78
Souter, J., dissenting
disproportion necessarily leaves state courts with much leeway under the statutory criterion that conditions federal relief upon finding that a state court unreasonably applied clear law, see 28 U. S. C. § 2254(d). This case nonetheless presents two independent reasons for holding that the disproportionality review by the state court was not only erroneous but unreasonable, entitling Andrade to relief. I respectfully dissent accordingly.
The first reason is the holding in Solem, which happens to be our most recent effort at proportionality review of recidivist sentencing, the authority of which was not left in doubt by Harmelin, see 501 U. S., at 998. Although Solem is important for its instructions about applying objective proportionality analysis, see 463 U. S., at 290-292, the case is controlling here because it established a benchmark in applying the general principle. We specifically held that a sentence of life imprisonment without parole for uttering a $100 "no account" check was disproportionate to the crime, even though the defendant had committed six prior nonviolent felonies. In explaining our proportionality review, we contrasted the result with Rummel's on the ground that the life sentence there had included parole eligibility after 12 years, Solem, 463 U. S., at 297.
The facts here are on all fours with those of Solem and point to the same result. Id., at 279-281. Andrade, like the defendant in Solem, was a repeat offender who committed theft of fairly trifling value, some $150, and their criminal records are comparable, including burglary (though Andrade's were residential), with no violent crimes or crimes against the person. The respective sentences, too, are strikingly alike. Although Andrade's petty thefts occurred on two separate occasions, his sentence can only be understood as punishment for the total amount he stole. The two thefts were separated by only two weeks; they involved the same victim; they apparently constituted parts of a single, continuing effort to finance drug sales; their seriousness is measured
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