United States Constitution, Eighth Amendment Supreme Court Cases: In Lockyer v. Andrade (2003) 538 U.S. 63, and Ewing v. California (2003) 538 U.S. 11, the United States Supreme Court reexamined its opinions on the question of the proportionality of a term-of-years sentence under the Eighth Amendment. In Ewing, the high court stated that the Eighth Amendment does not require strict proportionality, but only forbids extreme sentences that are grossly disproportionate to the crime. (Ewing, at pp. 23-24.) The court affirmed California's power to make "a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime," concluding "nothing in the Eighth Amendment prohibits California from making that choice." (Id. at p. 25.) The court further noted that "in weighing the gravity of a defendant's offense, we must place on the scales not only his current felony, but also his long history of felony recidivism." (Id. at p. 29.) In Ewing, the defendant was convicted of felony grand theft for stealing three golf clubs and was sentenced to 25 years to life in state prison under the three strikes law. (Ewing, supra, 538 U.S. at pp. 18-20.) The defendant had four prior strike convictions for burglary and robbery as well as numerous other convictions, and committed the current offense while on parole. Justice O'Connor's lead opinion, in which two justices joined and two others concurred, states the defendant's sentence was "justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by the defendant's own long, serious criminal record." (Id. at pp. 29-30.) The sentence reflected "a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated. The State of California 'was entitled to place upon the defendant the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State.' Ewing's is not 'the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.'" (Id. at p. 30.) In Andrade, the defendant was sentenced to two consecutive 25-years-to-life terms under the three strikes law based on two convictions for petty theft with a prior ( 666), an offense which may be charged either as a felony or a misdemeanor, but which the prosecutor elected to charge as a felony, for stealing videocassettes valued at less than $200. (Andrade, supra, 538 U.S. at pp. 66-68.) The defendant had suffered three strike convictions, each for first degree burglary. A five-Justice majority upheld the sentence, concluding that "the gross disproportionality principle reserves a constitutional violation for only the extraordinary case." (Id. at p. 77.) In Ewing v. California (2003), a majority of the United States Supreme Court concluded that in noncapital cases, the Eighth Amendment either contains only a narrow proportionality principle (Chief Justice Rehnquist and Justices O'Connor and Kennedy) or that it contains no proportionality principle at all (Justices Scalia and Thomas). (Id. at pp. 20, 31-32.) Under the narrow proportionality principle recognized by the plurality, the Eighth Amendment does not require strict proportionality between the offense and the resulting sentence and does not mandate comparative analysis within or between jurisdictions. (Id. at p. 23.) Rather, it forbids only extreme sentences that are grossly disproportionate to the crime. (Ibid.) In weighing the gravity of the defendant's offenses, both his criminal history and his current felony must be considered. (Id. at p. 29.) The Ewing plurality noted that, outside the capital context, successful challenges to the proportionality of a particular sentence are exceedingly rare. (Id. at p. 21.) Ewing was convicted of shoplifting and sentenced under the "Three Strikes" law to 25 years to life. Without comparing Ewing's sentence to the punishment for other crimes in California or to the punishment for the same crime in other states, the court found that the case was not one of the rare cases in which a proportionality challenge could succeed. (Id. at pp. 29-30.) It found the sentence "justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record." (Ibid.) In Harmelin v. Michigan (1991) 501 U.S. 957, a majority of the Supreme Court determined that the Eighth Amendment does not guarantee proportionality of sentences. (Harmelin, at p. 965.) Justice Kennedy, joined by Justices O'Connor and Souter, concluded that the Eighth Amendment prohibits only sentences that are "'grossly disproportionate'" to the crime. (Harmelin, at p. 1001.) Even those justices in the Harmelin plurality who recognized a guarantee of proportionality review stressed that, "'"outside the context of capital punishment, successful challenges to the proportionality of particular sentences are exceedingly rare"'" because of the "relative lack of objective standards concerning terms of imprisonment . . . ." (Ibid.)