Criminal Sentencing: Solem v. Helm

The Requirement of Proportionality in
Criminal Sentencing: Solem v. Helm
I.
INTRODUCTION
The Supreme Court has been reluctant to rule that the length of a
criminal sentence violates the eighth amendment's prohibition of cruel
and unusual punishment.1 The Court first directly faced the issue m
the leading case of Rummel v. Estelle.2 In Rummel, the Court held
that a sentence of life imprisonment for the writing of a fraudulent
$100 check was not cruel and unusual punishment.3 The Court seemed
to be indicating that the imposition of a sentence for a term of years,
no matter how long the sentence and how minor the 4 offense, was a
determination only to be made by a state's legislature.
In a recent change, however, the Supreme Court in Solem v. Helm5
invalidated a sentence of life imprisonment without parole that was
imposed upon the defendant after he had written a fraudulent $100
check.' The Court reasoned that the absence of the possibility of parole eligibility distinguished the case from Rummel.7 The Court, however, in invalidating the sentence, used a legal standard that had been
expressly rejected just three years earlier in the Rummel decision.8
The adoption of the new legal standard will influence sentencing in
at least two ways. First, the Solem decision will continue to affect the
use of recidivist statutes.9 Such statutes impose long terms of confinement on repeat offenders, even if a defendant's offenses are relatively
1. See infra notes 18-54 and accompanying text which indicate that during the seventy years between Weems v. United States, 217 U.S. 349 (1910), where the Supreme
Court first invalidated a sentence in part because it was disproportionate until Rummel
v. Estelle, 445 U.S. 263 (1980), the Court neither fully embraced nor rejected the concept
that a sentence must be proportioned to the crime.
2. 445 U.S. 263 (1980).
3. Id. at 274.
4. The Court, however, admitted that in an extreme case a sentence could be found
unconstitutional, but created no legal standard to help determine when such an extreme
case would appear. Id. at 274 n.1.
5. 103 S. Ct. 3001 (1983).
6. See Id. at 3005.
7. Id. at 3013. The Court did this while noting that there was no right to parole.
8. See infra notes 65-72 and accompanying text.
9. See infra notes 121-137 and accompanying text. It should be noted that both Solem
and Rummel involved the use of recidivist statutes.
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SOLEM v. HELM
minor. 10 The standard used in Solem will have to be employed by
courts in the future to determine the constitutionality of sentences inposed pursuant to recidivist statutes."'
Second, the Solem decision will also have an impact on the recent
movement to determinate sentencing." This will be especially true
when legislatures impose long mandatory sentences in an attempt to
reduce crime.' 3
II.
HISTORICAL BACKGROUND
I
A. Development of a Legal Standard
The concept that punishment must be proportioned to the crime
committed is not new to Anglo-American law. 14 In 1215 the Magna
Charta contained a provision which stated that fines could not be excessive. 15 Later, the English Bill of Rights stated "excessive Bails ought
not to be required nor excessive fines imposed nor cruell and unusuall
Rights
Punishments inflicted."" The mandate of the English Bill of
7
was embodied in the eighth amendment of the Constitution.'
The Supreme Court first invalidated a sentence because it was disproportionate in Weems v. United States. 8 In Weems a Philippine
government official was found guilty of falsifying an official document
10. See infra note 123 and accompanying text which states that one justification for
the use of recidivist statutes is the incapacitation of repeat offenders.
11. See infra notes 121-137 and accompanying text.
12. See generally Orland, From Vengeance to Vengeance: Sentencing Reform and the
Demise of Rehabilitation,7 HOFSTRA L. Rlv. 29 (1978) (experts and the public in general
came to the conclusion in the 1970's that rehabilitation was a failure, creating support
for the recent movement to determinate sentencing).
13. See infra notes 138-144 and accompanying text.
14. See Granucci, "Nor Cruel and Unusual Punishments Inflicted"- The Original
Meaning, 57 CAL. L. REV. 839 (1969). (English law had long required that punishments
be proportionate to the crime).
15. Solem, 103 S. Ct. at 3006.
16. 1 W & M., Ses. 2 ch. 2 (1689), quoted in Solem, 103 S. Ct. at 3006.
17. Granucci, supra note 14, at 942 in which the author states that the English Bill of
Rights was intended to require punishments be proportioned to the crime. The American
belief that the Eighth Amendment only prohibited unusual forms of punishments was
based on a misreading of English history. But see Schwartz, Eighth Amendment Proportional Analysis and the Compelling Case of William Rummel, 71 J. OF CRIM. LAW &
CRIMINOLOGY 378 (1980) where the author argues that the English Bill of Rights was
never intended to require proportionate sentences. This is especially evident when it is
realized that by 1800 there were almost 200 crimes that could receive capital punishment. Therefore, there was never any intent on the part of the Americans to adopt the
meaning of the English law.
18. 217 U.S. 349 (1910).
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and was sentenced to Cadena Temporal. Cadena Temporal was a punishment that involved being kept in chains for 12 years while being
forced to do heavy labor."9 The Court held that the sentence was cruel
and unusual. The decision was based in part on the extraordinary nature of the sentence. 20 The Court held "it is a precept of justice that
punishment for crime should be graduated and proportioned to [the]
21
offense."
More recently the Supreme Court invalidated a California statute
22
that made addiction to drugs an offense in Robinson v.California.
The Court noted, "even one day in prison would be cruel and unusual
punishment for the 'crime' of having a common cold."' 2 3 In a concurring
opinion Justice Douglas added, "a punishment out of all proportion to
the offense may bring it within the ban against 'cruel and unusual
punishment.' ,,24
Both Weems and Robinson showed that it was possible for a sentence to violate the eighth amendment. Neither case, however, developed any legal standard to aid lower courts in determining when a sentence would be cruel and unusual. The Supreme Court in Coker v.
Georgia25 attempted to provide such a standard. The Court in Coker
invalidated a statute that imposed the death penalty for the crime of
rape.2' The Court held that the eighth amendment bars sentences
19. Id. at 364. The Court, in describing cadena temporal, stated "'those sentenced to
shall labor for the benefit of the state. They shall always carry a
cadena temporal
chain at the ankle, hanging from the wrists; they shall be employed at hard and painful
labor, and shall receive no assistance whatsoever from without the institution'" (citation
omitted). Id. The sentence also included life long disqualifications after the 12 year period was over such as, "'rights of parental authority, guardianship of person or property,
participation in the family council, marital authority, the adminstration of property, and
the right to dispose of his own property by acts inter vwos.'" Id.
20. Id. The Court did not say the sentence was unconstitutional because of its length
or because of the accessories included within the 12 year sentence. The Court held that it
was the combination of the two that made the sentence unconstitutional. The Court
stated, "[tlhe Philippine code unites the penalties of cadena temporal, principle and ac"Id. at 382.
cessory, and it is not our power to separate them.
21. Id. at 367.
22. 370 U.S. 660 (1961). The Court noted that drug addiction was an illness. Since it
would be unlikely that a state would attempt to make "it a criminal offense for a person
to be mentally ill, or a leper, or to be afflicted with venereal disease," the Court felt that
it was just as unthinkable that a defendant would be found guilty simply of being a drug
addict. Id. at 666.
23. Id. at 667.
24. Id. at 676.
25. 433 U.S. 584 (1977).
26. Id. at 587. The defendant, a convicted murderer and rapist, escaped from prison
and robbed and raped his victim at knife point.
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SOLEM v. HELM
"that are 'excessive' in relation to the crime committed." 7 The Court
held a punishment was unconstitutional if "it (1) makes no measurable
contribution to acceptable goals of punishment and hence is nothing
more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. ' 28
The Court also stressed that the determination of the unconstitutionality of a sentence must be made with objective factors. Public and legislative attitudes as well as the history of certain punishments for certain
crimes were to be used in objectively determining unconstitutionality. 29
The Court, however, backed away from its broad language in Coker
The first prong was never successfully applied, due to the Court's ac30
The second prong
ceptance of retribution as a goal of punishment.
31
cases.
capital
in
only
apply
to
was interpreted
In response to the lack of guidance by the Supreme Court, the Federal Court of Appeals in the Fourth Circuit developed its own standard
for determining whether a sentence violated the eighth amendment. In
Hart v. Coiner32 the court of appeals found a West Virginia recidivist
statute violative of the eighth amendment as applied to the defendant
Hart.33 On Hart's third felony conviction he was sentenced to life imprisonment under the West Virginia recidivist statute.3 4 Hart's offenses
included attempting to cash a stolen $50 check,3 5 transporting a stolen
27. Id. at 592. The Court states, "[w]e have concluded that a sentence of death is
grossly disproportionate and excessive punishment for the crime of rape and is therefore
forbidden by the Eighth Amendment as cruel and unusual punishment." Id.
28. Id. The Court states that if the punishment fails either part of the test it is
unconstitutional.
29. Id.
30. See Gregg v. Georgia, 428 U.S. 153, 183 (1976) m which the Court states, "the
When people begin to believe
instinct for retribution is part of the nature of man.
that organized society is unwilling or unable to impose upon criminal offenders the pun" (citation omitted).
ishment they 'deserve' then there are sown the seeds of anarchy.
The Court also noted that while the policy of retribution is not currently the central
focus of American penal institutions, "neither is it a forbidden objective nor one mconsistent with our respect for the dignity of man." Id. at 183 (citation omitted). It, therefore, seems apparent that the Supreme Court is willing to endorse a punishment even if
its only justification is retribution, making it difficult to imagine when a form of punishment could not make a "measurable contribution to acceptable goals of punishment"
under the Coker test. See Coker, 433 U.S. at 592.
31. See infra note 61 and accompanying text.
32. 483 F.2d 136 (4th Cir. 1973), cert denied, 415 U.S. 983 (1974).
33. Id. at 139.
that
34. See W. VA. CODE § 61-11-18 (1977) which states, "[w]hen it is determined
such person shall have been twice before convicted in the United States of a crime punishable by confinement in a penitentiary, the person shall be sentenced to be confined in
the penetentiary for life."
35. See Hart, 483 F.2d at 183 n.1, in which the court states, "[t]his amount is the
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check worth $140 across state lines, and perjury. 6
In determining that the sentence was cruel and unusual the court
used four criteria. First, the court analyzed the nature of the crime
itself.3 7 It reasoned that the presence or threat of violence would be a
major factor in determining whether a sentence was disproportionate.
The court concluded that all of Hart's offenses were nonviolent.38
Second, the court examined the legislative purpose behind the punishment.3 9 The state argued that the deterring of other repeat offenders from committing more crimes and the protection of society from
habitual offenders were rational justifications for the life sentence.40
The court, however, in rejecting the state's argument employed a legal
standard used by Justice Brennan in Furman v. Georgia.41 The court
stated, "[i]f 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." 42 The court held that
statutory cut-off point. Had the check been in the amount of $49.99, Hart could not have
been given a life sentence." His punishment would have been limited to "not less than
five nor more than 60 days" imprisonment. Id.
36. Id. at 138. The court noted that the offense of perjury was a serious crime, but
because it was incurred during the murder trial of his son it was an understandable
action.
37. Id. at 140.
involved violence or danger of violence
38. Id. at 141. "[Nlone of Hart's offenses
toward persons or property." Id.
39. Id. at 141.
40. Id. The court reasoned that if the states only justification for the life sentence was
that it deterred other minor offenders, then the penalty of death would be mandated
because it would deter even more offenders. The court also noted, "[tIradition, custom
and common sense reserve [life imprisonment] for those violent persons who are dangers
Aside from the proportionality principle, there aren't enough prisons in
to others
America to hall all the Harts that afflict us." Id.
41. 408 U.S. 238, 279 (1972).
42. Hart, 483 F.2d at 141, quoted in, 408 U.S. 238, 279 (1972). This is the only criterion of the Hart analysis that was not used by the Supreme Court in Solem. The Court
in Solem never states why this standard was not used, but in Rummel v. Estelle, 587
F.2d 651, 661, quoting Wheeler, Toward a Theory of Limited Punishment 11: The
Eighth Amendment after Furman v. Georgia, 25 STANFORD L. REv. 62, 77-78 (1972) the
court stated that its reason for rejecting the use of this criterion was:
The Brennan-Marshall necessity test is even more impractical in other
Eighth Amendment adjudication, where the empirical data and long usage
associated with capital punishment are absent. If a convict were to challenge the length of his prison sentence or the length of the statutory maximum as being unnecessary to deter potential criminals from committing the
same crime he committed, I am convinced that the government could never
show that 10 years' imprisonment deters more effectively than 5 years' imprisonment or that one year in jail deters more effectively than a $500 fine.
Id. The criterion was used, however, in State v. Calendine, 233 S.E.2d 318, (Tenn. 1977).
1985]
SOLEM v. HELM
the punishment of life imprisonment was unnecessary4 3to deter future
recidivists or to protect society from repeat offenders.
Third, the court examined how similar crimes were treated in other
jurisdictions. 44 The court concluded that very few states treated a similar crime so severely.45 The court reasoned that the failure of other
jurisdictions to impose a similar penalty for a similar crime 46was a
strong indication of their belief that the penalty was excessive.
Finally, the court made a comparison of punishments available in
that only the
the same jurisdiction for other offenses. 47 The court held
48
most serious crimes were subject to life imprisonment.
The court believed that all four criteria were capable of objective
verification. 49 For instance, the first criterion for deciding whether the
crime was violent or nonviolent was determinable from the statute.
The second criterion for examining the legislative purpose behind the
punishment could be determined by a consideration of other possible
means of achieving the desired ends. The third and fourth factors both
involved a comparison between the challenged sentence and comparable sentences in the same and other jurisdictions. The court believed
that the test was sufficiently objective to satisfy the requirement in
Coker that a sentence could only be ruled disproportionate by objective factors.5 The court also noted that each of the four criteria of the
test were originally used in earlier Supreme Court decisions.5 After
In Calendine the defendant was a 16 year old who was placed in a forestry camp for boys
after having been adjudged a delinquent because he missed 50 days of school. Defendant
had missed the school because he lived in a rural part of the state and had trouble getting to school in the winter. The defendant also had a facial deformity and was slightly
retarded which caused him to be ridiculed in class. The court noted, "[p]etitioner was
nearly 16 at the time he was adjudged delinquent for truancy, and he was ordered incarcerated for almost a year past the legal age when school attendence is required." Id. at
322. Because of this apparent inconsistency, the court was "unable to discern any rational connection between the legitimate purposes of enforcing family discipline, protecting children, and protecting society from uncontrolled children and the incarceration of
[this defendant] in prison facilities, along with children guilty of criminal conduct." Id.
at 330.
43. Hart, 483 F.2d at 141.
44. Id. at 142.
provide life imprisonment as the
45. Id. "Indiana, Kentucky and Texas
mandatory sentence to be imposed upon conviction of any three felonies." Id. at 141.
46. Id. at 142.
47. Id.
48. Id. Under West Virginia law a mandatory sentence of life imprisonment would be
imposed for first degree murder, rape and kidnapping.
49. Id. at 143.
50. See supra note 29 and accompanying text.
51. See Furman v. Georgia, 408 U.S. 238, 325 (1972) (Marshall, J., concurring) (first
factor); Id. at 280, 300 (Brennan, J., concurring) (second factor); Weems, 217 U.S. at 381
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applying the test the court held that the sentence of life imprisonment
was disproportionate to Hart's crime.52
The Hart analysis soon won acceptance in several states.5 3 The standard, however, was not tested by the Supreme Court until Rummel v.
Estelle.
B.
Rejection of the Hart Standard
In Rummel, the defendant had been found guilty of several minor
offenses54 and was sentenced to life imprisonment under a Texas recidivist statute. 5 Rummel filed for habeas corpus relief 6 which was first
granted by the court of appeals '7 and then rejected by the court sitting
(fourth factor).
52. Hart, 438 F.2d at 143.
53. See State v. Vance, 262 S.E.2d 423 (W Va. 1980) (crime of breaking and entering
carries the possibility of violence so proportionality analysis doesn't apply); Metheny v.
State, 589 S.W.2d 943 (Tenn. 1979) (assault with intent to commit rape and taking goods
in excess of $100 are neither minor nor nonviolent and, therefore, will not satisfy first
Hart criterion); State v. Freitas, 61 Hawaii 262, 602 P.2d 914 (1979) (first degree burglary involves the potential for violence and, therefore, first Hart criterion not satisfied);
Opinion of the Justices to the House of Representatives, 378 Mass. 822, 393 N.E.2d 313
(1979) (statute imposing a mandatory 25 year sentence for drug trafficking was constitutional under Hart analysis); Martin v. Leverette, 244 S.E.2d 39 (W Va. 1978) (first Hart
criterion will not be satisfied because of the presence of violence in burglary and robbery
offenses); Mullins v. State, 571 S.W.2d 852 (Tenn. 1978) (defendant's five previous convictions of burglary are more serious than the previous convictions in Hart making life
sentence constitutional); Stockton v. Leeke, 269 S.C. 459, 237 S.E.2d 896 (1977) (sentence of 10 years for safe cracking is constitutional under the first Hart factor even
though some violent crimes have shorter maximum sentences); State v. Remmers, 259
N.W.2d 779 (Iowa 1977) (70 year sentence for second degree murder not unconstitutionally disproportionate under Hart analysis); State v. Calendine, 233 S.E.2d 318 (Tenn.
1977) (delinquency adjudication for missing 50 days of school unconstitutional under
Hart's second factor); Simmons v. State, 264 S.C. 432, 215 S.E.2d 883 (1975) (life unprisonment for death inflicted by reckless use of an automobile is disproportionate under
third Hart factor).
54. 445 U.S. 263 (1980). The crimes included use of a stolen credit card and forging
checks. The total money value of his crimes were less than $250.
55. See TEx. PENAL CODE ANN. § 12.42(d) (Vernon 1974) which states, "[i]f it be shown
on the trial of any felony offense that the defendant has previously been finally convicted
of two felony offenses, and the second previous felony conviction is for an offense that
occurred subsequent to the first previous conviction having become final, on conviction
he shall be punished by confinement in the Texas Department of Corrections for life."
56. The district court denied Rummel's application for a writ of habeas corpus without a hearing. Rummel v. Estelle, 568 F.2d 1193, 1195 (5th Cir. 1978).
57. See Rummel v. Estelle, 568 F.2d 1193 (5th Cir. 1978) in which the court employed
all four Hart factors and found the sentence to be unconstitutionally disproportionate.
The court stated, "that imposing a life sentence for these three crimes is so grossly disproportionate to the offenses as to constitute cruel and unusual punishment.
"Id. at
1985]
SOLEM v. HELM
en banc.5 8 Rummel appealed the decision to the Supreme Court.5 9
Justice Rehnquist writing for the majority affirmed the lower court
decision. The Court distinguished Coker from Rummel noting that
Coker was a death penalty case. 0 It held that, "[b]ecause a sentence of
death differs in kind from any sentence of imprisonment, no matter
how long, our decision applying the prohibition of cruel and unusual
punishments to capital cases are of little assistance [here]." i The
Court also distinguished Weems, holding that the sentence was found
unconstitutional because of "the extraordinary nature of the 'accessories' included within the punishment of Cadena Temporal."6 2 The
Court further stated, "one could argue without fear of contradiction by
the length of the sentence actually
any decision of this court that
imposed is purely a matter of legislative prerogative."63
6 4
the Supreme Court in a per curiam decision clarIn Hutto v. Davts
ified the effect the Rummel decision was supposed to have on the Hart
standard. In Hutto the court of appeals granted a writ of habeas
1200.
58. See Rummel v. Estelle, 587 F.2d 651 (5th Cir. 1978) (en Banc) in which the court
agreed that a sentence could be unconstitutional because of its length alone. The court
also agreed that three of the four prongs of the Hart test was the proper standard. The
court, however, stated, "we hold that a punishment must be viewed as it occurs in the
real world. We will consider the system as it actually works and we will not pass on
academic possibilities." Id. at 655. Because of this the court stated that it would not
consider whether his actual sentence was constitutional but whether the term he was
likely to spend in prison was constitutional. The time the defendant was likely to spend
in jail would be computed by the availability of good time policies and parole. The court
determined that the average amount of time a prisoner sentenced to life imprisonment
would spend in prison in Texas was 12 years. The court reasoned that when applying the
Hart standard a 12 year sentence was not unconstitutionally disproportionate to defendant's crimes. Id. at 655-60.
59. Rummel v. Estelle, 441 U.S. 960 (1979).
60. Id. at 275. The court noted, "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 punishIThis line was considerably clearer than
ments short of the ultimate sanction.
would be any constitutional distinction between one term of years and a shorter or
longer term of years. Id.
61. Rummel, 445 U.S. at 272.
62. Id. at 273. The Court further stated the, "finding of disproportionality cannot be
wrenched from the extreme facts of that case." Id. The Court also felt that because the
punishment in Weems was so different from the type of punishments common in England and America there was little trouble in distinguishing it from the more normal Anglo-American punishments. This difference, the Court believed, made it possible to rule
the sentence in Weems unconstitutional by more than just the subjective opinion of the
justices.
63. Id.
64. 454 U.S. 370 (1982).
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corpus for a defendant who was sentenced to 40 years for possession
with intent to sell nine ounces of marijuana.65 The court of appeals
used the Hart standard in granting the writ.6 The Supreme Court in a
per curiam decision reversed the lower court. The Court held that Hart
"was implicitly disapproved by our rejection of the dissenter's view [in
Rummel]. Not only did we expressly recognize Hart as the primary
opposing authority' 67
but our opinion also disapproved of its four
'objective' factors.
The Court held that the first Hart factor of looking at the nature of
the crime itself was inappropriate. "In Rummel
we noted that the
presence or absence of violence does not always affect the strength of
society's interest in deterring a particular crime.
"68 In the use of
Hart's third factor, which involved a comparison of the punishment in
other states to the contested punishment, the Court stated, "[w]e rejected such comparison in Rummel
[since] some States will always
bear the distinction of treating particular offenders more severely than
any other state."' The Court also criticized the lower court's use of the
fourth Hart factor which involved a comparison of similar sanctions for
other crimes inside the same jurisdiction. The Court held that Rummel
rejected such a comparison because different societies will view the severity of crimes differently. Therefore any attempt by a court to compare the seriousness of one crime to another would be little more than
speculation.7 0 It is therefore apparent that the majority in Rummel and
Hutto rejected the use of the Hart analysis.71
The Court in Rummel, however, noted that proportionality would
come into play "in an extreme example
[such as when] a legisla65. Id. at 370-71.
66. See Davis v. Davis, 585 F.2d 1226 (4th Cir. 1978).
67. Hutto, 454 U.S. at 373.
68. Id. at 373-74 n.2 (citing Rummel, 445 U.S. at 275).
69. Id. at 374 n.2 (citing Rummel, 445 U.S. at 282).
70. Id. at 374 n.2 (citing Rummel, 445 U.S. at 282 n.27). This is what the Court believes is the great problem with attempting to decide whether one sentence is constitutional and another is unconstitutional. The Court in Rummel v. Estelle states, "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 $20.75 that a jury convicted him of stealing, is
virtually to concede that the lines to be drawn are indeed 'subjective' and therefore
within the province of legislatures, not courts." 445 U.S. at 256-57.
71. In fact the Court strongly attacked the lower court for even using the Hart analysis. The Court states, "[mI]ore importantly, however, the Court of Appeals could be
viewed as having ignored, consciously or unconsciously, the hierarchy of the federal court
system created by the Constitution and Congress.
[U]nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the
lower federal courts no matter how misguided the judges of those courts may think it
be." Id. at 375.
1985]
SOLEM v. HELM
ture made overtime parking a felony punishable by life imprisonment. 17 2 The Court held that this case did not pose such a situation
because Rummel would be entitled to parole in twelve years.7 3 The
Court came to this conclusion although it "agree[d] with Rummel that
treating
his inability to enforce any 'right' to parole preclude[d]
his life sentence as if it were equivalent to a sentence of 12 years. '
The decision in Rummel therefore held that the Hart standard was
inappropriate for eighth amendment analysis and a term of years sentence would be found unconstitutional only in an extreme case. As Justice Powell noted, however, the Court made no attempt at showing
when such a case would be extreme.
Several state courts in response to Rummel used the wording of their
own state constitutions to keep the Hart analysis alive.75 Other jurisdictions, however, held that proportionality no longer existed in eighth
amendment analysis. 76
72. Rummel, 445 U.S. 274 n.11. Justice Powell, however, in dissent noted that while
the Court was rejecting the Hart analysis it was not offering any other legal standard by
which courts would be able to determine when such an extreme example would exist. Id.
at 307 n.25 (Powell, J., dissenting).
73. Id. at 308. Justice Powell in dissent stated that the Court should not hold that
while Rummel had no right to parole the mere possibility of parole was instrumental in
finding his sentence was not grossly disproportionate. Powell stated this was especially
true when it is noted that in June of 1979 the Governor of Texas denied 79% of the
recommendations for parole made by the parole board. Id. at 295 (Powell, J., dissenting).
74. Id. at 280.
75. See State v. Telsee, 425 So.2d 1251 (La. 1983) (40 year sentence for rape unconstitutional under LA. CONsT. art. 1, § 20 which states, "[n]o law will subject any person to
euthanasia, to torture, or to cruel, excessive or unusual punishment."); Harris v. Kastama, 98 Wash.2d 765, 657 P.2d 1388 (1983) (en banc) (20 year sentence for sexually
abusing a child unconstitutional under Hart analysis and WASH. CONST art. I, § 14 which
states, "[e]xcessive bail shall not be required,
nor cruel punishment inflicted.");
Wainstreet v. Bordenkircher, 276 S.E.2d 205 (W Va. 1981) (life imprisonment under a
recidivist statute unconstitutional under Hart test and W. VA. CONST. art. III § 5 which
states "penalties shall be proportioned to the character and degree of the offense.");
State v. Mulalley, 127 Ariz. 92, 618 P.2d 586 (1980) (although Hart analysis still valid
under Arizona constitution, two mandatory life sentences for deadly assault by a prisoner is not cruel and unusual punishment); State v. Fain, 94 Wash.2d 387, 617 P.2d 720
(1980) (life sentence under a recidivist statute for 3 convictions of fraud totalling $470 is
cruel and unusual punishment under the Washington constitution and Hart standard).
76. See State v. Goodrick, 102 Idaho 811, 641 P.2d 998, (1982). The defendant claimed
that being charged with intent to sexually assault a woman which carried a 14 year maximum sentence was cruel and unusual punishment because the maximum sentence for
having committed the assault was 5 years. The court disagreed with the argument that
"the Eighth Amendment
requires proportionality and prohibits a greater penalty for
a lesser included offense than the maximum penalty for a greater offense." Id. at 814,
641 P.2d at 1001. See also Fowler v. Parratt, 682 F.2d 746 (8th Cir. 1982) in which a 15
year sentence under a recidivist statute for issumg a check for insufficient funds and
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III. Solem v. Helm: ACCEPTANCE
OF THE
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Hart STANDARD
Rummel, however, would not be the Supreme Court's last word on
proportionality in eighth amendment analysis. The Supreme Court77
again looked at the validity of the Hart standard in Solem v. Helm.
A. Statement of the Case
In 1979, Helm was arrested for writing a $100 check for which he
had no valid account. 78 The crime was committed after Helm had been
drinking heavily. Helm testified, "I knew I'd done something I didn't
,,79
I was drinking and didn't remember
know exactly what
8
0
Helm pleaded guilty to the crime
Helm had previously been found guilty of six other felonies. Helm's
convictions included three third-degree burglaries,"' obtaining money
under false pretenses, grand larcen3 2 and third-offense driving while
intoxicated. The common thread in these crimes was a lack of violence" and the presence of alcohol.
The maximum sentence for writing a "no account" check is normally
five years.8 4 However, due to Helm's former convictions he was sentenced pursuant to South Dakota's recidivist statute.8 5 The statute rethree other offenses is not unconstitutional. "The Supreme Court rejected the petitioners
Weems-based proportionality argument." Id. at 752.
77. 103 S. Ct. 3001 (1983).
78. Id. at 3005.
79. Id. (quoting State v. Helm, 287 N.W.2d 497, 501 (S.D. 1980).
80. Id.
81. See Id. at 3004 n. 1 (quoting S.D. COMP. LAWS ANN. § 22-32-8 (1967) (repealed
1976) which states "[a] person breaking into a dwelling house in the nighttime with mtent to commit a crime but under such circumstances as do not constitute burglary m
the first degree is guilty of burglary in the third degree." But see Solem, 103 S.Ct. at
3013 n.23 (Burger, J., dissenting), where the statute is criticized for encompassing the
"entering a building with intent to steal a loaf of bread."
82. See Solem, 103 S. Ct. at 3004 n.3 (quoting S.D. COMP. LAWS ANN. 2-37-2 (1967)
(repealed 1976) "Grand larceny is larceny committed in any of the following cases: (1)
When the property taken is of a value exceeding fifty dollars; (2) When the property,
although not of a value exceeding fifty dollars, is taken from the person of another; (3)
When such property is livestock." Id. But see Solem, 103 S. Ct. 3013 n.23 (Burger, J.,
appears that the grand larceny statute
dissenting), where Justice Burger states, "li]t
would have covered the theft of a chicken."
83. Solem, 103 S. Ct. at 3023 (Burger, J., dissenting) in which Burger argues that both
the burglaries and the drunk driving convictions "had the potentialities for violence."
84. See S.D. CODIFIED LAWS ANN. 22-6-1(7) (Supp. 1982).
85. S.D. CODIFIED LAWS ANN. 22-7-8(1979) (amended 1981). "When a defendant has
been convicted of at least three prior convictions in addition to the principle felony, the
sentence for the principle felony shall be enhanced to the sentence for Class 1 felony."
Id.
19851
SOLEM v. HELM
quired that when anyone convicted of three previous felonies is convicted for a fourth felony, the sentence "shall be enhanced to the
sentence for a class 1 felony." 88 Pursuant to this statute, Helm received
the maximum sentence for a class I felony, which was life imprisonment. South Dakota law also provided that "a person sentenced to life
imprisonment is not eligible for parole by the Board of Pardons or Paroles."'8 7 Therefore Helm's $100 bad check resulted in a sentence of life
imprisonment without parole. Helm's only possible relief would have
been commutation of the sentence by the governor. 8
Helm's request for commutation was denied and he applied for
habeas corpus relief in federal court.8" The writ was granted by the
court of appeals which noted that because parole was available to the
defendant in Rummel and there was no possibility of parole to the defendant in Solem, the cases were distinguishable.90
B. Rationale
In affirming the court of appeals' decision the Supreme Court held
a criminal sentence must be pro"[t]hat as a matter of principal
portionate to the crime for which the defendant has been convicted."91
However, "substantial deference" 92 should be given to legislatures and
trial courts in determining the length of sentences. A sentence will
therefore 9 3be found disproportionate only in exceedingly rare
instances.
The Court distinguished Rummel from Solem by noting "that the
South Dakota commutation system is fundamentally different from the
parole system that was before us in Rummel. ' 94 The Court stated:
[t]hus it is
Parole is a regular part of the rehabilitation process
possible to predict, at least to some extent, when parole might be
granted. Commutation, on the other hand, is an ad hoc exercise of
executive clemency. A governor may commute a sentence at any
86. Id.
87. See S.D. CODIFIED LAWS ANN. 24-15-4 (1979).
88. See S.D. CONST., art. IV, § 3.
89. The district court denied issuing the requested relief, holding that the Supreme
Court decision in Rummel was controlling. Helm v. Solem, 684 F.2d 582, 583 (1982).
90. Id. at 585. "A sentence without parole differs qualitatively from a sentence for a
term of years or life sentence without the prospect of parole. As with the death penalty,
the State totally rejects rehabilitation as a basic goal of our criminal justice system by
imposing a life sentence without parole." Id.
91. Solem, 103 S. Ct. at 3009.
92. Id.
93. Id. (quoting Rummel, 445 U.S. at 272).
94. Solem, 103 S. Ct. at 3015.
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time for any reason without reference to any standards. 9
The Court also noted that under the parole system in Texas most
prisoners would be eligible for parole within 12 years.9" In South Dakota, on the other hand, no commutation has been granted in over
eight years.9 7 During that time, "over 100 requests for commutation
have been denied." 98 Therefore, while Rummel's life sentence would
only produce a jail term of 12 years, Helm's sentence would in fact be
for life. 99
The Court next stated that when courts decide the proportionality of
a sentence they should be "guided by objective criteria including (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."' 10 0
In applying the standard, the Court first looked at the nature of the
crime. It noted that $100 was a relatively small amount of money' 0 '
and there was no violence in the commission of the crime. The Court
concluded that "Helm's crime was 'one of the most passive felonies a
person could commit.'
"102
Next, the Court looked to the nature of the sentence imposed on
95. Id.
96. Id.
97. Id.
98. Id. at 3016 n.29.
99. Id. at 3015. The Court, however, indicates it would be an over simplification to
conclude that the two cases are distinguished upon whether parole or commutation is
available. The prison term that is to be used in determining whether a sentence is proportionate, is the time the defendant is likely to spend in jail under either a system of
parole or commutation. It is that figure that is used to determine whether the sentence is
unconstitutional. See id. at 3016 in which the Court supports this by comparing the
parole and good time systems available in South Dakota with those available in Texas.
The Court noted that even if Solem's sentence was commuted to a term of years, "Helm
would have to serve three fourths of his revised sentence before he would be eligible for
parole." Id. By comparison, the Court states that had Helm been sentenced to 40 years,
he could be paroled in 21, while if Rummel had been sentenced to 40 years he would be
eligible for parole in 7 years. Id.
100. Id. at 3011. The Court does not cite the Hart decision as the first time this standard was used. The Court does, however, mention that similar comparisons were made in
Enmund v. Florida, 458 U.S. 782, (1982) to invalidate the penalty of death for a defendant who conspired to commit a robbery but took no part in a subsequent murder. Solem, 103 S. Ct. at 3011. The Court also stated that the criteria were used in Coker where
the penalty of death was found to be disproportionate to the crime of rape. Solem, 103 S.
Ct. at 3010.
101. Solern, 103 S. Ct. at 3011.
102. Id. at 3012 (quoting State v. Helm, 287 N.W.2d at 501 (Henderson, J.,
dissenting)).
1985]
SOLEM v. HELM
Helm. A sentence of life imprisonment without parole is the most serious penalty South Dakota can impose."'
In applying the second criterion the Court held that only "murder,
and, on a second or third offense, treason, first degree manslaughter,
first degree arson, and kidnapping,"'0 4 necessitated the imposition of a
life sentence. Serious crimes such as heroin dealing and aggravated assault did not carry the possibility of a life sentence.' 0 '
Under the third criterion, the Court held that only in Nevada would
Helm have been able to receive a sentence of life imprisonment without parole for similar offenses. 10 6
The Supreme Court found, based on an examination of the crime
and resulting sentence under the three criteria it established, Helm's
"sentence was significantly disproportionate to his crime, and is there0 7
fore prohibited by the eighth amendment.'
C. Dissent
In dissent, Chief Justice Burger argued that the Court was now accepting a legal standard that had been expressly rejected in Rummel
and Hutto. 0 8 Burger stated that the reason the standard was rejected
was because a court cannot objectively determine if one offense is more
serious than another. Should a court attempt to make such a determination it would be only "a bald substitution of individual subjective
moral values for those of the legislature."'0 9
Burger also stated that even if the Court used the majority's standard, Helm's sentence is still not unconstitutional. Burger asserted
that Helm's previous convictions of burglaries and driving while intoxicated involved at least the possibility of violence and is therefore distinguishable from Rummel."'
D.
The Solem Decision's Effect on Rummel
The majority in Solem does not overrule Rummel. Solem is considered by the Court to be the rare case in which a sentence is disproportionate."' The Court, however, reverses the reasoning used in Rummel
103.
104.
105.
106.
107.
108,
109.
110.
111.
Solem, 103 S. Ct. at 3013 (capital punishment is not authorized in South Dakota).
Id. at 3014.
Id. at 3013-14.
Id. at 3014.
Id. at 3016.
Id. at 3019-20.
Id. at 3022.
Id. at 3023.
Id. at 3017 n.32.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. II:I
and in Hutto.
In Rummel the Court suggested that it was the legislature's responsibility to impose a punishment for a specific crime."1 2 The Court could
not review the legislature's decision unless there was an extreme example of disproportionality, as when life imprisonment was imposed for a
traffic violation."' The Court in Solem noted that the Rummel majority did not develop a standard for determining when such disproportionality would occur. 11 4 Solem held that because of the lack11 of
a stan5
dard in Rummel the decision would be limited to its facts.
Although the majority in Rummel did not develop any standard for
determining when a sentence would be unconstitutional, it did reject
the use of the Hart standard.11
The Rummel majority was convinced
that the Hart standard was only the subjective opinion of the Justices,
and therefore inappropriate for eighth amendment analysis. 1 7 In less
than a year after the Hart standard was again rejected in Hutto, the
Court now accepts the standard in Solem.
IV
THE IMPACT OF THE Solem DECISION
The Solem decision will be felt most readily in two areas."' First,
the enforcement of recidivist statutes will continue to be challenged as
was done in both Rummel and Solem." 9 Second, the decision will also
effect the country's recent movement from an indeterminate form of
sentencing to a policy of determinate sentencing. 2
A.
Solem's Effect on Recidivist Statutes
Both the Rummel and the Solem decisions involved the use of recidivist statutes. These statutes reject rehabilitation 12 as the goal of a
112. See supra note 64 and accompanying text.
113. See supra note 73 and accompanying text.
114. Solem, 103 S. Ct. at 3017 n.32.
115. Id.
116. See supra notes 61-75 and accompanying text.
117. Solem, 103 S. Ct. at 3017 n.32.
118. Other possible areas of impact by the decision will become apparent in time.
119. Both the Rummel and Solem decisions involved the use of recidivist statutes.
120. See generally Orland, From Vengeance to Vengeance: Sentencing Reform and
the Demise of Rehabilitation, 7 HOFSTRA L. REV. 29 (1978). The public lost faith in
prison's ability to rehabilitate inmates. As a result, there has been a movement to longer
sentences without judicial or parole board discretion to shorten them.
121. For a discussion of the penal philosophy of rehabilitation and why some jursdictions have rejected it see infra notes 138-144 and accompanying text. But see J. PETERSILIA & P GREENWOOD & M. LARVIN, CRIMINAL CAREERS OF HABITUAL FELONS (1978)
[hereinafter cited as PETERSILiA] in which the authors question the movement away from
rehabilitation as a means of dealing with repeat offenders. The study examined 49 habit-
SOLEM v. HELM
1985]
penal system and promote policies of deterrence12 2 and incapacitation 123 by imposing severe sentences on repeat offenders even if the
ual offenders in California who had committed over 10,500 crimes. The study determined
that rehabilitation still had a role to play in reducing further recidivism of already repeat
offenders. The study noted that even though the prisoners examined were recidivists,
"the better employed tended to commit less serious crimes. We are thus led to believe
that voluntary programs of job training are a constructive means of reducing the criminal toll of habitual offenders." Id. at 119. The report also noted that habitual offenders
tended to have a low rate of participation in drug and alcohol programs. This, "coupled
with the prominent role of these substances in the respondents' crimes, suggest that drug
and alcohol treatment programs could significantly reduce crime if they genuinely eliminate their dependency." Id. at 119. The report therefore concludes that if prisoners are
allowed to participate in programs that train them for work or reduce their dependency
on drugs, their recidivism can be reduced.
122. See Cavender, The Adoption and Implementation of Determinate-based Sanctioning Policies, 17 GA. L. REv. 425 (1983), in which the author states the philosophy of
deterence was based upon the belief that "[p]eople would choose behavior that produced
pleasure and avoid those that caused pain. This view of behavior, when applied to legal
theory, produced a sentencing arrangement in which the severity of penalties was proportioned to the undesirability of crimes. The assumption was that rational people would
be less likely to commit crimes as the cost, the unpleasantness, of the penalty increased.
They would be deterred." But see PETERSmIA, supra note 121, at 119, in which the authors claim that the imposition of long sentences on repeat criminals did little to deter
recidivists. The authors state:
Deterence theory holds that potential offenders will be more deterred when
they observe that they are more likely to be arrested, convicted, and imprisoned for a crime. Over half the sample asserted that nothing could have
For those who said they
deterred their return to crime after release.
could have been deterred, the certainty of apprehension would have influenced them more than other factors, such as the possibility of a longer
The data gave no reason to believe that the length of
prison sentence
a prison term affects deterrence. Those who served longer sentences did not
have longer periods of street time after release until the next incarceration.
$fl
Id. The report, therefore, indicates that even though the threat of longer prison
sentences are supposed to deter repeat offenders, in fact there is little deterrent effect by
such sentences.
123. The penal philosophy of incapacitation is based upon the idea that if a criminal is
put in jail for a long period of time he will not be able to commit any crimes while he is
there. But.see PETERSILIA, supra note 121, at 129, in which the authors indicate that a
policy of incapacitation can lead to the lengthy imprisonment of many non-dangerous
offenders along with more dangerous professional criminals. The study noted that a system of incapacitation can be both costly and unfair if a high percentage of undeserving
offenders are given lengthy sentences. The study states, "[tihus, the effectiveness of this
approach rests largely on the ability of the criminal justice system to distinguish among
offenders and identify those most dangerous deserving of lengthy imprisonment."Id. at
120. The study noted that the difficulty in determining which offenders are deserving of
the more lengthy sentences is due to the inability to distinguish between a dangerous
criminal and a nondangerous criminal by examining their arrest records alone. The study
states, "[a] meager arrest record may disguise a dangerous criminal." Id. To determine if
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offenders' crimes are relatively minor.""
Recidivist statutes have long been held constitutional by the Supreme Court. 1 5 The Court, however, has increased the amount of1 26protection afforded to a defendant who is sentenced as a recidivist.
a particular criminal deserved the longer sentence, the study noted that first it must be
realized that there are two types of habitual offenders: the intensive type and the intermittant type. The intensive type of offender was the professional criminal "whose
criminal activity seemed to be sustained and consciously directed, with deliberate attention paid to avoiding arrest." Id. at 97. "[T]he intermittant type [is] an offender who did
not view himself as a professional criminal; whose criminal activity was more irregular
and opportunistic; and who was less heedful of the risks and consequences of criminal
acts and more prone to arrest." Id. The study noted that the intensives who were "less
than one-third of the sample, had committed a disproportionately large number of offenses reported." Id. at 120. However when the rap sheets of the two are compared there
is no apparent difference. "It is thus crucial to identify the intensive offenders by some
means in addition to their criminal records." Id.
124. See Klein, Habitual Offender Legislation and the BargainingProcess, 15 CRI.
L. Q. 417 (1973), in which the author states that recidivist statutes have also lead to
abuses by prosecutors who obtain confessions from defendants when they are threatened
with being tried as habitual offenders. The author states, "[tihe threat of habitual criminal proceedings has been used by the police and the prosecutor in order to: (1) induce
the accused to plead guilty to the substantive charge; (2) induce the accused to provide
information on other criminal acts and individuals; and (3) insure that the accused will
not return to that jurisdiction upon release." Id. at 429-30.
125. In McDonald v. Massachusetts, 180 U.S. 311 (1901), the Supreme Court first held
that a recidivist statute was constitutional. The statute required that if a defendant was
convicted of two felonies, upon the conviction of his third he was to receive a mandatory
25 year sentence. The defendant claimed that this placed him in double jeopardy and
was therefore unconstitutional. The Supreme Court rejected this argument by noting
that the increased punishment was only for the final penalty and not for the previous
crimes. The Court reasoned that the state has a right to impose heavier sentences if it
determines that the defendant is a habitual offender. The Court in Spencer v. Texas, 385
U.S. 554 (1967), noted that because of the reasoning used in McDonald, recidivist statutes have been consistently found constitutional. Recidivist statutes have been held constitutional "against contentions that they violate constitutional strictures dealing with
double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal
protection, and privileges and immunities." Id. at 560.
126. See Oyler v. Boles, 368 U.S. 448 (1962) in which the defendant was not informed
during the guilt stage of the trial he would be sentenced as a habitual offender. He was
found guilty of a second degree murder and was told at the sentencing stage of the trial
that if the jury determined that he was a habitual offender he would be sentenced to life
imprisonment pursuant to that state's recidivist statute. The defendant was determined
to be a recidivist. On appeal the defendant argued that due process required that he be
informed that he would be tried as a recidivist at the guilt stage of the trial and not just
the sentencing stage. The Supreme Court rejected defendant's argument as applied to
himself, but embraced the notion that notice was required before a defendant could be
sentenced as a recidivist by holding:
If West Virginia chooses to handle the matter as two separate proceedings,
due process does not require advance notice that the trial on the substan-
19851
SOLEM v. HELM
Justice Powell noted that perhaps the major problem with recidivist
statutes is that "the [recidivist] system assumes that all three-time offenders deserve the same punishment whether they commit three
murders or cash three fradulent checks."' 27 The result of such a system
is that a comparatively minor offender like Helm receives a sentence of
life imprisonment without the possibility of parole. 2 '
The Solem decision would protect minor offenders' 29 from the harsh
tive offense will be followed by an habitual offender criminal proceeding.
Nevertheless, a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process
does not require that notice be given prior to the trial on the substantive
charge.
Id. at 452. The Supreme Court again extended the protection afforded to a person being
tried as a recidivist in Burgett v. Texas, 389 U.S. 109 (1967). In Burgett the defendant
was informed at the start of the trial that he would be tried as a recidivist. A list of his
former convictions was read to the jury. The former convictions, however, occurred at
trials in which the defendant did not have an attorney present. The former convictions
were not allowed into evidence by the trial court judge and the jury was informed to
disregard the reading of the former convictions. The defendant was found guilty and
sentenced to ten years. On appeal to the Supreme Court, the Court held that if counsel
was not present, a former conviction could not be used in the determination of whether
the defendant was a recidivist. The Court also held that the reading of the former offenses where no attorney was present is "inherently prejudicial and we are unable to say
that the instructions to disregard it made the constitutional error 'harmless beyond a
reasonable doubt.' "Id. at 115 (citing Chapman v. California, 386 U.S. 184 (1967)). However, as Spencer v. Texas, 385 U.S. 554 (1967), which was decided before Burgett, illustrates, the Supreme Court is not willing to give total protection to recidivists. In Spencer
the defendants were convicted of felonies, and at the trial the former felonies were read
to the jury in the indictment. The jury was cautioned, however, by a limiting instruction
to only use the information to determine the sentence to be imposed if the defendants
were found guilty but not in determining if the defendants were guilty. The defendants
contended that the instruction was not sufficient to remove the taint of the reading of
the former convictions. The Supreme Court, however, upheld the convictions. The Court
reasoning that "[tlo say the United States Constitution is infringed simply because this
type of evidence may be prejudicial and limiting instructions inadequate to vitiate prejudicial effects, would make inroads into this entire complex code of state criminal evidentiary law.
"Id. at 562.
127. Rummel, 445 U.S. at 302 (Powell, J., dissenting).
128. See supra notes 78-83 in which it is discussed that Helm's offenses were all minor
and nonviolent. Helm's final offense of writing a bad $100 check would normally carry a
maximum sentence of 5 years, but because Helm was determined to be a recidivist he
received a sentence of life imprisonment without parole.
129. The Court notes that it is possible to distinguish a minor offender from a more
serious offender. The factors to be used in making such a determination include noting
that violent crimes are considered more serious than nonviolent crimes, and an examination of the total value of the crime. The Court also noted that minor crunes should be
distinguished from more serious crimes by not punishing "a lesser included offense
more seriously than the greater offense. Thus a court is justified in viewing assault with
intent to murder as more serious than simple assault. It is also generally recognized that
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 11:1
results that are imposed by such broad statutes. The first Solem factor
requires that the nature of the crime be examined.' If it is determined that the defendant's crimes are nonviolent and involve small
amounts of money, the Solem decision holds that it is inappropriate to
punish the offender as severely as someone who has committed one or
more serious and violent crimes."' The result is that the minor repeat
offender is less likely to be sentenced to a term of years equal to that
of a major repeat offender.
The second Solem factor grants similar protection."' This factor requires that when a defendant is sentenced under a recidivist statute to
an extended term of years a comparison must be made to other crimes
that would carry a similar term of years."3' If a defendant commits
several nonviolent crimes anrd is sentenced pursuant to a recidivist
statute to a term of years which is equivalent to a term of years that
would be given to a repeat violent offender, the Solem decision would
hold that this is an indication that the sentence was disproportionate." This again protects the minor offender from the harsh result of
recidivist statutes that do not differentiate between major and minor
offenders.
The third Solem factor involves a comparison of the challenged recidivist statute to the possible penalties available to the defendant
under recidivist statutes in other states."35 This factor prevents one
state from enacting significantly more stringent penalties for recidivists
while the majority of the states would not."s3 The result again is an
attempts are less serious than completed crimes. Similarly, an accessory after the fact
should not be subject to a higher penalty than the principle." Solem, 103 S. Ct. at 3011.
130. See supra notes 101-02 and accompanying text in which the Court examines the
gravity of Helm's offenses. Because they are of a small dollar amount and nonviolent, the
Court determines that the gravity is slight.
131. The Court in Solem states, "[i]f more serious crimes are subject to the same penalty [as the challenged crime], that is some indication that the punishment at issue may
be excessive." Solem, 103 S. Ct. at 3010.
132. See infra notes 103-05 in which the Court notes that only the crimes of murder,
treason, arson and kidnapping were punished as severely as Helm's offense.
133. Solem, 103 S. Ct. at 3010.
134. See supra notes 106-07 and accompanying text.
135. See supra note 108 and accompanying text in which the Court noted that Helm
could only have been sentenced as severely in one other state.
136. The exact number of states that must impose the same penalty for the same
crime to hold the challenged offense constitutional is not clear. The Court noted that m
Enmund v. Florida, 458 U.S. 782 (1982), such a comparison was made to outside jurisdictions in order to invalidate the defendant's death sentence. The Court observed that only
one-third of the states would impose a similar penalty for a similar crime. Solem, 103 S.
Ct. at 3010. In Solem the defendant's sentence of life imprisonment was found disproportionate in part because only Nevada would impose a similar penalty on a similar
1985]
SOLEMv. HELM
increase in the available protection afforded to a minor offender.
The S~preme Court, however, has not rejected the concept behind
recidivist statutes.' 7 A defendant who is convicted of several serious
and violent crimes will be constitutionally subject to more stringent
penalties than a first time offender. A minor repeat offender can also
constitutionally be prosecuted more severely than a first time minor
offender. The decision, however, does give additional protection to minor offenders who are swept up in the broad language of recidivist statutes that do not differentiate between minor and serious repeat
offenders.
B. Solem's Effect Upon the Determinate Sentence Movement
In the early 1970's, determinate sentencing became a popular sentencing philosophy due to the public's dissatisfaction with the results
of the rehabilitation process. 138 The rise in crime seemed to indicate,
and many writers agreed, 1 39 that the rehabilitation process was a fail-
ure. 40 Elected leaders, perceiving the public's unhappiness, promised
to reduce the crime rate through uniform sentencing and longer terms
of incarceration. 41 One method by which this was to be achieved was
defendant.
137. The Court in Salem states, "a state is justified in punishing a recidivist more
severely than it punishes a first time offender." Salem, 103 S. Ct. at 3013.
138. The penal philosophy of rehabilitation was introduced in the nineteenth century
and was seen as a more human alternative to earlier philosophies. See Transactions of
the National Congress on Prisonand Reformatory Discipline, (Albany 1871), quoted in,
C. BARTOLLAS, INTRODUCTION TO CORnECrIONS at 19 (1981). in which the congress adopted
the concept of rehabilitation as the goal of prison systems by stating, "the supreme aim
of prison discipline is the reformation of criminals, not the infliction of vindictive suffer[Tihe prisoners' destiny, during his incarceration, should be placed, measurably
ing
peremptory sentences ought to be replaced by those if [sic] inin his own hands
determinant duration." See also Cavender supra note 122, at 434 in which the author
states "[tihe depravity of the criminal class was explained as a function of defective
moral training, a by-product of rapid urbanization and industrialization. The proposed
solution was programs of moral training that would supposedly reduce the crime problem by instilling the proper values in members of the criminal class."
139. See generally E. v DEN HAAG, PUNISHING CRIMINALS: CONCERNING A VERY OLD
AND PAINFUL QUESTION (1975), and A. VON HIRSCH, DOING JUSTICE: THE CHOICE OF PUNISHMENTS (1976) in which both authors advocate a movement away from indeterminate
sentencing because of its failure to properly punish criminals.
140. See Hussey & Lagoy, The Impact of Determinate Sentencing Structures, 17
CRIm. L. BULL. 197, 199 (1981) in which the authors state that the main reason for the
repudiation of indeterminate sentencing is found in the belief it has "failed in its primary goal, rehabilitation."
141. Presidential attacks on crime were most prevalent in the late 1960's and early
1970's. See Special Message to the Congress on Crime and Law Enforcement, PUB.PAPERs 291 (March 9, 1966), in which President Johnson declared "war on crime." Johnson
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 11:1
by removing discretion from judges and creating determinate sentencing.14 2 In some instances these attempts at sentence reform have resulted in significant increases in the penalties imposed upon
offenders.'4 3
When such increases occur, the Solem test would protect offenders
from long mandatory sentences similar to the protection afforded to
recidivists who commit only minor offenses. If a minor nonviolent offender was sentenced to a term of years that was substantially longer
than sentences which were imposed for violent offenders, the Solem
test would indicate the sentence was disproportionate. 4 4 The result is
greater protection being afforded to an offender who is sentenced purstated "I call on the Congress and the nation to join in a three-stage national strategy
against crime, welding together the efforts of local, state, and federal government." See
also Remarks at the 17th Annual Republican Conference, PUB. PAPERS 293-94 (April 16,
1969), in which President Nixon stated, "there is another great issue that [people are]
interested in, and that was to stop the rise in crime and reestablish respect for law and
order throughout the United States.
I will make this promise: Next year I will be
able to report to you and to the American people that we have made real progress towards
reestablishing law and order at home." See also von Hirsch & Hanrahan,
Determinate Penalty Systems in America: An Overview, 27 CRIME & DELINQUENCY 289,
300-01 (1981) in which the authors note that promises of getting tough of crime are not
limited to presidents of the late 1960's but are a common cry of many politicians. The
authors state, "few votes are likely to be garnered by espousing moderation in sentencing, but some may be gained by taking a fierce posture."
142. See Cavender, supra note 122 in which the author divides the determinate sentencing system in America into four categories. The first category is presumptive sentencing. The author states, "[w]ith presumptive sentencing, the legislature establishes
three possible prison terms for each offense, the middle term being the presumptive one.
A judge will sentence an offender to the middle term unless aggravating factors mandate
the upper term or mitigating factors justify the lower term
"Id. at 447. The author
terms the second category as definite sentences. Under this system the judge can choose
a sentence from a wide range of possible sentences determined by the legislature, but
once the sentence has been imposed it cannot be reduced. The third category is the
guideline approach. Under this system "a sentencing commission develops an actuariallike table of penalties using as criteria the severity of the offense and prediction factor
essentially based on prior criminal record. The table generates a recommended sentence,
although the judge may vary from it for cause, stated in writing." Id. at 448. The fourth
category is mandatory sentences in which the legislature, "specif[ies] set periods of incar[M]andatory sentences are potentially deterrent in
ceration for enumerated offenses.
nature because a minimum term will be served, and thus certainty is assured." Id.
143. See Cavender, supra note 122, at 450-51 in which the author notes that the implementation of determinate sentences in Arizona resulted in an increase in the amount
of time an offender would be likely to spend in prison. The increases included "robbery
with a gun from forty-nine to eighty-four months; aggravated assault with injury from
twenty-six to sixty months; burglary from nineteen to thirty months; and theft of a motor vehicle from sixteen to thirty months." Id.
144. See supra notes 118-136 for a discussion of how Solem similarly effects the enforcement of recidivist statues.
19851
SOLEM v. HELM
,259
suant to a significantly increased sentence in an attempt to reduce
crime.
V
CONCLUSION
The Solem decision clearly established the rule that a criminal sentence must be proportionate to the severity of the offender's crime.
The decision also embraces the criteria set forth in Hart as the proper
standard for determining whether a sentence is proportionate.
The result of the Supreme Court's adoption of the Hart standard is
an increase in the protection available to offenders who are sentenced
pursuant to recidivist statutes or significantly increased penalties imposed in an attempt to reduce crime.
CRAIG J. OLSEN