State v. Proctor - Kansas Judicial Branch

was not diminished even though the penalty—life without parole—was the harshest short
of death. 501 U.S. at 994-96 (Scalia, J.).
Justice Scalia, joined only by then-Chief Justice Rehnquist, took the position that
even the harshest sentence of imprisonment could never be found cruel and unusual
under the Eighth Amendment on the grounds it was disproportionate to the criminal
offense. Harmelin, 501 U.S. at 965. He also argued that the standards for determining a
disproportionate sentence were sufficiently indefinite and malleable that judges applying
them had "an invitation to imposition of subjective values" through which they could
improperly override otherwise appropriate legislative decisions. 501 U.S. at 986.
Writing for himself and Justices Souter and O'Connor, Justice Kennedy
recognized what he termed a "narrow proportionality principle" in the Eighth
Amendment governing noncapital sentences. 501 U.S. at 996-97 (Kennedy, J.,
concurring). He pointed out the marked deference that the courts must accord a state's
decision in determining conduct to be criminalized and punishment then to be
administered. Those decisions may be shaped by differing penological theories, and it is
not the courts' business to direct, let alone dictate, a particular theory. The Eighth
Amendment neither imposes some theory nor requires that a criminal sanction promote
any particular mix of retribution, deterrence, incapacitation or rehabilitation. 501 U.S. at
999-1000.
In considering proportionality, the courts must be guided, to the greatest extent
possible, by objective factors, according to Justice Kennedy. Ultimately, Justice Kennedy
distilled those considerations and the developing jurisprudence into a conclusion that
"[t]he Eighth Amendment does not require strict proportionality between crime and
sentence." 501 U.S. at 1001. But those "extreme sentences that are 'grossly
disproportionate' to the crime" fail under the Eighth Amendment. 501 U.S. at 1001.
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