Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (U.S. 03/05/2003)

[1] United States Supreme Court


[2] No. 01-6978


[3] 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108, 2003.SCT, 3 Cal. Daily Op. Serv. 1959, 71 USLW 4125, 2003 Daily Journal D.A.R. 2490, 71 USLW 4167


[4] March 05, 2003


[5] GARY ALBERT EWING, PETITIONER
v.
CALIFORNIA


[6] SYLLABUS BY THE COURT


[7] Argued November 5, 2002


[8] Decided March 5, 2003


[9] Under California's three strikes law, a defendant who is convicted of a felony and has previously been convicted of two or more serious or violent felonies must receive an indeterminate life imprisonment term. Such a defendant becomes eligible for parole on a date calculated by reference to a minimum term, which, in this case, is 25 years. While on parole, petitioner Ewing was convicted of felony grand theft for stealing three golf clubs, worth $399 apiece. As required by the three strikes law, the prosecutor formally alleged, and the trial court found, that Ewing had been convicted previously of four serious or violent felonies. In sentencing him to 25 years to life, the court refused to exercise its discretion to reduce the conviction to a misdemeanor -- under a state law that permits certain offenses, known as "wobblers," to be classified as either misdemeanors or felonies -- or to dismiss the allegations of some or all of his prior relevant convictions. The State Court of Appeal affirmed. Relying on Rummel v. Estelle, 445 U. S. 263, it rejected Ewing's claim that his sentence was grossly disproportionate under the Eighth Amendment and reasoned that enhanced sentences under the three strikes law served the State's legitimate goal of deterring and incapacitating repeat offenders. The State Supreme Court denied review.


[10] Held: The judgment is affirmed.


[11] Affirmed.


[12] Justice O'Connor, joined by The Chief Justice and Justice Kennedy, concluded that Ewing's sentence is not grossly disproportionate and therefore does not violate the Eighth Amendment's prohibition on cruel and unusual punishments. Pp. 8-18.


[13] (a) The Eighth Amendment has a "narrow proportionality principle" that "applies to non-capital sentences." Harmelin v. Michigan, 501 U. S. 957, 996-997 (Kennedy, J., concurring in part and concurring in judgment). The Amendment's application in this context is guided by the principles distilled in Justice Kennedy's concurrence in Harmelin: "[T]he primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors" inform the final principle that the "Eighth Amendment does not require strict proportionality between crime and sentence [but] forbids only extreme sentences that are `grossly disproportionate' to the crime." Id., at 1001. Pp. 8-11.


[14] (b) State legislatures enacting three strikes laws made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional punishment approaches, must be isolated from society to protect the public safety. Though these laws are relatively new, this Court has a longstanding tradition of deferring to state legislatures in making and implementing such important policy decisions. The Constitution "does not mandate adoption of any one penological theory," id., at 999, and nothing in the Eighth Amendment prohibits California from choosing to incapacitate criminals who have already been convicted of at least one serious or violent crime. Recidivism has long been recognized as a legitimate basis for increased punishment and is a serious public safety concern in California and the Nation. Any criticism of the law is appropriately directed at the legislature, which is primarily responsible for making the policy choices underlying any criminal sentencing scheme. Pp. 11-15.


[15] (c) In examining Ewing's claim that his sentence is grossly disproportionate, the gravity of the offense must be compared to the harshness of the penalty. Even standing alone, his grand theft should not be taken lightly. The California Supreme Court has noted that crime's seriousness in the context of proportionality review; that it is a "wobbler" is of no moment, for it remains a felony unless the trial court imposes a misdemeanor sentence. The trial judge justifiably exercised her discretion not to extend lenient treatment given Ewing's long criminal history. In weighing the offense's gravity, both his current felony and his long history of felony recidivism must be placed on the scales. Any other approach would not accord proper deference to the policy judgments that find expression in the legislature's choice of sanctions. Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record. He has been convicted of numerous offenses, served nine separate prison terms, and committed most of his crimes while on probation or parole. His prior strikes were serious felonies including robbery and residential burglary. Though long, his current sentence reflects a rational legislative judgment that is entitled to deference. Pp. 15-18.


[16] Justice Scalia agreed that petitioner's sentence does not violate the Eighth Amendment's prohibition against cruel and unusual punishments, but on the ground that that prohibition was aimed at excluding only certain modes of punishment. This case demonstrates why a proportionality principle cannot be intelligently applied, and why Solem v. Helm, 463 U. S. 277, should not be given stare decisis effect. Pp. 1-2.


[17] Justice Thomas concluded that petitioner's sentence does not violate the Eighth Amendment's prohibition against cruel and unusual punishments because the Amendment contains no proportionality principle. P. 1.


[18] O'Connor, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Kennedy, J., joined. Scalia, J., and Thomas, J., filed opinions concurring in the judgment. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.


[19] On Writ Of Certiorari To The Court Of Appeal Of California, Second Appellate District


[20] Quin Denvir, by appointment of the Court, 535 U. S. __, argued the cause for petitioner. With him on the briefs were David M. Porter, Karyn H. Bucur, and Mark E. Haddad.


[21] Donald E. De Nicola, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Jaime L. Fuster, Kristofer S. Jorstad, and David C. Cook, Deputy Attorneys General.


[22] Assistant Attorney General Chertoff argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Olson, Deputy Solicitor General Dreeben, John P. Elwood, and Joel M. Gershowitz.


[23] Donald M. Falk, Andrew H. Schapiro, and Mary Price filed a brief for Families Against Mandatory Minimums as amicus curiae urging reversal.


[24] Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama, Nathan A. Forrester, Solicitor General, and Michael B. Billingsley, Deputy Solicitor General, and by the Attorneys General for their respective States as follows: Steve Carter of Indiana, Don Stenberg of Nebraska, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, John Cornyn of Texas, Mark L. Shurtleff of Utah, Christine O. Gregoire of Washington, and Hoke MacMillan of Wyoming; and for the Criminal Justice Legal Foundation et al. by Kent S. Scheidegger and Charles L. Hobson.


[25] Dennis L. Stout and Grover D. Merritt filed a brief for the California District Attorneys Association as amicus curiae.


[26] Justice O'Connor announced the judgment of the Court and delivered an opinion in which The Chief Justice and Justice Kennedy join.


[27] In this case, we decide whether the Eighth Amendment prohibits the State of California from sentencing a repeat felon to a prison term of 25 years to life under the State's "Three Strikes and You're Out" law.


[28] I.


[29] A.


[30] California's three strikes law reflects a shift in the State's sentencing policies toward incapacitating and deterring repeat offenders who threaten the public safety. The law was designed "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." Cal. Penal Code Ann. §667(b) (West 1999). On March 3, 1993, California Assemblymen Bill Jones and Jim Costa introduced Assembly Bill 971, the legislative version of what would later become the three strikes law. The Assembly Committee on Public Safety defeated the bill only weeks later. Public outrage over the defeat sparked a voter initiative to add Proposition 184, based loosely on the bill, to the ballot in the November 1994 general election.


[31] On October 1, 1993, while Proposition 184 was circulating, 12-year-old Polly Klaas was kidnaped from her home in Petaluma, California. Her admitted killer, Richard Allen Davis, had a long criminal history that included two prior kidnaping convictions. Davis had served only half of his most recent sentence (16 years for kidnaping, assault, and burglary). Had Davis served his entire sentence, he would still have been in prison on the day that Polly Klaas was kidnaped.


[32] Polly Klaas' murder galvanized support for the three strikes initiative. Within days, Proposition 184 was on its way to becoming the fastest qualifying initiative in California history. On January 3, 1994, the sponsors of Assembly Bill 971 resubmitted an amended version of the bill that conformed to Proposition 184. On January 31, 1994, Assembly Bill 971 passed the Assembly by a 63 to 9 margin. The Senate passed it by a 29 to 7 margin on March 3, 1994. Governor Pete Wilson signed the bill into law on March 7, 1994. California voters approved Proposition 184 by a margin of 72 to 28 percent on November 8, 1994.


[33] California thus became the second State to enact a three strikes law. In November 1993, the voters of Washington State approved their own three strikes law, Initiative 593, by a margin of 3 to 1. U. S. Dept. of Justice, National Institute of Justice, J. Clark, J. Austin, & D. Henry, "Three Strikes and You're Out": A Review of State Legislation 1 (Sept. 1997) (hereinafter Review of State Legislation). Between 1993 and 1995, 24 States and the Federal Government enacted three strikes laws. Ibid. Though the three strikes laws vary from State to State, they share a common goal of protecting the public safety by providing lengthy prison terms for habitual felons.


[34] B.


[35] California's current three strikes law consists of two virtually identical statutory schemes "designed to increase the prison terms of repeat felons." People v. Superior Court of San Diego Cty. ex rel. Romero, 13 Cal. 4th 497, 504, 917 P. 2d 628, 630 (1996) (Romero). When a defendant is convicted of a felony, and he has previously been convicted of one or more prior felonies defined as "serious" or "violent" in Cal. Penal Code Ann. §§667.5 and 1192.7 (West Supp. 2002), sentencing is conducted pursuant to the three strikes law. Prior convictions must be alleged in the charging document, and the defendant has a right to a jury determination that the prosecution has proved the prior convictions beyond a reasonable doubt. §1025; §1158 (West 1985).


[36] If the defendant has one prior "serious" or "violent" felony conviction, he must be sentenced to "twice the term otherwise provided as punishment for the current felony conviction." §667(e)(1) (West 1999); §1170.12(c)(1) (West Supp. 2002). If the defendant has two or more prior "serious" or "violent" felony convictions, he must receive "an indeterminate term of life imprisonment." §667(e)(2)(A) (West 1999); §1170.12(c)(2)(A) (West Supp. 2002). Defendants sentenced to life under the three strikes law become eligible for parole on a date calculated by reference to a "minimum term," which is the greater of (a) three times the term otherwise provided for the current conviction, (b) 25 years, or (c) the term determined by the court pursuant to §1170 for the underlying conviction, including any enhancements. §§667(e)(2)(A)(i-iii) (West 1999); §§1170.12(c)(2)(A)(i-iii) (West Supp. 2002).


[37] Under California law, certain offenses may be classified as either felonies or misdemeanors. These crimes are known as "wobblers." Some crimes that would otherwise be misdemeanors become "wobblers" because of the defendant's prior record. For example, petty theft, a misdemeanor, becomes a "wobbler" when the defendant has previously served a prison term for committing specified theft-related crimes. §490 (West 1999); §666 (West Supp. 2002). Other crimes, such as grand theft, are "wobblers" regardless of the defendant's prior record. See §489(b) (West 1999). Both types of "wobblers" are triggering offenses under the three strikes law only when they are treated as felonies. Under California law, a "wobbler" is presumptively a felony and "remains a felony except when the discretion is actually exercised" to make the crime a misdemeanor. People v. Williams, 27 Cal. 2d 220, 229, 163 P. 2d 692, 696 (1945) (emphasis deleted and internal quotation marks omitted).


[38] In California, prosecutors may exercise their discretion to charge a "wobbler" as either a felony or a misdemeanor. Likewise, California trial courts have discretion to reduce a "wobbler" charged as a felony to a misdemeanor either before preliminary examination or at sentencing to avoid imposing a three strikes sentence. Cal. Penal Code Ann. §§17(b)(5), 17(b)(1) (West 1999); People v. Superior Court of Los Angeles Cty. ex rel. Alvarez, 14 Cal. 4th 968, 978, 928 P. 2d 1171, 1177-1178 (1997). In exercising this discretion, the court may consider "those factors that direct similar sentencing decisions," such as "the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, . . . [and] the general objectives of sentencing." Ibid. (internal quotation marks and citations omitted).


[39] California trial courts can also vacate allegations of prior "serious" or "violent" felony convictions, either on motion by the prosecution or sua sponte. Romero, supra, at 529-530, 917 P. 2d, at 647-648. In ruling whether to vacate allegations of prior felony convictions, courts consider whether, "in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strikes'] scheme's spirit, in whole or in part." People v. Williams, 17 Cal. 4th 148, 161, 948 P. 2d 429, 437 (1998). Thus, trial courts may avoid imposing a three strikes sentence in two ways: first, by reducing "wobblers" to misdemeanors (which do not qualify as triggering offenses), and second, by vacating allegations of prior "serious" or "violent" felony convictions.


[40] C.


[41] On parole from a 9-year prison term, petitioner Gary Ewing walked into the pro shop of the El Segundo Golf Course in Los Angeles County on March 12, 2000. He walked out with three golf clubs, priced at $399 apiece, concealed in his pants leg. A shop employee, whose suspicions were aroused when he observed Ewing limp out of the pro shop, telephoned the police. The police apprehended Ewing in the parking lot.


[42] Ewing is no stranger to the criminal justice system. In 1984, at the age of 22, he pleaded guilty to theft. The court sentenced him to six months in jail (suspended), three years' probation, and a $300 fine. In 1988, he was convicted of felony grand theft auto and sentenced to one year in jail and three years' probation. After Ewing completed probation, however, the sentencing court reduced the crime to a misdemeanor, permitted Ewing to withdraw his guilty plea, and dismissed the case. In 1990, he was convicted of petty theft with a prior and sentenced to 60 days in the county jail and three years' probation. In 1992, Ewing was convicted of battery and sentenced to 30 days in the county jail and two years' summary probation. One month later, he was convicted of theft and sentenced to 10 days in the county jail and 12 months' probation. In January 1993, Ewing was convicted of burglary and sentenced to 60 days in the county jail and one year's summary probation. In February 1993, he was convicted of possessing drug paraphernalia and sentenced to six months in the county jail and three years' probation. In July 1993, he was convicted of appropriating lost property and sentenced to 10 days in the county jail and two years' summary probation. In September 1993, he was convicted of unlawfully possessing a firearm and trespassing and sentenced to 30 days in the county jail and one year's probation.


[43] In October and November 1993, Ewing committed three burglaries and one robbery at a Long Beach, California, apartment complex over a 5-week period. He awakened one of his victims, asleep on her living room sofa, as he tried to disconnect her video cassette recorder from the television in that room. When she screamed, Ewing ran out the front door. On another occasion, Ewing accosted a victim in the mailroom of the apartment complex. Ewing claimed to have a gun and ordered the victim to hand over his wallet. When the victim resisted, Ewing produced a knife and forced the victim back to the apartment itself. While Ewing rifled through the bedroom, the victim fled the apartment screaming for help. Ewing absconded with the victim's money and credit cards.


[44] On December 9, 1993, Ewing was arrested on the premises of the apartment complex for trespassing and lying to a police officer. The knife used in the robbery and a glass cocaine pipe were later found in the back seat of the patrol car used to transport Ewing to the police station. A jury convicted Ewing of first-degree robbery and three counts of residential burglary. Sentenced to nine years and eight months in prison, Ewing was paroled in 1999.


[45] Only 10 months later, Ewing stole the golf clubs at issue in this case. He was charged with, and ultimately convicted of, one count of felony grand theft of personal property in excess of $400. See Cal. Penal Code Ann., §484 (West Supp. 2002); §489 (West 1999). As required by the three strikes law, the prosecutor formally alleged, and the trial court later found, that Ewing had been convicted previously of four serious or violent felonies for the three burglaries and the robbery in the Long Beach apartment complex. See §667(g) (West 1999); §1170.12(e) (West Supp. 2002).


[46] At the sentencing hearing, Ewing asked the court to reduce the conviction for grand theft, a "wobbler" under California law, to a misdemeanor so as to avoid a three strikes sentence. See §17(b) (West 1999); §667(d)(1); §1170.12(b)(1) (West Supp. 2002). Ewing also asked the trial court to exercise its discretion to dismiss the allegations of some or all of his prior serious or violent felony convictions, again for purposes of avoiding a three strikes sentence. See Romero, 13 Cal. 4th, at 529-531, 917 P. 2d, at 647-648. Before sentencing Ewing, the trial court took note of his entire criminal history, including the fact that he was on parole when he committed his latest offense. The court also heard arguments from defense counsel and a plea from Ewing himself.


[47] In the end, the trial judge determined that the grand theft should remain a felony. The court also ruled that the four prior strikes for the three burglaries and the robbery in Long Beach should stand. As a newly convicted felon with two or more "serious" or "violent" felony convictions in his past, Ewing was sentenced under the three strikes law to 25 years to life.


[48] The California Court of Appeal affirmed in an unpublished opinion. No. B143745 (Apr. 25, 2001). Relying on our decision in Rummel v. Estelle, 445 U. S. 263 (1980), the court rejected Ewing's claim that his sentence was grossly disproportionate under the Eighth Amendment. Enhanced sentences under recidivist statutes like the three strikes law, the court reasoned, serve the "legitimate goal" of deterring and incapacitating repeat offenders. The Supreme Court of California denied Ewing's petition for review, and we granted certiorari, 535 U. S. 969 (2002). We now affirm.


[49] II.


[50] A.


[51] The Eighth Amendment, which forbids cruel and unusual punishments, contains a "narrow proportionality principle" that "applies to non-capital sentences." Harmelin v. Michigan, 501 U. S. 957, 996-997 (1991) (Kennedy, J., concurring in part and concurring in judgment); cf. Weems v. United States, 217 U. S. 349, 371 (1910); Robinson v. California, 370 U. S. 660, 667 (1962) (applying the Eighth Amendment to the States via the Fourteenth Amendment). We have most recently addressed the proportionality principle as applied to terms of years in a series of cases beginning with Rummel v. Estelle, supra.


[52] In Rummel, we held that it did not violate the Eighth Amendment for a State to sentence a three-time offender to life in prison with the possibility of parole. Id., at 284-285. Like Ewing, Rummel was sentenced to a lengthy prison term under a recidivism statute. Rummel's two prior offenses were a 1964 felony for "fraudulent use of a credit card to obtain $80 worth of goods or services," and a 1969 felony conviction for "passing a forged check in the amount of $28.36." Id., at 265. His triggering offense was a conviction for felony theft -- "obtaining $120.75 by false pretenses." Id., at 266.


[53] This Court ruled that "[h]aving twice imprisoned him for felonies, Texas was entitled to place upon Rummel the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State." Id., at 284. The recidivism statute "is nothing more than a societal decision that when such a person commits yet another felony, he should be subjected to the admittedly serious penalty of incarceration for life, subject only to the State's judgment as to whether to grant him parole." Id., at 278. We noted that this Court "has on occasion stated that the Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime." Id., at 271. But "[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." Id., at 272. Although we stated that the proportionality principle "would ... come into play in the extreme example ... if a legislature made overtime parking a felony punishable by life imprisonment," id., at 274, n. 11, we held that "the mandatory life sentence imposed upon this petitioner does not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments" id., at 285.


[54] In Hutto v. Davis, 454 U. S. 370 (1982) (per curiam), the defendant was sentenced to two consecutive terms of 20 years in prison for possession with intent to distribute nine ounces of marijuana and distribution of marijuana. We held that such a sentence was constitutional: "In short, Rummel stands for the proposition that federal courts should be reluctant to review legislatively mandated terms of imprisonment, and that successful challenges to the proportionality of particular sentences should be exceedingly rare." Id., at 374 (citations and internal quotation marks omitted).


[55] Three years after Rummel, in Solem v. Helm, 463 U. S. 277, 279 (1983), we held that the Eighth Amendment prohibited "a life sentence without possibility of parole for a seventh nonviolent felony." The triggering offense in Solem was "uttering a `no account' check for $100." Id., at 281. We specifically stated that the Eighth Amendment's ban on cruel and unusual punishments "prohibits ... sentences that are disproportionate to the crime committed," and that the "constitutional principle of proportionality has been recognized explicitly in this Court for almost a century." Id., at 284, 286. The Solem Court then explained that three factors may be relevant to a determination of whether a sentence is so disproportionate that it violates the Eighth Amendment: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Id., at 292.


[56] Applying these factors in Solem, we struck down the defendant's sentence of life without parole. We specifically noted the contrast between that sentence and the sentence in Rummel, pursuant to which the defendant was eligible for parole. 463 U. S., at 297; see also id., at 300 ("[T]he South Dakota commutation system is fundamentally different from the parole system that was before us in Rummel"). Indeed, we explicitly declined to overrule Rummel: "[O]ur conclusion today is not inconsistent with Rummel v. Estelle." 463 U. S., at 303, n. 32; see also id., at 288, n. 13 ("[O]ur decision is entirely consistent with this Court's prior cases -- including Rummel v. Estelle").


[57] Eight years after Solem, we grappled with the proportionality issue again in Harmelin, supra. Harmelin was not a recidivism case, but rather involved a first-time offender convicted of possessing 672 grams of cocaine. He was sentenced to life in prison without possibility of parole. A majority of the Court rejected Harmelin's claim that his sentence was so grossly disproportionate that it violated the Eighth Amendment. The Court, however, could not agree on why his proportionality argument failed. Justice Scalia, joined by The Chief Justice, wrote that the proportionality principle was "an aspect of our death penalty jurisprudence, rather than a generalizable aspect of Eighth Amendment law." Id., at 994. He would thus have declined to apply gross disproportionality principles except in reviewing capital sentences. Ibid.


[58] Justice Kennedy, joined by two other Members of the Court, concurred in part and concurred in the judgment. Justice Kennedy specifically recognized that "[t]he Eighth Amendment proportionality principle also applies to non-capital sentences." Id., at 997. He then identified four principles of proportionality review -- "the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors" --that "inform the final one: The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are `grossly disproportionate' to the crime." Id., at 1001 (citing Solem, supra, at 288). Justice Kennedy's concurrence also stated that Solem "did not mandate" comparative analysis "within and between jurisdictions." 501 U. S., at 1004-1005.


[59] The proportionality principles in our cases distilled in Justice Kennedy's concurrence guide our application of the Eighth Amendment in the new context that we are called upon to consider.


[60] B.


[61] For many years, most States have had laws providing for enhanced sentencing of repeat offenders. See, e.g., U. S. Dept. of Justice, Bureau of Justice Assistance, National Assessment of Structured Sentencing (1996). Yet between 1993 and 1995, three strikes laws effected a sea change in criminal sentencing throughout the Nation.*fn1 These laws responded to widespread public concerns about crime by targeting the class of offenders who pose the greatest threat to public safety: career criminals. As one of the chief architects of California's three strikes law has explained: "Three Strikes was intended to go beyond simply making sentences tougher. It was intended to be a focused effort to create a sentencing policy that would use the judicial system to reduce serious and violent crime." Ardaiz, California's Three Strikes Law: History, Expectations, Consequences 32 McGeorge L. Rev. 1, 12 (2000) (hereinafter Ardaiz).


[62] Throughout the States, legislatures enacting three strikes laws made a deliberate 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. Though three strikes laws may be relatively new, our tradition of deferring to state legislatures in making and implementing such important policy decisions is longstanding. Weems, 217 U. S., at 379; Gore v. United States, 357 U. S. 386, 393 (1958); Payne v. Tennessee, 501 U. S. 808, 824 (1991); Rummel, U. S., at 274; Solem, 463 U. S., at 290; Harmelin, 501 U. S., at 998 (Kennedy, J., concurring in part and concurring in judgment).


[63] Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution "does not mandate adoption of any one penological theory." Id., at 999 (Kennedy, J., concurring in part and concurring in judgment). A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation. See 1 W. LaFave & A. Scott, Substantive Criminal Law §1.5, pp. 30-36 (1986) (explaining theories of punishment). Some or all of these justifications may play a role in a State's sentencing scheme. Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts.


[64] When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice. To the contrary, our cases establish that "States have a valid interest in deterring and segregating habitual criminals." Parke v. Raley, 506 U. S. 20, 27 (1992); Oyler v. Boles, 368 U. S. 448, 451 (1962) ("[T]he constitutionality of the practice of inflicting severer criminal penalties upon habitual offenders is no longer open to serious challenge"). Recidivism has long been recognized as a legitimate basis for increased punishment. See Almendarez-Torres v. United States, 523 U. S. 224, 230 (1998) (recidivism "is as typical a sentencing factor as one might imagine"); Witte v. United States, 515 U. S. 389, 399 (1995) ("In repeatedly upholding such recidivism statutes, we have rejected double jeopardy challenges because the enhanced punishment imposed for the later offense ... [is] `a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one' " (quoting Gryger v. Burke, 334 U. S. 728, 732 (1948))).


[65] California's justification is no pretext. Recidivism is a serious public safety concern in California and throughout the Nation. According to a recent report, approximately 67 percent of former inmates released from state prisons were charged with at least one "serious" new crime within three years of their release. See U. S. Dept. of Justice, Bureau of Justice Statistics, P. Langan & D. Levin, Special Report: Recidivism of Prisoners Released in 1994, p. 1 (June 2002). In particular, released property offenders like Ewing had higher recidivism rates than those released after committing violent, drug, or public-order offenses. Id., at 8. Approximately 73 percent of the property offenders released in 1994 were arrested again within three years, compared to approximately 61 percent of the violent offenders, 62 percent of the public-order offenders, and 66 percent of the drug offenders. Ibid.


[66] In 1996, when the Sacramento Bee studied 233 three strikes offenders in California, it found that they had an aggregate of 1,165 prior felony convictions, an average of 5 apiece. See Furillo, Three Strikes -- The Verdict's In: Most Offenders Have Long Criminal Histories, Sacramento Bee, Mar. 31, 1996, p. A1. The prior convictions included 322 robberies and 262 burglaries. Ibid. About 84 percent of the 233 three strikes offenders had been convicted of at least one violent crime. Ibid. In all, they were responsible for 17 homicides, 7 attempted slayings, and 91 sexual assaults and child molestations. Ibid. The Sacramento Bee concluded, based on its investigation, that "[i]n the vast majority of the cases, regardless of the third strike, the [three strikes] law is snaring [the] long-term habitual offenders with multiple felony convictions ... ." Ibid.


[67] The State's interest in deterring crime also lends some support to the three strikes law. We have long viewed both incapacitation and deterrence as rationales for recidivism statutes: "[A] recidivist statute['s] ... primary goals are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time." Rummel, supra, at 284. Four years after the passage of California's three strikes law, the recidivism rate of parolees returned to prison for the commission of a new crime dropped by nearly 25 percent. California Dept. of Justice, Office of the Attorney General, "Three Strikes and You're Out" -- Its Impact on the California Criminal Justice System After Four Years 10 (1998). Even more dramatically:


[68] "[a]n unintended but positive consequence of `Three Strikes' has been the impact on parolees leaving the state. More California parolees are now leaving the state than parolees from other jurisdictions entering California. This striking turnaround started in 1994. It was the first time more parolees left the state than entered since 1976. This trend has continued and in 1997 more than 1,000 net parolees left California." Ibid. See also Janiskee & Erler, Crime, Punishment, and Romero: An Analysis of the Case Against California's Three Strikes Law, 39 Duquesne L. Rev. 43, 45-46 ("Prosecutors in Los Angeles routinely report that `felons tell them they are moving out of the state because they fear getting a second or third strike for a nonviolent offense.' ") (quoting Sanchez, A Movement Builds Against "Three Strikes" Law, Washington Post, Feb. 18, 2000, p. A3)).


[69] To be sure, California's three strikes law has sparked controversy. Critics have doubted the law's wisdom, cost-efficiency, and effectiveness in reaching its goals. See, e.g., Zimring, Hawkins, & Kamin, Punishment and Democracy: Three Strikes and You're Out in California (2001); Vitiello, Three Strikes: Can We Return to Rationality?, 87 J. Crim. L. & C. 395, 423 (1997). This criticism is appropriately directed at the legislature, which has primary responsibility for making the difficult policy choices that underlie any criminal sentencing scheme. We do not sit as a "superlegislature" to second-guess these policy choices. It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons "advance[s] the goals of [its] criminal justice system in any substantial way." See Solem, 463 U. S., at 297, n. 22.


[70] III.


[71] Against this backdrop, we consider Ewing's claim that his three strikes sentence of 25 years to life is unconstitutionally disproportionate to his offense of "shoplifting three golf clubs." Brief for Petitioner 6. We first address the gravity of the offense compared to the harshness of the penalty. At the threshold, we note that Ewing incorrectly frames the issue. The gravity of his offense was not merely "shoplifting three golf clubs." Rather, Ewing was convicted of felony grand theft for stealing nearly $1,200 worth of merchandise after previously having been convicted of at least two "violent" or "serious" felonies. Even standing alone, Ewing's theft should not be taken lightly. His crime was certainly not "one of the most passive felonies a person could commit." Solem, supra, at 296 (internal quotation marks omitted). To the contrary, the Supreme Court of California has noted the "seriousness" of grand theft in the context of proportionality review. See In re Lynch, 8 Cal. 3d 410, 432, n. 20, 503 P. 2d 921, 936, n. 20 (1972). Theft of $1,200 in property is a felony under federal law, 18 U. S. C. §641, and in the vast majority of States. See App. B to Brief for Petitioner 21a.


[72] That grand theft is a "wobbler" under California law is of no moment. Though California courts have discretion to reduce a felony grand theft charge to a misdemeanor, it remains a felony for all purposes "unless and until the trial court imposes a misdemeanor sentence." In re Anderson, 69 Cal. 2d 613, 626, 447 P. 2d 117, 152 (1968) (Tobriner, J., concurring); see generally 1 B. Witkin & N. Epstein, California Criminal Law §73 (3d ed. 2000). "The purpose of the trial judge's sentencing discretion" to downgrade certain felonies is to "impose a misdemeanor sentence in those cases in which the rehabilitation of the convicted defendant either does not require or would be adversely affected by, incarceration in a state prison as a felon." Anderson, supra, at 664-665, 447 P. 2d, at 152 (Tobriner, J., concurring). Under California law, the reduction is not based on the notion that a "wobbler" is "conceptually a misdemeanor." Necochea v. Superior Court, 23 Cal. App. 3d 1012, 1016, 100 Cal. Rptr. 693, 695 (1972). Rather, it is "intended to extend misdemeanant treatment to a potential felon." Ibid. In Ewing's case, however, the trial judge justifiably exercised her discretion not to extend such lenient treatment given Ewing's long criminal history.


[73] In weighing the gravity of Ewing's offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature's choice of sanctions. In imposing a three strikes sentence, the State's interest is not merely punishing the offense of conviction, or the "triggering" offense: "[I]t is in addition the interest ... in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law." See Rummel, 445 U. S., at 276; Solem, supra, at 296. To give full effect to the State's choice of this legitimate penological goal, our proportionality review of Ewing's sentence must take that goal into account.


[74] Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record.*fn2 Ewing has been convicted of numerous misdemeanor and felony offenses, served nine separate terms of incarceration, and committed most of his crimes while on probation or parole. His prior "strikes" were serious felonies including robbery and three residential burglaries. To be sure, Ewing's sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated. The State of California "was entitled to place upon [Ewing] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State." Rummel, supra, at 284. Ewing's is not "the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Harmelin, 501 U. S., at 1005 (Kennedy, J., concurring in part and concurring in judgment).


[75] We hold that Ewing's sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the three strikes law, is not grossly disproportionate and therefore does not violate the Eighth Amendment's prohibition on cruel and unusual punishments. The judgment of the California Court of Appeal is affirmed.


[76] It is so ordered.


[77] Justice Scalia, concurring in the judgment.


[78] In my concurring opinion in Harmelin v. Michigan, 501 U. S. 984, 985 (1991), I concluded that the Eighth Amendment's 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 principle -- if I felt I could intelligently apply it. This case demonstrates why I cannot.


[79] Proportionality -- the notion that the punishment should fit the crime --is 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 989 -- not to mention giving weight to the purpose of California's 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 "Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons." Ante, at 16.


[80] Which indeed it is -- though 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.


[81] Because I agree that petitioner's sentence does not violate the Eighth Amendment's prohibition against cruel and unusual punishments, I concur in the judgment.


[82] Justice Thomas, concurring in the judgment.


[83] I agree with Justice Scalia's view that the proportionality test announced in Solem v. Helm, 463 U. S. 277 (1983), is incapable of judicial application. Even were Solem's test perfectly clear, however, I would not feel compelled by stare decisis to apply it. In my view, the Cruel and Unusual Punishments Clause of the Eighth Amendment contains no proportionality principle. See Harmelin v. Michigan, 501 U. S. 957, 967-985 (1991) (opinion of Scalia, J.).


[84] Because the plurality concludes that petitioner's sentence does not violate the Eighth Amendment's prohibition on cruel and unusual punishments, I concur in the judgment.


[85] Stevens, J., dissenting


[86] Justice Stevens, with whom Justice Souter, Justice Ginsburg and Justice Breyer join, dissenting.


[87] Justice Breyer has cogently explained why the sentence imposed in this case is both cruel and unusual.*fn3 The concurrences prompt this separate writing to emphasize that proportionality review is not only capable of judicial application but also required by the Eighth Amendment.


[88] "The Eighth Amendment succinctly prohibits 'excessive' sanctions." Atkins v. Virginia, 536 U. S. 304, 311 (2002); see also U. S. Const., Amdt. 8 ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"). Faithful to the Amendment's text, this Court has held that the Constitution directs judges to apply their best judgment in determining the proportionality of fines, see, e.g., United States v. Bajakajian, 524 U. S. 321, 334-336 (1998), bail, see, e.g., Stack v. Boyle, 342 U. S. 1, 5 (1951), and other forms of punishment, including the imposition of a death sentence, see, e.g., Coker v. Georgia, 433 U. S. 584, 592 (1977). It "would be anomalous indeed" to suggest that the Eighth Amendment makes proportionality review applicable in the context of bail and fines but not in the context of other forms of punishment, such as imprisonment. Solem v. Helm, 463 U. S. 277, 289 (1983). Rather, by broadly prohibiting excessive sanctions, the Eighth Amendment directs judges to exercise their wise judgment in assessing the proportionality of all forms of punishment.


[89] The absence of a black-letter rule does not disable judges from exercising their discretion in construing the outer limits on sentencing authority that the Eighth Amendment imposes. After all, judges are "constantly called upon to draw . . . lines in a variety of contexts," id., at 294, and to exercise their judgment to give meaning to the Constitution's broadly phrased protections. For example, the Due Process Clause directs judges to employ proportionality review in assessing the constitutionality of punitive damages awards on a case-by-case basis. See, e.g., BMW of North America, Inc. v. Gore, 517 U. S. 559, 562 (1996). Also, although the Sixth Amendment guarantees criminal defendants the right to a speedy trial, the courts often are asked to determine on a case-by-case basis whether a particular delay is constitutionally permissible or not. See, e.g., Doggett v. United States, 505 U. S. 647 (1992).*fn4


[90] Throughout most of the Nation's history -- before guideline sentencing became so prevalent -- federal and state trial judges imposed specific sentences pursuant to grants of authority that gave them uncabined discretion within broad ranges. See K. Stith & J. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9 (1998) (hereinafter Stith & Cabranes) ("From the beginning of the Republic, federal judges were entrusted with wide sentencing discretion"); see also Mistretta v. United States, 488 U. S. 361, 364 (1989). It was not unheard of for a statute to authorize a sentence ranging from one year to life, for example. See, e.g., State v. Perley, 86 Me. 427, 30 A. 74, 75 (1894) (citing Maine statute that made robbery punishable by imprisonment for life or any term of years); In re Southard, 298 Mich. 75, 77, 298 N. W. 457 (1941) ("The offense of `robbery armed' is punishable by imprisonment for life or any term of years"). In exercising their discretion, sentencing judges wisely employed a proportionality principle that took into account all of the justifications for punishment -- namely, deterrence, incapacitation, retribution and rehabilitation. See Stith & Cabranes 14. Likewise, I think it clear that the Eighth Amendment's prohibition of "cruel and unusual punishments" expresses a broad and basic proportionality principle that takes into account all of the justifications for penal sanctions. It is this broad proportionality principle that would preclude reliance on any of the justifications for punishment to support, for example, a life sentence for overtime parking. See Rummel v. Estelle, 445 U. S. 263, 274, n. 11 (1980).


[91] Accordingly, I respectfully dissent.


[92] Breyer, J., dissenting


[93] Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.


[94] The constitutional question is whether the "three strikes" sentence imposed by California upon repeat-offender Gary Ewing is "grossly disproportionate" to his crime. Ante, at 1, 18 (plurality opinion). The sentence amounts to a real prison term of at least 25 years. The sentence-triggering criminal conduct consists of the theft of three golf clubs priced at a total of $1,197. See ante, at 5. The offender has a criminal history that includes four felony convictions arising out of three separate burglaries (one armed). Ante, at 5-6. In Solem v. Helm, 463 U. S. 277 (1983), the Court found grossly disproportionate a somewhat longer sentence imposed on a recidivist offender for triggering criminal conduct that was somewhat less severe. In my view, the differences are not determinative, and the Court should reach the same ultimate conclusion here.


[95] I.


[96] This Court's precedent sets forth a framework for analyzing Ewing's Eighth Amendment claim. The Eighth Amendment forbids, as "cruel and unusual punishments," prison terms (including terms of years) that are "grossly disproportionate." Solem, supra, at 303; see Lockyer v. Andrade, post, at 7. In applying the "gross disproportionality" principle, courts must keep in mind that "legislative policy" will primarily determine the appropriateness of a punishment's "severity," and hence defer to such legislative policy judgments. Gore v. United States, 357 U. S. 386, 393 (1958); see Harmelin v. Michigan, 501 U. S. 957, 998 (1991) (Kennedy, J., concurring in part and concurring in judgment); Solem, supra, at 289-290; Rummel v. Estelle, 445 U. S. 263, 274-276 (1980); Weems v. United States, 217 U. S. 349, 373 (1910). If courts properly respect those judgments, they will find that the sentence fails the test only in rare instances. Solem, supra, at 290, n. 16; Harmelin, supra, at 1004 (Kennedy, J., concurring in part and concurring in judgment); Rummel, supra, at 272 ("[S]uccessful challenges to the proportionality of particular sentences have been exceedingly rare"). And they will only " `rarely' " find it necessary to " `engage in extended analysis' " before rejecting a claim that a sentence is "grossly disproportionate." Harmelin, supra, at 1004 (Kennedy, J., concurring in part and concurring in judgment) (quoting Solem, supra, at 290, n. 16).


[97] The plurality applies Justice Kennedy's analytical framework in Harmelin, supra, at 1004-1005 (opinion concurring in part and concurring in judgment). Ante, at 10-11. And, for present purposes, I will consider Ewing's Eighth Amendment claim on those terms. But see ante, at 1, n. 1 (Stevens, J., dissenting). To implement this approach, courts faced with a "gross disproportionality" claim must first make "a threshold comparison of the crime committed and the sentence imposed." Harmelin, supra, at 1005 (Kennedy, J., concurring in part and concurring in judgment). If a claim crosses that threshold -- itself a rare occurrence -- then the court should compare the sentence at issue to other sentences "imposed on other criminals" in the same, or in other, jurisdictions. Solem, supra, at 290-291; Harmelin, supra, at 1005 (Kennedy, J., concurring in part and concurring in judgment). The comparative analysis will "validate" or invalidate "an initial judgment that a sentence is grossly disproportionate to a crime." Ibid.


[98] I recognize the warnings implicit in the Court's frequent repetition of words such as "rare." Nonetheless I believe that the case before us is a "rare" case -- one in which a court can say with reasonable confidence that the punishment is "grossly disproportionate" to the crime.


[99] II.


[100] Ewing's claim crosses the gross disproportionality "threshold." First, precedent makes clear that Ewing's sentence raises a serious disproportionality question. Ewing is a recidivist. Hence the two cases most directly in point are those in which the Court considered the constitutionality of recidivist sentencing: Rummel and Solem. Ewing's claim falls between these two cases. It is stronger than the claim presented in Rummel, where the Court upheld a recidivist's sentence as constitutional. It is weaker than the claim presented in Solem, where the Court struck down a recidivist sentence as unconstitutional.


[101] Three kinds of sentence-related characteristics define the relevant comparative spectrum: (a) the length of the prison term in real time, i.e., the time that the offender is likely actually to spend in prison; (b) the sentence-triggering criminal conduct, i.e., the offender's actual behavior or other offense-related circumstances; and (c) the offender's criminal history. See Rummel, supra, at 265-266, 269, 276, 278, 280-281 (using these factors); Solem, supra, at 290-303 (same). Cf. United States Sentencing Commission, Guidelines Manual ch. 1, pt. A, intro., n. 5 (Nov. 1987) (USSG) (empirical study of "summary reports of some 40,000 convictions [and] a sample of 10,000 augmented presentence reports" leads to sentences based primarily upon (a) offense characteristics and (b) offender's criminal record); see id., p. s. 3.


[102] In Rummel, the Court held constitutional (a) a sentence of life imprisonment with parole available within 10 to 12 years, (b) for the offense of obtaining $120 by false pretenses, (c) committed by an offender with two prior felony convictions (involving small amounts of money). 445 U. S., at 263; ante, at 8-9. In Solem, the Court held unconstitutional (a) a sentence of life imprisonment without parole, (b) for the crime of writing a $100 check on a nonexistent bank account, (c) committed by an offender with six prior felony convictions (including three for burglary). 463 U. S., at 277; ante, at 9-10. Which of the three pertinent comparative factors made the constitutional difference?


[103] The third factor, prior record, cannot explain the difference. The offender's prior record was worse in Solem, where the Court found the sentence too long, than in Rummel, where the Court upheld the sentence. The second factor, offense conduct, cannot explain the difference. The nature of the triggering offense -- viewed in terms of the actual monetary loss --in the two cases was about the same. The one critical factor that explains the difference in the outcome is the length of the likely prison term measured in real time. In Rummel, where the Court upheld the sentence, the state sentencing statute authorized parole for the offender, Rummel, after 10 or 12 years. 445 U. S., at 280; id., at 293 (Powell, J., dissenting). In Solem, where the Court struck down the sentence, the sentence required the offender, Helm, to spend the rest of his life in prison.


[104] Now consider the present case. The third factor, offender characteristics -- i.e., prior record -- does not differ significantly here from that in Solem. Ewing's prior record consists of four prior felony convictions (involving three burglaries, one with a knife) contrasted with Helm's six prior felony convictions (including three burglaries, though none with weapons). The second factor, offense behavior, is worse than that in Solem, but only to a degree. It would be difficult to say that the actual behavior itself here (shoplifting) differs significantly from that at issue in Solem (passing a bad check) or in Rummel (obtaining money through false pretenses). Rather the difference lies in the value of the goods obtained. That difference, measured in terms of the most relevant feature (loss to the victim, i.e., wholesale value) and adjusted for the irrelevant feature of inflation, comes down (in 1979 values) to about $379 here compared with $100 in Solem, or (in 1973 values) to $232 here compared with $120.75 in Rummel. See USSG §2B1.1, comment., n. 2(A)(i) (Nov. 2002) (loss to victim properly measures value of goods unlawfully taken); U. S. Dept. of Labor, Bureau of Labor Statistics, Inflation and Consumer Spending, Inflation Calculator (Jan. 23, 2003), http://www.bls.gov. Alternatively, if one measures the inflation-adjusted value difference in terms of the golf clubs' sticker price, it comes down to $505 here compared to $100 in Solem, or $309 here compared to $120.75 in Rummel. See ibid.


[105] The difference in length of the real prison term -- the first, and critical, factor in Solem and Rummel -- is considerably more important. Ewing's sentence here amounts, in real terms, to at least 25 years without parole or good-time credits. That sentence is considerably shorter than Helm's sentence in Solem, which amounted, in real terms, to life in prison. Nonetheless Ewing's real prison term is more than twice as long as the term at issue in Rummel, which amounted, in real terms, to at least 10 or 12 years. And, Ewing's sentence, unlike Rummel's (but like Helm's sentence in Solem), is long enough to consume the productive remainder of almost any offender's life. (It means that Ewing himself, seriously ill when sentenced at age 38, will likely die in prison.)


[106] The upshot is that the length of the real prison term -- the factor that explains the Solem/Rummel difference in outcome -- places Ewing closer to Solem than to Rummel, though the greater value of the golf clubs that Ewing stole moves Ewing's case back slightly in Rummel's direction. Overall, the comparison places Ewing's sentence well within the twilight zone between Solem and Rummel -- a zone where the argument for unconstitutionality is substantial, where the cases themselves cannot determine the constitutional outcome.


[107] Second, Ewing's sentence on its face imposes one of the most severe punishments available upon a recidivist who subsequently engaged in one of the less serious forms of criminal conduct. See infra, at 10-12. I do not deny the seriousness of shoplifting, which an amicus curiae tells us costs retailers in the range of $30 billion annually. Brief for California District Attorneys Association as Amicus Curiae 27. But consider that conduct in terms of the factors that this Court mentioned in Solem -- the "harm caused or threatened to the victim or society," the "absolute magnitude of the crime," and the offender's "culpability." 463 U. S., at 292-293. In respect to all three criteria, the sentence-triggering behavior here ranks well toward the bottom of the criminal conduct scale.


[108] The Solicitor General has urged us to consider three other criteria: the "frequency" of the crime's commission, the "ease or difficulty of detection," and "the degree to which the crime may be deterred by differing amounts of punishment." Brief for United States as Amicus Curiae 24-25. When considered in terms of these criteria -- or at least the latter two --the triggering conduct also ranks toward the bottom of the scale. Unlike, say, drug crimes, shoplifting often takes place in stores open to other customers whose presence, along with that of store employees or cameras, can help to detect the crime. Nor is there evidence presented here that the law enforcement community believes lengthy prison terms necessary adequately to deter shoplifting. To the contrary, well-publicized instances of shoplifting suggest that the offense is often punished without any prison sentence at all. On the other hand, shoplifting is a frequently committed crime; but "frequency," standing alone, cannot make a critical difference. Otherwise traffic offenses would warrant even more serious punishment.


[109] This case, of course, involves shoplifting engaged in by a recidivist. One might argue that any crime committed by a recidivist is a serious crime potentially warranting a 25-year sentence. But this Court rejected that view in Solem, and in Harmelin, with the recognition that "no penalty is per se constitutional." Solem, supra, at 290; Harmelin, 501 U. S., at 1001 (Kennedy, J., concurring in part and concurring in judgment). Our cases make clear that, in cases involving recidivist offenders, we must focus upon "the [offense] that triggers the life sentence," with recidivism playing a "relevant," but not necessarily determinative, role. Solem, supra, at 296, n. 21; see Witte v. United States, 515 U. S. 389, 402, 403 (1995) (the recidivist defendant is "punished only for the offense of conviction," which " `is considered to be an aggravated offense because a repetitive one' " (quoting Gryger v. Burke, 334 U. S. 728, 732 (1948))). And here, as I have said, that offense is among the less serious, while the punishment is among the most serious. Cf. Rummel, 445 U. S., at 288 (Powell, J., dissenting) (overtime parking violation cannot trigger a life sentence even for a serious recidivist).


[110] Third, some objective evidence suggests that many experienced judges would consider Ewing's sentence disproportionately harsh. The United States Sentencing Commission (having based the federal Sentencing Guidelines primarily upon its review of how judges had actually sentenced offenders) does not include shoplifting (or similar theft-related offenses) among the crimes that might trigger especially long sentences for recidivists, see USSG §4B1.1 (Nov. 2002) (Guideline for sentencing "career offenders"); id., ch. 1, pt. A, intro., n. 5 (sentences based in part upon Commission's review of "summary reports of some 40,000 convictions [and] a sample of 10,000 augmented presentence reports"); see also infra, at 11-12, nor did Congress include such offenses among triggering crimes when it sought sentences "at or near the maximum" for certain recidivists, S. Rep. No. 98-225, p. 175 (1983); 28 U. S. C. §994(h) (requiring sentence "at or near the maximum" where triggering crime is crime of "violence" or drug related); 18 U. S. C. §3559(c) (grand theft not among triggering or "strike" offenses under federal "three strikes" law); see infra, at 12. But see 28 U. S. C. §994(i)(1) (requiring "a substantial term of imprisonment" for those who have "a history of two or more prior ... felony convictions").


[111] Taken together, these three circumstances make clear that Ewing's "gross disproportionality" argument is a strong one. That being so, his claim must pass the "threshold" test. If it did not, what would be the function of the test? A threshold test must permit arguably unconstitutional sentences, not only actually unconstitutional sentences, to pass the threshold -- at least where the arguments for unconstitutionality are unusually strong ones. A threshold test that blocked every ultimately invalid constitutional claim -- even strong ones -- would not be a threshold test but a determinative test. And, it would be a determinative test that failed to take account of highly pertinent sentencing information, namely, comparison with other sentences, Solem, supra, at 291-292, 298-300. Sentencing comparisons are particularly important because they provide proportionality review with objective content. By way of contrast, a threshold test makes the assessment of constitutionality highly subjective. And, of course, so to transform that threshold test would violate this Court's earlier precedent. See 463 U. S., at 290, 291-292; Harmelin, supra, at 1000, 1005 (Kennedy, J., concurring in part and concurring in judgment).


[112] III.


[113] Believing Ewing's argument a strong one, sufficient to pass the threshold, I turn to the comparative analysis. A comparison of Ewing's sentence with other sentences requires answers to two questions. First, how would other jurisdictions (or California at other times, i.e., without the three strikes penalty) punish the same offense conduct? Second, upon what other conduct would other jurisdictions (or California) impose the same prison term? Moreover, since hypothetical punishment is beside the point, the relevant prison time, for comparative purposes, is real prison time, i.e., the time that an offender must actually serve.


[114] Sentencing statutes often shed little light upon real prison time. That is because sentencing laws normally set maximum sentences, giving the sentencing judge discretion to choose an actual sentence within a broad range, and because many States provide good-time credits and parole, often permitting release after, say, one-third of the sentence has been served, see, e.g., Alaska Stat. §33.20.010(a) (2000); Conn. Gen. Stat. §18-7a (1998). Thus, the statutory maximum is rarely the sentence imposed, and the sentence imposed is rarely the sentence that is served. For the most part, the parties' briefs discuss sentencing statutes. Nonetheless, that discussion, along with other readily available information, validates my initial belief that Ewing's sentence, comparatively speaking, is extreme.


[115] As to California itself, we know the following: First, between the end of World War II and 1994 (when California enacted the three strikes law, ante, at 2), no one like Ewing could have served more than 10 years in prison. We know that for certain because the maximum sentence for Ewing's crime of conviction, grand theft, was for most of that period 10 years. Cal. Penal Code Ann. §§484, 489 (West 1970); see Cal. Dept. of Corrections, Offender Information Services, Administrative Services Division, Historical Data for Time Served by Male Felons Paroled from Institutions: 1945 Through 1981, p. 11 (1982) (Table 10) (hereinafter Historical Data for Time Served by California Felons), Lodging of Petitioner. From 1976 to 1994 (and currently, absent application of the three strikes penalty), a Ewing-type offender would have received a maximum sentence of 4 years. Cal. Penal Code Ann. §489 (West 1999), §667.5(b) (West Supp. 2002). And we know that California's "habitual offender" laws did not apply to grand theft. §§644(a), (b) (West 1970) (repealed 1977). We also know that the time that any offender actually served was likely far less than 10 years. This is because statistical data shows that the median time actually served for grand theft (other than auto theft) was about two years, and 90 percent of all those convicted of that crime served less than three or four years. Historical Data for Time Served by California Felons 11 (Table 10).


[116] Second, statistics suggest that recidivists of all sorts convicted during that same time period in California served a small fraction of Ewing's real-time sentence. On average, recidivists served three to four additional (recidivist-related) years in prison, with 90 percent serving less than an additional real seven to eight years. Id., at 22 (Table 21).


[117] Third, we know that California has reserved, and still reserves, Ewing-type prison time, i.e., at least 25 real years in prison, for criminals convicted of crimes far worse than was Ewing's. Statistics for the years 1945 to 1981, for example, indicate that typical (nonrecidivist) male first-degree murderers served between 10 and 15 real years in prison, with 90 percent of all such murderers serving less than 20 real years. Id., at 3 (Table 2). Moreover, California, which has moved toward a real-time sentencing system (where the statutory punishment approximates the time served), still punishes far less harshly those who have engaged in far more serious conduct. It imposes, for example, upon nonrecidivists guilty of arson causing great bodily injury a maximum sentence of nine years in prison, Cal. Penal Code Ann. §451(a) (West 1999) (prison term of 5, 7, or 9 years for arson that causes great bodily injury); it imposes upon those guilty of voluntary manslaughter a maximum sentence of 11 years, §193 (prison term of 3, 6, or 11 years for voluntary manslaughter). It reserves the sentence that it here imposes upon (former-burglar-now-golf-club-thief) Ewing, for nonrecidivist, first-degree murderers. See §190(a) (West Supp. 2003) (sentence of 25 years to life for first-degree murder).


[118] As to other jurisdictions, we know the following: The United States, bound by the federal Sentencing Guidelines, would impose upon a recidivist, such as Ewing, a sentence that, in any ordinary case, would not exceed 18 months in prison. USSG §2B1.1(a) (Nov. 1999) (assuming a base offense level of 6, a criminal history of VI, and no mitigating or aggravating adjustments); id., ch. 5, pt. A, Sentencing Table. The Guidelines, based in part upon a study of some 40,000 actual federal sentences, see supra, at 3, 8, reserve a Ewing-type sentence for Ewing-type recidivists who currently commit such crimes as murder, §2A1.2; air piracy, §2A5.1; robbery (involving the discharge of a firearm, serious bodily injury, and about $1 million), §2B3.1; drug offenses involving more than, for example, 20 pounds of heroin, §2D1.1; aggravated theft of more than $100 million, §2B1.1; and other similar offenses. The Guidelines reserve 10 years of real prison time (with good time) -- less than 40 percent of Ewing's sentence -- for Ewing-type recidivists who go on to commit, for instance, voluntary manslaughter, §2A1.3; aggravated assault with a firearm (causing serious bodily injury and motivated by money), §2A2.2; kidnaping, §2A4.1; residential burglary involving more than $5 million, §2B2.1; drug offenses involving at least one pound of cocaine, §2D1.1; and other similar offenses. Ewing also would not have been subject to the federal "three strikes" law, 18 U. S. C. §3559(c), for which grand theft is not a triggering offense.


[119] With three exceptions, see infra this page and 13, we do not have before us information about actual time served by Ewing-type offenders in other States. We do know, however, that the law would make it legally impossible for a Ewing-type offender to serve more than 10 years in prison in 33 jurisdictions, as well as the federal courts, see Appendix, Part A, infra, more than 15 years in 4 other States, see Appendix, Part B, infra, and more than 20 years in 4 additional States, see Appendix, Part C, infra. In nine other States, the law might make it legally possible to impose a sentence of 25 years or more, see Appendix, Part D, infra -- though that fact by itself, of course, does not mean that judges have actually done so. But see infra this page and 13. I say "might" because the law in five of the nine last-mentioned States restricts the sentencing judge's ability to impose a term so long that, with parole, it would amount to at least 25 years of actual imprisonment. See Appendix, Part D, infra.


[120] We also know that California, the United States, and other States supporting California in this case, despite every incentive to find someone else like Ewing who will have to serve, or who has actually served, a real prison term anywhere approaching that imposed upon Ewing, have come up with precisely three examples. Brief for United States as Amicus Curiae 28-29, n. 13. The Solicitor General points to Ex parte Howington, 622 So. 2d 896 (Ala. 1993), where an Alabama court sentenced an offender with three prior burglary convictions and two prior grand theft convictions to "life" for the theft of a tractor-trailer. The Solicitor General also points to State v. Heftel, 513 N. W. 2d 397 (S. D. 1994), where a South Dakota court sentenced an offender with seven prior felony convictions to 50 years' imprisonment for theft. And the Solicitor General cites Sims v. State, 107 Nev. 438, 814 P. 2d 63 (1991), where a Nevada court sentenced a defendant with three prior felony convictions (including armed robbery) and nine misdemeanor convictions to life without parole for the theft of a purse and wallet containing $476.


[121] The first of these cases, Howington, is beside the point, for the offender was eligible for parole after 10 years (as in Rummel), not 25 years (as here). Ala. Code §15-22-28(e) (West 1982). The second case, Heftel, is factually on point, but it is not legally on point, for the South Dakota courts did not consider the constitutionality of the sentence. 513 N. W. 2d, at 401. The third case, Sims, is on point both factually and legally, for the Nevada Supreme Court (by a vote of 3 to 2) found the sentence constitutional. I concede that example -- a single instance of a similar sentence imposed outside the context of California's three strikes law, out of a prison population now approaching two million individuals. U. S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Prison Statistics (Jan. 8, 2003), http://www.ojp.usdoj.gov/bjs/prisons.htm (available in Clerk of Court's case file).


[122] The upshot is that comparison of other sentencing practices, both in other jurisdictions and in California at other times (or in respect to other crimes), validates what an initial threshold examination suggested. Given the information available, given the state and federal parties' ability to provide additional contrary data, and given their failure to do so, we can assume for constitutional purposes that the following statement is true: Outside the California three strikes context, Ewing's recidivist sentence is virtually unique in its harshness for his offense of conviction, and by a considerable degree.


[123] IV.


[124] This is not the end of the matter. California sentenced Ewing pursuant to its "three strikes" law. That law represents a deliberate effort to provide stricter punishments for recidivists. Cal. Penal Code Ann. §667(b) (West 1999) ("It is the intent of the Legislature ... to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses"); ante, at 11-12. And, it is important to consider whether special criminal justice concerns related to California's three strikes policy might justify including Ewing's theft within the class of triggering criminal conduct (thereby imposing a severe punishment), even if Ewing's sentence would otherwise seem disproportionately harsh. Cf. Harmelin, 501 U. S., at 998-999, 1001 (noting "the primacy of the legislature" in making sentencing policy).


[125] I can find no such special criminal justice concerns that might justify this sentence. The most obvious potential justification for bringing Ewing's theft within the ambit of the statute is administrative. California must draw some kind of workable line between conduct that will trigger, and conduct that will not trigger, a "three strikes" sentence. "But the fact that a line has to be drawn somewhere does not justify its being drawn anywhere." Pearce v. Commissioner, 315 U. S. 543, 558 (1942) (Frankfurter, J., dissenting). The statute's administrative objective would seem to be one of separating more serious, from less serious, triggering criminal conduct. Yet the statute does not do that job particularly well.


[126] The administrative line that the statute draws separates "felonies" from "misdemeanors." See Brief for Respondent 6 ("The California statute relies, fundamentally, on traditional classifications of certain crimes as felonies"). Those words suggest a graduated difference in degree. But an examination of how California applies these labels in practice to criminal conduct suggests that the offenses do not necessarily reflect those differences. See United States v. Watson, 423 U. S. 411, 438-441 (1976) (Marshall, J., dissenting) (felony/misdemeanor distinction often reflects history, not logic); Rummel, 445 U. S., at 284 ("The most casual review of the various criminal justice systems now in force in the 50 States of the Union shows that the line dividing felony theft from petty larceny, a line usually based on the value of the property taken, varies markedly from one State to another"). Indeed, California uses those words in a way unrelated to the seriousness of offense conduct in a set of criminal statutes called "wobblers," see ante, at 4, one of which is at issue in this case.


[127] Most "wobbler" statutes classify the same criminal conduct either as a felony or as a misdemeanor, depending upon the actual punishment imposed, Cal. Penal Code Ann. §§17(a), (b) (West 1999); ante, at 4, which in turn depends primarily upon whether "the rehabilitation of the convicted defendant" either does or does not "require" (or would or would not "be adversely affected by") "incarceration in a state prison as a felon." In re Anderson, 69 Cal. 2d 613, 664-665, 447 P. 2d 117, 152 (1968) (Tobriner, J., concurring in part and dissenting in part); ante, at 16. In such cases, the felony/misdemeanor classification turns primarily upon the nature of the offender, not the comparative seriousness of the offender's conduct.


[128] A subset of "wobbler" statutes, including the "petty theft with a prior" statute, Cal. Penal Code Ann. §666 (West Supp. 2002), defining the crime in the companion case, Lockyer v. Andrade, post, p. -- , authorizes the treatment of otherwise misdemeanor conduct, see Cal. Penal Code Ann. §490 (West 1999), as a felony only when the offender has previously committed a property crime. Again, the distinction turns upon characteristics of the offender, not the specific offense conduct at issue.


[129] The result of importing this kind of distinction into California's three strikes statute is a series of anomalies. One anomaly concerns the seriousness of the triggering behavior. "Wobbler" statutes cover a wide variety of criminal behavior, ranging from assault with a deadly weapon, §245, vehicular manslaughter, §193(c)(1), and money laundering, §186.10(a), to the defacement of property with graffiti, §594(b)(2)(A) (West Supp. 2002), or stealing more than $100 worth of chickens, nuts, or avocados, §487(b)(1)(A) (West Supp. 2003); §489 (West 1999). Some of this behavior is obviously less serious, even if engaged in twice, than other criminal conduct that California statutes classify as pure misdemeanors, such as reckless driving, Cal. Veh. Code Ann. §23103 (West Supp. 2003); §23104(a) (West 2000) (reckless driving causing bodily injury), the use of force or threat of force to interfere with another's civil rights, Cal. Penal Code Ann. §422.6 (West 1999), selling poisoned alcohol, §347b, child neglect, §270, and manufacturing or selling false government documents with the intent to conceal true citizenship, §112(a) (West Supp. 2002).


[130] Another anomaly concerns temporal order. An offender whose triggering crime is his third crime likely will not fall within the ambit of the three strikes statute provided that (a) his first crime was chicken theft worth more than $100, and (b) he subsequently graduated to more serious crimes, say crimes of violence. That is because such chicken theft, when a first offense, will likely be considered a misdemeanor. A similar offender likely will fall within the scope of the three strikes statute, however, if such chicken theft was his third crime. That is because such chicken theft, as a third offense, will likely be treated as a felony.


[131] A further anomaly concerns the offender's criminal record. California's "wobbler" "petty theft with a prior" statute, at issue in Lockyer v. Andrade, post, p. -- , classifies a petty theft as a "felony" if, but only if, the offender has a prior record that includes at least one conviction for certain theft-related offenses. Cal. Penal Code Ann. §666 (West Supp. 2002). Thus a violent criminal who has committed two violent offenses and then steals $200 will not fall within the ambit of the three strikes statute, for his prior record reveals no similar property crimes. A similar offender will fall within the scope of the three strikes statute, however, if that offender, instead of having committed two previous violent crimes, has committed one previous violent crime and one previous petty theft. (Ewing's conduct would have brought him within the realm of the petty theft statute prior to 1976 but for inflation.)


[132] At the same time, it is difficult to find any strong need to define the lower boundary as the State has done. The three strikes statute itself, when defining prior "strikes," simply lists the kinds of serious criminal conduct that falls within the definition of a "strike." §667.5(c) (listing "violent" felonies); §1192.7(c) (West Supp. 2003) (listing "serious" felonies). There is no obvious reason why the statute could not enumerate, consistent with its purposes, the relevant triggering crimes. Given that possibility and given the anomalies that result from California's chosen approach, I do not see how California can justify on administrative grounds a sentence as seriously disproportionate as Ewing's. See Parts II and III, supra.


[133] Neither do I see any other way in which inclusion of Ewing's conduct (as a "triggering crime") would further a significant criminal justice objective. One might argue that those who commit several property crimes should receive long terms of imprisonment in order to "incapacitate" them, i.e., to prevent them from committing further crimes in the future. But that is not the object of this particular three strikes statute. Rather, as the plurality says, California seeks " `to reduce serious and violent crime.' " Ante, at 12 (quoting Ardaiz, California's Three Strikes Law: History, Expectations, Consequences, 32 McGeorge L. Rev. 1 (2000) (emphasis added)). The statute's definitions of both kinds of crime include crimes against the person, crimes that create danger of physical harm, and drug crimes. See, e.g., Cal. Penal Code Ann. §667.5(c)(1) (West Supp. 2002), §1192.7(c)(1) (West Supp. 2003) (murder or voluntary manslaughter); §667.5(c)(21) (West Supp. 2002), §1192.7(c)(18) (West Supp. 2003) (first-degree burglary); §1192.7(c)(24) (selling or giving or offering to sell or give heroin or cocaine to a minor). They do not include even serious crimes against property, such as obtaining large amounts of money, say, through theft, embezzlement, or fraud. Given the omission of vast categories of property crimes -- including grand theft (unarmed) -- from the "strike" definition, one cannot argue, on property-crime-related incapacitation grounds, for inclusion of Ewing's crime among the triggers.


[134] Nor do the remaining criminal law objectives seem relevant. No one argues for Ewing's inclusion within the ambit of the three strikes statute on grounds of "retribution." Cf. Vitiello, Three Strikes: Can We Return to Rationality?, 87 J. Crim. L. & Criminology 395, 427 (1997) (California's three strikes law, like other "[h]abitual offender statutes[, is] not retributive" because the term of imprisonment is "imposed without regard to the culpability of the offender or [the] degree of social harm caused by the offender's behavior," and "has little to do with the gravity of the offens[e]"). For reasons previously discussed, in terms of "deterrence," Ewing's 25-year term amounts to overkill. See Parts II and III, supra. And "rehabilitation" is obviously beside the point. The upshot is that, in my view, the State cannot find in its three strikes law a special criminal justice need sufficient to rescue a sentence that other relevant considerations indicate is unconstitutional.


[135] V.


[136] Justice Scalia and Justice Thomas argue that we should not review for gross disproportionality a sentence to a term of years. Ante, at 1 (Scalia, J., concurring in judgment); ante, at 1 (Thomas, J., concurring in judgment). Otherwise, we make it too difficult for legislators and sentencing judges to determine just when their sentencing laws and practices pass constitutional muster.


[137] I concede that a bright-line rule would give legislators and sentencing judges more guidance. But application of the Eighth Amendment to a sentence of a term of years requires a case-by-case approach. And, in my view, like that of the plurality, meaningful enforcement of the Eighth Amendment demands that application -- even if only at sentencing's outer bounds.


[138] A case-by-case approach can nonetheless offer guidance through example. Ewing's sentence is, at a minimum, 2 to 3 times the length of sentences that other jurisdictions would impose in similar circumstances. That sentence itself is sufficiently long to require a typical offender to spend virtually all the remainder of his active life in prison. These and the other factors that I have discussed, along with the questions that I have asked along the way, should help to identify "gross disproportionality" in a fairly objective way -- at the outer bounds of sentencing.


[139] In sum, even if I accept for present purposes the plurality's analytical framework, Ewing's sentence (life imprisonment with a minimum term of 25 years) is grossly disproportionate to the triggering offense conduct --stealing three golf clubs -- Ewing's recidivism notwithstanding.


[140] For these reasons, I dissent.


[141] APPENDIX TO OPINION OF BREYER, J.


[142] A.


[143] Thirty-three jurisdictions, as well as the federal courts, have laws that would make it impossible to sentence a Ewing-type offender to more than 10 years in prison*fn5:


[144] Federal: 12 to 18 months. USSG §2B1.1 (Nov. 1999); id., ch. 5, pt. A, Sentencing Table.


[145] Alaska: three to five years; presumptive term of three years. Alaska Stat. §§11.46.130(a)(1), (c), 12.55.125(e) (2000).


[146] Arizona: four to six years; presumptive sentence of five years. Ariz. Rev. Stat. Ann. §§13-604(C), 13-1802(E) (West 2001).


[147] Connecticut: 1 to 10 years. Conn. Gen. Stat. §§53a-35a(6), 53a-40(j), 53a-124(a)(2) (2001).


[148] Delaware: not more than two years. Del. Code Ann., Tit. 11, §840(d) (Supp. 2000); §4205(b)(7) (1995). Recidivist offender penalty not applicable. See §4214; Buckingham v. State, 482 A. 2d 327 (Del. 1984).


[149] District of Columbia: not more than 10 years. D. C. Code Ann. §22-3212(a) (West 2001). Recidivist offender penalty not applicable. See §22-1804a(c)(2) (West 2001) (amended 2001).


[150] Florida: not more than 10 years. Fla. Stat. Ann. §§775.084(1)(a), (4)(a)(3) (West 2000) (amended 2000); §812.014(c)(1) (West 2000).


[151] Georgia: 10 years. Ga. Code Ann. §16-8-12(a)(1) (1996); §17-10-7(a) (Supp. 1996).


[152] Hawaii: 20 months. Haw. Rev. Stat. §§708-831(1)(b), 706-606.5(1)(a)(iv), (7)(a) (Supp. 2001).


[153] Idaho: 1 to 14 years. Idaho Code §§18-2403, 18-2407(b)(1), 18-2408(2)(a) (1948-1997). Recidivist/habitual offender penalty of five years to life in prison, §19-2514, likely not applicable. Idaho has a general rule that " `convictions entered the same day or charged in the same information should count as a single conviction for purposes of establishing habitual offender status.' " State v. Harrington, 133 Idaho 563, 565, 990 P. 2d 144, 146 (Ct. App. 1999) (quoting State v. Brandt, 110 Idaho 341, 344, 715 P. 2d 1011, 1014 (Ct. App. 1986)). However, "the nature of the convictions in any given situation must be examined to make certain that [this] general rule is appropriate." Ibid. In this case, Ewing's prior felony convictions stemmed from acts committed at the same apartment complex, and three of the four felonies were committed within a day of each other; the fourth offense was committed five weeks earlier. See App. 6; Tr. 45-46 (Information, Case No. NA018343-01 (Cal. Super. Ct.) (available in Clerk of Court's case file)). A review of Idaho case law suggests that this case is factually distinguishable from cases in which the Idaho courts have declined to adhere to the general rule. See, e.g., Brandt, supra, at 343, 344, 715 P. 2d, at 1013, 1014 (three separately charged property offenses involving three separate homes and different victims committed "during a 2-month period"); State v. Mace, 133 Idaho 903, 907, 994 P. 2d 1066, 1070 (Ct. App. 2000) (unrelated crimes (grand theft and DUI) committed on different dates in different counties); State v. Smith, 116 Idaho 553, 560, 777 P. 2d 1226, 1233 (Ct. App. 1989) (separate and distinguishable crimes committed on different victims in different counties).


[154] Illinois: two to five years. Ill. Comp. Stat., ch. 730, §5/5-8-1(a)(6) (Supp. 2001); ch. 720, §5/16-1(b)(4) (Supp. 2001). Recidivist offender penalty not applicable. ch. 720, §5/33B-1(a) (2000).


[155] Indiana: 18 months (with not more than 18 months added for aggravating circumstances). Ind. Code Ann. §35-43-4-2(a) (West 1998); §35-50-2-7(a) (West Supp. 2002). Recidivist offender penalty not applicable. See §35-50-2-8 (West 1998) (amended 2001).


[156] Iowa: three to five years. Iowa Code Ann. §714.2(2) (West Supp. 2002); §902.8 (West 1994); §902.9(5) (West Supp. 2002).


[157] Kansas: 9 to 11 months. Kan. Stat. Ann. §§21-3701(b)(2), 21-4704(a) (1995). Recidivist offender penalty not applicable. See §21-4504(e)(3).


[158] Kentucky: 5 to 10 years. Ky. Rev. Stat. Ann. §514.030(2) (Lexis Supp. 2002); §§532.060(2)(c), (d), 532.080(2), (5) (Lexis 1999).


[159] Maine: less than one year. Me. Rev. Stat. Ann., Tit. 17-A, §353 (West 1983); §362(4)(B) (West Supp. 2000) (amended 2001); §1252(2)(D) (West 1983 and Supp. 2002). Recidivist offender penalty not applicable. See Tit.17-A, §1252(4-A) (West Supp. 2000) (amended 2001).


[160] Massachusetts: not more than five years. Mass. Gen. Laws Ann., ch. 266, §30(1) (West 2000). Recidivist offender penalty not applicable. See ch. 279, §25 (West 1998); Commonwealth v. Hall, 397 Mass. 466, 468, 492 N. E. 2d 84, 85 (1986).


[161] Minnesota: not more than five years. Minn. Stat. §609.52, subd. 3(3)(a) (2002). Recidivist offender penalty not applicable. See §609.1095, subd. 2.


[162] Mississippi: not more than five years. Miss. Code Ann. §97-17-41(1)(a) (Lexis 1973-2000). Recidivist offender penalty not applicable. See §99-19-81.


[163] Nebraska: not more than five years. Neb. Rev. Stat. §28-105(1) (2000 Cum. Supp.); §28-518(2) (1995). Recidivist offender penalty not applicable. See §29-2221(1).


[164] New Jersey: Extended term of between 5 to 10 years (instead of three to five years, N. J. Stat. Ann. §§2C:43-6 (1995)), §2C:43-7(a)(4) (Supp. 2002), whether offense is treated as theft, §2C:20-2(b)(2)(a) (Supp. 2002), or shoplifting, §§2C:20-11(b), (c)(2), because, even if Ewing's felonies are regarded as one predicate crime, Ewing has been separately convicted and sentenced for at least one other crime for which at least a 6-month sentence was authorized, §2C:44-3(a); §2C:44-4(c) (1995).


[165] New Mexico: 30 months. N. M. Stat. Ann. §30-16-20(B)(3) (1994); §31-18-15(A)(6) (2000); §31-18-17(B) (2000) (amended 2002).


[166] New York: three to four years. N. Y. Penal Law §§70.06(3)(e) (West 1998), 155.30 (West 1999).


[167] North Carolina: 4 to 25 months (with exact sentencing range dependent on details of offender's criminal history). N. C. Gen. Stat. §§15A-1340.14, 15A-1340.17(c), (d), 14-72(a) (2001). Recidivist offender penalty not applicable. See §§14-7.1, 14-7.6.


[168] North Dakota: not more than 10 years. N. D. Cent. Code §12.1-23-05(2)(a) (1997); §§12.1-32-09(1), (2)(c) (1997) (amended 2001).


[169] Ohio: 6 to 12 months. Ohio Rev. Code Ann. §§2913.02(B)(2), 2929.14(A)(5) (West Supp. 2002). No general recidivist statute.


[170] Oregon: not more than five years. Ore. Rev. Stat. §161.605 (1997); Ore. Rev. Stat. Ann. §§164.055(1)(a), (3) (Supp. 1998). No general recidivist statute.


[171] Pennsylvania: not more than five years (if no more than one prior theft was "retail theft"); otherwise, not more than seven years. Pa. Stat. Ann., Tit. 18, §§1103(3), 1104(1) (Purdon 1998); §§3903(b), 3929(b)(1)(iii)-(iv) (Purdon Supp. 2002); §3921 (Purdon 1983). Recidivist offender penalty not applicable. See 42 Pa. Cons. Stat. §9714(a)(1) (1998).


[172] Rhode Island: not more than 10 years. R. I. Gen. Laws §11-41-5(a) (2002). Recidivist offender penalty not applicable. See §12-19-21(a).


[173] South Carolina: not more than five years. S. C. Code Ann. §§16-13-30, 16-13-110(B)(2) (West 2001 Cum. Supp.). Recidivist offender penalty not applicable. See §17-25-45.


[174] Tennessee: four to eight years. Tenn. Code Ann. §§39-14-105(3), 40-35-106(a)(1), (c), 40-35-112(b)(4) (1997).


[175] Utah: not more than five years. Utah Code Ann. §76-3-203(3) (1999) (amended 2000); §76-6-412(1)(b)(i) (1999). Recidivist offender penalty not applicable. See §76-3-203.5 (Supp. 2002).


[176] Washington: not more than 14 months (with exact sentencing range dependent on details of offender score), Wash. Rev. Code §§9A.56.040(1)(a), (2) (2000); §§9.94A.510(1), 9.94A.515, 9.94A.525 (2003 Supplementary Pamphlet); maximum sentence of five years, §§9A.56.040(1)(a), (2), 9A.20.021(1)(c) (2000). Recidivist offender penalty not applicable. See §§9.94A.030(27), (31) (2000); §9.94A.570 (2003 Supplementary Pamphlet).


[177] Wyoming: not more than 10 years. Wyo. Stat. Ann. §6-3-404(a)(i) (Michie 2001). Recidivist offender penalty not applicable. See §6-10-201(a).


[178] B.


[179] In four other States, a Ewing-type offender could not have received a sentence of more than 15 years in prison:


[180] Colorado: 4 to 12 years for "extraordinary aggravating circumstances" (e.g., defendant on parole for another felony at the time of commission of the triggering offense). Colo. Rev. Stat. §§18-1-105(1)(a)(V)(A), 18-1-105(9)(a)(II), 18-4-401(2)(c) (2002). Recidivist offender penalty not applicable. See §§16-13-101(f)(1.5), (2) (2001).


[181] Maryland: not more than 15 years. Md. Ann. Code, Art. 27, §342(f)(1) (1996) (repealed 2002). Recidivist offender penalty not applicable. See Art. 27, §643B.


[182] New Hampshire: not more than 15 years. N. H. Rev. Stat. Ann. §§637:11(I)(a), 651:2(II)(a) (Supp. 2002). Recidivist offender penalty not applicable. See §651:6(I)(c).


[183] Wisconsin: not more than 11 years (at the time of Ewing's offense). Wis. Stat. Ann. §939.50(3)(e) (West Supp. 2002); §§939.62(1)(b), (2), 943.20(3)(b) (West 1996) (amended 2001). Wisconsin subsequently amended the relevant statutes so that a Ewing-type offender would only be eligible for a sentence of up to three years. See §§939.51(3)(a), 943.20(3)(a), 939.62(1)(a) (West Supp. 2003). And effective February 1, 2003, such an offender is eligible for a sentence of only up to two years. See §§939.51(3)(a), 943.20(3)(a), 939.62(1)(a).


[184] C.


[185] In four additional States, a Ewing-type offender could not have been sentenced to more than 20 years in prison:


[186] Arkansas: 3 to 20 years. Ark. Code Ann. §5-36-103(b)(2)(A) (1997); §5-4-501(a)(2)(D), (e)(1) (1997) (amended 2001). Eligible for parole after serving one-third of the sentence. §5-4-501 (1997); §16-93-608 (1987).


[187] Missouri: not more than 20 years. Mo. Rev. Stat. §558.016(7)(3) (West 1999); §570.030(3)(1) (West 1999) (amended 2002). Eligible for parole after 15 years at the latest. §558.011(4)(1)(c).


[188] Texas: 2 to 20 years. Tex. Penal Code Ann. §§12.33(a), 12.35(c)(2)(A) (1994); §§12.42(a)(3), 31.03(e)(4)(D) (Supp. 2003). Eligible for parole after serving one-fourth of sentence. Tex. Govt. Code Ann. §508.145(f) (Supp. 2003).


[189] Virginia: statutory range of 1 to 20 years (or less than 12 months at the discretion of the jury or court following bench trial), Va. Code Ann. §18.2-95 (Supp. 2002), but discretionary sentencing guideline ranges established by the Virginia Sentencing Commission, §§17.1-805, 19.2-298.01 (2000), with a maximum of 6 years, 3 months, to 15 years, 7 months, see Virginia Criminal Sentencing Commission, Virginia Sentencing Guidelines Manual, Larceny -- Section C Recommendation Table (6th ed. 2002) (with petitioner likely falling within the discretionary guideline range of 2 years, 1 month, to 5 years, 3 months, see Brief for Petitioner 33, n. 25). Recidivist offender penalty not applicable. See §19.2-297.1 (2000).


[190] D.


[191] In nine other States, the law might make it legally possible to impose a sentence of 25 years or more upon a Ewing-type offender. But in five of those nine States,*fn6 the offender would be parole-eligible before 25 years:


[192] Alabama: "life or any term of not less than 20 years." Ala. Code §13A-5-9(c)(2) (Lexis Supp. 2002); §§13A-8-3(a), (c) (Michie 1994). Eligible for parole after the lesser of one-third of the sentence or 10 years. §15-22-28(e) (Michie 1995).


[193] Louisiana: Louisiana courts could have imposed a sentence of life without the possibility of parole at the time of Ewing's offense. La. Stat. Ann. §14:67.10(B)(1) (West Supp. 2003); §§15:529.1(A)(1)(b)(ii) and (c)(i)-(ii) (West 1992) (amended 2001); §§14:2(4), and (13)(y) (West Supp. 2003). Petitioner argues that, despite the statutory authority to impose such a sentence, Louisiana courts would have carefully scrutinized his life sentence, as they had in other cases involving recidivists charged with a nonviolent crime. Brief for Petitioner 35-36, n. 29; see Brief for Families Against Mandatory Minimums as Amicus Curiae 24-25, and n. 21; State v. Hayes, 97-1526, p. 4 (La. App. 6/25/99), 739 So. 2d 301, 303-304 (holding that a life sentence was impermissibly excessive for a defendant convicted of theft of over $1000, who had a prior robbery conviction). But see Brief for Respondent 45-46, n. 12 (contesting petitioner's argument). Louisiana has amended its recidivist statute to require that the triggering offense be a violent felony, and that the offender have at least two prior violent felony convictions to be eligible for a life sentence. La. Stat. Ann. §15:529.1(A)(1)(b)(ii) (West Supp. 2003). Under current law, a Ewing-type offender would face a sentence of 62/3 to 20 years. §§14:67.10(B)(1), 15:529.1(A)(b)(i) (West Supp. 2003).


[194] Michigan: "imprisonment for life or for a lesser term," Mich. Comp. Laws Ann. §769.12(1)(a) (West 2000) (instead of "not more than 15 years," §769.12(1)(b), as petitioner contends, see Brief for Petitioner 34, n. 26; Brief for Families Against Mandatory Minimums as Amicus Curiae 16-17, n. 15, 22-23, n. 20), because the triggering offense is "punishable upon a first conviction by imprisonment for a maximum term of 5 years or more," §769.12(1)(a) (West 2000). The larceny for which Ewing was convicted was, under Michigan law, "a felony punishable by imprisonment for not more than 5 years." §750.356(3)(a) (West Supp. 2002). Eligible for parole following minimum term set by sentencing judge. §769.12(4) (West 2000).


[195] Montana: 5 to 100 years. Mont. Code Ann. §45-6-301(7)(b) (1999); §§46-18-501, 46-18-502(1) (2001). A Ewing-type offender would not have been subject to a minimum term of 10 years in prison (as the State suggests, Brief for Respondent 44) because Ewing does not meet the requirements of §46-18-502(2) (must be a "persistent felony offender, as defined in §46-18-501, at the time of the offender's previous felony conviction). See Reply Brief for Petitioner 18, n. 14. Eligible for parole after one-fourth of the term. Mont. Code Ann. §46-23- 201(2).


[196] Nevada: "life without the possibility of parole," or "life with the possibility of parole [after serving] 10 years," or "a definite term of 25 years, with eligibility for parole [after serving] 10 years." Nev. Rev. Stat. Ann. §§207.010(1)(b)(1)-(3) (Lexis 2001).


[197] Oklahoma: not less than 20 years (at the time of Ewing's offense). Okla. Stat., Tit. 21, §51.1(B) (West Supp. 2000) (amended in 2001 to four years to life, §51.1(C) (West 2001)); §1704 (West 1991) (amended 2001). Eligible for parole after serving one-third of sentence. Tit. 57, §332.7(B) (West 2001). Thus, assuming a sentence to a term of years of up to 100 years (as in Montana, see supra, at 27), parole eligibility arise as late as after 33 years.


[198] South Dakota: maximum penalty of life imprisonment, with no minimum term. S. D. Codified Laws §22-7-8 (1998); §22-30A-17(1) (Supp. 2002). Eligible for parole after serving one-half of sentence. §24-15-5(3) (1998). Thus, assuming a sentence to a term of years of up to 100 years (as in Montana, see supra, at 27), parole eligibility could arise as late as after 50 years.


[199] Vermont: "up to and including life," Vt. Stat. Ann., Tit. 13, §11 (1998), or not more than 10 years, Tit. 13, §2501; State v. Angelucci, 137 Vt. 272, 289-290, 405 A. 2d 33, 42 (1979) (court has discretion to sentence habitual offender to the sentence that is specified for grand larceny alone). Eligible for parole after six months. Vt. Stat. Ann., Tit. 28, §501 (2000) (amended 2001).


[200] West Virginia: Petitioner contends that he would only have been subject to a misdemeanor sentence of not more than 60 days for shoplifting, W. Va. Code §§61-3A-1, 61-3A-3(a)(2) (2000); Brief for Petitioner 31, n. 19, 33-34, n. 25. However, a Ewing-type offender could have been charged with grand larceny, see State ex rel. Chadwell v. Duncil, 196 W. Va. 643, 647-648, 474 S. E. 2d 573, 577-578 (1996) (prosecutor has discretion to charge defendant with either shoplfting or grand larceny), a felony punishable by imprisonment in the state penitentiary for 1 to 10 years (or, at the discretion of the trial court, not more than 1 year in jail). W. Va. Code §61-3-13(a) (2000). Under West Virginia's habitual offender statute, a felon "twice before convicted ... of a crime punishable by confinement in a penitentiary ... shall be sentenced to ... life [imprisonment]," §61-11-18(c), with parole eligibility after 15 years, §62-12-13(c). Amicus curiae on behalf of petitioner notes that, in light of existing state-law precedents, West Virginia courts "would not countenance a sentence of life without the possibility of parole for 25 years for shoplifting golf clubs." Brief for Families Against Mandatory Minimums as Amicus Curiae 25-26 (citing State v. Barker, 186 W. Va. 73, 74-75, 410 S. E. 2d 712, 713-714 (1991) (per curiam); and State v. Deal, 178 W. Va. 142, 146-147, 358 S. E. 2d 226, 230-231 (1987)). But see Brief for Respondent 45, n. 11 (contesting that argument).



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Opinion Footnotes

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[201] *fn1 It is hardly surprising that the statistics relied upon by Justice Breyer show that prior to the enactment of the three strikes law, "no one like Ewing could have served more than 10 years in prison." Post, at 9 (dissenting opinion). Profound disappointment with the perceived lenity of criminal sentencing (especially for repeat felons) led to passage of three strikes laws in the first place. See, e.g., Review of State Legislation 1.


[202] *fn2 Justice Breyer argues that including Ewing's grand theft as a triggering offense cannot be justified on "property-crime-related incapacitation grounds" because such crimes do not count as prior strikes. Post, at 18. But the State's interest in dealing with repeat felons like Ewing is not so limited. As we have explained, the overarching objective of the three strikes law is to prevent serious or violent offenders like Ewing from repeating their criminal behavior. See Cal. Penal Code Ann. §667(b) (West 1999) ("It is the intent of the Legislature . . . to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses"). The California legislature therefore made a "deliberate policy decision . . . that the gravity of the new felony should not be a determinative factor in `triggering' the application of the Three Strikes Law." Ardaiz 9. Neither the Eighth Amendment nor this Court's precedent forecloses that legislative choice.


[203] *fn3 For "present purposes," post at 2, 19 (dissenting opinion), Justice Breyer applies the framework established by Harmelin v. Michigan, 501 U. S. 957, 1004-1005 (1991), in analyzing Ewing's Eighth Amendment claim. I agree with Justice Breyer that Ewing's sentence is grossly disproportionate even under Harmelin's narrow proportionality framework. However, it is not clear that this case is controlled by Harmelin, which considered the proportionality of a life sentence imposed on a drug offender who had no prior felony convictions. Rather, the three-factor analysis established in Solem v. Helm, 463 U. S. 277, 290-291 (1983), which specifically addressed recidivist sentencing, seems more directly on point.


[204] *fn4 Numerous other examples could be given of situations in which courts --faced with imprecise commands -- must make difficult decisions. See, e.g., Kyles v. Whitley, 514 U. S. 419 (1995) (reviewing whether undisclosed evidence was material); Arizona v. Fulminante, 499 U. S. 279 (1991) (considering whether confession was coerced and, if so, whether admission of the coerced confession was harmless error); Strickland v. Washington, 466 U. S. 668 (1984) (addressing whether defense counsel's performance was deficient and whether any deficiency was prejudicial); Darden v. Wainwright, 477 U. S. 168 (1986) (assessing whether prosecutorial misconduct deprived defendant of a fair trial); Christensen v. Harris County, 529 U. S. 576, 589 (2000) (Scalia, J., concurring in part and concurring in judgment) (addressing whether an agency's construction of a statute was " ` reasonable' ").


[205] *fn5 Throughout Appendix, Parts A-D, the penalties listed for each jurisdiction are those pertaining to imprisonment and do not reflect any possible fines or other forms of penalties applicable under the laws of the jurisdiction.


[206] *fn6 But see discussion of relevant sentencing and parole-eligibility provisions in Louisiana, Michigan, Oklahoma, and South Dakota, infra this page and 27-28.

Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (U.S. 03/05/2003)

[1] United States Supreme Court


[2] No. 01-1127


[3] 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144, 2003.SCT, 3 Cal. Daily Op. Serv. 1970, 71 USLW 4125, 2003 Daily Journal D.A.R. 2484, 71 USLW 4161


[4] March 05, 2003


[5] BILL LOCKYER, ATTORNEY GENERAL OF CALIFORNIA, PETITIONER
v.
LEANDRO ANDRADE


[6] SYLLABUS BY THE COURT


[7] Argued November 5, 2002


[8] Decided March 5, 2003


[9] California charged respondent Andrade with two felony counts of petty theft with a prior conviction after he stole approximately $150 worth of videotapes from two different stores. Under California's three strikes law, any felony can constitute the third strike subjecting a defendant to a prison term of 25 years to life. The jury found Andrade guilty and then found that he had three prior convictions that qualified as serious or violent felonies under the three strikes regime. Because each of his petty theft convictions thus triggered a separate application of the three strikes law, the judge sentenced him to two consecutive terms of 25 years to life. In affirming, the California Court of Appeal rejected his claim that his sentence violated the constitutional prohibition against cruel and unusual punishment. It found the Solem v. Helm, 463 U. S. 277, proportionality analysis questionable in light of Harmelin v. Michigan, 501 U. S. 957. It then compared the facts in Andrade's case to those in Rummel v. Estelle, 445 U. S. 263 -- in which this Court rejected a claim that a life sentence was grossly disproportionate to the felonies that formed the predicate for the sentence, id., at 265 -- and concluded that Andrade's sentence was not disproportionate. The California Supreme Court denied discretionary review. The Federal District Court denied Andrade's subsequent habeas petition, but the Ninth Circuit granted him a certificate of appealability and reversed. Reviewing the case under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the latter court held that an unreasonable application of clearly established federal law under 28 U. S. C. §2254(d)(1), occurs when there is clear error; concluded that both Solem and Rummel remain good law and are instructive in applying Harmelin; and found that the California Court of Appeal's disregard for Solem resulted in an unreasonable application of clearly established Supreme Court law and was irreconcilable with Solem, thus constituting clear error.


[10] Held: The Ninth Circuit erred in ruling that the California Court of Appeal's decision was contrary to, or an unreasonable application of, this Court's clearly established law within the meaning of §2254(d)(1). Pp. 6-13.


[11] (a) AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under §2254(d)(1) --whether a state court decision is contrary to, or involved an unreasonable application of, clearly established federal law. In this case, this Court does not reach the question whether the state court erred, but focuses solely on whether habeas relief is barred by §2254(d)(1). Pp. 6-7.


[12] (b) This Court must first decide what constitutes such "clearly established" law. Andrade claims that Rummel, Solem, and Harmelin clearly establish a principle that his sentence is so grossly disproportionate that it violated the Eighth Amendment. Under §2254(d)(1), "clearly established Federal law" is the governing legal principle or principles set forth by this Court at the time a state court renders its decision. The difficulty with Andrade's position is that the Court has not established a clear or consistent path for courts to follow in determining whether a particular sentence for a term of years can violate the Eighth Amendment. Indeed, the only "clearly established" law emerging from the Court's jurisprudence in this area is that a gross disproportionality principle applies to such sentences. Because the Court's cases lack clarity regarding what factors may indicate gross disproportionality, the principle's precise contours are unclear, applicable only in the "exceedingly rare" and "extreme" case. Harmelin, supra, at 1001 (Kennedy, J., concurring in part and concurring in judgment). Pp. 7-9.


[13] (c) The California Court of Appeal's decision was not "contrary to, or involved an unreasonable application of," the clearly established gross disproportionality principle. First, a decision is contrary to clearly established precedent if the state court applied a rule that contradicts the governing law set forth in this Court's cases or confronts facts that are materially indistinguishable from a Court decision and nevertheless arrives at a different result. Williams v. Taylor, 529 U. S. 362, 405-406. Andrade's sentence implicates factors relevant in both Rummel and Solem. Because Harmelin and Solem specifically stated that they did not overrule Rummel, it was not contrary to this Court's clearly established law for the state court to turn to Rummel in deciding whether the sentence was grossly disproportionate. See Harmelin, supra, at 998 (Kennedy, J.). Also, the facts here fall in between Solem and Rummel but are not materially indistinguishable from either. Thus, the state court did not confront materially indistinguishable facts yet arrive at a different result. Second, under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle but unreasonably applies it to the facts of the prisoner's case. Williams v. Taylor, 529 U. S., at 413. The state court decision must be objectively unreasonable, not just incorrect or erroneous. Id., at 409, 410, 412. Here, the Ninth Circuit erred in defining "objectively unreasonable" to mean "clear error." While habeas relief can be based on an application of a governing legal principle to a set of facts different from those of the case in which the principle was announced, the governing legal principle here gives legislatures broad discretion to fashion a sentence that fits within the scope of the proportionality principle -- the "precise contours" of which are "unclear." Harmelin, supra, at 998 (Kennedy, J.). And it was not objectively unreasonable for the state court to conclude that these "contours" permitted an affirmance of Andrade's sentence. Cf., e.g., Riggs v. California, 525 U. S. 1114, 1115 (Stevens, J., dissenting from denial of certiorari). Pp. 9-13.


[14] 270 F. 3d 743, reversed.


[15] O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.


[16] Court Below: 270 F. 3d 743 On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit


[17] Douglas P. Danzig, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were Bill Lockyer, Attorney General, pro se, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Carl H. Horst, Supervising Deputy Attorney General.


[18] Erwin Chemerinsky argued the cause for respondent. With him on the brief were Paul Hoffman, Jordan C. Budd, Steven R. Shapiro, Mark D. Rosenbaum, Daniel P. Tokaji, and Alan L. Schlosser.


[19] Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation et al. as amici curiae urging reversal.


[20] Briefs of amici curiae urging affirmance were filed for the California Public Defenders Association by Kenneth I. Clayman; for Families to Amend California's Three Strikes et al. by Gerald F. Uelmen; for the National Association of Criminal Defense Lawyers by Sheryl Gordon McCloud; and for Donald Ray Hill by Susan S. Azad and Kathryn M. Davis.


[21] Briefs of amici curiae were filed for the California District Attorneys Association by Dennis L. Stout and Grover D. Merritt; and for Michael P. Judge by Albert J. Menaster and Alex Ricciardulli.


[22] The opinion of the court was delivered by: Justice O'Connor


[23] This case raises the issue whether the United States Court of Appeals for the Ninth Circuit erred in ruling that the California Court of Appeal's decision affirming Leandro Andrade's two consecutive terms of 25 years to life in prison for a "third strike" conviction is contrary to, or an unreasonable application of, clearly established federal law as determined by this Court within the meaning of 28 U. S. C. §2254(d)(1).


[24] I.


[25] A.


[26] On November 4, 1995, Leandro Andrade stole five videotapes worth $84.70 from a Kmart store in Ontario, California. Security personnel detained Andrade as he was leaving the store. On November 18, 1995, Andrade entered a different Kmart store in Montclair, California, and placed four videotapes worth $68.84 in the rear waistband of his pants. Again, security guards apprehended Andrade as he was exiting the premises. Police subsequently arrested Andrade for these crimes.


[27] These two incidents were not Andrade's first or only encounters with law enforcement. According to the state probation officer's presentence report, Andrade has been in and out of state and federal prison since 1982. In January 1982, he was convicted of a misdemeanor theft offense and was sentenced to 6 days in jail with 12 months' probation. Andrade was arrested again in November 1982 for multiple counts of first-degree residential burglary. He pleaded guilty to at least three of those counts, and in April of the following year he was sentenced to 120 months in prison. In 1988, Andrade was convicted in federal court of "[t]ransportation of [m]arijuana," App. 24, and was sentenced to eight years in federal prison. In 1990, he was convicted in state court for a misdemeanor petty theft offense and was ordered to serve 180 days in jail. In September 1990, Andrade was convicted again in federal court for the same felony of "[t]ransportation of [m]arijuana," ibid., and was sentenced to 2,191 days in federal prison. And in 1991, Andrade was arrested for a state parole violation -- escape from federal prison. He was paroled from the state penitentiary system in 1993.


[28] A state probation officer interviewed Andrade after his arrest in this case. The presentence report notes:


[29] "The defendant admitted committing the offense. The defendant further stated he went into the K-Mart Store to steal videos. He took four of them to sell so he could buy heroin. He has been a heroin addict since 1977. He says when he gets out of jail or prison he always does something stupid. He admits his addiction controls his life and he steals for his habit." Id., at 25.


[30] Because of his 1990 misdemeanor conviction, the State charged Andrade in this case with two counts of petty theft with a prior conviction, in violation of Cal. Penal Code Ann. §666 (West Supp. 2002). Under California law, petty theft with a prior conviction is a so-called "wobbler" offense because it is punishable either as a misdemeanor or as a felony. Ibid.; cf. Ewing v. California, ante, at -- (slip op., at 3-4) (plurality opinion). The decision to prosecute petty theft with a prior conviction as a misdemeanor or as a felony is in the discretion of the prosecutor. See ante, at -- (slip op., at 4). The trial court also has discretion to reduce the charge to a misdemeanor at the time of sentencing. See People v. Superior Court of Los Angeles Cty. ex rel. Alvarez, 14 Cal. 4th 968, 979, 928 P. 2d 1171, 1177-1178 (1997); see also Ewing v. California, ante, at --(slip op., at 4).


[31] Under California's three strikes law, any felony can constitute the third strike, and thus can subject a defendant to a term of 25 years to life in prison. See Cal. Penal Code Ann. §667(e)(2)(A) (West 1999); see also Ewing v. California, ante, at -- (slip op., at 3). In this case, the prosecutor decided to charge the two counts of theft as felonies rather than misdemeanors. The trial court denied Andrade's motion to reduce the offenses to misdemeanors, both before the jury verdict and again in state habeas proceedings.


[32] A jury found Andrade guilty of two counts of petty theft with a prior conviction. According to California law, a jury must also find that a defendant has been convicted of at least two serious or violent felonies that serve as qualifying offenses under the three strikes regime. In this case, the jury made a special finding that Andrade was convicted of three counts of first-degree residential burglary. A conviction for first-degree residential burglary qualifies as a serious or violent felony for the purposes of the three strikes law. Cal. Penal Code Ann. §§667.5, 1192.7 (West 1999); see also Ewing v. California, ante, at -- (slip op., at 7). As a consequence, each of Andrade's convictions for theft under Cal. Penal Code Ann. §666 (West Supp. 2002) triggered a separate application of the three strikes law. Pursuant to California law, the judge sentenced Andrade to two consecutive terms of 25 years to life in prison. See §§667(c)(6), 667(e)(2)(B). The State stated at oral argument that under the decision announced by the Supreme Court of California in People v. Garcia, 20 Cal. 4th 490, 976 P. 2d 831 (1999) -- a decision that postdates his conviction and sentence -- it remains "available" for Andrade to "file another State habeas corpus petition" arguing that he should serve only one term of 25 years to life in prison because "sentencing courts have a right to dismiss strikes on a count-by-count basis." Tr. of Oral Arg. 24.


[33] B.


[34] On direct appeal in 1997, the California Court of Appeal affirmed Andrade's sentence of two consecutive terms of 25 years to life in prison. It rejected Andrade's claim that his sentence violates the constitutional prohibition against cruel and unusual punishment. The court stated that "the proportionality analysis" of Solem v. Helm, 463 U. S. 277 (1983), "is questionable in light of " Harmelin v. Michigan, 501 U. S. 957 (1991). App. to Pet. for Cert. 76. The court then applied our decision in Rummel v. Estelle, 445 U. S. 263 (1980), where we rejected the defendant's claim that a life sentence was " `grossly disproportionate' to the three felonies that formed the predicate for his sentence." Id., at 265. The California Court of Appeal then examined Andrade's claim in light of the facts in Rummel: "Comparing [Andrade's] crimes and criminal history with that of defendant Rummel, we cannot say the sentence of 50 years to life at issue in this case is disproportionate and constitutes cruel and unusual punishment under the United States Constitution." App. to Pet. for Cert. 76-77.


[35] After the Supreme Court of California denied discretionary review, Andrade filed a petition for a writ of habeas corpus in Federal District Court. The District Court denied his petition. The Ninth Circuit granted Andrade a certificate of appealability as to his claim that his sentence violated the Eighth Amendment, and subsequently reversed the judgment of the District Court. 270 F. 3d 743 (2001).


[36] The Ninth Circuit first noted that it was reviewing Andrade's petition under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. Applying its own precedent, the Ninth Circuit held that an unreasonable application of clearly established federal law occurs "when our independent review of the legal question `leaves us with a "firm conviction" that one answer, the one rejected by the [state] court, was correct and the other, the application of the federal law that the [state] court adopted, was erroneous -- in other words that clear error occurred.' " 270 F. 3d, at 753 (alteration in original) (quoting Van Tran v. Lindsey, 212 F. 3d 1143, 1153-1154 (CA9 2000)).


[37] The court then reviewed our three most recent major precedents in this area -- Rummel v. Estelle, supra, Solem v. Helm, supra, and Harmelin v. Michigan, supra. The Ninth Circuit "follow[ed] the test prescribed by Justice Kennedy in Harmelin," concluding that "both Rummel and Solem remain good law and are instructive in Harmelin's application." 270 F. 3d, at 766. It then noted that the California Court of Appeal compared the facts of Andrade's case to the facts of Rummel, but not Solem. 270 F. 3d, at 766. The Ninth Circuit concluded that it should grant the writ of habeas corpus because the state court's "disregard for Solem results in an unreasonable application of clearly established Supreme Court law," and "is irreconcilable with ... Solem," thus constituting "clear error." Id., at 766-767.


[38] Judge Sneed dissented in relevant part. He wrote that "[t]he sentence imposed in this case is not one of the `exceedingly rare' terms of imprisonment prohibited by the Eighth Amendment's proscription against cruel and unusual punishment." Id., at 767 (quoting Harmelin v. Michigan, supra, at 1001 (Kennedy, J., concurring in part and concurring in judgment)). Under his view, the state court decision upholding Andrade's sentence was thus "not an unreasonable application of clearly established federal law." 270 F. 3d, at 772. We granted certiorari, 535 U. S. 969 (2002), and now reverse.


[39] II.


[40] Andrade's argument in this Court is that two consecutive terms of 25 years to life for stealing approximately $150 in videotapes is grossly disproportionate in violation of the Eighth Amendment. Andrade similarly maintains that the state court decision affirming his sentence is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U. S. C. §2254(d)(1).


[41] AEDPA circumscribes a federal habeas court's review of a state-court decision. Section 2254 provides:


[42] "(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --


[43] "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."


[44] The Ninth Circuit requires federal habeas courts to review the state court decision de novo before applying the AEDPA standard of review. See, e.g., Van Tran v. Lindsey, supra, at 1154-1155; Clark v. Murphy, 317 F. 3d 1038, 1044, n. 3 (CA9 2003). We disagree with this approach. AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under §2254(d)(1) -- whether a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law. See Weeks v. Angelone, 528 U. S. 225 (2000). In this case, we do not reach the question whether the state court erred and instead focus solely on whether §2254(d) forecloses habeas relief on Andrade's Eighth Amendment claim.


[45] III.


[46] A.


[47] As a threshold matter here, we first decide what constitutes "clearly established Federal law, as determined by the Supreme Court of the United States." §2254(d)(1). Andrade relies upon a series of precedents from this Court -- Rummel v. Estelle, 445 U. S. 263 (1980), Solem v. Helm, 463 U. S. 277 (1983), and Harmelin v. Michigan, 501 U. S. 957 (1991) -- that he claims clearly establish a principle that his sentence is so grossly disproportionate that it violates the Eighth Amendment. Section 2254(d)(1)'s "clearly established" phrase "refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U. S. 362, 412 (2000). In other words, "clearly established Federal law" under §2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. See id., at 405, 413; Bell v. Cone, 535 U. S. 685, 698 (2002). In most situations, the task of determining what we have clearly established will be straightforward. The difficulty with Andrade's position, however, is that our precedents in this area have not been a model of clarity. See Harmelin v. Michigan, 501 U. S., at 965 (opinion of Scalia, J.); id., at 996, 998 (Kennedy, J., concurring in part and concurring in judgment). Indeed, in determining whether a particular sentence for a term of years can violate the Eighth Amendment, we have not established a clear or consistent path for courts to follow. See Ewing v. California, ante, at -- (slip op., at 8-11).


[48] B.


[49] Through this thicket of Eighth Amendment jurisprudence, one governing legal principle emerges as "clearly established" under §2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of years.


[50] Our cases exhibit a lack of clarity regarding what factors may indicate gross disproportionality. In Solem (the case upon which Andrade relies most heavily), we stated: "It is clear that a 25-year sentence generally is more severe than a 15-year sentence, but in most cases it would be difficult to decide that the former violates the Eighth Amendment while the latter does not." 463 U. S., at 294 (footnote omitted). And in Harmelin, both Justice Kennedy and Justice Scalia repeatedly emphasized this lack of clarity: that "Solem was scarcely the expression of clear ... constitutional law," 501 U. S., at 965 (opinion of Scalia, J.), that in "adher[ing] to the narrow proportionality principle ... our proportionality decisions have not been clear or consistent in all respects," id., at 996 (Kennedy, J., concurring in part and concurring in judgment), that "we lack clear objective standards to distinguish between sentences for different terms of years," id., at 1001 (Kennedy, J., concurring in part and concurring in judgment), and that the "precise contours" of the proportionality principle "are unclear," id., at 998 (Kennedy, J., concurring in part and concurring in judgment).


[51] Thus, in this case, the only relevant clearly established law amenable to the "contrary to" or "unreasonable application of " framework is the gross disproportionality principle, the precise contours of which are unclear, applicable only in the "exceedingly rare" and "extreme" case. Id., at 1001 (Kennedy, J., concurring in part and concurring in judgment) (internal quotation marks omitted); see also Solem v. Helm, supra, at 290; Rummel v. Estelle, supra, at 272.


[52] IV.


[53] The final question is whether the California Court of Appeal's decision affirming Andrade's sentence is "contrary to, or involved an unreasonable application of," this clearly established gross disproportionality principle.


[54] First, a state court decision is "contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams v. Taylor, supra, at 405-406; see also Bell v. Cone, supra, at 694. In terms of length of sentence and availability of parole, severity of the underlying offense, and the impact of recidivism, Andrade's sentence implicates factors relevant in both Rummel and Solem. Because Harmelin and Solem specifically stated that they did not overrule Rummel, it was not contrary to our clearly established law for the California Court of Appeal to turn to Rummel in deciding whether a sentence is grossly disproportionate. See Harmelin, supra, at 998 (Kennedy, J., concurring in part and concurring in judgment); Solem, supra, at 288, n. 13, 303-304, n. 32. Indeed, Harmelin allows a state court to reasonably rely on Rummel in determining whether a sentence is grossly disproportionate. The California Court of Appeal's decision was therefore not "contrary to" the governing legal principles set forth in our cases.


[55] Andrade's sentence also was not materially indistinguishable from the facts in Solem. The facts here fall in between the facts in Rummel and the facts in Solem. Solem involved a sentence of life in prison without the possibility of parole. 463 U. S., at 279. The defendant in Rummel was sentenced to life in prison with the possibility of parole. 445 U. S., at 267. Here, Andrade retains the possibility of parole. Solem acknowledged that Rummel would apply in a "similar factual situation." 463 U. S., at 304, n. 32. And while this case resembles to some degree both Rummel and Solem, it is not materially indistinguishable from either. Cf. Ewing v. California, ante, at -- (slip op., at 6) (Breyer, J., dissenting) (recognizing a "twilight zone between Solem and Rummel"). Consequently, the state court did not "confron[t] a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arriv[e] at a result different from our precedent." Williams v. Taylor, 529 U. S., at 406.*fn1


[56] Second, "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id., at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id., at 410, 412. The state court's application of clearly established law must be objectively unreasonable. Id., at 409.


[57] The Ninth Circuit made an initial error in its "unreasonable application" analysis. In Van Tran v. Lindsey, 212 F. 3d, at 1152-1154, the Ninth Circuit defined "objectively unreasonable" to mean "clear error." These two standards, however, are not the same. The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness. See Williams v. Taylor, supra, at 410; Bell v. Cone, 535 U. S., at 699.


[58] It is not enough that a federal habeas court, in its "independent review of the legal question" is left with a " `firm conviction' " that the state court was " `erroneous' " 270 F. 3d, at 753 (quoting Van Tran v. Lindsey, supra, at 1153-1154). We have held precisely the opposite: "Under §2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams v. Taylor, 529 U. S., at 411. Rather, that application must be objectively unreasonable. Id., at 409; Bell v. Cone, supra, at 699; Woodford v. Visciotti, 537 U. S. -- , -- (2002) (per curiam) (slip op., at 6).


[59] Section 2254(d)(1) permits a federal court to grant habeas relief based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced. See, e.g., Williams v. Taylor, supra, at 407 (noting that it is "an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case"). Here, however, the governing legal principle gives legislatures broad discretion to fashion a sentence that fits within the scope of the proportionality principle -- the "precise contours" of which "are unclear." Harmelin v. Michigan, 501 U. S., at 998 (Kennedy, J., concurring in part and concurring in judgment). And it was not objectively unreasonable for the California Court of Appeal to conclude that these "contours" permitted an affirmance of Andrade's sentence.


[60] Indeed, since Harmelin, several Members of this Court have expressed "uncertainty" regarding the application of the proportionality principle to the California three strikes law. Riggs v. California, 525 U. S. 1114, 1115 (1999) (Stevens, J., joined by Souter and Ginsburg, JJ., respecting denial of certiorari) ("[T]here is some uncertainty about how our cases dealing with the punishment of recidivists should apply"); see also id., at 1116 ("It is thus unclear how, if at all, a defendant's criminal record beyond the requisite two prior `strikes' ... affects the constitutionality of his sentence"); cf. Durden v. California, 531 U. S. 1184 (2001) (Souter, J., joined by Breyer, J., dissenting from denial of certiorari) (arguing that the Court should hear the three strikes gross disproportionality issue on direct review because of the "potential for disagreement over application of " AEDPA).*fn2


[61] The gross disproportionality principle reserves a constitutional violation for only the extraordinary case. In applying this principle for §2254(d)(1) purposes, it was not an unreasonable application of our clearly established law for the California Court of Appeal to affirm Andrade's sentence of two consecutive terms of 25 years to life in prison.


[62] V.


[63] The judgment of the United States Court of Appeals for the Ninth Circuit, accordingly, is reversed.


[64] It is so ordered.


[65] Souter, J., dissenting


[66] Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting.


[67] The application of the Eighth Amendment prohibition against cruel and unusual punishment to terms of years is articulated in the "clearly established" principle acknowledged by the Court: a sentence grossly disproportionate to the offense for which it is imposed is unconstitutional. See ante, at 4; Harmelin v. Michigan, 501 U. S. 957 (1991); Solem v. Helm, 463 U. S. 277 (1983); Rummel v. Estelle, 445 U. S. 263 (1980). For the reasons set forth in Justice Breyer's dissent in Ewing v. California, ante, at ___, which I joined, Andrade's sentence cannot survive Eighth Amendment review. His criminal history is less grave than Ewing's, and yet he received a prison term twice as long for a less serious triggering offense. To be sure, this is a habeas case and a prohibition couched in terms as general as gross disproportion necessarily leaves state courts with much leeway under the statutory criterion that conditions federal relief upon finding that a state court unreasonably applied clear law, see 28 U. S. C. §2254(d). This case nonetheless presents two independent reasons for holding that the disproportionality review by the state court was not only erroneous but unreasonable, entitling Andrade to relief. I respectfully dissent accordingly.


[68] The first reason is the holding in Solem, which happens to be our most recent effort at proportionality review of recidivist sentencing, the authority of which was not left in doubt by Harmelin, see 501 U. S., at 998. Although Solem is important for its instructions about applying objective proportionality analysis, see 463 U. S., at 290-292, the case is controlling here because it established a benchmark in applying the general principle. We specifically held that a sentence of life imprisonment without parole for uttering a $100 "no account" check was disproportionate to the crime, even though the defendant had committed six prior nonviolent felonies. In explaining our proportionality review, we contrasted the result with Rummel's on the ground that the life sentence there had included parole eligibility after 12 years, Solem, 463 U. S., at 297.


[69] The facts here are on all fours with those of Solem and point to the same result. Id., at 279-281. Andrade, like the defendant in Solem, was a repeat offender who committed theft of fairly trifling value, some $150, and their criminal records are comparable, including burglary (though Andrade's were residential), with no violent crimes or crimes against the person. The respective sentences, too, are strikingly alike. Although Andrade's petty thefts occurred on two separate occasions, his sentence can only be understood as punishment for the total amount he stole. The two thefts were separated by only two weeks; they involved the same victim; they apparently constituted parts of a single, continuing effort to finance drug sales; their seriousness is measured by the dollar value of the things taken; and the government charged both thefts in a single indictment. Cf. United States Sentencing Commission, Guidelines Manual §3D1.2 (Nov. 2002) (grouping temporally separated counts as one offense for sentencing purposes). The state court accordingly spoke of his punishment collectively as well, carrying a 50-year minimum before parole eligibility, see App. to Pet. for Cert. 77 ("[W]e cannot say the sentence of 50 years to life at issue in this case is disproportionate"), and because Andrade was 37 years old when sentenced, the substantial 50-year period amounts to life without parole. Solem, supra, at 287 (quoting Robinson v. California, 370 U. S. 660, 667 (1962) (when considering whether a punishment is cruel or unusual " `the questions cannot be considered in the abstract' ")); cf. Rummel, supra, at 280-281 (defendant's eligibility for parole in 12 years informs a proper assessment of his cruel and unusual punishment claim). The results under the Eighth Amendment should therefore be the same in each case. The only ways to reach a different conclusion are to reject the practical equivalence of a life sentence without parole and one with parole eligibility at 87, see ante, at 9, ("Andrade retains the possibility of parole"), or to discount the continuing authority of Solem's example, as the California court did, see App. to Pet. for Cert. 76 ("[T]he current validity of the Solem proportionality analysis is questionable.") The former is unrealistic; an 87-year-old man released after 50 years behind bars will have no real life left, if he survives to be released at all. And the latter, disparaging Solem as a point of reference on Eighth Amendment analysis, is wrong as a matter of law.


[70] The second reason that relief is required even under the §2254(d) unreasonable application standard rests on the alternative way of looking at Andrade's 50-year sentence as two separate 25-year applications of the three-strikes law, and construing the challenge here as going to the second, consecutive 25-year minimum term triggered by a petty theft.*fn3 To understand why it is revealing to look at the sentence this way, it helps to recall the basic difficulty inherent in proportionality review. We require the comparison of offense and penalty to disclose a truly gross disproportionality before the constitutional limit is passed, in large part because we believe that legislatures are institutionally equipped with better judgment than courts in deciding what penalty is merited by particular behavior. Solem, 463 U. S., at 290. In this case, however, a court is substantially aided in its reviewing function by two determinations made by the State itself.


[71] The first is the State's adoption of a particular penalogical theory as its principal reason for shutting a three-strikes defendant away for at least 25-years. Although the State alludes in passing to retribution or deterrence (see Brief for Petitioner 16, 24; Reply Brief for Petitioner 10), its only serious justification for the 25-year minimum treats the sentence as a way to incapacitate a given defendant from further crime; the underlying theory is the need to protect the public from a danger demonstrated by the prior record of violent and serious crime. See Brief for Petitioner 17 ("significant danger to society such that [defendant] must be imprisoned for no less than twenty-five years to life"); id., at 21 ("statute carefully tailored to address ... defendants that pose the greatest danger"); id., at 23 ("isolating such a defendant for a substantial period of time"); Reply Brief for Petitioner 11 ("If Andrade's reasoning were accepted, however, California would be precluded from incapacitating him"). See also Rummel, 445 U. S., at 284 ("purpose of a recidivist statute ... [is] to segregate").*fn4 The State, in other words has not chosen 25 to life because of the inherent moral or social reprehensibility of the triggering offense in isolation; the triggering offense is treated so seriously, rather, because of its confirmation of the defendant's danger to society and the need to counter his threat with incapacitation. As to the length of incapacitation, the State has made a second helpful determination, that the public risk or danger posed by someone with the specified predicate record is generally addressed by incapacitation for 25 years before parole eligibility. Cal. Penal Code Ann. §667(e)(2)(A)(ii) (West 1999). The three-strikes law, in sum, responds to a condition of the defendant shown by his prior felony record, his danger to society, and it reflects a judgment that 25 years of incapacitation prior to parole eligibility is appropriate when a defendant exhibiting such a condition commits another felony.


[72] Whether or not one accepts the State's choice of penalogical policy as constitutionally sound, that policy cannot reasonably justify the imposition of a consecutive 25-year minimum for a second minor felony committed soon after the first triggering offense. Andrade did not somehow become twice as dangerous to society when he stole the second handful of videotapes; his dangerousness may justify treating one minor felony as serious and warranting long incapacitation, but a second such felony does not disclose greater danger warranting substantially longer incapacitation. Since the defendant's condition has not changed between the two closely related thefts, the incapacitation penalty is not open to the simple arithmetic of multiplying the punishment by two, without resulting in gross disproportion even under the State's chosen benchmark. Far from attempting a novel penal theory to justify doubling the sentence, the California Court of Appeal offered no comment at all as to the particular penal theory supporting such a punishment. App. to Pet. for Cert. 76-79. Perhaps even more tellingly, no one could seriously argue that the second theft of videotapes provided any basis to think that Andrade would be so dangerous after 25 years, the date on which the consecutive sentence would begin to run, as to require at least 25 years more. I know of no jurisdiction that would add 25 years of imprisonment simply to reflect the fact that the two temporally related thefts took place on two separate occasions, and I am not surprised that California has found no such case, not even under its three-strikes law. Tr. of Oral Arg. 52 (State's counsel acknowledging "I have no reference to any 50-year-to-life sentences based on two convictions"). In sum, the argument that repeating a trivial crime justifies doubling a 25-year minimum incapacitation sentence based on a threat to the public does not raise a seriously debatable point on which judgments might reasonably differ. The argument is irrational, and the state court's acceptance of it in response to a facially gross disproportion between triggering offense and penalty was unreasonable within the meaning of §2254(d).


[73] This is the rare sentence of demonstrable gross disproportionality, as the California Legislature may well have recognized when it specifically provided that a prosecutor may move to dismiss or strike a prior felony conviction "in the furtherance of justice." Cal. Penal Code Ann. §667(f) (2) (West 1999). In this case, the statutory safeguard failed, and the state court was left to ensure that the Eighth Amendment prohibition on grossly disproportionate sentences was met. If Andrade's sentence is not grossly disproportionate, the principle has no meaning. The California court's holding was an unreasonable application of clearly established precedent.



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Opinion Footnotes

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[74] *fn1 Justice Souter argues that the possibility of Andrade's receiving parole in 50 years makes this case similar to the facts in Solem v. Helm, 463 U. S. 227 (1983). Post, at 2 (dissenting opinion). Andrade's sentence, however, is also similar to the facts in Rummel v. Estelle, 445 U. S. 263 (1980), a case that is also "controlling." Post, at 2. Given the lack of clarity of our precedents in Solem, Rummel, and Harmelin v. Michigan, 501 U. S. 957 (1991), we cannot say that the state court's affirmance of two sentences of 25 years to life in prison was contrary to our clearly established precedent. And to the extent that Justice Souter is arguing that the similarity of Solem to this case entitles Andrade to relief under the unreasonable application prong of §2254(d), we reject his analysis for the reasons given infra, at 11-12. Moreover, it is not true that Andrade's "sentence can only be understood as punishment for the total amount he stole." Post, at 2. To the contrary, California law specifically provides that each violation of Cal. Penal Code Ann. §666 (West Supp. 2002) triggers a separate application of the three strikes law, if the different felony counts are "not arising from the same set of operative facts." §667(c)(6); see also §667(e)(2)(B). Here, Andrade was sentenced to two consecutive terms under California law precisely because the two thefts of two different Kmart stores occurring two weeks apart were two distinct crimes. Justice Souter, relying on Robinson v. California, 370 U. S. 660 (1962), also argues that in this case, it is "unrealistic" to think that a sentence of 50 years to life for Andrade is not equivalent to life in prison without parole. Post, at 3. This argument, however, misses the point. Based on our precedents, the state court decision was not contrary to, or an unreasonable application of, our clearly established law. Moreover, Justice Souter's position would treat a sentence of life without parole for the 77-year-old person convicted of murder as equivalent to a sentence of life with the possibility of parole in 10 years for the same person convicted of the same crime. Two different sentences do not become materially indistinguishable based solely upon the age of the persons sentenced.


[75] *fn2 Justice Souter would hold that Andrade's sentence also violates the unreasonable application prong of §2254(d)(1). Post, at 3-6. His reasons, however, do not change the "uncertainty" of the scope of the proportionality principle. We cannot say that the state court decision was an unreasonable application of this principle.


[76] *fn3 This point is independent of the fact, recognized by the Court, ante, at ___, that it remains open to Andrade to appeal his sentence under People v. Garcia, 20 Cal. 4th 490, 976 P. 2d 831 (1999) (holding trial court may dismiss strikes on a count-by-count basis; such discretion is consistent with mandatory consecutive sentencing provision).


[77] *fn4 Implicit in the distinction between future dangerousness and repunishment for prior crimes is the notion that the triggering offense must, within some degree, be substantial enough to bear the weight of the sentence it elicits. As triggering offenses become increasingly minor and recidivist sentences grow, the sentences advance toward double jeopardy violations. When defendants are parking violators or slow readers of borrowed library books, there is not much room for belief, even in light of a past criminal record, that the State is permanently incapacitating the defendant because of future dangerousness rather than resentencing for past offenses. That said, I do not question the legitimacy of repeatedly sentencing a defendant in light of his criminal record: the Federal Sentencing Guidelines provide a prime example of how a sentencing scheme may take into account a defendant's criminal history without resentencing a defendant for past convictions, Witte v. United States, 515 U. S. 389, 403 (1995) (the triggering offense determines the range of possible sentences, and the past criminal record affects an enhancement of that sentence). The point is merely that the triggering offense must reasonably support the weight of even the harshest possible sentences.