. ed. . The most prominent objective factor is the type of punishment imposed. 544, 550, 54 L.Ed. 544, 548-549, 550, 54 L.Ed. Ibid. In Detroit, Michigan in 1988, 68 percent of a sample of male arrestees and 81 percent of a sample of female arrestees tested positive for illegal drugs. See Ingraham v. Wright, 430 U.S. 651, 667, 97 S.Ct. Accord, 1 J. Stephen, A History of the Criminal Law of England 490 (1883); 1 J. Chitty, Criminal Law 712 (5th Am. See Sources of Our Liberties 222-223 (R. Perry & J. Cooper eds. The actions of the First Congress, which are of course persuasive evidence of what the Constitution means, Marsh v. Chambers, 463 U.S. 783, 788-790, 103 S.Ct. In fact, Solem stated that in determining unconstitutional disproportionality, "no one factor will be dispositive in a given case." 1895, 1909-1910, 40 L.Ed.2d 406 (1974) (Powell, J., concurring); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-408, 52 S.Ct. See 1 Writings of Thomas Jefferson 220-222, 229-231 (A. Lipscomb ed. What has distinguished our ancestors? 326 (1946). Solem, supra, 463 U.S., at 288, 303, 103 S.Ct., at 3008, 3016. 2861, 2866, 53 L.Ed.2d 982 (1977), held that the Amendment bars not only a barbaric punishment but also a punishment that is excessive, i.e., a punishment that "(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime." The efficacy of any sentencing system cannot be assessed absent agreement on the purposes and objectives of the penal system. 78 N.C., at 425, 426-427. See Tr. It did not mandate such inquiries. Thus, the circumstance that a State has the most severe punishment for a particular crime does not by itself render the punishment grossly disproportionate. . .' What is more, the Court's jurisprudence concerning the scope of the prohibition against cruel and unusual punishments has long understood the limitations of a purely historical analysis. " Rummel, supra, 445 U.S., at 274-275, 100 S.Ct., at 1139, quoting Coker, 433 U.S., at 592, 97 S.Ct., at 2866 (plurality opinion). This Court approved a proportionality requirement in capital cases in 1977 as part of our death penalty jurisprudence. . All of these principles—the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors—inform the final one: the Eighth Amendment does not require strict proportionality between crime and sentence. Perhaps the Americans of 1791 understood the Declaration's language precisely as the Englishmen of 1689 did—though as we shall discuss later, that seems unlikely. Decided June 27, 1991. By 1830 the class of offenses punishable by death was narrowed to include "only" murder, attempts to murder by poisoning, stabbing, shooting etc. "Not a single peer ventured to affirm that the judgment was legal; but much was said about the odious character of the appellant" and the Lords affirmed the judgment. punishmen[t]," a form of imprisonment different from the "more traditional forms . The opinion of the Court in No. What painful labor may mean we have no exact measure. While Justice SCALIA seeks to deliver a swift death sentence to Solem, Justice KENNEDY prefers to eviscerate it, leaving only an empty shell. We thought that result so clear in light of Rummel that our per curiam opinion said the Fourth Circuit, in sustaining the constitutional challenge, "could be viewed as having ignored, consciously or unconsciously, the hierarchy of the federal court system," which could not be tolerated "unless we wish anarchy to prevail," 454 U.S., at 374-375, 102 S.Ct., at 706. Solem is wholly consistent with this approach, and when properly applied, its analysis affords "substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals," 463 U.S., at 290, 103 S.Ct., at 3009 (footnote omitted), and will only rarely result in a sentence failing constitutional muster. This is cold comfort indeed, for absent a proportionality guarantee, there would be no basis for deciding such cases should they arise. There were no common-law punishments in the federal system, see United States v. Hudson and Goodwin, 7 Cranch 32, 3 L.Ed. B. Oliver, The Rights of An American Citizen 186 (1832). See J. Stephen, A History of the Criminal Law of England 489-490 (1883); 1 J. Chitty, Criminal Law 710 (5th Am. 544, 54 L.Ed. 1803) (discussing efforts at reform); 1 Writings of Thomas Jefferson 218-239 (A. Lipscomb 1903). 582, 588 (1921). The early commentary on the Clause contains no reference to disproportionate or excessive sentences, and again indicates that it was designed to outlaw particular modes of punishment. "nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on [it], but that racks and gibbets may be amongst the most mild instruments of [its] discipline." In Solem, the Court identified three major factors to consider in assessing whether a punishment violates the Eighth Amendment: "the gravity of the offense and the harshness of the penalty," 463 U.S., at 290-291, 103 S.Ct., at 3009-3010; "the sentences imposed on other criminals in the same jurisdiction," id., at 291, 103 S.Ct., at 3010; and "the sentences imposed for commission of the same crime in other jurisdictions," id., at 291-292, 103 S.Ct., at 3010. I remain convinced that Justice Stewart correctly characterized the penalty of death as "unique" because of "its absolute renunciation of all that is embodied in our concept of humanity."


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