Rummel v. Estelle

445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382, 1980 U.S. LEXIS 90

• Court: Supreme Court of the United States
• Decided: March 18, 1980
• Docket: 78-6386
• Status: Published

Opinions

Mr. Justice Rehnquist

delivered the opinion of the Court.

Petitioner William James Rummel is presently serving a life sentence imposed by the State of Texas in 1973 under its “recidivist statute,” formerly Art. 63 of its Penal Code, which provided that “[wjhoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.”¹ On January 19, 1976, Rummel sought a writ of habeas corpus in the United States District Court for the Western District of Texas, arguing that life imprisonment was “grossly disproportionate” to the three felonies that formed the predicate for his sentence and that therefore the sentence violated the ban on cruel and unusual punishments of the Eighth and Fourteenth Amendments. The District Court and the United States Court of Appeals for the Fifth Circuit rejected Rummel’s claim, finding no unconstitutional disproportionality. We granted cer-tiorari, 441 U. S. 960, and now affirm.

I

In 1964 the State of Texas charged Rummel with fraudulent use of a credit card to obtain $80 worth of goods or services.² Because the amount in question was greater than $50, the charged offense was a felony punishable by a minimum of 2 years and a maximum of 10 years in „ the Texas Department of Corrections.³ Rummel eventually pleaded guilty to the charge and was sentenced to three years’ confinement in a state penitentiary.

In 1969 the State of Texas charged Rummel with passing a forged check in the amount of $28.36, a crime punishable by imprisonment in a penitentiary for not less than two nor more than five years.⁴ Rummel pleaded guilty to this offense and was sentenced to four years’ imprisonment.

In 1973 Rummel was charged with obtaining $120.75 by false pretenses.⁵ Because the amount obtained was greater than $50, the charged offense was designated “felony theft,” which, by itself, was punishable by confinement in a penitentiary for not less than 2 nor more than 10 years.⁶ The prosecution chose, however, to proceed against Rummel under Texas’ recidivist statute, and cited in the indictment his 1964 and 1969 convictions as requiring imposition of a life sentence if Rummel were convicted of the charged offense. A jury convicted Rummel of felony theft and also found as true the allegation that he had been convicted of two prior felonies. As a result, on April 26, 1973, the trial court imposed upon Rummel the life sentence mandated by Art. 63.

The Texas appellate courts rejectecLRummel’s direct appeal as well as his subsequent collateral attacks on his imprisonment.⁷ Rummel then filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Texas. In that petition, he claimed, inter alia, that his life sentence was so disproportionate to the crimes he had committed as to constitute cruel and unusual punishment. The District Court rejected this claim, first noting.that this Court had already rejected a constitutional attack upon Art. 63, see Spencer v. Texas, 385 U. S. 554 (1967), and then crediting an argument by respondent that Rummel’s sentence could not be viewed as life imprisonment because he would be eligible for parole in approximately 12 years.

A divided panel of the Court of Appeals reversed. 568 F. 2d 1193 (CA5 1978). The majority relied upon this Court’s decision in Weems v. United States, 217 U. S. 349 (1910), and a decision of the United States Court of Appeals for the Fourth Circuit, Hart v. Coiner, 483 F. 2d 136 (1973), cert. denied, 415 U. S. 983 (1974), in holding that Rummel’s life sentence was “so grossly . disproportionate”_to his offenses as to constitute cruel and unusual punishment. 568 F. 2d, at 1200. The dissenting judge argued that “[n]o neutral principle' of adjudication permits a federal court to hold that in a given situation individual crimes are too trivial in relation to the punishment imposed.” Id., at 1201-1202.

Rummel’s case was reheard by the Court of Appeals sitting en banc. That court vacated the panel opinion and affirmed the District Court’s denial of habeas corpus relief on Rummel’s Eighth Amendment claim. 587 F. 2d 651 (CA5 1978). Of particular importance to the majority of the Court of Appeals en banc was the probability that Rummel would be eligible for parole within 12 years of his initial confinement. Six members of the Court of Appeals dissented, arguing that Rum-mel had no enforceable right to parole and that Weems and Hart compelled a finding that Rummel’s life sentence was unconstitutional.

II

Initially, we believe it important to set forth two propositions that Rummel does not contest. First, Rummel does not challenge the constitutionality of Texas’ recidivist statute as a general proposition. In Spencer v. Texas, supra, this Court upheld the very statute employed here, noting in the course of its opinion that similar statutes had been sustained against contentions that they violated “constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities.” 385 U. S., at 560. Here, Rummel attacks only the result of applying this concededly valid statute to the facts of his case.

Second, Rummel does not challenge Texas’ authority to punish each of his offenses as felonies, that is, by imprisoning him in a state penitentiary.⁸ Cf. Robinson v. California, 370 U. S. 660 (1962) (statute making it a crime to be addicted to the use of narcotics violates the Eighth and Fourteenth Amendments). See also Ingraham v. Wright, 430 U. S. 651, (1977) (Eighth Amendment “imposes substantive limits on what can be made criminal and punished as such . . Under Texas law Rummel concededly could have received sentences totaling 25 years in prison for what he refers to as his “petty property offenses.” Indeed, when Rummel obtained $120.75 by false pretenses he committed a crime punishable as a felony in at least 35 States and the District of Columbia.⁹ Similarly, a large number of States authorized significant terms of imprisonment for each of Rummel’s other offenses at the times he committed them.¹⁰ Rummel’s challenge thus focuses only on the State’s authority to impose a sentence of life imprisonment, as opposed, to a substantial term of years, for his third felony.

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. See, e. g., Weems v. United States, 217 U. S., at 367; Ingraham v. Wright, 430 U. S., at 667 (dictum); Trop v. Dulles, 356 U. S. 86, 100 (1958) (plurality opinion). In recent years this proposition has appeared most frequently in opinions dealing with the death penalty. See, e. g., Coker v. Georgia, 433 U. S. 584, 592 (1977) (plurality opinion); Gregg v. Georgia, 428 U. S. 153, 173 (1976) (opinion of Stewart, Powell, and Stevens, JJ.); Furman v. Georgia, 408 U. S. 238, 458 (1972) (Powell, J., dissenting). Pummel cites these latter opinions dealing with capital punishment as compelling the conclusion that his sentence is disproportionate to his offenses. But as Mr. Justice Stewart noted in Furman:

“The penalty of, death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total- irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.” Id., at 306.

This theme, the unique nature of the death penalty for purposes of Eighth Amendment analysis, has been repeated time and time again in our opinions. See, e. g., Furman v. Georgia, supra, at 287, 289 (Brennan, J., concurring); Gregg v. Georgia, supra, at 187 (opinion of Stewart, Powell, and Stevens, JJ.); Woodson v. North Carolina, 428 U. S. 280, 305 (1976); Coker v. Georgia, supra, at 598 (plurality opinion). Because a sentence of death differs in kind from any sentence of imprisonment, no matter how long, our decisions applying the prohibition of cruel and unusual punishments to capital cases are of limited assistance in deciding the constitutionality of the punishment meted out to Rummel.

Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare. In Weems v. United States, supra, a case coming to this Court from the Supreme Court of the Philippine Islands, petitioner successfully attacked the imposition of a punishment known as “cadena temporal” for the crime of falsifying a public record. Although the Court in Weems invalidated the sentence after weighing “the mischief and the remedy,” 217 U. S., at 379, its finding of disproportionality cannot be wrenched from the extreme facts of that case. As for the “mischief,” Weems was convicted of falsifying a public document, a crime apparently complete upon the knowing entry of a single item of false information in a public record, “though there be no one injured, though there be no fraud or purpose of it, no gain or desire of it.” Id., at 365. The mandatory “remedy” for this offense was cadena temporal, a punishment described graphically by the Court:

“Its minimum degree is confinement in a penal institution for twelve years and one day, a chain at the ankle and wrist of the offender, hard and painful labor, no assistance from friend or relative, no marital authority or parental rights or rights of property, no participation even in the family council. These parts of his penalty endure for the term of imprisonment. From other parts there is no intermission. His prison bars and chains are removed, it is true, after twelve years, but he goes from them to a perpetual limitation of his liberty. He is forever kept under the shadow of his crime, forever kept within voice and view of the criminal magistrate, not being able to change his domicil without giving notice to the ‘authority immediately in charge of his surveillance/ and without permission in writing.” Id., at 366.

Although Rummel argues that the length of Weems’ imprisonment was, by itself, a básis for the Court’s decision, the Court’s opinion does not support such a simple conclusion. The opinion consistently referred jointly to the length of imprisonment and its “accessories” or “accompaniments.” See id., at 366, 372, 377, 380. Indeed, the Court expressly rejected an argument made on behalf of the United States that “the provision for imprisonment in the Philippine Code is separable from the accessory punishment, and that the latter may be declared illegal, leaving the former to have application.” According to the Court, “[t]he Philippine Code unites the penalties of cadena temporal, principal and accessory, and it is not in our power to separate them....” Id., at 382. Thus, we do not believe that Weems can be applied without regard to its peculiar facts: the triviality of the charged offense, the impressive length of the minimum term of imprisonment, and the extraordinary nature of the “accessories” included within the punishment of cadena temporal.

Given the unique nature of the punishments considered in Weems and in the death penalty cases, one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative.¹¹ Only six years after Weems, for example, Mr. Justice Holmes wrote for a unanimous Court in brushing aside a proportionality challenge to concurrent sentences of five years’ imprisonment and cumulative fines of $1,000 on each of seven counts of mail fraud. See Badders v. United States, 240 U. S. 391 (1916). According to the Court, there was simply “no ground for declaring the punishment unconstitutional.” Id., at 394.

Such reluctance to review legislatively mandated terms of imprisonment is implicit in our more recent decisions as well. As was noted by Mr. Justice White, writing for the plurality in Coker v. Georgia, supra, at 592, our Court’s “Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent.” Since Coker involved the imposition of capital punishment for the rape of an adult female, this Court could draw a “bright line” between the punishment of death and the various other permutations and commutations of punishments short of that ultimate sanction. For the reasons stated by Mb. Justice Stewart in Furman, see supra, at 272, this line was considerably clearer than would be any constitutional distinction between one term of years and a shorter or longer term of years.

Similarly, in Weems the Court could differentiate in an objective fashion between the highly unusual cadena temporal and more traditional forms of imprisonment imposed under the Anglo-Saxon system. But a more extensive intrusion into the basic line-drawing process that is pre-eminently the province of the legislature when it makes an act criminal would be difficult to square with the view expressed in Coker that the Court’s Eighth Amendment judgments should neither be nor appear to be merely the subjective views of individual Justices.

In an attempt to provide us with objective criteria against which we might measure the proportionality of his life sentence, Rummel points to certain characteristics of his offenses that allegedly render them “petty.” He cites, for example, the absence of violence in his crimes. But the presence or absence of violence does not always affect the strength of society’s interest in deterring a particular crime or in punishing a particular criminal. A high official in a large corporation can commit undeniably serious crimes in the area of antitrust, bribery, or clean air or water standards without coming close to engaging in any “violent” or short-term “life-threatening” behavior. Additionally, Rummel cites the “small” amount of money taken in each of his crimes. But to recognize that the State of Texas could have imprisoned Rummel for life if he had stolen $5,000, $50,000, or $500,000, rather than the $120.75 that a jury convicted him of stealing, is virtually to concede that the lines to be drawn are indeed “subjective,” and' therefore properly within the province of legislatures, not courts. Moreover, if Rummel had attempted to defraud his victim of $50,000, but had failed, no money whatsoever would have changed hands; yet Rummel would be no less blameworthy, only less skillful, than if he had succeeded.

In this case, however, we need not decide whether Texas could impose a life sentence upon Rummel merely for obtaining $120.75 by false pretenses. Had Rummel only committed that crime, under the law enacted by the Texas Legislature he could have been imprisoned for no more than 10 years. In fact, at the time that he obtained the $120.75 by false pretenses, he already had committed and had been imprisoned for two other felonies, crimes that Texas and other States felt were serious enough to warrant significant terms of imprisonment even in the absence of prior offenses. Thus the interest of the State of Texas here is not simply that of making criminal the unlawful acquisition of another person’s property; it is in addition the interest, expressed in all recidivist statutes, 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. By conceding the validity of recidivist statutes generally, Rummel himself concedes that the State of Texas, or any other State, has a valid interest in so dealing with that class of persons.

Nearly 70 years ago, and only 2 years after Weems, this Court rejected an Eighth Amendment claim that seems factually indistinguishable from that advanced by Rummel in the present case. In Graham v. West Virginia, 224 U. S. 616 (1912), this Court considered the case of an apparently incorrigible horsethief who was sentenced to life imprisonment under West Virginia’s recidivist statute. In 1898 Graham had been convicted of stealing “one bay mare” valued at $50; in 1901 he had been convicted of “feloniously and burglari-ously” entering a stable in order to steal “one brown horse, named Harry, of the value of $100”; finally, in 1907 he was convicted of stealing “one red roan horse” valued at $75 and various tack and accessories valued at $85.¹² Upon conviction of this last crime, Graham received the life sentence mandated by West Virginia’s recidivist statute. This Court did not tarry long on Graham’s Eighth Amendment claim,¹³ noting only that it could not be maintained “that cruel and unusual punishment [had] been inflicted.” Id., at 631.¹⁴

Undaunted by earlier cases like Graham and Badders, Rummel attempts to ground his proportionality attack on an alleged “nationwide” trend away from mandatory life sentences and toward “lighter, discretionary sentences.” Brief for Petitioner 43-44. According to Rummel, “[n]o jurisdiction in the United States or the Free World punishes habitual offenders as harshly as Texas.” Id., at 39. In support of this proposition, Rummel offers detailed charts and tables documenting the history of recidivist statutes in the United States since 1776.

Before evaluating this evidence, we believe it important to examine the exact operation of Art. 63 as interpreted by the Texas courts. In order to qualify for a mandatory life sentence under that statute, Rummel had to satisfy a number of requirements. First, he had to be convicted of a felony and actually sentenced to prison.¹⁵ Second, at some time subsequent to his first conviction, Rummel had to be convicted of another felony and again sentenced to imprisonment.¹⁶ Finally, after having been sent to prison a second time, Rummel had to be convicted of a third felony. Thus, under Art. 63, a three-time felon receives a mandatory life sentence, with possibility of parole, only if commission and conviction of each succeeding felony followed conviction for the preceding one, and only if each prior conviction was followed by actual imprisonment. Given this necessary sequence, a recidivist must twice demonstrate that conviction and actual imprisonment do not deter him from returning to crime once he is released. One in Rummel’s position has been both graphically informed of the consequences of lawlessness and given an opportunity to reform, all to no avail. Article 63 thus 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.¹⁷

In comparing this recidivist program with those presently-employed in other States, Rummel creates a complex hierarchy of statutes and places Texas’ recidivist scheme alone on the top rung. This isolation is not entirely convincing. Both West Virginia and Washington, for example, impose mandatory life sentences upon the commission of a third felony.¹⁸ Rummel would distinguish those States from Texas because the Supreme Court of Washington and the United States Court of Appeals for the Fourth Circuit, which includes West Virginia, have indicated a willingness to review the proportionality of such sentences under the Eighth Amendment. See State v. Lee, 87 Wash. 2d 932, 937, n. 4, 558 P. 2d 236, 240, n. 4 (1976) (dictum); Hart v. Coiner, 483 F. 2d 136 (CA4 1973). But this Court must ultimately decide the meaning of the Eighth Amendment. If we disagree with the decisions of the Supreme Court of Washington and the Court of Appeals for the Fourth Circuit on this point, Washington and West Virginia are for practical purposes indistinguishable from Texas. If we agree with those courts, then of course sentences imposed in Texas, as well as in Washington and West Virginia, are subject to a review for proportionality-under the Eighth Amendment. But in either case, the legislative judgment as to punishment in Washington and West Virginia has been the same as that in Texas.

Rummers charts and tables do appear to indicate that he might have received more lenient treatment in almost any State other than Texas, West Virginia, or Washington. The distinctions, however, are subtle rather than gross. A number of Stages impose a mandatory life sentence upon conviction of four felonies rather than three.¹⁹ Other States require one or more of the felonies to be “violent” to support a life sentence.²⁰ Still other States leave the imposition of a life sentence after three felonies within the discretion of a judge or jury.²¹ It is one thing for a court to compare those States that impose capital punishment for a specific offense with those States that do not. See Coker v. Georgia, 433 U. S., at 595-596. It is quite another thing for a court to attempt to evaluate the position of any particular recidivist scheme within Rummel’s complex matrix.²²

Nor do Rummers extensive charts even begin to reflect the complexity of the comparison he asks this Court to make. Texas, we are told, has a relatively liberal policy of granting “good time” credits to its prisoners, a policy that historically has allowed a prisoner serving a life sentence to become eligible for parole in as little as 12 years. See Brief for Respondent 16-17. We agree with Rummel that his inability to enforce any “right” to parole precludes us from treating his life sentence as if it were equivalent to a sentence of 12 years. Nevertheless, because parole is “an established variation on imprisonment of convicted criminals,” Morrissey v. Brewer, 408 U. S. 471, 477 (1972), a proper assessment of Texas’ treatment of Rummel could hardly ignore the possibility that he will not actually be imprisoned for the rest of his life. If nothing else, the possibility of parole, however slim, serves to distinguish Rummel from a person sentenced under a recidivist statute like Mississippi’s, which provides for a sentence of life without parole upon conviction of three felonies including at least one violent felony. See Miss. Code Ann. § 99-19-83 (Supp. 1979).

Another variable complicating the calculus is the role of prosecutorial discretion in any recidivist scheme. It is a matter of common knowledge that prosecutors often exercise their discretion in invoking recidivist statutes or in plea bargaining so as to screen out truly “petty” offenders who fall within the literal terms of such statutes. See Oyler v. Boles, 368 U. S. 448, 456 (1932) (upholding West Virginia’s recidivist scheme over contention that it placed unconstitutional discretion in hands of prosecutor). Indeed, in the present case the State of Texas has asked this Court, in the event that we find Rum-mel’s sentence unconstitutionally disproportionate, to remand the case to the sentencing court so that the State might introduce Rummel’s entire criminal record. If, on a remand, the sentencing court were to discover that Rummel had been convicted of one or more felonies in addition to those pleaded in the original indictment, one reasonably might wonder whether that court could then sentence Rummel to life imprisonment even though his recidivist status based on only three felonies had been held to be a “cruel and unusual” punishment.

We offer these additional considerations not as inherent flaws in Rummel’s suggested interjurisdictional analysis but as illustrations of the complexities confronting any court that would attempt such a comparison. Even were we to assume that the statute employed against Rummel was the most stringent found in the 50 States, that severity hardly would render Rummel’s punishment “grossly disproportionate” to his offenses or to the punishment he would have received in the other States. As Mr. Justice Holmes noted in his dissenting opinion in Lochner v. New York, 198 U. S. 45, 76 (1905), our Constitution “is made for people of fundamentally differing views. . . .” Until quite recently, Arizona punished as a felony the theft of any “neat or horned animal,” regardless of its value;²³ California considers the theft of “avocados, olives, citrus or deciduous fruits, nuts and artichokes” particularly reprehensible.²⁴ In one State theft of $100 will earn the offender a fine or a short term in jail;²⁵ in another State it could earn him a sentence of 10 years’ imprisonment.²⁶ Absent a constitutionally imposed uniformity inimical to traditional notions of federalism, some State will always bear the distinction of treating particular offenders more severely than any other State.²⁷

Perhaps, as asserted in Weems, “time works changes” upon the Eighth Amendment, bringing into existence “new conditions and purposes.” 217 U. S., at 373. We all, of course, would like to think that we are “moving down the road toward human decency.” Furman v. Georgia, 408 U. S., at 410 (Blackmttn, J., dissenting). Within the confines of this judicial proceeding, however, we have no way of knowing in which direction that road lies. Penologists themselves have been unable to agree whether sentences should be light or heavy,²⁸ discretionary or determinate.²⁹ This uncertainty reinforces our conviction that any “nationwide trend” toward lighter, discretionary sentences must find its source and its sustaining force in the legislatures, not in the federal courts.

Ill

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. We believe that Texas is entitled to make its own judgment as to where such lines lie, subject only to those strictures of the Eighth Amendment that can be informed by objective factors. See Coker v. Georgia, 433 U. S., at 592. Moreover, given Rummel’s record, Texas was not required to treat him in the same manner as it might treat him were this his first “petty property offense.” Having 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.

The purpose of a recidivist statute such as that involved here is not to simplify the task of prosecutors, judges, or juries. Its 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. This segregation and its duration are based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.

We therefore hold that the mandatory life sentence imposed upon this petitioner does not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments. The judgment of the Court of Appeals is

Affirmed.

1 With minor revisions, this article has since been recodified as Texas Penal Code Ann. § 12.42 (d) (1974).

2 In 1964 Texas Penal Code Ann., Art. 1555b, provided:

“Section 1. It shall be unlawful for any person to present a credit card or alleged credit card, with the intent to defraud, to obtain or attempt to obtain any item of value or service of any type; or to present such credit card or alleged credit card, with the intent to defraud, to pay for items of value or services rendered.” App. to Tex. Penal Code Ann., p. 712 (1974).

8 In 1964 Texas Penal Code Ann., Art. 1555b (4) (d), provided:

“For a violation of this Act, in the event the amount of the credit obtained or the value of the items or services is Fifty Dollars ($50) or more, punishment shall be confinement in the penitentiary for not less than two (2) nor more than ten (10) years.” App. to Tex. Penal Code Ann., p. 713 (1974).

4 In 1969 Texas Penal Code Ann., Art. 996, provided:

“If any person shall knowingly .pass as true, or attempt to pass as true, any such forged instrument in writing as is mentioned and defined in the preceding articles of this chapter, he shall be confined in the penitentiary not less than two nor more than five years.” App. to Tex. Penal Code Ann., p. 597 (1974).

5 In 1973 Texas Penal Code Ann., Art. 1410, provided:

“ ‘Theft’ is the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.” App. to Tex. Penal Code Ann., p. 688 (1974).

In 1973 Texas Penal Code Ann., Art. 1413, provided:

“The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.” App. to Tex. Penal Code Ann., p. 689 (1974).

6 In 1973 Texas Penal Code § 1421 provided:

“Theft of property of the value of fifty dollars or over shall be punished by confinement in the penitentiary not less than two nor more than ten years.” App. to Tex. Penal Code Ann., p. 690 (1974).

7 Preliminarily, the respondent argues that Rummers, claim is barred by Wainwright v. Sykes, 433 U. S. 72 (1977), because he did not object at the punishment stage of his trial to the imposition of a mandatory life sentence. Respondent raised this claim for the first time in his petition to the Court of Appeals for rehearing en banc, which was filed shortly after Wainwright was decided. The Court of Appeals rejected this argument because it did not believe that Texas’ contemporaneous-objection requirement extended to a challenge like that raised by Rummell. See 587 F. 2d 651, 653-654 (CA5 1978). Deferring to the Court of Appeals’ interpretation of Texas law, we decline to hold that Wainwright bars Rummel from presenting his claim.

8 Texas, like most States, defines felonies as offenses that “may — not must — be punishable by death or by confinement in the penitentiary. . . Tex. Penal Code Ann., Art. 47 (Vernon 1925), recodified without substantive change at Tex. Penal Code Ann. § 1.07 (14) (1974). See also W. LaFave & A. Scott, Handbook on Criminal Law 26 (1972).

9 See Ala. Code §§ 13-3-50, 13-3-90 (1975) (1 to 10 years); Alaska Stat. Ann. § 11.20.360 (1970) (1 to 5 years); Ariz. Rev. Stat. Ann. §§ 13-661 (A)(3), 13-663 (A)(1), 13-671 (1956 and Supp. 1957-1978) (1 to 10 years); Ark. Stat. Ann. §§ 41-1901, 41-3907 (1964) (1 to 21 years); Colo. Rev. Stat. §§ 18-4-101, 18-1-105 (1973) (fine or up to 10 years); Del. Code Ann., Tit. 11, §§.841, 843, 4205 (1974) (fine or up to 7 years); D. C. Code § 22-1301 (1973) (1 to 3 years); Fla. Stat. § 811.021 (1965) (fine or up to 5 years); Ga. Code Ann. §§ 26-1803, 26-1812 (1977) (fine or up to 10 years); Ind. Code Ann. §§ 10-3030 (b), 10-3039 (3) (Supp. 1975) (fine of up to 10 years); Kan. Stat. Ann. §§ 21-3701, 21-4501 (1974) (1 to 3 years); Ky. Rev. Stat. §§ 514,040, 532.080 (1975) (1 to 5 years); La. Rev. Stat. Ann. § 14:67- (West 1974) (up to 2 years); Me. Rev. Stat. Ann., Tit. 17, § 1601 (1965) (fine or up to 7 years); Md. Ann. Code, Art. 27, § 140 (1957) (fine or up to 10 years); Mass. Gen. Laws Ann., ch. 266, § 30 (West 1970) (fine or up to 5 years); Mich. Comp. Laws § 750.218 (1968) (fine or up to 10 years); Minn. Stat. § 609.52 (Supp. 1978) (fine or up to 5 years); Miss. Code Ann. § 97-19-39 (1972) (fine or up to 3 years); Mont. Rev. Code Ann. §§ 94-2701 (1), 94-2704(1), 94-2706 (1947) (1 to 14 years); Nev. Rev. Stat. §§ 205.380, 205.380(1) (1977) (fine or 1 to 10 years); N. H. Rev. Stat. Ann. §§ 637:4 (I), 637:11 (II) (a), 651:2 (1974) (fine or up to 7 years); N. C. Gen. Stat. § 14-100 (1969) (fine or 4 months to 10 years); N. D. Cent. Code §§ 12.1-23-02, 12.1-23-05 (2) (a), 12.1-32-01 (3) (1976) (fine or up to 5 years); Ohio Rev. Code Ann. § 2911.01 (Supp. 1974) (1 to 3 years), committee comment following Ohio Rev. Stat. Ann. § 2913.02 (1975); OHa. Stat., Tit. 21, §§ 1541.1, 1541.2 (Supp. 1979-1980) (fine or 1 to 10 years); S. D. Comp. Laws Ann. §§22-37-1, 22-37-2, 22-37-3 (1969) (up to 10 years); Tenn. Code Ann. §§ 39-1901, 39-4203, 39-4204 (1975) (3 to 10 years); Tex. Penal Code Ann., Arts. 1410, 1413, 1421 (Vernon 1925) (2 to 10 years); Utah Code Ann. §§ 76-3-203 (3), 76-6-405, 76-6-412 (1978), and accompanying Compiler’s Note (up to 5 years); Vt. Stat. Ann., Tit. 13, § 2002 (1958) (up to 10 years); Va. Code §§ 182-178, 18.2-95 (1975) (fine or 1 to 20 years); Wash. Rev. Code Ann. §§ 9.54.010 (2), 9.54.090 (6) (1974) (up to 15 years); W. Va. Code §§ 61-3-24, 61-3-13 (1977) (1 to 10 years); Wis; Stat. Ann. § 943.20 (1958) (fine or up to 5 years); Wyo. Stat. § 6-3-106 (1977) (up to 10 years).

10 In 1969, Rummers passing of a forged check would have been punishable by imprisonment in 49 States and the District of Columbia, even though the amount in question was only $28.36. See Ala. Code, Tit. 14, §§ 199,207 (1958) (1 to 20 years); Ariz. Rev. Stat. Ann. § 13-421 (Supp. 1957-1978) (1 to 14 years); Ark. Stat. Ann. § 41-1806 (1964) (2 to 10 years); Cal. Penal Code Ann. §§ 470, 473 (West 1970) (up to 14 years); Colo. Rev. Stat. § 40-6-1 (1963) (1 to 14 years); Conn. Gen. Stat. § 53— 346 (1968) (up to 5 years); Del. Code Ann., Tit. 11, §§ 861, 4205 (1974) (fine or up to 7 years); D. C. Code § 22-1401 (1973) (1 to 10 years); Fla. Stat. §§ 831.01, 831.02 (1965) (fine or up to 10 years); Ga. Code Ann. §26-1701 (1977) (1 to 10 years); Haw. Rev. Stat. §§ 743-9, 743-11 (1968) (fine or up to 5 years’ hard labor); Idaho Code §§ 18-3601, 18-3604 (1948) (1 to 14 years); Ill. Rev. Stat., ch. 38, § 17-3 (1971) (fine and/or 1 to 14 years); Ind. Code § 10-2102 (1956) (2 to 14 years plus fine); Iowa Code § 718.2 (1950) (fine or up to 10 years); Kan. Stat. Ann. §§ 21-609, 21-631 (1964) (up to 10 years’ hard labor); Ky. Rev. Stat. § 434.130 (1962) (2 to 10 years); La. Rev. Stat. Ann. § 14:72 (West 1974) (fine or up to 10 years’ hard labor); Me. Rev. Stat. Ann., Tit. 17, § 1501 (1965) (up to 10 years); Md. Ann. Code, Art. 27, § 44 (1957) (1 to 10 years); Mass. Gen. Laws Ann., ch. 267, § 5 (West 1970) (2 to 10 years); Mich. Comp. Laws § 750.253 (1968) (fine or up to 5 years) ; Minn. Stat. § 609.625 (3) (1964) (fine or up to 10 years); Miss. Code Ann. §§ 2172, 2187 (1942) (2 to 15 years); Mo. Rev. Stat. § 561.011 (1969) (fine or up to 10 years); Mont. Rev. Code Ann. §§ 94-2001, 94-2044 (1947) (1 to 14 years); Neb. Rev. Stat. § 28-601 (1943) (1 to 20 years plus fine); Nev. Rev. Stat. § 205.090 (1959) (1 to 14 years); N. H. Rev. Stat. Ann. §§ 581:1, 581:2 (1955) (up to 7 years); N. J. Stat. Ann. §§ 2A: 109-1, 2A:85-6 (West 1969) (fine or up to 7 years); N. M. Stat. Ann. §§ 40A-16-9, 40A-29-3 (C) (Supp. 1963) (fine or 2 to 10 years); N. Y. Penal Law §§ 70.00 (2)(d), 170.10, 170.25 (McKinney 1967 and 1975) (up to 7 years); N. C. Gen. Stat. § 14-120 (1969) (4 months to 10 years); N. D. Cent. Code §§ 12-39-23, 12-39-27 (1960) (up to 10 years); Ohio Rev. Code Ann. § 2913.01 (1954) (1 to 20 years); Okla. Stat., Tit. 21, §§ 1577, 1621 (2) (1958) (up to 7 years); Ore. Rev. Stat. §§ 165.105, 165.115 (Supp. 1967) (up to 10 years); Pa. Stat, Ann., Tit. 18, § 5014 (Purdon 1963) (fine or up-to 10 years); R. I. Gen. Laws § 11-17-1 (1956) (fine or up to 10 years); S. C. Code § 16-13-10 (1976) (1 to 7 years plus.fine); S. D. Comp. Laws Ann. §§ 22-39-14, 22-39-17 (1967) (fine or up to 5 years); Tenn. Code Ann. §§ 39-1704, 39-1721, 39-4203, 39-4204 (1955 and Supp. 1974) (1 to 5 years); Tex. Penal Code Ann., Art. 996 (Vernon 1925) (2 to 5 years); Utah Code Ann. §§ 76-26-1, 76-26-4. (1953) (1 to 20 years); Vt. Stat. Ann., Tit. 13, § 1802 (1958) (fine or up to 10 years); Va. Code § 18.1-96 (1960). (up to 10.years); Wash. Rev. Code Ann. §§ 9.44.020, 9.44.060 (1956) (up to 20 years); W. Va. Code § 61-4-5 (1966) (up to 10 years); Wis. Stat. Ann. § 943.38 (1958) (fine or up to 10 years); Wyo. Stat. § 6-2-101 (1977) (up to 14 years).

In 1964, at least five of the States that had specific statutes covering credit-card fraud authorized terms of imprisonment for a crime like Rummel’s. See Cal. Penal Code Ann, § 484a (b) (6) (Deering Supp. 1964), § 18 (Déering 1960) (up to 5 years); Kan. Stat. Ann. §§ 21-533, 21-534, 21-590 (1964) (up to 5 years’ hard labor); 1963 Oré. Laws, ch. 588, § 3 (6) (up to 5 years); Tex. Penal Code Ann., Art. 1555b (Vernon Supp. 1973) (2 to 10 years); Va. Code § 18.1-119.1 (Supp. 1964) (up to 10 years). A number of other States, while lacking specific statutes dealing with credit-card fraud, apparently authorized an equivalent degree of punishment for such a crime under their general fraud provisions. See, e. g., Ala. Code, Tit. 14, §§ 209, 331 (1958 and Supp. 1973) (1 to 10 years); Mont. Rev. Code Ann. §§ 94-1805, 94-2704 (1), 94-2706 (1947) (1 to 14 years); N. H. Rev. Stat. Ann. § 580:1 (1955) (fine or up to 7 years); N. C. Gen. Stat. § 14-100 (1953) (fine or up to 10 years); N. D. Cent. Code § 12-38-04 (1960) (fine or up to 3 years); Tenn. Code Ann., §§ 39-1901, 39-4203, 39-4204 (1955 and Supp. 1974) (1 to 5 years); Vt. Stat. Ann., Tit. 13, § 2002 (1958) (fine or up to 10 years). After 1964, at least two other States adopted specific statutes dealing with credit-card fraud and authorizing imprisonment for crimes like Rummers. See Idaho Code §§ 18-112, 18-3113, 18-3119 (1979) (fine or up to 5 years); Wash. Rev. Code Ann. § 9.26A.040 (1972) (up to 20 years).

11 This is not to say that a proportionality principle would not come into play in the extreme example mentioned by the dissent, post, at 288, if a legislature made overtime parking a felony punishable by life imprisonment.

12 See Transcript of Record in Graham, v. West Virginia, O. T. 1911, No. 721, pp. 4, 5, 9.

13 While at the time this Court decided Graham the Eighth Amendment’s proscription against cruel and unusual punishments had not been held applicable to the States through the Fourteenth Amendment, see, e. g., Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 462 (1947) (plurality opinion), earlier cases had assumed, without deciding, that the States could not inflict cruel and unusual punishments. See, e. g., Howard v. Fleming, 191 U. S. 126, 135-136 (1903); McDonald v. Massachusetts, 180 U. S. 311, 313 (1901). Graham’s reference to Howard, McDonald, and other cases indicates that it followed a similar course. See 224 U. S., at 631.

14 Rummel characterizes Graham as a case where petitioner argued only that imposition of a life sentence under West Virginia’s recidivist statute was, per se, a violation of the Eighth Amendment. See Brief for Petitioner 18-19, n. 6. We do not share that reading. The brief submitted on Graham’s behalf clearly attacked the alleged disproportionality of his sentence. See Brief for Plaintiff in Error in Graham v. West Virginia, O. T. 1911, No. 721, pp. 37-38. The brief on behalf of the State of West Virginia, moreover, expressly assumed that Graham was arguing that “the sentence in this case is so disproportionate to the offense as to be cruel and unusual.” Brief for Defendant in Error in Graham v. West Virginia, supra, at 19.

15 Texas courts have interpreted the recidivist statute as requiring not merely that the defendant be convicted of two prior felonies, but also that he actually serve time in prison for each of those offenses. See Cromeans v. State, 160 Tex. Crim. 135, 138, 268 S. W. 2d 133, 135 (1954).

16 As the statute has been interpreted, the State must prove that each succeeding conviction was subsequent to both the commission of and the conviction for the prior offense. See Tyra v. State, 534 S. W. 2d 695, 697-698 (Tex. Crim. App. 1976); Rogers v. State, 168 Tex. Crim. 306, 308, 325 S. W. 2d 697, 698 (1959).

17 Thus, it is not true that, as the dissent claims, the Texas scheme subjects a person to life imprisonment “merely because he is a three-time felon.” Post, at 299, n. 18. On the contrary, Art. 63 mandates such a sentence only after shorter terms of actual imprisonment have proved ineffective.

18 See Wash. Rev. Code § 9.92.090 (1976); W. Va. Code § 61-11-18 (1977).

19 See, e. g., Colo. Rev. Stat. § 16-13-101 (1973 and Supp. 1976); Nev. (1977); S. D. Comp. Laws Ann. §§22-6-1, 22-7-8 (Supp. 1978); Wyo. Stat. § 6-1-110 (1977).

20 See, e. g., Miss. Code Ann. § 99-19-83 (Supp. 1979).

21 See, e. g., D. C. Code § 22-104a (1973); Idaho Code § 19-2514 (1979); Okla. Stat., Tit.-21, § 51 (Supp. 1979-1980).

22 Nor do we have another sort of objective evidence found in Coker. After Furman, where the Court had declared unconstitutional the death penalty statutes of all of the States as then applied, a majority of the States had re-enacted the death penalty for killings, but had not done so for rape. In Coker the plurality found this fact of some importance. See 433 U. S., at 594-595. Here, if there was a watershed comparable to Furman, it was Spencer v. Texas, 385 U. S. 554 (1967), which confirmed, rather than undercut, the constitutionality of recidivist statutes. There thus has been no comparable occasion for contemporary expression of legislative or public opinion on the question of what sort of penalties should be applied to recidivists, or to those who have committed crimes against property.

23 See Ariz. Rev. Stat. Ann. § 13-663 (A) (Supp. 1957-1978) (repealed in 1977).

24 See Cal. Penal Code Ann. § 487 (1) (West 1970).

25 See, e. g., Idaho Code §§ 18-4604, 18-4607 (1979).

26 See, e. g., Nev. Rev. Stat. § 205.220 (1973).

27 The dissent draws some support for its belief that Rummel’s sentence is unconstitutional by comparing it with punishments imposed by Texas for crimes other than , those committed by Rummel. Other crimes, of course, implicate other societal interests, making any such comparison inherently speculative. Embezzlement, dealing in “hard” drugs, and forgery, to name only three offenses, could be denominated “property related” offenses, and yet each can be viewed as an assault on a unique set of societal values as defined by the political process. The notions embodied in the dissent that if the crime involved “violence,” see post, at 295-296, n. 12, a more severe penalty is warranted under objective standards simply will not wash, whether it be taken as a matter of morals, history, or law. Caesar’s death at the hands of Brutus and his fellow conspirators was undoubtedly violent; the death of Hamlet’s father at the hands of his brother, Claudius, by poison, was not. Yet there are few, if any, States which do not punish just as severely murder by poison (or attempted murder by poison) as they do murder or attempted murder by stabbing. The highly placed executive who embezzles huge sums from a state savings and loan association, causing many shareholders of limited means to lose substantial parts of their savings, has committed a crime very different from a man who takes a smaller amount of money from the same savings and loan at the point of a gun. Yet rational people could disagree as to which criminal merits harsher punishment. By the same token, a State cannot be required to treat persons who have committed three “minor” offenses less severely than persons who have committed one or two “more serious” offenses. If nothing else, the three-time offender’s conduct supports inferences about his ability to conform with social norms that are quite different from possible inferences about first- or second-time offenders.

In short, the “seriousness” of an offense or a pattern of offenses in modern society is not a. line, but a plane. Once the death penalty and other punishments different in kind from fine or imprisonment have been put to one side, there remains little in the way of objective standards for judging whether or not a life sentence imposed under a recidivist statute for several separate felony convictions not involving “violence” violates the eruel-and-unusual-punishment prohibition of the Eighth Amendment. As Mr. Justice Frankfurter noted for the Court in Gore v. United States, 357 U. S. 386, 393 (1958), “ [w] hat ever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, . . . these are peculiarly questions of legislative policy.”

28 Compare A. Von Hirsch, Doing Justice: The Choice of Punishments, Report of the Committee for the Study of Incarceration 140 (1976); M. Yeager, Do Mandatory Prison Sentences for Handgun Offenders Curb Violent Crime?, Technical Report for the United States Conference of Mayors 25-26 (1976); with E. van den Haag, Punishing Criminals: Concerning a Very Old and Painful Question 158-159, 177 (1975). See generally F. ffimring & G. Hawkins, Deterrence: The Legal Threat in Crime Control 234-241, 245-246 (1973).

29 Compare R. McKay, It’s Time to Rehabilitate the Sentencing Process, An Occasional Paper — Aspen Institute for Humanistic Studies 4-5 (1977); Von Hirsch, supra, at 98-104; with R. Dawson, Sentencing: The Decision as to Type, Length, and Conditions of Sentence, Report of the American Bar Foundation's Survey of the Administration of Criminal Justice in the United States 381, 414 (1969); Yeager, supra, at 25-26. See generally U. S. Dept. of Justice, Determinate Sentencing: Reform or Regression?, Proceedings of the Special Conference on Determinate Sentencing, June 2-3, 1977.

³

J. Holt, Magna Carte 323 (1965).