Cite as: 538 U. S. 11 (2003)
Breyer, J., dissenting
Harmelin, 501 U. S., at 1005 (Kennedy, J., concurring in part and concurring in judgment). The comparative analysis will "validate" or invalidate "an initial judgment that a sentence is grossly disproportionate to a crime." Ibid.
I recognize the warnings implicit in the Court's frequent repetition of words such as "rare." Nonetheless I believe that the case before us is a "rare" case—one in which a court can say with reasonable confidence that the punishment is "grossly disproportionate" to the crime.
II
Ewing 's claim crosses the gross disproportionality "threshold." First, precedent makes clear that Ewing's sentence raises a serious disproportionality question. Ewing is a recidivist. Hence the two cases most directly in point are those in which the Court considered the constitutionality of recidivist sentencing: Rummel and Solem. Ewing's claim falls between these two cases. It is stronger than the claim presented in Rummel, where the Court upheld a recidivist's sentence as constitutional. It is weaker than the claim presented in Solem, where the Court struck down a recidivist sentence as unconstitutional.
Three kinds of sentence-related characteristics define the relevant comparative spectrum: (a) the length of the prison term in real time, i. e., the time that the offender is likely actually to spend in prison; (b) the sentence-triggering criminal conduct, i. e., the offender's actual behavior or other offense-related circumstances; and (c) the offender's criminal history. See Rummel, supra, at 265-266, 269, 276, 278, 280- 281 (using these factors); Solem, supra, at 290-303 (same). Cf. United States Sentencing Commission, Guidelines Manual ch. 1, pt. A, intro., n. 5 (Nov. 1987) (USSG) (empirical study of "summary reports of some 40,000 convictions [and] a sample of 10,000 augmented presentence reports" leads to sentences based primarily upon (a) offense characteristics and (b) offender's criminal record); see id., p. s. 3.
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