42
Breyer, J., dissenting
infra, at 45, nor did Congress include such offenses among triggering crimes when it sought sentences "at or near the statutory maximum" for certain recidivists, S. Rep. No. 98-225, p. 175 (1983); 28 U. S. C. § 994(h) (requiring sentence "at or near the maximum" where triggering crime is crime of "violence" or drug related); 18 U. S. C. § 3559(c) (grand theft not among triggering or "strike" offenses under federal "three strikes" law); see infra, at 45-46. But see 28 U. S. C. § 994(i)(1) (requiring "a substantial term of imprisonment" for those who have "a history of two or more prior . . . felony convictions").
Taken together, these three circumstances make clear that Ewing's "gross disproportionality" argument is a strong one. That being so, his claim must pass the "threshold" test. If it did not, what would be the function of the test? A threshold test must permit arguably unconstitutional sentences, not only actually unconstitutional sentences, to pass the threshold—at least where the arguments for unconstitutionality are unusually strong ones. A threshold test that blocked every ultimately invalid constitutional claim—even strong ones—would not be a threshold test but a determinative test. And, it would be a determinative test that failed to take account of highly pertinent sentencing information, namely, comparison with other sentences, Solem, supra, at 291-292, 298-300. Sentencing comparisons are particularly important because they provide proportionality review with objective content. By way of contrast, a threshold test makes the assessment of constitutionality highly subjective. And, of course, so to transform that threshold test would violate this Court's earlier precedent. See 463 U. S., at 290, 291-292; Harmelin, supra, at 1000, 1005 (Kennedy, J., concurring in part and concurring in judgment).
III
Believing Ewing's argument a strong one, sufficient to pass the threshold, I turn to the comparative analysis. A
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