CRAVEN, Circuit Judge:
Appellant Dewey Hart is presently confined in the West Virginia State Penitentiary under judgment and sentence that he there be imprisoned for the rest of his natural life for having violated West Virginia’s recidivist statute. The life sentence, mandatory under West Virginia law, rests upon three prior convictions: (1) writing a check on insufficient funds for $50; (2) transporting across state lines forged checks in the amount of $140; and (3) perjury. Having unavailingly sought relief in the state courts, Hart thereupon prosecuted his petition for writ of habeas corpus in the United States District Court. He appeals the refusal of the district judge to grant relief. We reverse and remand with instructions. Our decision rests upon the conclusion that the West Virginia recidivist statute’s mandatory life sentence is so disproportionate to the seriousness of the underlying offenses, and so grossly excessive that it amounts to cruel and unusual punishment forbidden by the eighth amendment.
In 1968 Hart was convicted of perjury in a West Virginia court as a result of testimony he gave at the murder trial of his son. Perjury carries a sentence in West Virginia of not less than one nor more than ten years. W.Va.Code § 61-5-3 (1966). Prior to sentencing on the perjury conviction, however, the state filed an information charging Hart with being an habitual offender. West Virginia’s recidivist statute requires a life sentence for anyone who has been convicted three separate times' of offenses “punishable by confinement in a penitentiary.” W.Va.Code § 61-11-18 (1966).
The recidivist charge against Hart was based upon the perjury conviction and two prior convictions — one in 1949 for writing a check on insufficient fúnds for $50,1 and one in 1955 for interstate transportation of forged checks worth $140. Hart presented no evidence to contradict the recidivist information, and, pursuant to a jury finding that he had been convicted of three offenses punishable by imprisonment in a penitentiary, the court imposed the mandatory sentence of life imprisonment.2
[139]*139I.
Initially we note that we are presented with a conviction and sentence obtained pursuant to a state statutory scheme which is valid on its face. Indeed, the Supreme Court has upheld this West Virginia habitual offender statute against due process and equal protection claims. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912). But we do not agree with the state’s contention that these decisions foreclose Hart’s present eighth amendment challenge. Hart does not attack the statute itself. He does not urge that life imprisonment per se is either cruel or unusual. Nor does he urge that the statutory scheme has been discriminatorily applied. The issue he does raise is whether the recidivist mandatory life sentence in this case is so excessive and disproportionate to the underlying offenses as to constitute cruel and unusual punishment. We are not precluded from deciding this issue, we think, by the fact that the West Virginia recidivist scheme is constitutional as written, for a concededly valid statute may be applied in a particular case in such a way as to violate various constitutional provisions. Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (speech and assembly) ; Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (equal protection). See Brown v. Louisiana, 383 U.S. 131, 142, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (speech and assembly).
“That the punishment is not severe, ‘in the abstract,’ is irrelevant; ‘[e]ven one day in prison would be a cruel and unusual punishment for the ‘‘crime” of having a common cold.’ ” Furman v. Georgia, 408 U.S. 238, 273, 92 S.Ct. 2726, 2744, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring).
We think it clear that to view the West Virginia recidivist statute with its mandatory life sentence as facially constitutional is not the end of the inquiry.
II.
The doctrine that an excessive sentence may be invalid solely because of disproportionality is not a new one. Mr. Justice Field suggested in 1892 that the eighth amendment’s prohibition3 is di[140]*140rected not only against torture or barbarism, “but [also] against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged.” O’Neil v. Vermont, 144 U.S. 323, 339, 12 S.Ct. 693, 699, 36 L.Ed. 450 (1892) (Field, J., dissenting).
In Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910), the Court adopted Mr. Justice Field’s view of the eighth amendment when it stated that it is now “a precept of justice that punishment for crime should be graduated and proportioned to offense.” In Weems, the Court noticed, with apparent approval, that the highest state court of Massachusetts had previously conceded the possibility that “punishment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment.” Weems, supra, at 368, 30 S.Ct. at 549; accord, Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970).4
In his concurring opinion in Furman, Mr. Justice Douglas finds the idea of disproportionality as old as the Magna Carta: “A free man shall not be amerced for a trivial offence, except in accordance with the degree of the of-fence ; and for a serious offence he shall be amerced according to its gravity . . . .” Furman, supra, 408 U.S. at 243, 92 S.Ct. at 2729.
While it seems settled that punishment must be proportioned to the offense committed, application of this principle to a particular fact situation is not without difficulty.5 That the proportionality concept is not static, but is a “progressive” 6 one which “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” enhances the difficulty. Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958).
Although the standard applicable under the eighth amendment is one “not susceptible to precise definition,” 7 there are several objective factors which are useful in determining whether the sentence in this case is constitutionally disproportionate. The test to be used is a cumulative one focusing on an analysis of the combined factors. Furman, supra, 408 U.S. at 282, 92 S.Ct. 2726 (Brennan, J., concurring).
Free access — add to your briefcase to read the full text and ask questions with AI
CRAVEN, Circuit Judge:
Appellant Dewey Hart is presently confined in the West Virginia State Penitentiary under judgment and sentence that he there be imprisoned for the rest of his natural life for having violated West Virginia’s recidivist statute. The life sentence, mandatory under West Virginia law, rests upon three prior convictions: (1) writing a check on insufficient funds for $50; (2) transporting across state lines forged checks in the amount of $140; and (3) perjury. Having unavailingly sought relief in the state courts, Hart thereupon prosecuted his petition for writ of habeas corpus in the United States District Court. He appeals the refusal of the district judge to grant relief. We reverse and remand with instructions. Our decision rests upon the conclusion that the West Virginia recidivist statute’s mandatory life sentence is so disproportionate to the seriousness of the underlying offenses, and so grossly excessive that it amounts to cruel and unusual punishment forbidden by the eighth amendment.
In 1968 Hart was convicted of perjury in a West Virginia court as a result of testimony he gave at the murder trial of his son. Perjury carries a sentence in West Virginia of not less than one nor more than ten years. W.Va.Code § 61-5-3 (1966). Prior to sentencing on the perjury conviction, however, the state filed an information charging Hart with being an habitual offender. West Virginia’s recidivist statute requires a life sentence for anyone who has been convicted three separate times' of offenses “punishable by confinement in a penitentiary.” W.Va.Code § 61-11-18 (1966).
The recidivist charge against Hart was based upon the perjury conviction and two prior convictions — one in 1949 for writing a check on insufficient fúnds for $50,1 and one in 1955 for interstate transportation of forged checks worth $140. Hart presented no evidence to contradict the recidivist information, and, pursuant to a jury finding that he had been convicted of three offenses punishable by imprisonment in a penitentiary, the court imposed the mandatory sentence of life imprisonment.2
[139]*139I.
Initially we note that we are presented with a conviction and sentence obtained pursuant to a state statutory scheme which is valid on its face. Indeed, the Supreme Court has upheld this West Virginia habitual offender statute against due process and equal protection claims. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912). But we do not agree with the state’s contention that these decisions foreclose Hart’s present eighth amendment challenge. Hart does not attack the statute itself. He does not urge that life imprisonment per se is either cruel or unusual. Nor does he urge that the statutory scheme has been discriminatorily applied. The issue he does raise is whether the recidivist mandatory life sentence in this case is so excessive and disproportionate to the underlying offenses as to constitute cruel and unusual punishment. We are not precluded from deciding this issue, we think, by the fact that the West Virginia recidivist scheme is constitutional as written, for a concededly valid statute may be applied in a particular case in such a way as to violate various constitutional provisions. Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (speech and assembly) ; Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (equal protection). See Brown v. Louisiana, 383 U.S. 131, 142, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (speech and assembly).
“That the punishment is not severe, ‘in the abstract,’ is irrelevant; ‘[e]ven one day in prison would be a cruel and unusual punishment for the ‘‘crime” of having a common cold.’ ” Furman v. Georgia, 408 U.S. 238, 273, 92 S.Ct. 2726, 2744, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring).
We think it clear that to view the West Virginia recidivist statute with its mandatory life sentence as facially constitutional is not the end of the inquiry.
II.
The doctrine that an excessive sentence may be invalid solely because of disproportionality is not a new one. Mr. Justice Field suggested in 1892 that the eighth amendment’s prohibition3 is di[140]*140rected not only against torture or barbarism, “but [also] against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged.” O’Neil v. Vermont, 144 U.S. 323, 339, 12 S.Ct. 693, 699, 36 L.Ed. 450 (1892) (Field, J., dissenting).
In Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910), the Court adopted Mr. Justice Field’s view of the eighth amendment when it stated that it is now “a precept of justice that punishment for crime should be graduated and proportioned to offense.” In Weems, the Court noticed, with apparent approval, that the highest state court of Massachusetts had previously conceded the possibility that “punishment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment.” Weems, supra, at 368, 30 S.Ct. at 549; accord, Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970).4
In his concurring opinion in Furman, Mr. Justice Douglas finds the idea of disproportionality as old as the Magna Carta: “A free man shall not be amerced for a trivial offence, except in accordance with the degree of the of-fence ; and for a serious offence he shall be amerced according to its gravity . . . .” Furman, supra, 408 U.S. at 243, 92 S.Ct. at 2729.
While it seems settled that punishment must be proportioned to the offense committed, application of this principle to a particular fact situation is not without difficulty.5 That the proportionality concept is not static, but is a “progressive” 6 one which “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” enhances the difficulty. Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958).
Although the standard applicable under the eighth amendment is one “not susceptible to precise definition,” 7 there are several objective factors which are useful in determining whether the sentence in this case is constitutionally disproportionate. The test to be used is a cumulative one focusing on an analysis of the combined factors. Furman, supra, 408 U.S. at 282, 92 S.Ct. 2726 (Brennan, J., concurring).
The initial element to be analyzed in determining whether the punishment is constitutionally disproportionate is the nature of the offense itself. Furman, supra, at 325, 92 S.Ct. 2726 (Marshall, J., concurring). Hart’s first conviction was for writing a bad check in 1949, and the second was for transporting forged checks six years later. His third conviction was more serious — committing perjury during the murder trial of his son. But even there Hart faced a moral dilemma: to choose between his duty to tell the truth and family loyalty.
In assessing the nature and gravity of an offense, courts have repeatedly emphasized the element of violence and danger to the person. E. g., Snider v. Peyton, 356 F.2d 626, 627 (4th Cir. 1966); see Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963) (Goldberg, J., dissenting from a [141]*141denial of certiorari).8 In Ralph v. Warden, supra, 438 F.2d at 788, Judge Butz-ner stated that “there are rational gradations of culpability that can be made on the basis of injury to the victim.” None of Hart’s offenses were against the person. None involved violence or danger of violence toward persons or property. The bad check case was very nearly trivial — one penny less in the face amount of the check and the offense would have been a five-to-sixty-day petty misdemeanor.
Another factor to be examined is the legislative purpose behind the punishment.9 Furman, supra, 408 U.S. at 280, 300, 92 S.Ct. 2726 (Brennan, J., concurring). The state argues that a punishment' may not be cruel and unusual if it serves a valid purpose, and that the life sentence here serves such a legislative purpose — to deter other persons from future violations and to protect society from habitual criminals.10
Such an argument proves too much. Assuming the validity of the deterrent theory, and there is room for doubt,11 then if a life sentence is good for the purpose, surely a death sentence would be better. Putting Hart in prison for the remainder of his life for three offenses that rank relatively low in the hierarchy of crimes would presumably prevent him from passing bad checks but would not likely make of him a truthful man. Is it a rational exercise of state police power to put a man away for life —at tremendous expense to the state— because over a 20-year period he passed or transported three bad checks and might do it again? Life imprisonment is the penultimate punishment. Tradition, custom, and common sense reserve it for those violent persons who are dangerous to others. It is not a practical solution to petty crime in America. Aside from the proportionality principle, there aren’t enough prisons in America to hold all the Harts that afflict us.
Mr. Justice Brennan has observed: “If there is a significantly less severe punishment to achieve the purposes for which the punishment is inflicted, the punishment inflicted is unnecessary and therefore excessive.” [Citations omitted]. Furman, supra, at 279, 92 S.Ct. at 2747. We think that a sentence of life imprisonment, the most severe punishment available under West Virginia law, is unnecessary to accomplish the legislative purpose to protect society from an individual who has committed three wholly nonviolent crimes over a period of twenty years. Nor, except on the theory that more is better, is it necessary to deter others. Ten years’ possible imprisonment for perjury is calculated to make one stop and think — whether or not it does.
A third objective factor is comparison of Hart’s punishment with how he would have been punished in other jurisdictions.12 Three states — Indiana, Kentucky, and Texas — provide life imprisonment as the mandatory sentence to be imposed upon the conviction of any three felonies. While Tennessee also provides for a mandatory sentence upon the third offense, two of the offenses must be specified violent felonies. [142]*142Thus, West Virginia’s recidivist scheme is among the top four in the nation in terms of severity, and may be number one.13 Ten states make a discretionary life sentence available after three felony convictions. These provisions, however, provide for judicial consideration of the nature of the underlying offenses prior to imposition of the sentence, an ameliorating factor not allowed in West Virginia.
If we assume these other states treat a $50 bad check case as a felony, which is doubtful, it is theoretically possible that Hart could have been exposed to the imposition of a life sentence in 13 states besides West Virginia. But as a practical matter, we think it would certainly not occur in those ten states providing for judicial evaluation of the underlying offenses and the offender. Had the sentencing judge here been able to exercise discretion, it is hard to believe that he would have given Hart as much time to serve as he might give one convicted of three offenses of second-degrée murder. Yet, Hart got the maximum without regard to the relatively petty nature of the underlying convictions.
A comparison of punishment available in the same jurisdiction for other offenses is likewise a factor. Weems, supra, 217 U.S. at 381, 30 S.Ct. 544, 54 L.Ed. 793. West Virginia provides for a mandatory life sentence for only three other crimes — first-degree murder, W.Va.Code § 61-2-2 (1966); rape, W.Va.Code § 61-2-15 (1966); and kidnapping, W.Va.Code § 61-2-14a (1966).14 Can it be rationally urged that Hart is as dangerous to society and as deserving of punishment as the murderer, rapist, and kidnapper ?
Consideration of the penalties provided for grave crimes of violence in West Virginia reveals the irrationally disparate treatment visited upon Hart: second-degree murder, 5-18 years, W. Va.Code § 61-2-3 (1966); robbery, not less than 10 years, W.Va.Code § 61-2-12 (1966); malicious assault with intent to kill, 2-10 years, W.Va.Code 61-2-9 (1966); administering poison with intent to kill, 3-18 years, W.Va.Code § 61-2-7 (1966); first-degree arson, 2-20 years, W.Va.Code § 61-3-1 (1966); and extortion by threats of violence, and manslaughter, 1-5 years, W.Va.Code §§ 61-2-4, 61-2-13 (1966).
The repetitive commission of all of these offenses, of course, could result in punishment under the recidivist, scheme. Yet, after a second commission of these extremely violent and dangerous crimes, only five years could be added to the maximum sentence, W.Va.Code § 61-11-18 (1966). Only for the third of[143]*143fense could such an offender be sentenced as harshly as was Hart.
After analyzing what we believe to be the relevant criteria under the eighth amendment, we conclude that the sentence imposed upon Hart is constitutionally excessive and wholly disproportionate to the nature of the offenses he committed, and not necessary to achieve any legitimate legislative purpose.
We therefore reverse and remand with instructions that the writ of habeas corpus issue unless within a reasonable time the state chooses to resentence Hart solely on the basis of his perjury conviction.
Reversed and remanded with instructions.
APPENDIX
HABITUAL OFFENDER PROVISIONS IF MOST RECENT CONVICTION IS PERJURY
State Citations Minimum Number of Offenses Maximum Sentence
Alabama No habitual offender statute
Alaska § 12.55.050 2d felony 3d felony 4th felony Double Maximum 4 times Maximum Life, discretionary
Arizona § 13-1649 2d prison offense Not less than 10 years
Arkansas § 43-2328 2d prison offense 3d prison offense 4th prison offense Maximum Maximum 1.5 times Maximum
California P.C., § 644 Does not apply if perjury Is the most recent offense, though perjury can be a prior
Colorado' § 39-13-1 3d felony 4th felony Triple maximum Life, mandatory
Connecticut § 53a-40 2d felony 10 years
Delaware tit. 11, § 3911(a) 4th felony Life, discretionary
Florida § 775.084 2d felony (w/15 years) 30 years
Georgia § 27-2511 2d prison offense 4th felony Mandatory maximum Mandatory maximum without parole
Hawaii No habitual offender statute
Idaho § 19-2514 3d felony 5 years to Life
Illinois No habitual offender statute
Indiana 3d felony § 9-2207 Mandatory life
Iowa 3d jail term of at least 3 years § 747.5 25 years
Kansas 2d felony 3d felony § 21-4504 Double maximum Life, discretionary
Kentucky § 431.190 2d felony 3d felony Not less than double 1st sentence Life, mandatory
Louisiana § 15-529.1 2d and 3d felonies 4th felony Double maximum Life, discretionary
Maine § 15-1742 2d prison offense Life, discretionary
Maryland No habitual offender statute
Massachusetts § 279-25 3d jail term of at least 3 years Maximum, mandatory
Michigan § 28.1084 4th felony Life, discretionary
Minnesota § 609.155 2d felony Maximum times number of priors, up to 40 years
[144]*144APPENDIX' — Continued
HABITUAL OFFENDER PROVISIONS IF MOST RECENT CONVICTION IS PERJURY — Continued
Mississippi No habitual offender statute
Missouri § 556.280 2d prison offense Maximum, discretionary
Montana § 94-4713 2d prison offense Not less than 10 years
Nebraska § 29-2221 3d offense for which prison time served 20 years
Nevada § 207.010 3d felony 4th felony 20 years Life, mandatory
New Hampshire § 591:1 § 651:6 3d felony 3d offense served in prison 15 years 30 years
New Jersey § 2A:85-12 4th high misdemeanor Life, discretionary
New Mexico § 40A-29-5 2d felony 3d felony 4th felony Double maximum Triple maximum Life, mandatory
New York P.C. § 70.10 3d felony Life, discretionary
North Carolina §§ 14-7.1-14-7.6 4th felony Life, discretionary
North Dakota §§ 12-06-18-12-06-21 2d felony 3d felony 4th felony 10 years Double maximum Life, discretionary
Ohio § 2961.11 3d listed offense, including perjury and forgery Mandatory maximum
§ 2961.12 4th such offense Life, mandatory
Oklahoma tit. 21, § 51 2d prison offense Minimum 10 years
Oregon Unavailable
Pennsylvania tit. 18, § 5108 2d and 3d listed offenses, (including perjury) within 5 years 4th offense Double maximum Life, discretionary
Rhode Island § 12-19-21 3d prison offense Additional 25 years
South Dakota § 22-7-1 2d felony 4th felony Double penalty Life, discretionary
Tennessee § 40-2801 3d felony (two must be listed violent felonies) Life, mandatory
Texas P.C. Art. 62 P.C. Art. 63 2d felony 3d felony Maximum Life, mandatory
Utah 76-1-18 3d felony Not less than 15 years
Vermont 13, §§ 11 and 1 4th felony Life, discretionary
Virginia 53-296 2d prison offense Life, discretionary
Washington 9.92.020 2d felony 3d felony Life, discretionary Life, mandatory
Wisconsin 939.62 2d felony within 5 years Additional 6 years
Wyoming 6-9 3d felony 4th felony 50 years Life, Mandatory