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GARY ALBERT EWING, PETITIONER v. CALIFORNIA
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF
CALIFORNIA, SECOND APPELLATE DISTRICT
[March 5, 2003]
Justice Scalia, concurring in the judgment.
In my concurring opinion in Harmelin v. Michigan, 501 U.S. 984, 985 (1991), I concluded that the Eighth Amendments prohibition of cruel and unusual punishments was aimed at excluding only certain modes of punishment, and was not a guarantee against disproportionate sentences. Out of respect for the principle of stare decisis, I might nonetheless accept the contrary holding of Solem v. Helm, 463 U.S. 277 (1983)that the Eighth Amendment contains a narrow proportionality principleif I felt I could intelligently apply it. This case demonstrates why I cannot.
Proportionalitythe notion that the punishment should fit the crimeis inherently a concept tied to the penological goal of retribution. [I]t becomes difficult even to speak intelligently of proportionality, once deterrence and rehabilitation are given significant weight, Harmelin, supra, at 989not to mention giving weight to the purpose of Californias three strikes law: incapacitation. In the present case, the game is up once the plurality has acknowledged that the Constitution does not mandate adoption of any one penological theory, and that a sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation. Ante, at 12 (internal quotation marks omitted). That acknowledgment having been made, it no longer suffices merely to assess the gravity of the offense compared to the harshness of the penalty, ante, at 15; that classic description of the proportionality principle (alone and in itself quite resistant to policy-free, legal analysis) now becomes merely the first step of the inquiry, ibid. Having completed that step (by a discussion which, in all fairness, does not convincingly establish that 25-years-to-life is a proportionate punishment for stealing three golf clubs), the plurality must then add an analysis to show that Ewings sentence is justified by the States public-safety interest in incapacitating and deterring recidivist felons. Ante, at 16.
Which indeed it isthough why that has anything to do with the principle of proportionality is a mystery. Perhaps the plurality should revise its terminology, so that what it reads into the Eighth Amendment is not the unstated proposition that all punishment should be reasonably proportionate to the gravity of the offense, but rather the unstated proposition that all punishment should reasonably pursue the multiple purposes of the criminal law. That formulation would make it clearer than ever, of course, that the plurality is not applying law but evaluating policy.
Because I agree that petitioners sentence does not violate the Eighth Amendments prohibition against cruel and unusual punishments, I concur in the judgment.