Rights, found expression in the Eighth Amendment.
52
This view emerged in 1983 as the
triumphant majority position in Solem v. Helm,
53
which overturned a life sentence imposed on a
nonviolent offender:
The principle that a punishment should be proportionate to the crime is deeply
rooted and frequently repeated in common-law jurisprudence. In 1215 three
chapters of Magna Carta were devoted to the rule that “amercements” may not
be excessive. And the principle was repeated and extended in the First Statute of
Westminster, 3 Edw. I, ch. 6 (1275). These were not hollow guarantees, for the
royal courts relied on them to invalidate disproportionate punishments . . . . When
prison sentences became the normal criminal sanctions, the common law
recognized that these, too, must be proportional. See, e.g., Hodges v. Humkin, 2
Bulst. 139, 140, 80 Eng.Rep. 1015, 1016 (K.B. 1615) (Croke, J.) (“imprisonment
ought always to be according to the quality of the offence”).
54
As the italicized language above reflects, the Solem Court found not one, but three Chapters in
the Magna Carta embodying the proportionality principle. In addition to the aforementioned
Chapter 20, there are also Chapters 21 and 22 to cement the point:
21. Earls and barons shall not be amerced except by their peers and only in
accordance with the nature of the offense.
52
Dissenting from the denial of certiorari in Carmona v. Ward, 439 U.S. 1091, 1093-94 (1979), Justices Marshall
and Powell wrote:
Few legal principles are more firmly rooted in the Bill of Rights and its common-law antecedents than the
requirement of proportionality between a crime and its punishment. The precept that sanctions should be
commensurate with the seriousness of a crime found expression in both the Magna Carta [citing Chapter
20] and the English Bill of Rights. And this Court has long recognized that the Eighth Amendment
embodies a similar prohibition against disproportionate punishment.
Dissenting in Rummel v. Estelle, 445 U.S. 263, 288-89 (1980) (alteration in the original) (citations omitted) (again
involving a life sentence for a so-called nonviolent offender), Justices Powell, joined by Brennan, Marshall, and
Stevens, wrote:
The principle of disproportionality is rooted deeply in English constitutional law. The Magna Carta of
1215 insured that “[a] free man shall not be [fined] for a trivial offence, except in accordance with the
degree of the offence; and for a serious offence he shall be [fined] according to its gravity.” By 1400, the
English common law had embraced the principle, not always followed in practice, that punishment should
not be excessive either in severity or length. One commentator's survey of English law demonstrates that
the “cruel and unusual punishments” clause of the English Bill of Rights of 1689 “was first, an objection to
the imposition of punishments which were unauthorized by statute and outside the jurisdiction of the
sentencing court, and second, a reiteration of the English policy against disproportionate penalties.”
53
Solem v. Helm, 463 U.S. 277 (1983).
54
Id. at 284-85 (emphasis added). A footnote after the word “amercement” in the italicized language explains: “An
amercement was similar to a modern-day fine. It was the most common criminal sanction in 13
th
-century England.”
Id. at 284 n.8 (citing 2 F.
POLLOCK & F. MAITLAND, THE HISTORY OF ENGLISH LAW 513-515 (2d ed. 1909).
12