February 29 (Class 6) Life and Death Sentencing Mass incarceration is the product of this country’s last sentencing reform movement. Sentencing policy shifted away from rehabilitation towards the retributive, punitive model. At the same time, reformers across the political spectrum supported “truth in sentencing” initiatives, as well as efforts to limit the sentencing discretion of judges, whom many perceived as arbitrary and discriminatory in their sentencing choices. In seeking to standardize punishment, policymakers also attempted to bring white-collar sentences in line with sentences for other types of offenses. The combined result of these reforms was a massive and sustained ratcheting up of punishment for all offenses, with little ability to consider the individual circumstances of defendants to mitigate punishment. Courts abdicated any role that they might have played in tempering these harsh outcomes by essentially abandoning Eighth Amendment- based proportionality review of sentences, other than the death penalty. Today the pendulum is swinging back. For the first time in roughly 40 years, there is widespread political support to reduce prison sentences. This has been driven by increased social mobilization around criminal justice issues, shifting attitudes regarding drugs, and fiscal concerns. In addition, although many believed that the jurisprudence of death would always be different, the Eighth Amendment has reemerged as a tool for challenging non-death sentences. This class surveys trends in U.S. sentencing laws; the different legal doctrines that structure sentencing today; and the changing role of the Eighth Amendment, which shows renewed promise as a vehicle for reform. William J. Stuntz, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE (2011) excerpt Rummel v. Estelle, 445 U.S. 263 (1980) excerpt Harmelin v. Michigan, 501 U.S. 957 (1991) excerpt Case of Vinter And Others v. The United Kingdom, Applications Nos. 66069/09, 130/10 And 3896/10, (Jul. 9, 2013) excerpt Press Release in Trabelsi v. Belgium, Application No. 140/10 (Apr. 9, 2014) James Q. Whitman, Harsh Justice (2003), Introduction excerpt James Q. Whitman, Equality in Criminal Law: The Two Divergent Western Roads, 1 J. Legal Analysis 119, (2009) Sixth Amendment - Right to Jury Trial - Mandatory Minimum Sentences - Alleyne v. United States, 127 Harv. L. Rev. 248 (2013) excerpt (Apprendi and its progeny in 60 seconds) Miller v. Alabama, 132 S. Ct. 2455 (2012) excerpt Carol S. Steiker & Jordan M. Steiker, The Death Penalty and Mass Incarceration: Convergences and Divergences, 41 Am. J. Crim. L. 189 (2014) Playbook for Change? States Reconsider Mandatory Sentences, Vera Institute of Justice (Feb. 2014) (only need to skim) 445 U.S. 263 In 1969 the State of Texas charged Rummel Supreme Court of the United States with passing a forged check in the amount of $28.36, a crime punishable by imprisonment in William James RUMMEL, Petitioner, a penitentiary for not less than two nor more v. than five years. Rummel pleaded guilty to this W. J. ESTELLE, Jr., Director, Texas offense and was sentenced to four years’ Department of Corrections. imprisonment. Decided March 18, 1980. In 1973 Rummel was charged with obtaining $120.75 by false pretenses. Because the amount Mr. Justice REHNQUIST delivered the opinion obtained was greater than $50, the charged of the Court. offense was designated “felony theft,” which, by itself, was punishable by confinement in a Petitioner William James Rummel is presently penitentiary for not less than two nor more than serving a life sentence imposed by the State of 10 years. The prosecution chose, however, to Texas in 1973 under its “recidivist statute,” proceed against Rummel under Texas’ recidivist formerly Art. 63 of its Penal Code, which statute, and cited in the indictment his 1964 and provided that “[w]hoever shall have been three 1969 convictions as requiring imposition of a times convicted of a felony less than capital life sentence if Rummel were convicted of the shall on such third conviction be imprisoned for charged offense. A jury convicted Rummel of life in the penitentiary.” On January 19, 1976, felony theft and also found as true the allegation Rummel sought a writ of habeas corpus in the that he had been convicted of two prior felonies. United States District Court for the Western As a result, on April 26, 1973, the trial court District of Texas, arguing that life imprisonment imposed upon Rummel the life sentence was “grossly disproportionate” to the three mandated by Art. 63. felonies that formed the predicate for his sentence and that therefore the sentence violated * * * the ban on cruel and unusual punishments of the II Eighth and Fourteenth Amendments. The Initially, we believe it important to set forth two District Court and the United States Court of propositions that Rummel does not contest. Appeals for the Fifth Circuit rejected Rummel’s First, Rummel does not challenge the claim, finding no unconstitutional constitutionality of Texas’ recidivist statute as a disproportionality. We granted certiorari and general proposition. In Spencer v. Texas, supra, now affirm. this Court upheld the very statute employed here, noting in the course of its opinion that I similar statutes had been sustained against In 1964 the State of Texas charged Rummel contentions that they violated “constitutional with fraudulent use of a credit card to obtain strictures dealing with double jeopardy, ex post $80 worth of goods or services. Because the facto laws, cruel and unusual punishment, due amount in question was greater than $50, the process, equal protection, and privileges and charged offense was a felony punishable by a immunities.” Here, Rummel attacks only the minimum of 2 years and a maximum of 10 years result of applying this concededly valid statute in the Texas Department of Corrections. to the facts of his case. Rummel eventually pleaded guilty to the charge and was sentenced to three years’ confinement Second, Rummel does not challenge Texas’ in a state penitentiary. authority to punish each of his offenses as analysis, has been repeated time and time again felonies, that is, by imprisoning him in a state in our opinions. Because a sentence of death penitentiary. Cf. Robinson v. California (statute differs in kind from any sentence of making it a crime to be addicted to the use of imprisonment, no matter how long, our narcotics violates the Eighth and Fourteenth decisions applying the prohibition of cruel and Amendments). See also Ingraham v. Wright unusual punishments to capital cases are of (Eighth Amendment “imposes substantive limits limited assistance in deciding the on what can be made criminal and punished as constitutionality of the punishment meted out to such . .”). Under Texas law Rummel Rummel. concededly could have received sentences totaling 25 years in prison for what he refers to Outside the context of capital punishment, as his “petty property offenses.” Indeed, when successful challenges to the proportionality of Rummel obtained $120.75 by false pretenses he particular sentences have been exceedingly rare. committed a crime punishable as a felony in at In Weems v. United States, supra, a case coming least 35 States and the District of Columbia. to this Court from the Supreme Court of the Similarly, a large number of States authorized Philippine Islands, petitioner successfully significant terms of imprisonment for each of attacked the imposition of a punishment known Rummel’s other offenses at the times he as “cadena temporal” for the crime of falsifying committed them. Rummel’s challenge thus a public record. Although the Court in Weems focuses only on the State’s authority to impose a invalidated the sentence after weighing “the sentence of life imprisonment, as opposed to a mischief and the remedy” its finding of substantial term of years, for his third felony. disproportionality cannot be wrenched from the extreme facts of that case. As for the “mischief,” This Court has on occasion stated that the Weems was convicted of falsifying a public Eighth Amendment prohibits imposition of a document, a crime apparently complete upon sentence that is grossly disproportionate to the the knowing entry of a single item of false severity of the crime. See, e.g., Weems v. United information in a public record, “though there be States . In recent years this proposition has no one injured, though there be no fraud or appeared most frequently in opinions dealing purpose of it, no gain or desire of it.” The with the death penalty. Rummel cites these mandatory “remedy” for this offense was latter opinions dealing with capital punishment cadena temporal, a punishment described as compelling the conclusion that his sentence is graphically by the Court: disproportionate to his offenses. But as Mr. Justice STEWART noted in Furman: “Its minimum degree is confinement in a penal institution for twelve years and one day, “The penalty of death differs from all other a chain at the ankle and wrist of the offender, forms of criminal punishment, not in degree hard and painful labor, no assistance from but in kind. It is unique in its total friend or relative, no marital authority or irrevocability. It is unique in its rejection of parental rights or rights of property, no rehabilitation of the convict as a basic purpose participation even in the family council. These of criminal justice. And it is unique, finally, in parts of his penalty endure for the term of its absolute renunciation of all that is imprisonment. 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