State v. Proctor - Kansas Judicial Branch

Harmelin. Ewing, 538 U.S. at 23-24. The plurality concluded the sentence was not
grossly disproportionate for an offender committing a third felony, even an expensive
shoplifting. It was not, therefore, cruel and unusual. 538 U.S. at 30-31. The opinion relied
on the historical recognition of "[r]ecidivism . . . as a legitimate basis for increased
punishment." Ewing, 538 U.S. at 25. Statutes imposing increased penalties for successive
crimes reflect a legislative "policy choice that individuals who have repeatedly engaged
in serious or violent criminal behavior, and whose conduct has not been deterred by more
conventional approaches to punishment, must be isolated from society in order to protect
the public safety." 538 U.S. at 24.
The plurality also found the California sentencing provisions to be calibrated in
ways that diminished any arguably excessive disproportionality. A defendant with one
past conviction for a serious or violent felony would face a doubled sentence on a second
felony conviction. Only on a third felony conviction would a defendant receive a
sentence of the length imposed on Ewing for stealing the golf clubs. See 538 U.S. at 16.
In addition, the plurality noted that under California's criminal code, the prosecutor and
the sentencing court had considerable latitude in classifying certain offenses so that they
would not be treated as felonies counted as one of the strikes requiring enhanced
punishment. 538 U.S. at 16-17, 29. Because the plurality found no inference of gross
disproportionality, it did not survey punishments for other crimes in California or how
other states treat recidivists comparable to Ewing.
In dissent, Justice Stevens would have found the sentence to be constitutionally
prohibited cruel and unusual punishment based on "a broad and basic proportionality
principle" underlying the Eighth Amendment. 538 U.S. at 35. He was joined by Justices
Breyer, Ginsburg, and Souter in that view. Justice Souter's appearance with the dissenters
marked his defection from Justice Kennedy's analytical approach outlined in Harmelin.
Justice Breyer wrote an extended dissent applying the "narrow proportionality" test for
forensic purposes and concluded, even under that analysis, the sentence violated the
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