Cite as: 538 U. S. 11 (2003)
Scalia, J., concurring in judgment
cruel and unusual punishments. The judgment of the California Court of Appeal is affirmed.
It is so ordered.
Justice Scalia, concurring in the judgment.
In my opinion in Harmelin v. Michigan, 501 U. S. 957, 985 (1991), I concluded that the Eighth Amendment's prohibition of "cruel and unusual punishments" was aimed at excluding only certain modes of punishment, and was not a "guarantee against disproportionate sentences." Out of respect for the principle of stare decisis, I might nonetheless accept the contrary holding of Solem v. Helm, 463 U. S. 277 (1983)—that the Eighth Amendment contains a narrow proportionality principle—if I felt I could intelligently apply it. This case demonstrates why I cannot.
Proportionality—the notion that the punishment should fit the crime—is inherently a concept tied to the penological goal of retribution. "[I]t becomes difficult even to speak intelligently of 'proportionality,' once deterrence and rehabilitation are given significant weight," Harmelin, supra, at 989—not to mention giving weight to the purpose of California's three strikes law: incapacitation. In the present case, the game is up once the plurality has acknowledged that "the Constitution does not mandate adoption of any one penological theory," and that a "sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation." Ante, at 25 (internal quotation marks omitted). That acknowledgment having been made, it no longer suffices merely to assess "the gravity of the offense compared to the harshness of the penalty," ante, at 28; that classic description of the proportionality principle (alone and in itself quite resistant to policy-free, legal analysis) now becomes merely the "first" step of the inquiry, ibid. Having completed that step (by a discussion which, in all fairness, does not convincingly establish that 25-years-to-life is a "proportionate" punishment for stealing three golf clubs), the
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