EWING v. CALIFORNIA

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11 OCTOBER TERM, 2002
Syllabus
EWING v. CALIFORNIA
certiorari to the court of appeal of california, sec-
ond appellate district
No. 01–6978. Argued November 5, 2002—Decided March 5, 2003
Under California’s three strikes law, a defendant who is convicted of a
felony and has previously been convicted of two or more serious or vio-
lent felonies must receive an indeterminate life imprisonment term.
Such a defendant becomes eligible for parole on a date calculated by
reference to a minimum term, which, in this case, is 25 years. While
on parole, petitioner Ewing was convicted of felony grand theft for steal-
ing three golf clubs, worth $399 apiece. As required by the three
strikes law, the prosecutor formally alleged, and the trial court found,
that Ewing had been convicted previously of four serious or violent
felonies. In sentencing him to 25 years to life, the court refused to
exercise its discretion to reduce the conviction to a misdemeanor—under
a state law that permits certain offenses, known as “wobblers,” to be
classified as either misdemeanors or felonies—or to dismiss the allega-
tions of some or all of his prior relevant convictions. The State Court
of Appeal affirmed. Relying on Rummel v. Estelle, 445 U. S. 263, it
rejected Ewing’s claim that his sentence was grossly disproportionate
under the Eighth Amendment and reasoned that enhanced sentences
under the three strikes law served the State’s legitimate goal of deter-
ring and incapacitating repeat offenders. The State Supreme Court
denied review.
Held: The judgment is affirmed.
Affirmed.
Justice O’Connor, joined by The Chief Justice and Justice Ken-
nedy, concluded that Ewing’s sentence is not grossly disproportionate
and therefore does not violate the Eighth Amendment’s prohibition on
cruel and unusual punishments. Pp. 20–31.
(a) The Eighth Amendment has a “narrow proportionality principle”
that “applies to noncapital sentences.” Harmelin v. Michigan, 501
U. S. 957, 996–997 (Kennedy, J., concurring in part and concurring in
judgment). The Amendment’s application in this context is guided by
the principles distilled in Justice Kennedy’s concurrence in Harmelin:
“[T]he 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
principle that the “Eighth Amendment does not require strict propor-

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12 EWING v. CALIFORNIA
Syllabus
tionality between crime and sentence [but] forbids only extreme sen-
tences that are ‘grossly disproportionate’ to the crime.” Id., at 1001.
Pp. 20–24.
(b) State legislatures enacting three strikes laws made a deliberate
policy choice that individuals who have repeatedly engaged in serious
or violent criminal behavior, and whose conduct has not been deterred
by more conventional punishment approaches, must be isolated from so-
ciety to protect the public safety. Though these laws are relatively
new, this Court has a longstanding tradition of deferring to state legisla-
tures in making and implementing such important policy decisions.
The Constitution “does not mandate adoption of any one penological
theory,” 501 U. S., at 999, and nothing in the Eighth Amendment prohib-
its California from choosing to incapacitate criminals who have already
been convicted of at least one serious or violent crime. Recidivism has
long been recognized as a legitimate basis for increased punishment and
is a serious public safety concern in California and the Nation. Any
criticism of the law is appropriately directed at the legislature, which is
primarily responsible for making the policy choices underlying any
criminal sentencing scheme. Pp. 24–28.
(c) In examining Ewing’s claim that his sentence is grossly dispropor-
tionate, the gravity of the offense must be compared to the harshness
of the penalty. Even standing alone, his grand theft should not be
taken lightly. The California Supreme Court has noted that crime’s
seriousness in the context of proportionality review; that it is a “wob-
bler” is of no moment, for it remains a felony unless the trial court
imposes a misdemeanor sentence. The trial judge justifiably exercised
her discretion not to extend lenient treatment given Ewing’s long crimi-
nal history. In weighing the offense’s gravity, both his current felony
and his long history of felony recidivism must be placed on the scales.
Any other approach would not accord proper deference to the policy
judgments that find expression in the legislature’s choice of sanctions.
Ewing’s sentence is justified by the State’s public-safety interest in inca-
pacitating and deterring recidivist felons, and amply supported by his
own long, serious criminal record. He has been convicted of numerous
offenses, served nine separate prison terms, and committed most of his
crimes while on probation or parole. His prior strikes were serious
felonies including robbery and residential burglary. Though long, his
current sentence reflects a rational legislative judgment that is entitled
to deference. Pp. 28–31.
Justice Scalia agreed that petitioner’s sentence does not violate the
Eighth Amendment’s prohibition against cruel and unusual punish-
ments, but on the ground that that prohibition was aimed at exclud-
ing only certain modes of punishment. This case demonstrates why

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13 Cite as: 538 U. S. 11 (2003)
Syllabus
a proportionality principle cannot be intelligently applied, and why
Solem v. Helm, 463 U. S. 277, should not be given stare decisis effect.
Pp. 31–32.
Justice Thomas concluded that petitioner’s sentence does not violate
the Eighth Amendment’s prohibition against cruel and unusual punish-
ments because the Amendment contains no proportionality principle.
P. 32.
O’Connor, J., announced the judgment of the Court and delivered an
opinion, in which Rehnquist, C. J., and Kennedy, J., joined. Scalia, J.,
post, p. 31, and Thomas, J., post, p. 32, filed opinions concurring in the
judgment. Stevens, J., filed a dissenting opinion, in which Souter,
Ginsburg, and Breyer, JJ., joined, post, p. 32. Breyer, J., filed a dis-
senting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined,
post, p. 35.
Quin Denvir, by appointment of the Court, 535 U. S. 1076,
argued the cause for petitioner. With him on the briefs
were David M. Porter, Karyn H. Bucur, and Mark E.
Haddad.
Donald E. De Nicola, Deputy Attorney General of Califor-
nia, argued the cause for respondent. With him on the brief
were Bill Lockyer, Attorney General, Manuel M. Medeiros,
State Solicitor General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant
Attorney General, and Jaime L. Fuster, Kristofer S. Jorstad,
and David C. Cook, Deputy Attorneys General.
Assistant Attorney General Chertoff argued the cause for
the United States as amicus curiae urging affirmance.
With him on the brief were Solicitor General Olson, Deputy
Solicitor General Dreeben, John P. Elwood, and Joel M.
Gershowitz.*
*Donald M. Falk, Andrew H. Schapiro, and Mary Price filed a brief for
Families Against Mandatory Minimums as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of
Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama,
Nathan A. Forrester, Solicitor General, and Michael B. Billingsley, Dep-
uty Solicitor General, and by the Attorneys General for their respective
States as follows: Steve Carter of Indiana, Don Stenberg of Nebraska,

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14 EWING v. CALIFORNIA
Opinion of O’Connor, J.
Justice O’Connor announced the judgment of the Court
and delivered an opinion, in which The Chief Justice and
Justice Kennedy join.
In this case, we decide whether the Eighth Amendment
prohibits the State of California from sentencing a repeat
felon to a prison term of 25 years to life under the State’s
“Three Strikes and You’re Out” law.
I
A
California’s three strikes law reflects a shift in the State’s
sentencing policies toward incapacitating and deterring re-
peat offenders who threaten the public safety. The law was
designed “to ensure longer prison sentences and greater
punishment for those who commit a felony and have been
previously convicted of serious and/or violent felony of-
fenses.” Cal. Penal Code Ann. § 667(b) (West 1999). On
March 3, 1993, California Assemblymen Bill Jones and Jim
Costa introduced Assembly Bill 971, the legislative version
of what would later become the three strikes law. The As-
sembly Committee on Public Safety defeated the bill only
weeks later. Public outrage over the defeat sparked a voter
initiative to add Proposition 184, based loosely on the bill, to
the ballot in the November 1994 general election.
On October 1, 1993, while Proposition 184 was circulat-
ing, 12-year-old Polly Klaas was kidnaped from her home in
Petaluma, California. Her admitted killer, Richard Allen
Davis, had a long criminal history that included two prior
kidnaping convictions. Davis had served only half of his
W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, John
Cornyn of Texas, Mark L. Shurtleff of Utah, Christine O. Gregoire of
Washington, and Hoke MacMillan of Wyoming; and for the Criminal Jus-
tice Legal Foundation et al. by Kent S. Scheidegger and Charles L.
Hobson.
Dennis L. Stout and Grover D. Merritt filed a brief for the California
District Attorneys Association as amicus curiae.

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Opinion of O’Connor, J.
most recent sentence (16 years for kidnaping, assault, and
burglary). Had Davis served his entire sentence, he would
still have been in prison on the day that Polly Klaas was
kidnaped.
Polly Klaas’ murder galvanized support for the three
strikes initiative. Within days, Proposition 184 was on its
way to becoming the fastest qualifying initiative in Califor-
nia history. On January 3, 1994, the sponsors of Assembly
Bill 971 resubmitted an amended version of the bill that con-
formed to Proposition 184. On January 31, 1994, Assembly
Bill 971 passed the Assembly by a 63 to 9 margin. The Sen-
ate passed it by a 29 to 7 margin on March 3, 1994. Gover-
nor Pete Wilson signed the bill into law on March 7, 1994.
California voters approved Proposition 184 by a margin of
72 to 28 percent on November 8, 1994.
California thus became the second State to enact a three
strikes law. In November 1993, the voters of Washington
State approved their own three strikes law, Initiative 593,
by a margin of 3 to 1. U. S. Dept. of Justice, National In-
stitute of Justice, J. Clark, J. Austin, & D. Henry, “Three
Strikes and You’re Out”: A Review of State Legislation 1
(Sept. 1997) (hereinafter Review of State Legislation). Be-
tween 1993 and 1995, 24 States and the Federal Government
enacted three strikes laws. Ibid. Though the three strikes
laws vary from State to State, they share a common goal of
protecting the public safety by providing lengthy prison
terms for habitual felons.
B
California’s current three strikes law consists of two virtu-
ally identical statutory schemes “designed to increase the
prison terms of repeat felons.” People v. Superior Court of
San Diego Cty. ex rel. Romero, 13 Cal. 4th 497, 504, 917 P. 2d
628, 630 (1996) (Romero). When a defendant is convicted of
a felony, and he has previously been convicted of one or more
prior felonies defined as “serious” or “violent” in Cal. Penal
Code Ann. §§ 667.5 and 1192.7 (West Supp. 2002), sentencing

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16 EWING v. CALIFORNIA
Opinion of O’Connor, J.
is conducted pursuant to the three strikes law. Prior con-
victions must be alleged in the charging document, and the
defendant has a right to a jury determination that the prose-
cution has proved the prior convictions beyond a reasonable
doubt. § 1025; § 1158 (West 1985).
If the defendant has one prior “serious” or “violent”
felony conviction, he must be sentenced to “twice the term
otherwise provided as punishment for the current felony
conviction.” § 667(e)(1) (West 1999); § 1170.12(c)(1) (West
Supp. 2002). If the defendant has two or more prior “seri-
ous” or “violent” felony convictions, he must receive “an in-
determinate term of life imprisonment.” § 667(e)(2)(A)
(West 1999); § 1170.12(c)(2)(A) (West Supp. 2002). Defend-
ants sentenced to life under the three strikes law become
eligible for parole on a date calculated by reference to
a “minimum term,” which is the greater of (a) three times
the term otherwise provided for the current conviction,
(b) 25 years, or (c) the term determined by the court
pursuant to § 1170 for the underlying conviction, includ-
ing any enhancements. §§ 667(e)(2)(A)(i)–(iii) (West 1999);
§§ 1170.12(c)(2)(A)(i)–(iii) (West Supp. 2002).
Under California law, certain offenses may be classified as
either felonies or misdemeanors. These crimes are known
as “wobblers.” Some crimes that would otherwise be mis-
demeanors become “wobblers” because of the defendant’s
prior record. For example, petty theft, a misdemeanor, be-
comes a “wobbler” when the defendant has previously
served a prison term for committing specified theft-related
crimes. § 490 (West 1999); § 666 (West Supp. 2002). Other
crimes, such as grand theft, are “wobblers” regardless of the
defendant’s prior record. See § 489(b) (West 1999). Both
types of “wobblers” are triggering offenses under the three
strikes law only when they are treated as felonies. Under
California law, a “wobbler” is presumptively a felony and
“remains a felony except when the discretion is actually ex-
ercised” to make the crime a misdemeanor. People v. Wil-

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Opinion of O’Connor, J.
liams, 27 Cal. 2d 220, 229, 163 P. 2d 692, 696 (1945) (emphasis
deleted and internal quotation marks omitted).
In California, prosecutors may exercise their discretion to
charge a “wobbler” as either a felony or a misdemeanor.
Likewise, California trial courts have discretion to reduce
a “wobbler” charged as a felony to a misdemeanor either
before preliminary examination or at sentencing to avoid
imposing a three strikes sentence. Cal. Penal Code Ann.
§§ 17(b)(5), 17(b)(1) (West 1999); People v. Superior Court of
Los Angeles Cty. ex rel. Alvarez, 14 Cal. 4th 968, 978, 928
P. 2d 1171, 1177–1178 (1997). In exercising this discretion,
the court may consider “those factors that direct similar sen-
tencing decisions,” such as “the nature and circumstances of
the offense, the defendant’s appreciation of and attitude to-
ward the offense, . . . [and] the general objectives of sentenc-
ing.” Ibid. (internal quotation marks and citations omitted).
California trial courts can also vacate allegations of prior
“serious” or “violent” felony convictions, either on motion by
the prosecution or sua sponte. Romero, supra, at 529–530,
917 P. 2d, at 647–648. In ruling whether to vacate allega-
tions of prior felony convictions, courts consider whether, “in
light of the nature and circumstances of [the defendant’s]
present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character,
and prospects, the defendant may be deemed outside the
[three strikes’] scheme’s spirit, in whole or in part.” People
v. Williams, 17 Cal. 4th 148, 161, 948 P. 2d 429, 437
(1998). Thus, trial courts may avoid imposing a three
strikes sentence in two ways: first, by reducing “wobblers”
to misdemeanors (which do not qualify as triggering of-
fenses), and second, by vacating allegations of prior “serious”
or “violent” felony convictions.
C
On parole from a 9-year prison term, petitioner Gary
Ewing walked into the pro shop of the El Segundo Golf

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Opinion of O’Connor, J.
Course in Los Angeles County on March 12, 2000. He
walked out with three golf clubs, priced at $399 apiece, con-
cealed in his pants leg. A shop employee, whose suspicions
were aroused when he observed Ewing limp out of the pro
shop, telephoned the police. The police apprehended Ewing
in the parking lot.
Ewing is no stranger to the criminal justice system. In
1984, at the age of 22, he pleaded guilty to theft. The court
sentenced him to six months in jail (suspended), three years’
probation, and a $300 fine. In 1988, he was convicted of fel-
ony grand theft auto and sentenced to one year in jail and
three years’ probation. After Ewing completed probation,
however, the sentencing court reduced the crime to a mis-
demeanor, permitted Ewing to withdraw his guilty plea, and
dismissed the case. In 1990, he was convicted of petty theft
with a prior and sentenced to 60 days in the county jail and
three years’ probation. In 1992, Ewing was convicted of
battery and sentenced to 30 days in the county jail and two
years’ summary probation. One month later, he was con-
victed of theft and sentenced to 10 days in the county jail
and 12 months’ probation. In January 1993, Ewing was con-
victed of burglary and sentenced to 60 days in the county
jail and one year’s summary probation. In February 1993,
he was convicted of possessing drug paraphernalia and sen-
tenced to six months in the county jail and three years’ pro-
bation. In July 1993, he was convicted of appropriating lost
property and sentenced to 10 days in the county jail and
two years’ summary probation. In September 1993, he was
convicted of unlawfully possessing a firearm and trespassing
and sentenced to 30 days in the county jail and one year’s
probation.
In October and November 1993, Ewing committed three
burglaries and one robbery at a Long Beach, California,
apartment complex over a 5-week period. He awakened one
of his victims, asleep on her living room sofa, as he tried to
disconnect her video cassette recorder from the television in

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Opinion of O’Connor, J.
that room. When she screamed, Ewing ran out the front
door. On another occasion, Ewing accosted a victim in the
mailroom of the apartment complex. Ewing claimed to have
a gun and ordered the victim to hand over his wallet. When
the victim resisted, Ewing produced a knife and forced the
victim back to the apartment itself. While Ewing rifled
through the bedroom, the victim fled the apartment scream-
ing for help. Ewing absconded with the victim’s money and
credit cards.
On December 9, 1993, Ewing was arrested on the premises
of the apartment complex for trespassing and lying to a
police officer. The knife used in the robbery and a glass
cocaine pipe were later found in the back seat of the patrol
car used to transport Ewing to the police station. A jury
convicted Ewing of first-degree robbery and three counts of
residential burglary. Sentenced to nine years and eight
months in prison, Ewing was paroled in 1999.
Only 10 months later, Ewing stole the golf clubs at issue
in this case. He was charged with, and ultimately convicted
of, one count of felony grand theft of personal property in
excess of $400. See Cal. Penal Code Ann. § 484 (West Supp.
2002); § 489 (West 1999). As required by the three strikes
law, the prosecutor formally alleged, and the trial court later
found, that Ewing had been convicted previously of four seri-
ous or violent felonies for the three burglaries and the rob-
bery in the Long Beach apartment complex. See § 667(g)
(West 1999); § 1170.12(e) (West Supp. 2002).
At the sentencing hearing, Ewing asked the court to re-
duce the conviction for grand theft, a “wobbler” under Cali-
fornia law, to a misdemeanor so as to avoid a three strikes
sentence. See §§ 17(b), 667(d)(1) (West 1999); § 1170.12(b)(1)
(West Supp. 2002). Ewing also asked the trial court to exer-
cise its discretion to dismiss the allegations of some or all
of his prior serious or violent felony convictions, again for
purposes of avoiding a three strikes sentence. See Romero,
13 Cal. 4th, at 529–531, 917 P. 2d, at 647–648. Before sen-

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20 EWING v. CALIFORNIA
Opinion of O’Connor, J.
tencing Ewing, the trial court took note of his entire criminal
history, including the fact that he was on parole when he
committed his latest offense. The court also heard argu-
ments from defense counsel and a plea from Ewing himself.
In the end, the trial judge determined that the grand theft
should remain a felony. The court also ruled that the four
prior strikes for the three burglaries and the robbery in
Long Beach should stand. As a newly convicted felon with
two or more “serious” or “violent” felony convictions in his
past, Ewing was sentenced under the three strikes law to 25
years to life.
The California Court of Appeal affirmed in an unpublished
opinion. No. B143745 (Apr. 25, 2001). Relying on our deci-
sion in Rummel v. Estelle, 445 U. S. 263 (1980), the court
rejected Ewing’s claim that his sentence was grossly dispro-
portionate under the Eighth Amendment. Enhanced sen-
tences under recidivist statutes like the three strikes law,
the court reasoned, serve the “legitimate goal” of deterring
and incapacitating repeat offenders. The Supreme Court
of California denied Ewing’s petition for review, and we
granted certiorari, 535 U. S. 969 (2002). We now affirm.
II
A
The Eighth Amendment, which forbids cruel and unusual
punishments, contains a “narrow proportionality principle”
that “applies to noncapital sentences.” Harmelin v. Michi-
gan, 501 U. S. 957, 996–997 (1991) (Kennedy, J., concurring
in part and concurring in judgment); cf. Weems v. United
States, 217 U. S. 349, 371 (1910); Robinson v. California, 370
U. S. 660, 667 (1962) (applying the Eighth Amendment to the
States via the Fourteenth Amendment). We have most re-
cently addressed the proportionality principle as applied to
terms of years in a series of cases beginning with Rummel
v. Estelle, supra.

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Opinion of O’Connor, J.
In Rummel, we held that it did not violate the Eighth
Amendment for a State to sentence a three-time offender to
life in prison with the possibility of parole. Id., at 284–285.
Like Ewing, Rummel was sentenced to a lengthy prison term
under a recidivism statute. Rummel’s two prior offenses
were a 1964 felony for “fraudulent use of a credit card to
obtain $80 worth of goods or services,” and a 1969 felony
conviction for “passing a forged check in the amount of
$28.36.” Id., at 265. His triggering offense was a convic-
tion for felony theft—“obtaining $120.75 by false pretenses.”
Id., at 266.
This Court ruled that “[h]aving twice imprisoned him for
felonies, Texas was entitled to place upon Rummel the onus
of one who is simply unable to bring his conduct within the
social norms prescribed by the criminal law of the State.”
Id., at 284. The recidivism statute “is nothing more than a
societal decision that when such a person commits yet an-
other felony, he should be subjected to the admittedly seri-
ous penalty of incarceration for life, subject only to the
State’s judgment as to whether to grant him parole.” Id.,
at 278. We noted that this Court “has on occasion stated
that the Eighth Amendment prohibits imposition of a sen-
tence that is grossly disproportionate to the severity of the
crime.” Id., at 271. But “[o]utside the context of capital
punishment, successful challenges to the proportionality of
particular sentences have been exceedingly rare.” Id., at
272. Although we stated that the proportionality principle
“would . . . come into play in the extreme example . . . if a
legislature made overtime parking a felony punishable by
life imprisonment,” id., at 274, n. 11, we held that “the man-
datory life sentence imposed upon this petitioner does not
constitute cruel and unusual punishment under the Eighth
and Fourteenth Amendments,” id., at 285.
In Hutto v. Davis, 454 U. S. 370 (1982) (per curiam), the
defendant was sentenced to two consecutive terms of 20
years in prison for possession with intent to distribute nine

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22 EWING v. CALIFORNIA
Opinion of O’Connor, J.
ounces of marijuana and distribution of marijuana. We held
that such a sentence was constitutional: “In short, Rummel
stands for the proposition that federal courts should be reluc-
tant to review legislatively mandated terms of imprison-
ment, and that successful challenges to the proportionality
of particular sentences should be exceedingly rare.” Id., at
374 (citations and internal quotation marks omitted).
Three years after Rummel, in Solem v. Helm, 463 U. S.
277, 279 (1983), we held that the Eighth Amendment prohib-
ited “a life sentence without possibility of parole for a sev-
enth nonviolent felony.” The triggering offense in Solem
was “uttering a ‘no account’ check for $100.” Id., at 281.
We specifically stated that the Eighth Amendment’s ban on
cruel and unusual punishments “prohibits . . . sentences that
are disproportionate to the crime committed,” and that the
“constitutional principle of proportionality has been recog-
nized explicitly in this Court for almost a century.” Id., at
284, 286. The Solem Court then explained that three fac-
tors may be relevant to a determination of whether a sen-
tence is so disproportionate that it violates the Eighth
Amendment: “(i) the gravity of the offense and the harshness
of the penalty; (ii) the sentences imposed on other criminals
in the same jurisdiction; and (iii) the sentences imposed for
commission of the same crime in other jurisdictions.” Id.,
at 292.
Applying these factors in Solem, we struck down the de-
fendant’s sentence of life without parole. We specifically
noted the contrast between that sentence and the sentence
in Rummel, pursuant to which the defendant was eligible for
parole. 463 U. S., at 297; see also id., at 300 (“[T]he South
Dakota commutation system is fundamentally different from
the parole system that was before us in Rummel”). Indeed,
we explicitly declined to overrule Rummel: “[O]ur conclusion
today is not inconsistent with Rummel v. Estelle.” 463
U. S., at 303, n. 32; see also id., at 288, n. 13 (“[O]ur decision

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Opinion of O’Connor, J.
is entirely consistent with this Court’s prior cases—including
Rummel v. Estelle”).
Eight years after Solem, we grappled with the proportion-
ality issue again in Harmelin. Harmelin was not a recidi-
vism case, but rather involved a first-time offender convicted
of possessing 672 grams of cocaine. He was sentenced to
life in prison without possibility of parole. A majority of
the Court rejected Harmelin’s claim that his sentence was
so grossly disproportionate that it violated the Eighth
Amendment. The Court, however, could not agree on why
his proportionality argument failed. Justice Scalia,
joined by The Chief Justice, wrote that the proportional-
ity principle was “an aspect of our death penalty jurispru-
dence, rather than a generalizable aspect of Eighth Amend-
ment law.” 501 U. S. at 994. He would thus have declined
to apply gross disproportionality principles except in review-
ing capital sentences. Ibid.
Justice Kennedy, joined by two other Members of the
Court, concurred in part and concurred in the judgment.
Justice Kennedy specifically recognized that “[t]he Eighth
Amendment proportionality principle also applies to noncap-
ital sentences.” Id., at 997. He then identified four prin-
ciples of proportionality review—“the primacy of the legis-
lature, the variety of legitimate penological schemes, the
nature of our federal system, and the requirement that pro-
portionality review be guided by objective factors”—that
“inform the final one: The Eighth Amendment does not re-
quire strict proportionality between crime and sentence.
Rather, it forbids only extreme sentences that are ‘grossly
disproportionate’ to the crime.” Id., at 1001 (citing Solem,
supra, at 288). Justice Kennedy’s concurrence also stated
that Solem “did not mandate” comparative analysis “within
and between jurisdictions.” 501 U. S., at 1004–1005.
The proportionality principles in our cases distilled in Jus-
tice Kennedy’s concurrence guide our application of the

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24 EWING v. CALIFORNIA
Opinion of O’Connor, J.
Eighth Amendment in the new context that we are called
upon to consider.
B
For many years, most States have had laws providing for
enhanced sentencing of repeat offenders. See, e. g., U. S.
Dept. of Justice, Bureau of Justice Assistance, National As-
sessment of Structured Sentencing (1996). Yet between
1993 and 1995, three strikes laws effected a sea change in
criminal sentencing throughout the Nation.1 These laws re-
sponded to widespread public concerns about crime by tar-
geting the class of offenders who pose the greatest threat to
public safety: career criminals. As one of the chief archi-
tects of California’s three strikes law has explained: “Three
Strikes was intended to go beyond simply making sentences
tougher. It was intended to be a focused effort to create a
sentencing policy that would use the judicial system to re-
duce serious and violent crime.” Ardaiz, California’s Three
Strikes Law: History, Expectations, Consequences, 32 Mc-
George L. Rev. 1, 12 (2000) (hereinafter Ardaiz).
Throughout the States, legislatures enacting three strikes
laws made a deliberate policy choice that individuals who
have repeatedly engaged in serious or violent criminal be-
havior, and whose conduct has not been deterred by more
conventional approaches to punishment, must be isolated
from society in order to protect the public safety. Though
three strikes laws may be relatively new, our tradition of
deferring to state legislatures in making and implementing
such important policy decisions is longstanding. Weems,
217 U. S., at 379; Gore v. United States, 357 U. S. 386, 393
1 It is hardly surprising that the statistics relied upon by Justice
Breyer show that prior to the enactment of the three strikes law, “no
one like Ewing could have served more than 10 years in prison.” Post,
at 43 (dissenting opinion) (emphasis added). Profound disappointment
with the perceived lenity of criminal sentencing (especially for repeat fel-
ons) led to passage of three strikes laws in the first place. See, e. g., Re-
view of State Legislation 1.

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25 Cite as: 538 U. S. 11 (2003)
Opinion of O’Connor, J.
(1958); Payne v. Tennessee, 501 U. S. 808, 824 (1991); Rum-
mel, 445 U. S., at 274; Solem, 463 U. S., at 290; Harmelin,
501 U. S., at 998 (Kennedy, J., concurring in part and concur-
ring in judgment).
Our traditional deference to legislative policy choices finds
a corollary in the principle that the Constitution “does not
mandate adoption of any one penological theory.” Id., at 999
(Kennedy, J., concurring in part and concurring in judg-
ment). A sentence can have a variety of justifications, such
as incapacitation, deterrence, retribution, or rehabilitation.
See 1 W. LaFave & A. Scott, Substantive Criminal Law § 1.5,
pp. 30–36 (1986) (explaining theories of punishment). Some
or all of these justifications may play a role in a State’s
sentencing scheme. Selecting the sentencing rationales is
generally a policy choice to be made by state legislatures,
not federal courts.
When the California Legislature enacted the three strikes
law, it made a judgment that protecting the public safety
requires incapacitating criminals who have already been con-
victed of at least one serious or violent crime. Nothing in
the Eighth Amendment prohibits California from making
that choice. To the contrary, our cases establish that
“States have a valid interest in deterring and segregating
habitual criminals.” Parke v. Raley, 506 U. S. 20, 27 (1992);
Oyler v. Boles, 368 U. S. 448, 451 (1962) (“[T]he constitution-
ality of the practice of inflicting severer criminal penalties
upon habitual offenders is no longer open to serious chal-
lenge”). Recidivism has long been recognized as a legiti-
mate basis for increased punishment. See Almendarez-
Torres v. United States, 523 U. S. 224, 230 (1998) (recidivism
“is as typical a sentencing factor as one might imagine”);
Witte v. United States, 515 U. S. 389, 400 (1995) (“In repeat-
edly upholding such recidivism statutes, we have rejected
double jeopardy challenges because the enhanced punish-
ment imposed for the later offense . . . [is] ‘a stiffened penalty
for the latest crime, which is considered to be an aggravated

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26 EWING v. CALIFORNIA
Opinion of O’Connor, J.
offense because a repetitive one’ ” (quoting Gryger v. Burke,
334 U. S. 728, 732 (1948))).
California’s justification is no pretext. Recidivism is a se-
rious public safety concern in California and throughout the
Nation. According to a recent report, approximately 67 per-
cent of former inmates released from state prisons were
charged with at least one “serious” new crime within three
years of their release. See U. S. Dept. of Justice, Bureau
of Justice Statistics, P. Langan & D. Levin, Special Report:
Recidivism of Prisoners Released in 1994, p. 1 (June 2002).
In particular, released property offenders like Ewing had
higher recidivism rates than those released after committing
violent, drug, or public-order offenses. Id., at 8. Approxi-
mately 73 percent of the property offenders released in 1994
were arrested again within three years, compared to approx-
imately 61 percent of the violent offenders, 62 percent of the
public-order offenders, and 66 percent of the drug offend-
ers. Ibid.
In 1996, when the Sacramento Bee studied 233 three
strikes offenders in California, it found that they had an ag-
gregate of 1,165 prior felony convictions, an average of 5
apiece. See Furillo, Three Strikes—The Verdict: Most Of-
fenders Have Long Criminal Histories, Sacramento Bee,
Mar. 31, 1996, p. A1. The prior convictions included 322 rob-
beries and 262 burglaries. Ibid. About 84 percent of the
233 three strikes offenders had been convicted of at least one
violent crime. Ibid. In all, they were responsible for 17
homicides, 7 attempted slayings, and 91 sexual assaults and
child molestations. Ibid. The Sacramento Bee concluded,
based on its investigation, that “[i]n the vast majority of the
cases, regardless of the third strike, the [three strikes] law
is snaring [the] long-term habitual offenders with multiple
felony convictions . . . .” Ibid.
The State’s interest in deterring crime also lends some
support to the three strikes law. We have long viewed both
incapacitation and deterrence as rationales for recidivism

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27 Cite as: 538 U. S. 11 (2003)
Opinion of O’Connor, J.
statutes: “[A] recidivist statute[’s] . . . primary goals are to
deter repeat offenders and, at some point in the life of one
who repeatedly commits criminal offenses serious enough to
be punished as felonies, to segregate that person from the
rest of society for an extended period of time.” Rummel,
supra, at 284. Four years after the passage of California’s
three strikes law, the recidivism rate of parolees returned to
prison for the commission of a new crime dropped by nearly
25 percent. California Dept. of Justice, Office of the Attor-
ney General, “Three Strikes and You’re Out”—Its Impact on
the California Criminal Justice System After Four Years,
p. 10 (1998). Even more dramatically:
“An unintended but positive consequence of ‘Three
Strikes’ has been the impact on parolees leaving the
state. More California parolees are now leaving the
state than parolees from other jurisdictions entering
California. This striking turnaround started in 1994.
It was the first time more parolees left the state than
entered since 1976. This trend has continued and in
1997 more than 1,000 net parolees left California.”
Ibid.
See also Janiskee & Erler, Crime, Punishment, and Romero:
An Analysis of the Case Against California’s Three Strikes
Law, 39 Duquesne L. Rev. 43, 45–46 (2000) (“Prosecutors in
Los Angeles routinely report that ‘felons tell them they are
moving out of the state because they fear getting a second
or third strike for a nonviolent offense’ ” (quoting Sanchez,
A Movement Builds Against “Three Strikes” Law, Washing-
ton Post, Feb. 18, 2000, p. A3)).
To be sure, California’s three strikes law has sparked con-
troversy. Critics have doubted the law’s wisdom, cost-
efficiency, and effectiveness in reaching its goals. See, e. g.,
Zimring, Hawkins, & Kamin, Punishment and Democracy:
Three Strikes and You’re Out in California (2001); Vitiello,
Three Strikes: Can We Return to Rationality? 87 J. Crim.

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28 EWING v. CALIFORNIA
Opinion of O’Connor, J.
L. & C. 395, 423 (1997). This criticism is appropriately di-
rected at the legislature, which has primary responsibility
for making the difficult policy choices that underlie any crim-
inal sentencing scheme. We do not sit as a “superlegisla-
ture” to second-guess these policy choices. It is enough that
the State of California has a reasonable basis for believing
that dramatically enhanced sentences for habitual felons “ad-
vance[s] the goals of [its] criminal justice system in any sub-
stantial way.” See Solem, 463 U. S., at 297, n. 22.
III
Against this backdrop, we consider Ewing’s claim that his
three strikes sentence of 25 years to life is unconstitutionally
disproportionate to his offense of “shoplifting three golf
clubs.” Brief for Petitioner 6. We first address the gravity
of the offense compared to the harshness of the penalty. At
the threshold, we note that Ewing incorrectly frames the
issue. The gravity of his offense was not merely “shop-
lifting three golf clubs.” Rather, Ewing was convicted of
felony grand theft for stealing nearly $1,200 worth of mer-
chandise after previously having been convicted of at least
two “violent” or “serious” felonies. Even standing alone,
Ewing’s theft should not be taken lightly. His crime was
certainly not “one of the most passive felonies a person could
commit.” Solem, supra, at 296 (internal quotation marks
omitted). To the contrary, the Supreme Court of California
has noted the “seriousness” of grand theft in the context of
proportionality review. See In re Lynch, 8 Cal. 3d 410, 432,
n. 20, 503 P. 2d 921, 936, n. 20 (1972). Theft of $1,200 in
property is a felony under federal law, 18 U. S. C. § 641, and
in the vast majority of States. See App. B to Brief for
Petitioner 21a.
That grand theft is a “wobbler” under California law is
of no moment. Though California courts have discretion to
reduce a felony grand theft charge to a misdemeanor, it re-
mains a felony for all purposes “unless and until the trial

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29 Cite as: 538 U. S. 11 (2003)
Opinion of O’Connor, J.
court imposes a misdemeanor sentence.” In re Anderson,
69 Cal. 2d 613, 626, 447 P. 2d 117, 126 (1968) (Tobriner, J.,
concurring); see generally 1 B. Witkin & N. Epstein, Califor-
nia Criminal Law § 73 (3d ed. 2000). “The purpose of the
trial judge’s sentencing discretion” to downgrade certain fel-
onies is to “impose a misdemeanor sentence in those cases in
which the rehabilitation of the convicted defendant either
does not require, or would be adversely affected by, incar-
ceration in a state prison as a felon.” Anderson, supra, at
664–665, 447 P. 2d, at 152 (Tobriner, J., concurring). Under
California law, the reduction is not based on the notion that
a “wobbler” is “conceptually a misdemeanor.” Necochea v.
Superior Court, 23 Cal. App. 3d 1012, 1016, 100 Cal. Rptr.
693, 695 (1972). Rather, it is “intended to extend misde-
meanant treatment to a potential felon.” Ibid. In Ewing’s
case, however, the trial judge justifiably exercised her dis-
cretion not to extend such lenient treatment given Ewing’s
long criminal history.
In weighing the gravity of Ewing’s offense, we must place
on the scales not only his current felony, but also his long
history of felony recidivism. Any other approach would fail
to accord proper deference to the policy judgments that find
expression in the legislature’s choice of sanctions. In impos-
ing a three strikes sentence, the State’s interest is not
merely punishing the offense of conviction, or the “trigger-
ing” offense: “[I]t is in addition the interest . . . in dealing in
a harsher manner with those who by repeated criminal acts
have shown that they are simply incapable of conforming to
the norms of society as established by its criminal law.”
Rummel, 445 U. S., at 276; Solem, supra, at 296. To give
full effect to the State’s choice of this legitimate penological
goal, our proportionality review of Ewing’s sentence must
take that goal into account.
Ewing’s sentence is justified by the State’s public-safety
interest in incapacitating and deterring recidivist felons, and

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30 EWING v. CALIFORNIA
Opinion of O’Connor, J.
amply supported by his own long, serious criminal record.2
Ewing has been convicted of numerous misdemeanor and fel-
ony offenses, served nine separate terms of incarceration,
and committed most of his crimes while on probation or pa-
role. His prior “strikes” were serious felonies including
robbery and three residential burglaries. To be sure, Ew-
ing’s sentence is a long one. But it reflects a rational legis-
lative judgment, entitled to deference, that offenders who
have committed serious or violent felonies and who continue
to commit felonies must be incapacitated. The State of Cali-
fornia “was entitled to place upon [Ewing] the onus of one
who is simply unable to bring his conduct within the social
norms prescribed by the criminal law of the State.” Rum-
mel, supra, at 284. Ewing’s is not “the rare case in which
a threshold comparison of the crime committed and the sen-
tence imposed leads to an inference of gross disproportion-
ality.” Harmelin, 501 U. S., at 1005 (Kennedy, J., concur-
ring in part and concurring in judgment).
We hold that Ewing’s sentence of 25 years to life in prison,
imposed for the offense of felony grand theft under the three
strikes law, is not grossly disproportionate and therefore
does not violate the Eighth Amendment’s prohibition on
2 Justice Breyer argues that including Ewing’s grand theft as a trig-
gering offense cannot be justified on “property-crime-related incapacita-
tion grounds” because such crimes do not count as prior strikes. Post,
at 51. But the State’s interest in dealing with repeat felons like Ewing
is not so limited. As we have explained, the overarching objective of the
three strikes law is to prevent serious or violent offenders like Ewing
from repeating their criminal behavior. See Cal. Penal Code Ann.
§ 667(b) (West 1999) (“It is the intent of the Legislature . . . to en-
sure longer prison sentences and greater punishment for those who com-
mit a felony and have been previously convicted of serious and/or violent
felony offenses”). The California Legislature therefore made a “deliber-
ate policy decision . . . that the gravity of the new felony should not be a
determinative factor in ‘triggering’ the application of the Three Strikes
Law.” Ardaiz 9. Neither the Eighth Amendment nor this Court’s prece-
dent forecloses that legislative choice.

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31 Cite as: 538 U. S. 11 (2003)
Scalia, J., concurring in judgment
cruel and unusual punishments. The judgment of the Cali-
fornia Court of Appeal is affirmed.
It is so ordered.
Justice Scalia, concurring in the judgment.
In my opinion in Harmelin v. Michigan, 501 U. S. 957, 985
(1991), I concluded that the Eighth Amendment’s prohibition
of “cruel and unusual punishments” was aimed at excluding
only certain modes of punishment, and was not a “guarantee
against disproportionate sentences.” Out of respect for the
principle of stare decisis, I might nonetheless accept the con-
trary holding of Solem v. Helm, 463 U. S. 277 (1983)—that
the Eighth Amendment contains a narrow proportionality
principle—if I felt I could intelligently apply it. This case
demonstrates why I cannot.
Proportionality—the notion that the punishment should fit
the crime—is inherently a concept tied to the penological
goal of retribution. “[I]t becomes difficult even to speak in-
telligently of ‘proportionality,’ once deterrence and rehabili-
tation are given significant weight,” Harmelin, supra, at
989—not to mention giving weight to the purpose of Califor-
nia’s three strikes law: incapacitation. In the present case,
the game is up once the plurality has acknowledged that “the
Constitution does not mandate adoption of any one penologi-
cal theory,” and that a “sentence can have a variety of justi-
fications, such as incapacitation, deterrence, retribution, or
rehabilitation.” Ante, at 25 (internal quotation marks omit-
ted). That acknowledgment having been made, it no longer
suffices merely to assess “the gravity of the offense com-
pared to the harshness of the penalty,” ante, at 28; that clas-
sic description of the proportionality principle (alone and in
itself quite resistant to policy-free, legal analysis) now be-
comes merely the “first” step of the inquiry, ibid. Having
completed that step (by a discussion which, in all fairness,
does not convincingly establish that 25-years-to-life is a “pro-
portionate” punishment for stealing three golf clubs), the

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32 EWING v. CALIFORNIA
Stevens, J., dissenting
plurality must then add an analysis to show that “Ewing’s
sentence is justified by the State’s public-safety interest in
incapacitating and deterring recidivist felons.” Ante, at 29.
Which indeed it is—though why that has anything to do
with the principle of proportionality is a mystery. Perhaps
the plurality should revise its terminology, so that what it
reads into the Eighth Amendment is not the unstated propo-
sition that all punishment should be reasonably proportion-
ate to the gravity of the offense, but rather the unstated
proposition that all punishment should reasonably pursue the
multiple purposes of the criminal law. That formulation
would make it clearer than ever, of course, that the plurality
is not applying law but evaluating policy.
Because I agree that petitioner’s sentence does not violate
the Eighth Amendment’s prohibition against cruel and un-
usual punishments, I concur in the judgment.
Justice Thomas, concurring in the judgment.
I agree with Justice Scalia’s view that the proportional-
ity test announced in Solem v. Helm, 463 U. S. 277 (1983),
is incapable of judicial application. Even were Solem’s test
perfectly clear, however, I would not feel compelled by stare
decisis to apply it. In my view, the Cruel and Unusual
Punishments Clause of the Eighth Amendment contains no
proportionality principle. See Harmelin v. Michigan, 501
U. S. 957, 966–985 (1991) (opinion of Scalia, J.).
Because the plurality concludes that petitioner’s sentence
does not violate the Eighth Amendment’s prohibition on
cruel and unusual punishments, I concur in the judgment.
Justice Stevens, with whom Justice Souter, Justice
Ginsburg, and Justice Breyer join, dissenting.
Justice Breyer has cogently explained why the sentence
imposed in this case is both cruel and unusual.1 The concur-
1 For “present purposes,” post, at 36, 53 (dissenting opinion), Justice
Breyer applies the framework established by Harmelin v. Michigan, 501
U. S. 957, 1004–1005 (1991), in analyzing Ewing’s Eighth Amendment

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33 Cite as: 538 U. S. 11 (2003)
Stevens, J., dissenting
rences prompt this separate writing to emphasize that pro-
portionality review is not only capable of judicial application
but also required by the Eighth Amendment.
“The Eighth Amendment succinctly prohibits ‘excessive’
sanctions.” Atkins v. Virginia, 536 U. S. 304, 311 (2002); see
also U. S. Const., Amdt. 8 (“Excessive bail shall not be re-
quired, nor excessive fines imposed, nor cruel and unusual
punishments inflicted”). Faithful to the Amendment’s text,
this Court has held that the Constitution directs judges to
apply their best judgment in determining the proportionality
of fines, see, e. g., United States v. Bajakajian, 524 U. S. 321,
334–336 (1998), bail, see, e. g., Stack v. Boyle, 342 U. S. 1, 5
(1951), and other forms of punishment, including the imposi-
tion of a death sentence, see, e. g., Coker v. Georgia, 433 U. S.
584, 592 (1977). It “would be anomalous indeed” to suggest
that the Eighth Amendment makes proportionality review
applicable in the context of bail and fines but not in the con-
text of other forms of punishment, such as imprisonment.
Solem v. Helm, 463 U. S. 277, 289 (1983). Rather, by broadly
prohibiting excessive sanctions, the Eighth Amendment di-
rects judges to exercise their wise judgment in assessing the
proportionality of all forms of punishment.
The absence of a black-letter rule does not disable judges
from exercising their discretion in construing the outer
limits on sentencing authority that the Eighth Amendment
imposes. After all, judges are “constantly called upon to
draw . . . lines in a variety of contexts,” id., at 294, and
to exercise their judgment to give meaning to the Consti-
tution’s broadly phrased protections. For example, the Due
Process Clause directs judges to employ proportionality re-
claim. I agree with Justice Breyer that Ewing’s sentence is grossly
disproportionate even under Harmelin’s narrow proportionality frame-
work. However, it is not clear that this case is controlled by Harmelin,
which considered the proportionality of a life sentence imposed on a drug
offender who had no prior felony convictions. Rather, the three-factor
analysis established in Solem v. Helm, 463 U. S. 277, 290–291 (1983), which
specifically addressed recidivist sentencing, seems more directly on point.

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34 EWING v. CALIFORNIA
Stevens, J., dissenting
view in assessing the constitutionality of punitive damages
awards on a case-by-case basis. See, e. g., BMW of North
America, Inc. v. Gore, 517 U. S. 559, 562 (1996). Also,
although the Sixth Amendment guarantees criminal defend-
ants the right to a speedy trial, the courts often are asked
to determine on a case-by-case basis whether a particular
delay is constitutionally permissible or not. See, e. g., Dog-
gett v. United States, 505 U. S. 647 (1992).2
Throughout most of the Nation’s history—before guideline
sentencing became so prevalent—federal and state trial
judges imposed specific sentences pursuant to grants of au-
thority that gave them uncabined discretion within broad
ranges. See K. Stith & J. Cabranes, Fear of Judging: Sen-
tencing Guidelines in the Federal Courts 9 (1998) (herein-
after Stith & Cabranes) (“From the beginning of the Repub-
lic, federal judges were entrusted with wide sentencing
discretion”); see also Mistretta v. United States, 488 U. S.
361, 364 (1989). It was not unheard of for a statute to au-
thorize a sentence ranging from one year to life, for example.
See, e. g., State v. Perley, 86 Me. 427, 30 A. 74, 75 (1894) (cit-
ing Maine statute that made robbery punishable by impris-
onment for life or any term of years); In re Southard, 298
Mich. 75, 77, 298 N. W. 457 (1941) (“The offense of ‘robbery
armed’ is punishable by imprisonment for life or any term
2 Numerous other examples could be given of situations in which
courts—faced with imprecise commands—must make difficult decisions.
See, e. g., Kyles v. Whitley, 514 U. S. 419 (1995) (reviewing whether undis-
closed evidence was material); Arizona v. Fulminante, 499 U. S. 279 (1991)
(considering whether confession was coerced and, if so, whether admission
of the coerced confession was harmless error); Strickland v. Washington,
466 U. S. 668 (1984) (addressing whether defense counsel’s performance
was deficient and whether any deficiency was prejudicial); Darden v.
Wainwright, 477 U. S. 168 (1986) (assessing whether prosecutorial miscon-
duct deprived defendant of a fair trial); Christensen v. Harris County,
529 U. S. 576, 589 (2000) (Scalia, J., concurring in part and concurring
in judgment) (addressing whether an agency’s construction of a statute
was “ ‘reasonable’ ”).

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35 Cite as: 538 U. S. 11 (2003)
Breyer, J., dissenting
of years”). In exercising their discretion, sentencing judges
wisely employed a proportionality principle that took into
account all of the justifications for punishment—namely,
deterrence, incapacitation, retribution, and rehabilitation.
See Stith & Cabranes 14. Likewise, I think it clear that
the Eighth Amendment’s prohibition of “cruel and unusual
punishments” expresses a broad and basic proportionality
principle that takes into account all of the justifications for
penal sanctions. It is this broad proportionality principle
that would preclude reliance on any of the justifications for
punishment to support, for example, a life sentence for over-
time parking. See Rummel v. Estelle, 445 U. S. 263, 274,
n. 11 (1980).
Accordingly, I respectfully dissent.
Justice Breyer, with whom Justice Stevens, Justice
Souter, and Justice Ginsburg join, dissenting.
The constitutional question is whether the “three strikes”
sentence imposed by California upon repeat-offender Gary
Ewing is “grossly disproportionate” to his crime. Ante,
at 14, 30–31 (plurality opinion). The sentence amounts to
a real prison term of at least 25 years. The sentence-
triggering criminal conduct consists of the theft of three golf
clubs priced at a total of $1,197. See ante, at 18. The of-
fender has a criminal history that includes four felony convic-
tions arising out of three separate burglaries (one armed).
Ante, at 18–19. In Solem v. Helm, 463 U. S. 277 (1983), the
Court found grossly disproportionate a somewhat longer sen-
tence imposed on a recidivist offender for triggering criminal
conduct that was somewhat less severe. In my view, the
differences are not determinative, and the Court should
reach the same ultimate conclusion here.
I
This Court’s precedent sets forth a framework for analyz-
ing Ewing’s Eighth Amendment claim. The Eighth Amend-
ment forbids, as “cruel and unusual punishments,” prison

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36 EWING v. CALIFORNIA
Breyer, J., dissenting
terms (including terms of years) that are “grossly dispropor-
tionate.” Solem, supra, at 303; see Lockyer v. Andrade,
post, at 71. In applying the “gross disproportionality” prin-
ciple, 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 judg-
ments. 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 judg-
ment) (quoting Solem, supra, at 290, n. 16).
The plurality applies Justice Kennedy’s analytical
framework in Harmelin, supra, at 1004–1005 (opinion con-
curring 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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37 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 analy-
sis 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 consti-
tutionality 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 up-
held 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 crimi-
nal 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 Man-
ual 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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38 EWING v. CALIFORNIA
Breyer, J., dissenting
In Rummel, the Court held constitutional (a) a sentence of
life imprisonment with parole available within 10 to 12
years, (b) for the offense of obtaining $120 by false pretenses,
(c) committed by an offender with two prior felony convic-
tions (involving small amounts of money). 445 U. S. 263;
ante, at 21. In Solem, the Court held unconstitutional (a) a
sentence of life imprisonment without parole, (b) for the
crime of writing a $100 check on a nonexistent bank account,
(c) committed by an offender with six prior felony convictions
(including three for burglary). 463 U. S. 277; ante, at 22–23.
Which of the three pertinent comparative factors made the
constitutional difference?
The third factor, prior record, cannot explain the differ-
ence. The offender’s prior record was worse in Solem,
where the Court found the sentence too long, than in Rum-
mel, where the Court upheld the sentence. The second fac-
tor, offense conduct, cannot explain the difference. The na-
ture of the triggering offense—viewed in terms of the actual
monetary loss—in the two cases was about the same. The
one critical factor that explains the difference in the outcome
is the length of the likely prison term measured in real time.
In Rummel, where the Court upheld the sentence, the state
sentencing statute authorized parole for the offender, Rum-
mel, after 10 or 12 years. 445 U. S., at 280; id., at 293 (Pow-
ell, J., dissenting). In Solem, where the Court struck down
the sentence, the sentence required the offender, Helm, to
spend the rest of his life in prison.
Now consider the present case. The third factor, offender
characteristics—i. e., prior record—does not differ signifi-
cantly here from that in Solem. Ewing’s prior record con-
sists of four prior felony convictions (involving three bur-
glaries, one with a knife) contrasted with Helm’s six prior
felony convictions (including three burglaries, though none
with weapons). The second factor, offense behavior, is
worse than that in Solem, but only to a degree. It would
be difficult to say that the actual behavior itself here (shop-

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39 Cite as: 538 U. S. 11 (2003)
Breyer, J., dissenting
lifting) differs significantly from that at issue in Solem (pass-
ing a bad check) or in Rummel (obtaining money through
false pretenses). Rather the difference lies in the value of
the goods obtained. That difference, measured in terms of
the most relevant feature (loss to the victim, i. e., wholesale
value) and adjusted for the irrelevant feature of inflation,
comes down (in 1979 values) to about $379 here compared
with $100 in Solem, or (in 1973 values) to $232 here com-
pared with $120.75 in Rummel. See USSG § 2B1.1, com-
ment., n. 2(A)(i) (Nov. 2002) (loss to victim properly meas-
ures value of goods unlawfully taken); U. S. Dept. of Labor,
Bureau of Labor Statistics, Inflation and Consumer Spend-
ing, Inflation Calculator (Jan. 23, 2003), http://www.bls.gov
(hereinafter Inflation Calculator). Alternatively, if one
measures the inflation-adjusted value difference in terms of
the golf clubs’ sticker price, it comes down to $505 here com-
pared to $100 in Solem, or $309 here compared to $120.75 in
Rummel. See Inflation Calculator.
The difference in length of the real prison term—the first,
and critical, factor in Solem and Rummel—is considerably
more important. Ewing’s sentence here amounts, in real
terms, to at least 25 years without parole or good-time cred-
its. That sentence is considerably shorter than Helm’s sen-
tence in Solem, which amounted, in real terms, to life in
prison. Nonetheless Ewing’s real prison term is more than
twice as long as the term at issue in Rummel, which
amounted, in real terms, to at least 10 or 12 years. And,
Ewing’s sentence, unlike Rummel’s (but like Helm’s sentence
in Solem), is long enough to consume the productive remain-
der of almost any offender’s life. (It means that Ewing him-
self, seriously ill when sentenced at age 38, will likely die
in prison.)
The upshot is that the length of the real prison term—the
factor that explains the Solem/Rummel difference in out-
come—places Ewing closer to Solem than to Rummel,
though the greater value of the golf clubs that Ewing stole

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40 EWING v. CALIFORNIA
Breyer, J., dissenting
moves Ewing’s case back slightly in Rummel’s direction.
Overall, the comparison places Ewing’s sentence well within
the twilight zone between Solem and Rummel—a zone
where the argument for unconstitutionality is substantial,
where the cases themselves cannot determine the constitu-
tional outcome.
Second, Ewing’s sentence on its face imposes one of the
most severe punishments available upon a recidivist who
subsequently engaged in one of the less serious forms of
criminal conduct. See infra, at 44–45. I do not deny the
seriousness of shoplifting, which an amicus curiae tells us
costs retailers in the range of $30 billion annually. Brief for
California District Attorneys Association as Amicus Curiae
27. But consider that conduct in terms of the factors that
this Court mentioned in Solem—the “harm caused or threat-
ened to the victim or society,” the “absolute magnitude of
the crime,” and the offender’s “culpability.” 463 U. S., at
292–293. In respect to all three criteria, the sentence-
triggering behavior here ranks well toward the bottom of
the criminal conduct scale.
The Solicitor General has urged us to consider three other
criteria: the “frequency” of the crime’s commission, the “ease
or difficulty of detection,” and “the degree to which the
crime may be deterred by differing amounts of punishment.”
Brief for United States as Amicus Curiae 24–25. When
considered in terms of these criteria—or at least the latter
two—the triggering conduct also ranks toward the bottom
of the scale. Unlike, say, drug crimes, shoplifting often
takes place in stores open to other customers whose pres-
ence, along with that of store employees or cameras, can help
to detect the crime. Nor is there evidence presented here
that the law enforcement community believes lengthy prison
terms necessary adequately to deter shoplifting. To the
contrary, well-publicized instances of shoplifting suggest that
the offense is often punished without any prison sentence at
all. On the other hand, shoplifting is a frequently com-

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41 Cite as: 538 U. S. 11 (2003)
Breyer, J., dissenting
mitted crime; but “frequency,” standing alone, cannot make
a critical difference. Otherwise traffic offenses would war-
rant even more serious punishment.
This case, of course, involves shoplifting engaged in by a
recidivist. One might argue that any crime committed by a
recidivist is a serious crime potentially warranting a 25-year
sentence. But this Court rejected that view in Solem, and
in Harmelin, with the recognition that “no penalty is per se
constitutional.” Solem, supra, at 290; Harmelin, 501 U. S.,
at 1001 (Kennedy, J., concurring in part and concurring in
judgment). Our cases make clear that, in cases involving
recidivist offenders, we must focus upon “the [offense] that
triggers the life sentence,” with recidivism playing a “rel-
evant,” but not necessarily determinative, role. Solem,
supra, at 296, n. 21; see Witte v. United States, 515 U. S. 389,
402, 403 (1995) (the recidivist defendant is “punished only
for the offense of conviction,” which “ ‘is considered to be
an aggravated offense because a repetitive one’ ” (quoting
Gryger v. Burke, 334 U. S. 728, 732 (1948))). And here,
as I have said, that offense is among the less serious, while
the punishment is among the most serious. Cf. Rummel,
445 U. S., at 288 (Powell, J., dissenting) (overtime parking
violation cannot trigger a life sentence even for a serious
recidivist).
Third, some objective evidence suggests that many experi-
enced judges would consider Ewing’s sentence dispropor-
tionately harsh. The United States Sentencing Commission
(having based the federal Sentencing Guidelines primarily
upon its review of how judges had actually sentenced offend-
ers) does not include shoplifting (or similar theft-related of-
fenses) among the crimes that might trigger especially long
sentences for recidivists, see USSG § 4B1.1 (Nov. 2002)
(Guideline for sentencing “career offenders”); id., ch. 1, pt.
A, intro., n. 5 (sentences based in part upon Commission’s
review of “summary reports of some 40,000 convictions [and]
a sample of 10,000 augmented presentence reports”); see also

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42 EWING v. CALIFORNIA
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 sen-
tence “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 imprison-
ment” 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 thresh-
old test must permit arguably unconstitutional sentences,
not only actually unconstitutional sentences, to pass the
threshold—at least where the arguments for unconstitution-
ality 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 determina-
tive 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., con-
curring 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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43 Cite as: 538 U. S. 11 (2003)
Breyer, J., dissenting
comparison of Ewing’s sentence with other sentences re-
quires answers to two questions. First, how would other
jurisdictions (or California at other times, i. e., without the
three strikes penalty) punish the same offense conduct?
Second, upon what other conduct would other jurisdictions
(or California) impose the same prison term? Moreover,
since hypothetical punishment is beside the point, the rele-
vant prison time, for comparative purposes, is real prison
time, i. e., the time that an offender must actually serve.
Sentencing statutes often shed little light upon real prison
time. That is because sentencing laws normally set maxi-
mum sentences, giving the sentencing judge discretion to
choose an actual sentence within a broad range, and because
many States provide good-time credits and parole, often per-
mitting release after, say, one-third of the sentence has been
served, see, e. g., Alaska Stat. § 33.20.010(a) (2000); Conn.
Gen. Stat. § 18–7a (1998). Thus, the statutory maximum is
rarely the sentence imposed, and the sentence imposed is
rarely the sentence that is served. For the most part, the
parties’ briefs discuss sentencing statutes. Nonetheless,
that discussion, along with other readily available informa-
tion, validates my initial belief that Ewing’s sentence, com-
paratively speaking, is extreme.
As to California itself, we know the following: First, be-
tween the end of World War II and 1994 (when California
enacted the three strikes law, ante, at 15), no one like Ewing
could have served more than 10 years in prison. We know
that for certain because the maximum sentence for Ewing’s
crime of conviction, grand theft, was for most of that period
10 years. Cal. Penal Code Ann. §§ 484, 489 (West 1970); see
Cal. Dept. of Corrections, Offender Information Services,
Administrative Services Division, Historical Data for Time
Served by Male Felons Paroled from Institutions: 1945
Through 1981, p. 11 (1982) (Table 10) (hereinafter Historical
Data for Time Served by California Felons), Lodging of Peti-
tioner. From 1976 to 1994 (and currently, absent application

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44 EWING v. CALIFORNIA
Breyer, J., dissenting
of the three strikes penalty), a Ewing-type offender would
have received a maximum sentence of four years. Cal.
Penal Code Ann. § 489 (West 1999), § 667.5(b) (West Supp.
2002). And we know that California’s “habitual offender”
laws did not apply to grand theft. §§ 644(a), (b) (West 1970)
(repealed 1977). We also know that the time that any of-
fender actually served was likely far less than 10 years.
This is because statistical data show that the median time
actually served for grand theft (other than auto theft) was
about two years, and 90 percent of all those convicted of that
crime served less than three or four years. Historical Data
for Time Served by California Felons 11 (Table 10).
Second, statistics suggest that recidivists of all sorts con-
victed during that same time period in California served a
small fraction of Ewing’s real-time sentence. On average,
recidivists served three to four additional (recidivist-related)
years in prison, with 90 percent serving less than an addi-
tional real seven to eight years. Id., at 22 (Table 21).
Third, we know that California has reserved, and still re-
serves, Ewing-type prison time, i. e., at least 25 real years in
prison, for criminals convicted of crimes far worse than was
Ewing’s. Statistics for the years 1945 to 1981, for example,
indicate that typical (nonrecidivist) male first-degree mur-
derers served between 10 and 15 real years in prison, with
90 percent of all such murderers serving less than 20 real
years. Id., at 3 (Table 2). Moreover, California, which has
moved toward a real-time sentencing system (where the
statutory punishment approximates the time served), still
punishes far less harshly those who have engaged in far more
serious conduct. It imposes, for example, upon nonrecidi-
vists guilty of arson causing great bodily injury a maximum
sentence of nine years in prison, Cal. Penal Code Ann.
§ 451(a) (West 1999) (prison term of 5, 7, or 9 years for arson
that causes great bodily injury); it imposes upon those guilty
of voluntary manslaughter a maximum sentence of 11 years,
§ 193 (prison term of 3, 6, or 11 years for voluntary man-

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45 Cite as: 538 U. S. 11 (2003)
Breyer, J., dissenting
slaughter). It reserves the sentence that it here imposes
upon (former-burglar-now-golf-club-thief) Ewing for non-
recidivist, first-degree murderers. See § 190(a) (West Supp.
2003) (sentence of 25 years to life for first-degree murder).
As to other jurisdictions, we know the following: The
United States, bound by the federal Sentencing Guidelines,
would impose upon a recidivist, such as Ewing, a sentence
that, in any ordinary case, would not exceed 18 months in
prison. USSG § 2B1.1(a) (Nov. 1999) (assuming a base of-
fense level of 6, a criminal history of VI, and no mitigating or
aggravating adjustments); id., ch. 5, pt. A, Sentencing Table.
The Guidelines, based in part upon a study of some 40,000
actual federal sentences, see supra, at 37, 41, reserve a
Ewing-type sentence for Ewing-type recidivists who cur-
rently commit such crimes as murder, § 2A1.2; air piracy,
§ 2A5.1; robbery (involving the discharge of a firearm, seri-
ous bodily injury, and about $1 million), § 2B3.1; drug of-
fenses involving more than, for example, 20 pounds of heroin,
§ 2D1.1; aggravated theft of more than $100 million, § 2B1.1;
and other similar offenses. The Guidelines reserve 10 years
of real prison time (with good time)—less than 40 percent of
Ewing’s sentence—for Ewing-type recidivists who go on to
commit, for instance, voluntary manslaughter, § 2A1.3; ag-
gravated assault with a firearm (causing serious bodily in-
jury and motivated by money), § 2A2.2; kidnaping, § 2A4.1;
residential burglary involving more than $5 million, § 2B2.1;
drug offenses involving at least one pound of cocaine, § 2D1.1;
and other similar offenses. Ewing also would not have
been subject to the federal “three strikes” law, 18 U. S. C.
§ 3559(c), for which grand theft is not a triggering offense.
With three exceptions, see infra, at 46–47, we do not
have before us information about actual time served by
Ewing-type offenders in other States. We do know, how-
ever, that the law would make it legally impossible for a
Ewing-type offender to serve more than 10 years in prison in
33 jurisdictions, as well as the federal courts, see Appendix,

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46 EWING v. CALIFORNIA
Breyer, J., dissenting
Part A, infra, more than 15 years in 4 other States, see Ap-
pendix, Part B, infra, and more than 20 years in 4 additional
States, see Appendix, Part C, infra. In nine other States,
the law might make it legally possible to impose a sentence
of 25 years or more, see Appendix, Part D, infra—though
that fact by itself, of course, does not mean that judges have
actually done so. But see infra this page. I say “might”
because the law in five of the nine last mentioned States
restricts the sentencing judge’s ability to impose a term so
long that, with parole, it would amount to at least 25 years
of actual imprisonment. See Appendix, Part D, infra.
We also know that California, the United States, and other
States supporting California in this case, despite every in-
centive to find someone else like Ewing who will have to
serve, or who has actually served, a real prison term any-
where approaching that imposed upon Ewing, have come up
with precisely three examples. Brief for United States as
Amicus Curiae 28–29, n. 13. The Government points to
Ex parte Howington, 622 So. 2d 896 (Ala. 1993), where an
Alabama court sentenced an offender with three prior bur-
glary convictions and two prior grand theft convictions to
“life” for the theft of a tractor-trailer. The Government also
points to State v. Heftel, 513 N. W. 2d 397 (S. D. 1994), where
a South Dakota court sentenced an offender with seven prior
felony convictions to 50 years’ imprisonment for theft. And
the Government cites Sims v. State, 107 Nev. 438, 814 P. 2d
63 (1991), where a Nevada court sentenced a defendant with
three prior felony convictions (including armed robbery) and
nine misdemeanor convictions to life without parole for the
theft of a purse and wallet containing $476.
The first of these cases, Howington, is beside the point,
for the offender was eligible for parole after 10 years (as in
Rummel), not 25 years (as here). Ala. Code § 15–22–28(e)
(West 1982). The second case, Heftel, is factually on point,
but it is not legally on point, for the South Dakota courts did
not consider the constitutionality of the sentence. 513 N. W.

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47 Cite as: 538 U. S. 11 (2003)
Breyer, J., dissenting
2d, at 401. The third case, Sims, is on point both factually
and legally, for the Nevada Supreme Court (by a vote of
3 to 2) found the sentence constitutional. I concede that
example—a single instance of a similar sentence imposed
outside the context of California’s three strikes law, out of
a prison population now approaching two million individu-
als. U. S. Dept. of Justice, Office of Justice Programs, Bu-
reau of Justice Statistics, Prison Statistics (Jan. 8, 2003),
http://www.ojp.usdoj.gov/ bjs/prisons.htm (available in Clerk
of Court’s case file).
The upshot is that comparison of other sentencing prac-
tices, both in other jurisdictions and in California at other
times (or in respect to other crimes), validates what an initial
threshold examination suggested. Given the information
available, given the state and federal parties’ ability to pro-
vide additional contrary data, and given their failure to do so,
we can assume for constitutional purposes that the following
statement is true: Outside the California three strikes con-
text, Ewing’s recidivist sentence is virtually unique in its
harshness for his offense of conviction, and by a consider-
able degree.
IV
This is not the end of the matter. California sentenced
Ewing pursuant to its “three strikes” law. That law repre-
sents a deliberate effort to provide stricter punishments for
recidivists. Cal. Penal Code Ann. § 667(b) (West 1999) (“It
is the intent of the Legislature . . . to ensure longer prison
sentences and greater punishment for those who commit a
felony and have been previously convicted of serious and/or
violent felony offenses”); ante, at 24. And, it is important
to consider whether special criminal justice concerns related
to California’s three strikes policy might justify including
Ewing’s theft within the class of triggering criminal conduct
(thereby imposing a severe punishment), even if Ewing’s
sentence would otherwise seem disproportionately harsh.

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48 EWING v. CALIFORNIA
Breyer, J., dissenting
Cf. Harmelin, 501 U. S., at 998–999, 1001 (noting “the pri-
macy of the legislature” in making sentencing policy).
I can find no such special criminal justice concerns that
might justify this sentence. The most obvious potential jus-
tification for bringing Ewing’s theft within the ambit of the
statute is administrative. California must draw some kind
of workable line between conduct that will trigger, and con-
duct that will not trigger, a “three strikes” sentence. “But
the fact that a line has to be drawn somewhere does not
justify its being drawn anywhere.” Pearce v. Commis-
sioner, 315 U. S. 543, 558 (1942) (Frankfurter, J., dissenting).
The statute’s administrative objective would seem to be one
of separating more serious, from less serious, triggering
criminal conduct. Yet the statute does not do that job par-
ticularly well.
The administrative line that the statute draws separates
“felonies” from “misdemeanors.” See Brief for Respondent
6 (“The California statute relies, fundamentally, on tradi-
tional classifications of certain crimes as felonies”). Those
words suggest a graduated difference in degree. But an ex-
amination of how California applies these labels in practice
to criminal conduct suggests that the offenses do not neces-
sarily reflect those differences. See United States v. Wat-
son, 423 U. S. 411, 438–441 (1976) (Marshall, J., dissenting)
(felony/misdemeanor distinction often reflects history, not
logic); Rummel, 445 U. S., at 284 (“The most casual review
of the various criminal justice systems now in force in the
50 States of the Union shows that the line dividing felony
theft from petty larceny, a line usually based on the value
of the property taken, varies markedly from one State to
another”). Indeed, California uses those words in a way un-
related to the seriousness of offense conduct in a set of crimi-
nal statutes called “ ‘wobblers,’ ” see ante, at 16, one of which
is at issue in this case.
Most “wobbler” statutes classify the same criminal con-
duct either as a felony or as a misdemeanor, depending upon

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49 Cite as: 538 U. S. 11 (2003)
Breyer, J., dissenting
the actual punishment imposed, Cal. Penal Code Ann.
§§ 17(a), (b) (West 1999); ante, at 16–17, which in turn de-
pends primarily upon whether “the rehabilitation of the con-
victed defendant” either does or does not “require” (or would
or would not “be adversely affected by”) “incarceration in a
state prison as a felon.” In re Anderson, 69 Cal. 2d 613,
664–665, 447 P. 2d 117, 152 (1968) (Tobriner, J., concurring in
part and dissenting in part); ante, at 29. In such cases, the
felony/misdemeanor classification turns primarily upon the
nature of the offender, not the comparative seriousness of
the offender’s conduct.
A subset of “wobbler” statutes, including the “petty theft
with a prior” statute, Cal. Penal Code Ann. § 666 (West Supp.
2002), defining the crime in the companion case, Lockyer v.
Andrade, post, p. 63, authorizes the treatment of otherwise
misdemeanor conduct, see Cal. Penal Code Ann. § 490 (West
1999), as a felony only when the offender has previously com-
mitted a property crime. Again, the distinction turns upon
characteristics of the offender, not the specific offense con-
duct at issue.
The result of importing this kind of distinction into Cali-
fornia’s three strikes statute is a series of anomalies. One
anomaly concerns the seriousness of the triggering behav-
ior. “Wobbler” statutes cover a wide variety of criminal be-
havior, ranging from assault with a deadly weapon, § 245,
vehicular manslaughter, § 193(c)(1), and money laundering,
§ 186.10(a), to the defacement of property with graffiti,
§ 594(b)(2)(A) (West Supp. 2002), or stealing more than $100
worth of chickens, nuts, or avocados, § 487(b)(1)(A) (West
Supp. 2003); § 489 (West 1999). Some of this behavior is ob-
viously less serious, even if engaged in twice, than other
criminal conduct that California statutes classify as pure
misdemeanors, such as reckless driving, Cal. Veh. Code Ann.
§ 23103 (West Supp. 2003); § 23104(a) (West 2000) (reckless
driving causing bodily injury), the use of force or threat of
force to interfere with another’s civil rights, Cal. Penal Code

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50 EWING v. CALIFORNIA
Breyer, J., dissenting
Ann. § 422.6 (West 1999), selling poisoned alcohol, § 347b,
child neglect, § 270, and manufacturing or selling false gov-
ernment documents with the intent to conceal true citizen-
ship, § 112(a) (West Supp. 2002).
Another anomaly concerns temporal order. An offender
whose triggering crime is his third crime likely will not fall
within the ambit of the three strikes statute provided that
(a) his first crime was chicken theft worth more than $100,
and (b) he subsequently graduated to more serious crimes,
say, crimes of violence. That is because such chicken theft,
when a first offense, will likely be considered a misdemeanor.
A similar offender likely will fall within the scope of the
three strikes statute, however, if such chicken theft was his
third crime. That is because such chicken theft, as a third
offense, will likely be treated as a felony.
A further anomaly concerns the offender’s criminal record.
California’s “wobbler” “petty theft with a prior” statute, at
issue in Lockyer v. Andrade, post, p. 63, classifies a petty
theft as a “felony” if, but only if, the offender has a prior
record that includes at least one conviction for certain theft-
related offenses. Cal. Penal Code Ann. § 666 (West Supp.
2002). Thus a violent criminal who has committed two vio-
lent offenses and then steals $200 will not fall within the
ambit of the three strikes statute, for his prior record reveals
no similar property crimes. A similar offender will fall
within the scope of the three strikes statute, however, if that
offender, instead of having committed two previous violent
crimes, has committed one previous violent crime and one
previous petty theft. (Ewing’s conduct would have brought
him within the realm of the petty theft statute prior to 1976
but for inflation.)
At the same time, it is difficult to find any strong need to
define the lower boundary as the State has done. The three
strikes statute itself, when defining prior “strikes,” simply
lists the kinds of serious criminal conduct that falls within
the definition of a “strike.” § 667.5(c) (listing “violent” felon-

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51 Cite as: 538 U. S. 11 (2003)
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ies); § 1192.7(c) (West Supp. 2003) (listing “serious” felonies).
There is no obvious reason why the statute could not enu-
merate, consistent with its purposes, the relevant triggering
crimes. Given that possibility and given the anomalies that
result from California’s chosen approach, I do not see how
California can justify on administrative grounds a sentence
as seriously disproportionate as Ewing’s. See Parts II and
III, supra.
Neither do I see any other way in which inclusion of
Ewing’s conduct (as a “triggering crime”) would further a
significant criminal justice objective. One might argue that
those who commit several property crimes should receive
long terms of imprisonment in order to “incapacitate” them,
i. e., to prevent them from committing further crimes in the
future. But that is not the object of this particular three
strikes statute. Rather, as the plurality says, California
seeks “ ‘to reduce serious and violent crime.’ ” Ante, at
24 (quoting Ardaiz, California’s Three Strikes Law: History,
Expectations, Consequences, 32 McGeorge L. Rev. 1 (2000)
(emphasis added)). The statute’s definitions of both kinds of
crime include crimes against the person, crimes that create
danger of physical harm, and drug crimes. See, e. g., Cal.
Penal Code Ann. § 667.5(c)(1) (West Supp. 2002), § 1192.7(c)(1)
(West Supp. 2003) (murder or voluntary manslaughter);
§ 667.5(c)(21) (West Supp. 2002), § 1192.7(c)(18) (West Supp.
2003) (first-degree burglary); § 1192.7(c)(24) (selling or giving
or offering to sell or give heroin or cocaine to a minor).
They do not include even serious crimes against property,
such as obtaining large amounts of money, say, through theft,
embezzlement, or fraud. Given the omission of vast catego-
ries of property crimes—including grand theft (unarmed)—
from the “strike” definition, one cannot argue, on property-
cr ime-related incapaci tation grounds, for inclusion of
Ewing’s crime among the triggers.
Nor do the remaining criminal law objectives seem rele-
vant. No one argues for Ewing’s inclusion within the ambit

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52 EWING v. CALIFORNIA
Breyer, J., dissenting
of the three strikes statute on grounds of “retribution.”
Cf. Vitiello, Three Strikes: Can We Return to Rationality?
87 J. Crim. L. & C. 395, 427 (1997) (California’s three strikes
law, like other “[h]abitual offender statutes[, is] not retribu-
tive” because the term of imprisonment is “imposed without
regard to the culpability of the offender or [the] degree of
social harm caused by the offender’s behavior,” and “has lit-
tle to do with the gravity of the offens[e]”). For reasons
previously discussed, in terms of “deterrence,” Ewing’s 25-
year term amounts to overkill. See Parts II and III, supra.
And “rehabilitation” is obviously beside the point. The up-
shot is that, in my view, the State cannot find in its three
strikes law a special criminal justice need sufficient to rescue
a sentence that other relevant considerations indicate is
unconstitutional.
V
Justice Scalia and Justice Thomas argue that we
should not review for gross disproportionality a sentence to
a term of years. Ante, at 31 (Scalia, J., concurring in judg-
ment); ante, at 32 (Thomas, J., concurring in judgment).
Otherwise, we make it too difficult for legislators and sen-
tencing judges to determine just when their sentencing laws
and practices pass constitutional muster.
I concede that a bright-line rule would give legislators and
sentencing judges more guidance. But application of the
Eighth Amendment to a sentence of a term of years requires
a case-by-case approach. And, in my view, like that of the
plurality, meaningful enforcement of the Eighth Amend-
ment demands that application—even if only at sentencing’s
outer bounds.
A case-by-case approach can nonetheless offer guidance
through example. Ewing’s sentence is, at a minimum, 2 to
3 times the length of sentences that other jurisdictions would
impose in similar circumstances. That sentence itself is suf-
ficiently long to require a typical offender to spend virtually
all the remainder of his active life in prison. These and the

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Appendix to opinion of Breyer, J.
other factors that I have discussed, along with the questions
that I have asked along the way, should help to identify
“gross disproportionality” in a fairly objective way—at the
outer bounds of sentencing.
In sum, even if I accept for present purposes the plurality’s
analytical framework, Ewing’s sentence (life imprisonment
with a minimum term of 25 years) is grossly disproportion-
ate to the triggering offense conduct—stealing three golf
clubs—Ewing’s recidivism notwithstanding.
For these reasons, I dissent.
APPENDIX TO OPINION OF BREYER, J.
A
Thirty-three jurisdictions, as well as the federal courts,
have laws that would make it impossible to sentence a
Ewing-type offender to more than 10 years in prison: 1
Federal: 12 to 18 months. USSG § 2B1.1 (Nov. 1999); id.,
ch. 5, pt. A, Sentencing Table.
Alaska: three to five years; presumptive term of three
years. Alaska Stat. §§ 11.46.130(a)(1), (c), 12.55.125(e) (2000).
Arizona: four to six years; presumptive sentence of five
years. Ariz. Rev. Stat. Ann. §§ 13– 604(C), 13–1802(E)
(West 2001).
Connecticut: 1 to 10 years. Conn. Gen. Stat. §§ 53a–
35a(6), 53a–40( j), 53a–124(a)(2) (2001).
Delaware: not more than two years. Del. Code Ann., Tit.
11, § 840(d) (Supp. 2000); § 4205(b)(7) (1995). Recidivist of-
fender penalty not applicable. See § 4214; Buckingham v.
State, 482 A. 2d 327 (Del. 1984).
District of Columbia: not more than 10 years. D. C. Code
Ann. § 22–3212(a) (West 2001). Recidivist offender penalty
1 Throughout Appendix, Parts A–D, the penalties listed for each jurisdic-
tion are those pertaining to imprisonment and do not reflect any possi-
ble fines or other forms of penalties applicable under the laws of the
jurisdiction.

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54 EWING v. CALIFORNIA
Appendix to opinion of Breyer, J.
not applicable. See § 22–1804a(c)(2) (West 2001) (amended
2001).
Florida: not more than 10 years. Fla. Stat. Ann.
§§ 775.084(1)(a), (4)(a)(3) (West 2000) (amended 2002);
§ 812.014(c)(1) (West 2000).
Georgia: 10 years. Ga. Code Ann. § 16–8–12(a)(1) (1996);
§ 17–10–7(a) (Supp. 1996).
Hawaii: 20 months. Haw. Rev. Stat. §§ 708–831(1)(b), 706–
606.5(1)(a)(iv), (7)(a) (Supp. 2001).
Idaho: 1 to 14 years. Idaho Code §§ 18–2403, 18–
2407(b)(1), 18–2408(2)(a) (1948–1997). Recidivist/habitual
offender penalty of five years to life in prison, § 19–2514,
likely not applicable. Idaho has a general rule that “ ‘convic-
tions entered the same day or charged in the same informa-
tion should count as a single conviction for purposes of estab-
lishing habitual offender status.’ ” State v. Harrington, 133
Idaho 563, 565, 990 P. 2d 144, 146 (App. 1999) (quoting State
v. Brandt, 110 Idaho 341, 344, 715 P. 2d 1011, 1014 (App.
1986)). However, “the nature of the convictions in any
given situation must be examined to make certain that [this]
general rule is appropriate.” Ibid. In this case, Ewing’s
prior felony convictions stemmed from acts committed at the
same apartment complex, and three of the four felonies were
committed within a day of each other; the fourth offense was
committed five weeks earlier. See App. 6; Tr. 45–46 (Infor-
mation, Case No. NA018343–01 (Cal. Super. Ct.) (available in
Clerk of Court’s case file)). A review of Idaho case law sug-
gests that this case is factually distinguishable from cases in
which the Idaho courts have declined to adhere to the gen-
eral rule. See, e. g., Brandt, supra, at 343, 344, 715 P. 2d, at
1013, 1014 (three separately charged property offenses in-
volving three separate homes and different victims com-
mitted “during a two-month period”); State v. Mace, 133
Idaho 903, 907, 994 P. 2d 1066, 1070 (App. 2000) (unrelated
crimes (grand theft and DUI) committed on different dates
in different counties); State v. Smith, 116 Idaho 553, 560, 777

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55 Cite as: 538 U. S. 11 (2003)
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P. 2d 1226, 1233 (App. 1989) (separate and distinguishable
crimes committed on different victims in different counties).
Illinois: two to five years. Ill. Comp. Stat., ch. 730, § 5/
5–8–1(a)(6) (Supp. 2001); ch. 720, § 5/16–1(b)(4). Recidivist
offender penalty not applicable. § 5/33B–1(a) (2000).
Indiana: 18 months (with not more than 18 months added
for aggravating circumstances). Ind. Code § 35–43–4–2(a)
(1993); § 35–50–2–7(a). Recidivist offender penalty not ap-
plicable. See § 35–50–2–8 (amended 2001).
Iowa: three to five years. Iowa Code Ann. §§ 714.2(2),
902.9(5) (West Supp. 2002); § 902.8 (West 1994).
Kansas: 9 to 11 months. Kan. Stat. Ann. §§ 21–3701(b)(2),
21–4704(a) (1995). Recidivist offender penalty not applica-
ble. See § 21–4504(e)(3).
Kentucky: 5 to 10 years. Ky. Rev. Stat. Ann. § 514.030(2)
(Lexis Supp. 2002); §§ 532.060(2)(c), (d), 532.080(2), (5) (Lexis
1999).
Maine: less than one year. Me. Rev. Stat. Ann., Tit. 17–A,
§ 353 (West 1983); § 362(4)(B) (West Supp. 2000) (amended
2001); § 1252(2)(D) (West 1983 and Supp. 2002). Recidivist
offender penalty not applicable. See § 1252(4–A) (West
Supp. 2000) (amended 2001).
Massachusetts: not more than five years. Mass. Gen.
Laws, ch. 266, § 30(1) (West 2000). Recidivist offender pen-
alty not applicable. See ch. 279, § 25 (West 1998); Common-
wealth v. Hall, 397 Mass. 466, 468, 492 N. E. 2d 84, 85 (1986).
Minnesota: not more than five years. Minn. Stat. § 609.52,
subd. 3(3)(a) (2002). Recidivist offender penalty not applica-
ble. See § 609.1095, subd. 2.
Mississippi: not more than five years. Miss. Code Ann.
§ 97–17–41(1)(a) (Lexis 1973–2000). Recidivist offender pen-
alty not applicable. See § 99–19–81.
Nebraska: not more than five years. Neb. Rev. Stat. § 28–
105(1) (2000 Cum. Supp.); § 28–518(2) (1995). Recidivist of-
fender penalty not applicable. See § 29–2221(1).

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56 EWING v. CALIFORNIA
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New Jersey: Extended term of between 5 to 10 years (in-
stead of three to five years, N. J. Stat. Ann. § 2C:43–6 (1995)),
§ 2C:43–7(a)(4) (Supp. 2002), whether offense is treated as
theft, § 2C:20–2(b)(2)(a), or shoplifting, §§ 2C:20–11(b), (c)(2),
because, even if Ewing’s felonies are regarded as one predi-
cate crime, Ewing has been separately convicted and sen-
tenced for at least one other crime for which at least a 6-
month sentence was authorized, § 2C:44–3(a); § 2C:44–4(c)
(1995).
New Mexico: 30 months. N. M. Stat. Ann. § 30–16–
20(B)(3) (1994); § 31–18–15(A)(6) (2000); § 31–18–17(B) (2000)
(amended 2002).
New York: three to four years. N. Y. Pena l Law
§ 70.06(3)(e) (West 1998); § 155.30 (West 1999).
North Carolina: 4 to 25 months (with exact sentencing
range dependent on details of offender’s criminal history).
N. C. Gen. Stat. §§ 15A–1340.14, 15A–1340.17(c), (d), 14–72(a)
(2001). Recidivist offender penalty not applicable. See
§§ 14–7.1, 14–7.6.
North Dakota: not more than 10 years. N. D. Cent. Code
§ 12.1–23– 05(2)(a) (1997); §§ 12.1– 32– 09(1), (2)(c) (1997)
(amended 2001).
Oh i o: 6 to 12 months. Oh i o Rev. Code Ann.
§§ 2913.02(B)(2), 2929.14(A)(5) (West Supp. 2002). No gen-
eral recidivist statute.
Oregon: not more than five years. Ore. Rev. Stat.
§ 161.605 (1997); Ore. Rev. Stat. Ann. §§ 164.055(1)(a),
(3) (Supp. 1998). No general recidivist statute.
Pennsylvania: not more than five years (if no more than
one prior theft was “retail theft”); otherwise, not more than
seven years. Pa. Stat. Ann., Tit. 18, §§ 1103(3), 1104(1) (Pur-
don 1998); §§ 3903(b), 3929(b)(1)(iii)–(iv) (Purdon Supp. 2002);
§ 3921 (Purdon 1983). Recidivist offender penalty not appli-
cable. See 42 Pa. Cons. Stat. § 9714(a)(1) (1998).

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Rhode Island: not more than 10 years. R. I. Gen. Laws
§ 11–41–5(a) (2002). Recidivist offender penalty not applica-
ble. See § 12–19–21(a).
South Carolina: not more than five years. S. C. Code Ann.
§§ 16–13–30, 16–13–110(B)(2) (West 2001 Cum. Supp.). Re-
cidivist offender penalty not applicable. See § 17–25–45.
Tennessee: four to eight years. Tenn. Code Ann. §§ 39–
14–105(3), 40–35–106(a)(1), (c), 40–35–112(b)(4) (1997).
Utah: not more than five years. Utah Code Ann. § 76–3–
203(3) (1999) (amended 2000); § 76–6–412(1)(b)(i) (1999). Re-
cidivist offender penalty not applicable. See § 76–3–203.5
(Supp. 2002).
Washington: not more than 14 months (with exact sentenc-
ing range dependent on details of offender score), Wash. Rev.
Code §§ 9A.56.040(1)(a), (2) (2000); §§ 9.94A.510(1), 9.94A.515,
9.94A.525 (2003 Supp. Pamphlet); maximum sentence of five
years, §§ 9A.56.040(1)(a), (2), 9A.20.021(1)(c) (2000). Recidi-
vist offender penalty not applicable. See §§ 9.94A.030(27),
(31) (2000); § 9.94A.570 (2003 Supp. Pamphlet).
Wyoming: not more than 10 years. Wyo. Stat. Ann. § 6–3–
404(a)(i) (Michie 2001). Recidivist offender penalty not ap-
plicable. See § 6–10–201(a).
B
In four other States, a Ewing-type offender could not have
received a sentence of more than 15 years in prison:
Colorado: 4 to 12 years for “extraordinary aggravating cir-
cumstances” (e. g., defendant on parole for another felony at
the time of commission of the triggering offense). Colo.
Rev. Stat. §§ 18–1–105(1)(a)(V)(A), 18–1–105(9)(a)(II), 18–4–
401(2)(c) (2002). Recidivist offender penalty not applicable.
See §§ 16–13–101(f)(1.5), (2) (2001).
Maryland: not more than 15 years. Md. Ann. Code, Art.
27, § 342(f)(1) (1996) (repealed 2002). Recidivist offender
penalty not applicable. See § 643B.

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58 EWING v. CALIFORNIA
Appendix to opinion of Breyer, J.
New Hampshire: not more than 15 years. N. H. Stat.
Ann. §§ 637:11(I)(a), 651:2(II)(a) (West Supp. 2002). Recidi-
vist offender penalty not applicable. See § 651:6(I)(c).
Wisconsin: not more than 11 years (at the time of Ewing’s
offense). Wis. Stat. Ann. § 939.50(3)(e) (West Supp. 2002);
§§ 939.62(1)(b), (2), 943.20(3)(b) (West 1996) (amended 2001).
Wisconsin subsequently amended the relevant statutes so
that a Ewing-type offender would only be eligible for a sen-
tence of up to three years. See §§ 939.51(3)(a), 943.20(3)(a),
939.62(1)(a) (West Supp. 2003). And effective February 1,
2003, such an offender is eligible for a sentence of only up to
two years. See §§ 939.51(3)(a), 943.20(3)(a), 939.62(1)(a).
C
In four additional States, a Ewing-type offender could not
have been sentenced to more than 20 years in prison:
Arkansas: 3 to 20 years. Ark. Code Ann. § 5–36–
103(b)(2)(A) (1997); §§ 5– 4– 501(a)(2)(D), (e)(1) (1997)
(amended 2001). Eligible for parole after serving one-third
of the sentence. § 5–4–501 (1997); § 16–93–608 (1987).
Missouri: not more than 20 years. Mo. Rev. Stat.
§ 558.016(7)(3) (2000); § 570.030(3)(1) (2000) (amended 2002).
El ig ible for parole af ter 15 years at the latest.
§ 558.011(4)(1)(c).
Texas: 2 to 20 years. Tex. Penal Code Ann. §§ 12.33(a),
12.35(c)(2)(A) (1994); §§ 12.42(a)(3), 31.03(e)(4)(D) (Supp.
2003). Eligible for parole after serving one-fourth of sen-
tence. Tex. Govt. Code Ann. § 508.145(f) (Supp. 2003).
Virginia: statutory range of 1 to 20 years (or less than 12
months at the discretion of the jury or court following bench
trial), Va. Code Ann. § 18.2–95 (Supp. 2002), but discretionary
sentencing guideline ranges established by the Virginia Sen-
tencing Commission, §§ 17.1–805, 19.2–298.01 (2000), with a
maximum of 6 years, 3 months, to 15 years, 7 months, see
Virginia Criminal Sentencing Commission, Virginia Sentenc-
ing Guidelines Manual, Larceny—Section C Recommenda-

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tion Table (6th ed. 2002) (with petitioner likely falling within
the discretionary guideline range of 2 years, 1 month, to 5
years, 3 months, see Brief for Petitioner 33, n. 25). Recidi-
vist offender penalty not applicable. See § 19.2–297.1 (2000).
D
In nine other States, the law might make it legally possible
to impose a sentence of 25 years or more upon a Ewing-type
offender. But in five of those nine States,2 the offender
would be parole-eligible before 25 years:
Alabama: “life or any term of not less than 20 years.”
Ala. Code § 13A–5–9(c)(2) (Lexis Supp. 2002); §§ 13A–8–3(a),
(c) (1994). Eligible for parole after the lesser of one-third of
the sentence or 10 years. § 15–22–28(e) (1995).
Louisiana: Louisiana courts could have imposed a sentence
of life without the possibility of parole at the time of Ewing’s
offense. La. Stat. Ann. §§ 14:67.10(B)(1), 14:2(4), (13)(y)
(West Supp. 2003); §§ 15:529.1(A)(1)(b)(ii) and (c)(i)–(ii) (West
1992) (amended 2001). Petitioner argues that, despite the
statutory authority to impose such a sentence, Louisiana
courts would have carefully scrutinized his life sentence, as
they had in other cases involving recidivists charged with a
nonviolent crime. Brief for Petitioner 35–36, n. 29; see Brief
for Families Against Mandatory Minimums as Amicus Cu-
riae 24–25, and n. 21; State v. Hayes, 98–1526, p. 4 (La. App.
6/25/99), 739 So. 2d 301, 303–304 (holding that a life sentence
was impermissibly excessive for a defendant convicted of
theft of over $1,000, who had a prior robbery conviction).
But see Brief for Respondent 45–46, n. 12 (contesting peti-
tioner’s argument). Louisiana has amended its recidivist
statute to require that the triggering offense be a violent
felony, and that the offender have at least two prior violent
felony convictions to be eligible for a life sentence. La. Stat.
2 But see discussion of relevant sentencing and parole-eligibility provi-
sions in Louisiana, Michigan, Oklahoma, and South Dakota, infra this page
and 60–61.

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60 EWING v. CALIFORNIA
Appendix to opinion of Breyer, J.
Ann. § 15:529.1(A)(1)(b)(ii) (West Supp. 2003). Under cur-
rent law, a Ewing-type offender would face a sentence of 62 ⁄ 3
to 20 years. §§ 14:67.10(B)(1), 15:529.1(A)(b)(i).
Michigan: “imprisonment for life or for a lesser term,”
Mich. Comp. Laws Ann. § 769.12(1)(a) (West 2000) (instead of
“not more than 15 years,” § 769.12(1)(b), as petitioner con-
tends, see Brief for Petitioner 34, n. 26; Brief for Families
Against Mandatory Minimums as Amicus Curiae 16–17,
n. 15, 22–23, n. 20), because the triggering offense is “punish-
able upon a first conviction by imprisonment for a maximum
term of 5 years or more,” § 769.12(1)(a) (West 2000). The
larceny for which Ewing was convicted was, under Michigan
law, “a felony punishable by imprisonment for not more than
5 years.” § 750.356(3)(a) (West Supp. 2002). Eligible for
parole following minimum term set by sentencing judge.
§ 769.12(4) (West 2000).
Montana: 5 to 100 years. Mont. Code Ann. § 45–6–
301(7)(b) (1999); §§ 46–18–501, 46–18–502(1) (2001). A
Ewing-type offender would not have been subject to a mini-
mum term of 10 years in prison (as the State suggests, Brief
for Respondent 44) because Ewing does not meet the re-
quirements of § 46–18–502(2) (must be a “persistent felony
offender,” as defined in § 46–18–501, at the time of the of-
fender’s previous felony conviction). See Reply Brief for
Petitioner 18, n. 14. Eligible for parole after one-fourth of
the term. § 46–23–201(2).
Nevada: “life without the possibility of parole,” or “life
with the possibility of parole [after serving] 10 years,” or
“a definite term of 25 years, with eligibility for parole [after
serving] 10 years.” Nev. Rev. Stat. §§ 207.010(1)(b)(1)–(3)
(1995).
Oklahoma: not less than 20 years (at the time of Ewing’s
offense). Okla. Stat., Tit. 21, § 51.1(B) (West Supp. 2000)
(amended in 2001 to four years to life, § 51.1(C) (West 2001));
§ 1704 (West 1991) (amended 2001). Eligible for parole after
serving one-third of sentence. Tit. 57, § 332.7(B) (West

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61 Cite as: 538 U. S. 11 (2003)
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2001). Thus, assuming a sentence to a term of years of up
to 100 years (as in Montana, see supra, at 60), parole eligibil-
ity could arise as late as after 33 years.
South Dakota: maximum penalty of life imprisonment,
with no minimum term. S. D. Codified Laws § 22–7–8
(1998); § 22–30A–17(1) (Supp. 2002). Eligible for parole
after serving one-half of sentence. § 24–15–5(3) (1998).
Thus, assuming a sentence to a term of years of up to 100
years (as in Montana, see supra, at 60), parole eligibility
could arise as late as after 50 years.
Vermont: “up to and including life,” Vt. Stat. Ann., Tit. 13,
§ 11 (1998), or not more than 10 years, § 2501; State v. Angel-
ucci, 137 Vt. 272, 289–290, 405 A. 2d 33, 42 (1979) (court has
discretion to sentence habitual offender to the sentence that
is specified for grand larceny alone). Eligible for parole
after six months. Tit. 28, § 501 (2000) (amended 2001).
West Virginia: Petitioner contends that he would only have
been subject to a misdemeanor sentence of not more than 60
days for shoplifting, W. Va. Code §§ 61–3A–1, 61–3A–3(a)(2)
(2000); Brief for Petitioner 31, n. 19, 33–34, n. 25. However,
a Ewing-type offender could have been charged with grand
larceny, see State ex rel. Chadwell v. Duncil, 196 W. Va. 643,
647–648, 474 S. E. 2d 573, 577–578 (1996) (prosecutor has dis-
cretion to charge defendant with either shoplifting or grand
larceny), a felony punishable by imprisonment in the state
penitentiary for 1 to 10 years (or, at the discretion of the trial
court, not more than 1 year in jail). § 61–3–13(a). Under
West Virginia’s habitual offender statute, a felon “twice be-
fore convicted . . . of a crime punishable by confinement in a
penitentiary . . . shall be sentenced to . . . life [imprison-
ment],” § 61–11–18(c), with parole eligibility after 15 years,
§ 62–12–13(c). Amicus curiae on behalf of petitioner notes
that, in light of existing state-law precedents, West Virginia
courts “would not countenance a sentence of life without the
possibility of parole for 25 years for shoplifting golf clubs.”
Brief for Families Against Mandatory Minimums as Amicus

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62 EWING v. CALIFORNIA
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Curiae 25–26 (citing State v. Barker, 186 W. Va. 73, 74–75,
410 S. E. 2d 712, 713–714 (1991) (per curiam); and State v.
Deal, 178 W. Va. 142, 146–147, 358 S. E. 2d 226, 230–231
(1987)). But see Brief for Respondent 45, n. 11 (contesting
that argument).