36
Breyer, J., dissenting
terms (including terms of years) that are "grossly disproportionate." Solem, supra, at 303; see Lockyer v. Andrade, post, at 71. In applying the "gross disproportionality" principle, courts must keep in mind that "legislative policy" will primarily determine the appropriateness of a punishment's "severity," and hence defer to such legislative policy judgments. Gore v. United States, 357 U. S. 386, 393 (1958); see Harmelin v. Michigan, 501 U. S. 957, 998 (1991) (Kennedy, J., concurring in part and concurring in judgment); Solem, supra, at 289-290; Rummel v. Estelle, 445 U. S. 263, 274-276 (1980); Weems v. United States, 217 U. S. 349, 373 (1910). If courts properly respect those judgments, they will find that the sentence fails the test only in rare instances. Solem, supra, at 290, n. 16; Harmelin, supra, at 1004 (Kennedy, J., concurring in part and concurring in judgment); Rummel, supra, at 272 ("[S]uccessful challenges to the proportionality of particular sentences have been exceedingly rare"). And they will only " 'rarely' " find it necessary to " 'engage in extended analysis' " before rejecting a claim that a sentence is "grossly disproportionate." Harmelin, supra, at 1004 (Kennedy, J., concurring in part and concurring in judgment) (quoting Solem, supra, at 290, n. 16).
The plurality applies Justice Kennedy's analytical framework in Harmelin, supra, at 1004-1005 (opinion concurring in part and concurring in judgment). Ante, at 23- 24. And, for present purposes, I will consider Ewing's Eighth Amendment claim on those terms. But see ante, at 32-33, n. 1 (Stevens, J., dissenting). To implement this approach, courts faced with a "gross disproportionality" claim must first make "a threshold comparison of the crime committed and the sentence imposed." Harmelin, supra, at 1005 (Kennedy, J., concurring in part and concurring in judgment). If a claim crosses that threshold—itself a rare occurrence—then the court should compare the sentence at issue to other sentences "imposed on other criminals" in the same, or in other, jurisdictions. Solem, supra, at 290-291;
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