A South Dakota law and a fraudulent check have led to a Supreme Court ruling with this interesting aspect: the theory on which the majority opinion rests--a theory about objective criteria--is refuted by the mere fact that four justices vigorously dissent from it.
When Jerry Helm was arrested for writing a "no account" check for $100 he had six felony convictions--three for burglary, one for obtaining money under false pretenses, one for grand larceny and one for driving while intoxicated (third offense). South Dakota's recidivist law authorizes a judge to impose a sentence of life imprisonment without parole on an offender with three previous felony convictions. The judge in the bad check case sentenced Helm to life without parole.
The Eighth Amendment proscribes "cruel and unusual punishments." Until last Tuesday the Supreme Court had never held that a prison sentence alone was, because of its dura- tion, cruel and unusual. But last Tuesday a bitterly divided court held that the sentence given Helm was unconstitutionally disproportionate.
Justice Powell, joined by Justices Brennan, Marshall, Blackmun and Stevens, held that the principle of proportionality has always been implicit in the Eighth Amendment and applicable to all punishments because the principle is explicit in the Magna Carta and the English Bill of Rights, from which the Eighth Amendment was derived.
The court's majority seems complacent about the flood of appeals now certain to rush toward the judiciary. The majority says appeals of prison sentences should be disposed of by applying three "objective criteria." They are:
Is the harshness of the punishment reasonably related to the gravity of the offense? Are more serious crimes subject to the same or lighter punishments? Do other jurisdictions impose the same punishment for the same crime?
Five justices consider these criteria "objective." Four justices consider the criteria an invitation to the judiciary to make many subjective judgments better left to legislatures.
Chief Justice Burger, joined in dissent by Justices White, Rehnquist and O'Connor, says the majority has undermined the rule of law by disregarding a decision rendered just two terms ago. In a 1980 case, the court held that a life sentence (with possibility of parole) imposed after three nonviolent felony convictions was not cruel and unusual punishment. Now the court says that life without parole (but with commutation by the governor still possible) is cruel and unusual. By doing so, the court opens the judiciary to nobody knows how many challenges of prison sentences on proportionality grounds.
Did the crime that resulted in sentence X in Vermont receive a similar sentence in Utah? Was the crime really quite the same? How similar is sufficiently similar? Is crime Y comparable to crime Z? Is it comparably "serious"? The court's majority is content with its "objective criteria" for rendering such Solomonic judgments. But four-ninths of the court hotly dispute five-ninths of the court concerning even the seriousness of Helm's crimes, and the right of states to identify habitual criminals and remove them from circulation.
Five justices minimize the seriousness of Helm's record, referring to his crimes as "nonviolent." Four justices say that four of the crimes (the three burglaries and the third-offense driving while intoxicated) "had harsh potentialities for violence." Four justices ask: if the majority says that life without parole is disproportionate for seven felonies, how about for eight? Twelve? By what other "objective criteria" will courts now second-guess state legislatures?
Burger says that the most accepted doctrine is that the "cruel and unusual" clause was intended to prohibit the kind of torture meted out during the reign of the Stuarts. In any case, until now the court has held that the clause concerns "only the mode of punishment and not the length of a sentence of imprisonment." Hitherto, the length of a sentence has been considered purely a matter of legislative prerogative. Henceforth, any sentence can be challenged on one or more of the majority's "objective criteria"--criteria that four justices say pose more problems than they solve.
Even if it is humane to conclude that Helm's sentence is unjustly severe, it is impermissible to conclude that therefore the sentence is unconstitutional. The Constitution enumerates, allocates and regulates government powers. Chaos--the chaos of illimitable judicial intervention in society--results if the Constitution is read as a guarantee that every use of power shall be just. That is why justices often have a vocational duty to make their heads overrule their hearts. Five seem to have failed to do that in this case.