 538 U.S. at 36-53.
[48] See Ewing, 538 U.S. at 23; Harmelin, 501 U.S. at 1001; McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992).
[49] Solem v. Helm, 463 U.S. 277, 290 (1983).
[50] Supra I. B. 1.
[51] Harmelin, 501 U.S. at 1002.
[52] Ewing v. California, 538 U.S. 11, 28-29 (2003) (O’Connor, J., joined by Justice Kennedy and Chief Justice Rehnquist).
[53] Id. at 37 (Breyer, J., dissenting; citing Rummel, 445 U.S. at 265-66, 269, 276, 278, 280-81; Solem v. Helm, 463 U.S. 277, 290-303 (1983)).
[54] See Supra I. A.
[55] See Supra I. B. 1.
[56] Remember that if an offender receives a life sentence with the possibility for parole pursuant to a state recidivist statute after being convicted for three or more consecutive felonies, he does not have a claim under the Eighth Amendment if he will be parole eligible within twenty-five years of his conviction. Supra I. A.
[57] Harmelin, 501 U.S. at 1004-05; McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992).
[58] Solem v. Helm, 463 U.S. 277, 281 (1983).
[59] Id. at 279-80.
[60] Id. at 281-82.
[61] Id. at 282-83.
[62] Harmelin, 501 U.S. at 1002.
[63] Solem v. Helm, 463 U.S. 277, 292 (1983); see also Harmelin, 501 U.S. at 1004-05; McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992).
[64] Ewing v. California, 538 U.S. 11, 17-18 (2003).
[65] Id. at 18.
[66] Id.
[67] See Cal. Penal Code § 2931 (West 2000).
[68] Ewing, 538 U.S. at 18-21.
[69] Id.
[70] Harmelin v. Michigan 501 U.S. 957, 961 (1991).
[71] Id. at 1002 (citing Arnold M. Washton, Cocaine Addiction: Treatment, Recovery, and Relapse Prevention 18 (W.W. Norton & Co., Inc. 1989)).
[72] Id.
[73] Id. at 1002-03.
[74] Id. at 994.
[75] Hutto v. Davis, 454 U.S. 370, 370-71 (1982).
[76] Id.
[77] Va. Code Ann. § 53.1-151(A)(1) (2006).
[78] Id. at §§ 53.1-151(G), 53.1-193 (2006).
[79] Hutto, 454 U.S. at 370-71.
[80] Harmelin v. Michigan 501 U.S. 957, 1002 (1991).
[81] Hutto, 454 U.S. at 372 n.1.
[82] Harmelin, 501 U.S. at 1002-03.
[83] Hutto, 454 U.S. at 372 n.1.
[84] 192 S.W.3d 585, 590 (Tex. App.—Tyler 2006, pet. ref’d).
[85] Id. at 597.
[86] 175 S.W.3d 522, 523 (Tex. App.—Texarkana 2005, no pet.).
[87] Id.
[88] Id. at 525.
[89] Id.
[90] 174 S.W.3d 925, 926 (Tex. App.—Corpus Christi 2005, pet. ref’d).
[91] Id. at 926.
[92] Id. at 928.
[93] 167 S.W.3d 904, 905 (Tex. App.—Texarkana 2005, no pet.).
[94] Id. at 905 n.1.
[95] Id. at 905.
[96] 124 S.W.3d 755, 757 (Tex. App.—Austin 2003, pet. ref’d).
[97] Id.
[98] Id. at 760.
[99] 125 S.W.3d 734, 735 (Tex. App.—Texarkana 2003, no pet.).
[100] Id.
[101] Id.
[102] 119 S.W.3d 454, 456-59 (Tex. App.—Fort Worth 2003, pet. ref’d).
[103] Id. at 456.
[104] Id. at 458 (citing Heath v. State, 817 S.W.2d 355, 336 (Tex. Crim. App. 1991); Ex parte McIver, 586 S.W.2d 851, 854 (Tex. Crim. App. 1979); Ex parte Harris, 495 S.W.2d 231, 232 (Tex. Crim. App. 1973); Ex parte White, 659 S.W.2d 434, 435 (Tex. Crim. App. 1983)).
[105] Ray, 119 S.W.3d at 458.
[106] 80 S.W.3d 631, 632 (Tex. App.—Tyler 2002, no pet.).
[107] Id.
[108] Id. at 633-34.
[109] Id.
[110] 77 S.W.3d 890 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).
[111] Id. at 892-93.
[112] Id. at 893.
[113] Id. at 894.
[114] 71 S.W.3d 870, 872 (Tex. App.—Texarkana 2002, pet. ref’d).
[115] Id.
[116] Id.
[117] 54 S.W.3d 529, 534 (Tex. App.—Fort Worth 2001, pet. ref’d).
[118] Id. at 540.
[119] Id.
[120] Id. at 541-43.
[121] Id.
[122] Id. at 543.
