Solem v. Helm – Oral Argument – March 29, 1983

Media for Solem v. Helm

Audio Transcription for Opinion Announcement – June 28, 1983 in Solem v. Helm

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Warren E. Burger:

We’ll hear arguments next in Solem against Helm.

Mr. Attorney General, I think you may proceed whenever you are ready.

Mark V. Meierhenry:

Mr. Chief Justice, and may it please the Court, this is a case from the Eighth Circuit that basically began three years ago.

Three years ago, a man by the name of Jerry Helm appeared before a Circuit Court Judge within the state of South Dakota and pled guilty to a felony.

That felony happened to be his seventh felony within 15 years.

Judge Parker in that case, and the state of South Dakota had filed prior to that time its habitual criminal statute and the defendant pled guilty to be a habitual criminal and he was sentenced to life imprisonment.

The state of South Dakota contends that two recent decisions of this Court take care of this situation and have affirmatively stated that this is a permissible sentence.

Those two cases, Hutto versus Davis and Rummel versus Estelle, in our opinion were ignored by the Eighth Circuit.

The Eighth Circuit reversed the District Court within South Dakota after it had upheld the state of South Dakota Supreme Court’s decision, which decided this was a permissible sentence and it did not violate the Eighth Amendment.

The state of South Dakota petitioned for writ of certiorari, was granted.

The question before this Court is whether a statutorily-authorized sentence of life imprisonment without parole but with the right of commutation for a non-violent habitual offender’s seventh felony constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments.

Mr. Helm has been an active criminal.

He is certainly an habitual criminal.

He has been convicted three times of burglary… in 1964, ’66, and ’69; of obtaining money under false pretenses in ’72; of grand larceny in ’73; a third offense, driving while intoxicated, which requires three offenses within four years, by the way, in 1975.

The basic crime for which this case rests on was writing a no-account check, which is a felony in South Dakota, as in most other states, and it was for the amount of $100.

South Dakota’s habitual offender statute, we have two.

One is for the first and second felony.

It allows a circuit court judge to basically double whatever the statutory sentence is.

When an individual commits their fourth sentence, our court or our circuit court can sentence an individual anywhere from one day to life.

In this particular case he was given life imprisonment and, as is pointed out in the briefs, in South Dakota life imprisonment requires that the governor commute that to a term of years prior to the time that parole begins.

We submit that this Court has decided this case in Rummel versus Estelle.

It is just like the state of Texas, only in effect a mirror image.

In Texas, the parole board allows a parole, it must be approved by the governor.

Ours is the other way around, that the governor must first commute it to a term of years, then assigns it to the parole board.

I also want to point out that the state of South Dakota is more lenient than Texas.

Texas requires, the legislature requires, a mandatory life sentence.

Here it is left to the discretion of the sentencing judge.

These two cases… I might point out that in this case, as in the Rummel case, the defendant does not challenge the habitual criminal statute of South Dakota, nor does he contend that that statute is unfairly or unconstitutionally applied as to his client.

He simply states that this is cruel and unusual punishment.

The Eighth Circuit, at the oral argument, noted that this life sentence for this individual on his seventh felony within 15 years was a black day in legal jurisprudence and that it was… it eventually held that it was cruel and unusual.

Thurgood Marshall:

Attorney General, you mentioned about this life imprisonment and parole.

I understood this was without parole.

Mark V. Meierhenry:

That’s correct.

The… but under… in the state of South Dakota, and I think the appendix to the brief shows that, about 50 percent of the time those people who get life sentences are paroled, or at least over the period that the Eighth Circuit asked for the information.

The process in South Dakota, and I think you can see that in the lower judges’ statements to the defendant, that an individual–

Thurgood Marshall:

It confused me.

Mark V. Meierhenry:

–Well, an individual can be commuted and in South Dakota that’s the normal process.

For example, in Texas they have a little different procedure.

There the Board of Pardons and Paroles acts.

Then the governor must approve their actions.

In our state, if someone gets a life sentence there is a series of requests for commutation.

If the individual is a man like Mr. Helm, maybe eventually the governor will be convinced he’s rehabilitated himself in prison, will commute his sentence.

Once it’s commuted to a term of years, it then is just like any other individual in the state penitentiary.

William J. Brennan, Jr.:

Well, is this to say that every sentence which is just a life sentence remains without possibility of parole unless the governor commutes?

Mark V. Meierhenry:

That’s correct, Your Honor.

Once the governor commutes it to a term of years, whether it’s ten years or 40 years–

William J. Brennan, Jr.:

And how many offenses can result in life sentences?

Mark V. Meierhenry:

–Well, anything that’s a Class 1 felony in South Dakota, which would include murder, rape… the more serious offenses, Your Honor.

And, of course, this habitual offender becomes a Class 1 felony.

For example, if, like in Hutto versus Davis, the judge would have given Mr. Helm 40 years, under the rules of South Dakota, he would have, before he’s eligible for parole, would have to serve 30 years.

In other words, he would have gotten out of prison when he was 66, 70 years old, assuming that he had done things properly.

So it’s our view or the state of South Dakota’s view that this Court has already decided this factual situation.

It’s determined that there’s a difference between the death penalty and any term of years, and in this case a life sentence is simply a term of years measured by an individual’s life.

This Court also discussed, and other courts have discussed, the possibility of parole.

You have it in this case, only it’s not called parole.

It’s called commutation.

In both instances it is executive leniency.

John Paul Stevens:

Yes, but isn’t there a difference in the parole situation?

It’s really routinely given to a very significant number of people, whereas here nobody’s gotten it for the last ten or 12 years, as I understand it.

Mark V. Meierhenry:

Well, I think the record would show since 1975, and I think–

John Paul Stevens:

It is correct nobody’s gotten it since 1975?

Mark V. Meierhenry:

–That’s correct.

But over the period of time–

John Paul Stevens:

I suppose there have been people who have been put on parole in South Dakota since 1975.

Mark V. Meierhenry:

–There have.

John Paul Stevens:

Probably quite a lot of them.

Mark V. Meierhenry:

There have.

The average stay in our South Dakota penitentiary is about 2-1/2 years.

John Paul Stevens:

Would you… because I had not found it in the record, at the beginning you recited the convictions.

Could you tell me again what were they?

In ’64 it was a burglary, was it?

Mark V. Meierhenry:

Yes, sir.

I’ll repeat them.

There were three burglary convictions… 1964, 1966, 1969.

In 1972, while out for a short period of time he was convicted of obtaining money under false pretenses.

Again, he was out of prison in 1973, grand larceny.

1975, third offense, driving while intoxicated, which in South Dakota requires three convictions for driving while intoxicated within a four-year period.

He’s actually got more than that.

John Paul Stevens:

And then this $100 check item.

Mark V. Meierhenry:

And then the $100 no-account check in 1979.

John Paul Stevens:

So then it’s correct that from 1973 on, he had one conviction for drunken driving, which probably had meant there were a couple others before, because it was a felony, and the $100 check.

In ten years he had those two convictions.

Mark V. Meierhenry:

Well, from ’73 to ’79… he’s been in prison, Justice, since ’79, so in that six-year period he was convicted of three felonies, and you must remember that he was in prison during part of that time.

I calculated he commits a serious misdemeanor or felony every 5.3 months he’s out of prison, so he’s a rather active and, I think, the perfect habitual criminal example.

Thurgood Marshall:

Mr. Attorney General, as I read your statute, am I correct that if somebody commits a felony and it’s shown that he’s had three prior… I mean, four prior misdemeanor convictions he can get life?

Mark V. Meierhenry:

No, he can’t.

Thurgood Marshall:

Under this statute?

Mark V. Meierhenry:

No, he can’t.

Thurgood Marshall:

It says convictions.

Mark V. Meierhenry:

I know it, and that was changed in ’82.

Mark V. Meierhenry:

I think it’s one of those things under state law–

Thurgood Marshall:

Good.

Mark V. Meierhenry:

–that everybody assumed we… that it was meant by a felony conviction, but that was changed.

No individual… it has to be a felony in South Dakota.

It’s always been that way.

In 1982 they did amend our statute, which was not published in time for this.

Thurgood Marshall:

I have changed my notes.

Mark V. Meierhenry:

Okay.

Lewis F. Powell, Jr.:

General, were the burglaries third-degree burglaries?

Mark V. Meierhenry:

They were.

Lewis F. Powell, Jr.:

Would you describe those for us?

Mark V. Meierhenry:

Well, the record’s not real clear, but I believe they were just third-degree burglaries.

That’s the information that was within the record that the circuit court judge–

Lewis F. Powell, Jr.:

What is the statutory definition of a third-degree burglary?

Mark V. Meierhenry:

–It’s breaking… in South Dakota it’s breaking and entering into a building that’s not inhabited.

Lewis F. Powell, Jr.:

That’s unoccupied.

Mark V. Meierhenry:

Unoccupied.

Lewis F. Powell, Jr.:

What, like a stable or–

Mark V. Meierhenry:

Could be a liquor store.

It could be a grocery store.

It could be a filling station.

It could be a stable.

Lewis F. Powell, Jr.:

–Was any violence involved in any of the burglaries?

Mark V. Meierhenry:

Well, by its definition there was breakings, but not to a human being, no, sir.

Lewis F. Powell, Jr.:

Right.

What about the grand larceny?

What’s the definition of that in South Dakota?

Mark V. Meierhenry:

That’s a… taking property over $200.

Lewis F. Powell, Jr.:

Over $200?

Mark V. Meierhenry:

Over $200.

Mark V. Meierhenry:

Let’s see, in 1973… my memory’s not precise… it might have still been $100.

At some point in the ’70s–

Lewis F. Powell, Jr.:

It seems to me I read somewhere it was $50 at the time.

Mark V. Meierhenry:

–Well, it is now $200, but in 1973 it could have been $50.

I’m not precise, but we had to account for inflation, I guess, and so during the ’70s it did go up.

John Paul Stevens:

Was there a dollar value on the burglary in the third degree, or was it just any entry?

Mark V. Meierhenry:

No.

And I don’t think that… I guess the state of South Dakota… But the dollar value, this Court’s already held that in Texas we could look at $280.

But I don’t think the amount of the crime is important.

I don’t think it’s a serious argument made–

John Paul Stevens:

You’d make the same argument if in each of the three burglaries he stole a quart of liquor?

Mark V. Meierhenry:

–Yes.

It’s the crime.

As least in South Dakota, determined by the legislature, a burglary is a felony and it is such in most every state in the Union, as far as I know, and here is an individual that on six occasions, although our legislature said three strikes, he got six strikes, and I think the fact that there was no violence involved allowed and permitted the executive branch not to file an habitual criminal enhancement against him on his fourth felony, his fifth felony and his sixth felony.

It wasn’t until the seventh felony that a prosecutor finally said, enough.

I have a duty to protect the public.

I have a duty to take an unrepentant thief off of the streets and keep him away.

John Paul Stevens:

May I ask how frequent… I take it there was no pre-sentence report here either.

Mark V. Meierhenry:

No, it was the–

John Paul Stevens:

Is that customary in your state?

Mark V. Meierhenry:

–It is not customary.

It is only when on each and every occasion you have a right to one as a defendant.

Thurgood Marshall:

He waived it.

Mark V. Meierhenry:

He waived it.

Thurgood Marshall:

He waived it.

He waived it, here, didn’t he?

Mark V. Meierhenry:

Yes, he did.

And, of course, being an old defense lawyer myself, that’s sometimes the wisest thing to do if you have a client like Mr. Helm, is just not tell the court the least amount possible because in this case, were he to have a pre-sentence, our record only goes back 15 years, so I can’t argue to you what occurred before that.

But this gentleman’s only 36 years old and so let’s just go back the 15 years.

Out of that period of time, he was in prison on various occasions a couple… 17 months here and 24 months here.

Mark V. Meierhenry:

I think the court, from the record before it, was very justified in assuming that this man was not going to be rehabilitated.

The Eighth Circuit–

Thurgood Marshall:

What would have happened if in each one of these burglaries he was stiff drunk and broke in just to lay down and go to sleep?

Mark V. Meierhenry:

–I doubt if–

Thurgood Marshall:

Isn’t that different from breaking in or blowing up a safe and destroying a building?

Mark V. Meierhenry:

–Well, the record–

Thurgood Marshall:

Or killing somebody?

Mark V. Meierhenry:

–It’s certainly different than killing somebody.

I don’t think we can make any quarrel about that.

But as far as him breaking in and going to sleep, there’s nothing in the record to indicate that.

Thurgood Marshall:

But I’m saying it could have.

Mark V. Meierhenry:

It could have been, but it wasn’t, or we don’t know.

Thurgood Marshall:

And nobody seemed to be interested in it.

Mr. Attorney General, would that even constitute the offense of burglary?

Doesn’t it have to be breaking and entering with the intent to commit a felony or a theft therein?

Mark V. Meierhenry:

It does.

Sandra Day O’Connor:

And would sleeping constitute a felony or theft?

Mark V. Meierhenry:

It does in our state.

That would simply be what we would call a misdemeanor trespass punishable up to a year.

But I guess–

Thurgood Marshall:

Burglary 3 doesn’t include that?

Mark V. Meierhenry:

–Yes.

You have to have intent to commit a crime… a crime.

Thurgood Marshall:

A crime.

Mark V. Meierhenry:

A crime.

Stealing a bottle of whiskey is a misdemeanor in South Dakota.

Thurgood Marshall:

All right.

So he broke in and he stole a loaf of bread.

Mark V. Meierhenry:

Um-hum.

Thurgood Marshall:

That’s it.

Thurgood Marshall:

Life imprisonment.

Mark V. Meierhenry:

Only after there’s three prior felonies.

Thurgood Marshall:

Only after three loaves of bread.

Mark V. Meierhenry:

Well, if you want to look at it this way.

Of course, there is some individual who lost three loaves of bread and under our definition in South Dakota, which is a small state, we know that individuals like Mr. Helm, who have had six cracks at the penitentiary… six times they’ve gone in there.

They’ve been… gone through the fish tank, as it’s called, and they get their hair cut and they go through each step, and on six occasions that didn’t seem to impede him at all.

Under the laws in South Dakota, we protect people first and property second, and it’s clear that there is no logical way to protect the people of South Dakota, the innocent people of South Dakota, from Jerry Helm.

The minute he gets out, and if we let him out… I figured it out… with his life span, he’s only got 37 more felonies to go.

And I think that we have a duty to protect the public from these 37 more felonies, if he keeps his batting average until the end.

John Paul Stevens:

May I ask one other question about his batting average?

Mark V. Meierhenry:

Yes.

John Paul Stevens:

In ’75 when he went in for drunken driving, how long was he sentenced then?

Mark V. Meierhenry:

I know what he served.

His sentence would not exceed three years, and he served nine months and, I believe, 17 days on that sentence.

John Paul Stevens:

Nine months.

So then he was out about four years before he resumed his ill ways.

Mark V. Meierhenry:

Until he was convicted.

The state obviously–

John Paul Stevens:

Well, wasn’t it rather promptly… the charge promptly disposed of in ’79?

Mark V. Meierhenry:

–Yes, it was.

John Paul Stevens:

And when did the $100 forgery occur?

Mark V. Meierhenry:

It occurred three years ago, March of ’79.

John Paul Stevens:

So he was out from ’75… from late in ’75, early ’76, until ’79 without resuming his evil ways.

Mark V. Meierhenry:

He was not convicted during that time.

What he did–

John Paul Stevens:

Well, there’s nothing in the record to say he engaged in any misconduct for that three-year period.

Mark V. Meierhenry:

–That’s right, but I don’t think I can naively say he did not commit any crimes.

He was not convicted of any crimes until 1979.

John Paul Stevens:

Well, what presumption should we make during that three-year period… that he was out committing a lot of crimes, or that he was–

Mark V. Meierhenry:

No.

Mark V. Meierhenry:

I don’t think we can make any presumption.

He was not charged with any criminal activity during that period of time that was relevant to this charge.

If it was a misdemeanor, it’s not relevant because only felonies are relevant.

We believe that the test that the majority adopted in Rummel should be used here.

This felony is classified as a felony, and it is classifiable as a felony, and the term and the punishment of years, as the court said or the majority said there, the length of the sentence is a matter of legislative prerogative.

In this case there are many instances where Mr. Helm has the opportunity before we need Federal court intervention.

The governor can commute him, which is a possibility.

Before he even started on this trail, a prosecutor had to make a decision to charge him with an habitual offender offense.

A circuit court judge in our state had to decide that this man could only, and society could only be protected by this punishment.

The state of South Dakota Supreme Court held three-to-two… it was a close question there… that this was appropriate for Mr. Helm.

And I think in each case, for example, the Supreme Court of the state of South Dakota, understands and is aware that 50 percent of the time people who get life imprisonment in South Dakota, or approximately 50 percent, are commuted by the governor.

Ours is not a state known for long sentences.

Ours is not a state that executive clemency is never used.

In Texas it was denied, according to the report I read, 79 percent of the time.

That’s certainly not the indication in South Dakota, and yet this Court has held prior to this time it was acceptable.

We would simply ask that this Court follow, as we clearly read Rummel and as later the per curiam in Hutto versus Davis held, that this is a felony, that it is up to the legislature of the State of South Dakota to determine what is a proper punishment.

There is no allegation whatsoever that this man in any way will be treated cruelly or unusually in our state penitentiary.

He’ll be cared for properly.

He’ll be fed properly.

So it’s only a matter of years, and certainly if in Hutto versus Davis 40 years for nine ounces of marijuana is acceptable, in this instance, after six felonies and on the seventh felony, and only then, that this individual be given the sentence of life imprisonment in South Dakota.

We think that any other decision would be a subjective decision and that the legislature of South Dakota has appropriately made this decision, as did the Circuit Court of South Dakota, as did the Supreme Court of South Dakota, to protect us from thieves.

I don’t think we want violent people in our society.

We don’t.

On the other hand, our society won’t survive very well if we have 500 people like Jerry Helm in a state of our size, of 700,000.

One can cause a lot of damage and I think that Jerry Helm is where he should be.

I don’t think he was treated unfairly or too cruelly.

If you can’t learn in six times, seven times, in our society, I don’t know that the populace of this country want to put up with these individuals.

If he reforms, and I’m sure he went through AA every time he was in prison, I’m sure he went to church every time he was in prison and joined the Jaycees every time he was in prison, and was reformed, and I’m sure he’ll get out again.

But we need not under the Eighth Amendment declare it cruel and unusual to have a man who is certainly unusual in and of himself… seven felony convictions within 15 years and only 36 or 37 years old.

Thank you.

Lewis F. Powell, Jr.:

–General, I understand the Court of Appeals to the Eighth Circuit said that only one other state had laws that would enable or authorize a life sentence without parole for the type of recidivist that we have in this case.

Do you agree with that?

Mark V. Meierhenry:

I think they mentioned Nevada and I believe there’s one other that skips my mind.

But there are not a great deal.

But I think so many of these things are without a difference because I don’t see any difference between South Dakota and Texas.

Actually, I think Texas has tougher habitual criminal statutes than we do.

Number one, we add a felony.

Number two, we’ve got the court’s discretion, the lower court discretion.

In Texas, third one, automatic.

Yes, you have parole on the other side.

We have commutation of sentence.

But Nevada is similar to us, to South Dakota.

Warren E. Burger:

Mr. Burnett.

John J. Burnett:

Mr. Chief Justice, may it please the Court, Mr. Helm has been deprived of his freedom for life by the punishment involved in this case.

The state of South Dakota argues that this Court should not even consider whether such an extremely harsh punishment has any relationship to the severity of the crimes that Mr. Helm was convicted of.

Once a person commits a felony, no matter what the nature of that felony, according to Mr. Meierhenry, then that person forfeits his life, his liberty–

Warren E. Burger:

He didn’t say one.

It’s seven.

John J. Burnett:

–Your Honor, he said the felony and in accordance with his brief and in accordance with, as I understood, his argument to you–

Warren E. Burger:

But the issue here is whether seven felonies can invoke this statute without offending the Eighth Amendment, isn’t it?

John J. Burnett:

–Yes, Your Honor.

That’s what the issue is here.

Warren E. Burger:

What you’ll have to do is tell us why the Rummel case doesn’t control, don’t you?

John J. Burnett:

Yes, Your Honor.

Of course, Rummel v. Estelle, this Court did uphold the life sentence on a Texas recidivist convicted of three prior felonies, but in Rummel this Court refrained from applying the proportionality principle espoused in the cases of Coker v. Georgia, and Weems v. United States.

Now the reason this Court felt compelled to hold back from applying a proportionality analysis in that case was because the punishments involved in Weems and Coker could be clearly distinguished, a bright line could be drawn between those punishments and traditional forms of imprisonment, while no such bright line could be drawn between Rummel’s punishment and traditional forms of imprisonment.

In this case, there is no such fear of a more extensive intrusion into the line-drawing process of the legislature, as there was in Rummel, because a bright line can be drawn in this case and between traditional forms of imprisonment.

In Rummel, Your Honor, this Court, in distinguishing his sentence from the death penalty involved in Coker, quoted Justice Stewart in Furman v. Georgia to the effect that the penalty of death differs in kind from other forms of punishment.

It is unique in its total irrevocability.

It is unique in its rejection of rehabilitation as a basic goal of criminal justice, and it is unique in its absolute renunciation of all that is embodied in our concept of humanity.

John J. Burnett:

Now those points brought out by Justice Stewart’s opinion, quoted in Rummel, Rummel’s sentence was distinguishable from the death penalty on.

His eligibility for parole in 12 years meant that his sentence was not irrevocable and his eligibility for parole in less than 12 years meant that his sentence did not reject his rehabilitation completely.

However, Mr. Helm is never eligible under South Dakota law for parole.

Consequently, his sentence of life imprisonment means he will be sentenced to life imprisonment unless there is the extremely unlikely possibility that the governor of South Dakota or one of the governors of South Dakota, who have not commuted a single life sentence since 1975, will somehow decide to commute his sentence.

Consequently, his sentence approaches irrevocability of the death penalty, since his imprisonment for life cannot even be revoked by the possibility of parole.

Also, his sentence rejects his rehabilitation completely.

I don’t think there’s any way anybody could argue a life sentence without parole is a sentence based or considers rehabilitation at all.

William H. Rehnquist:

Do you really think he was… do you think he was a prime candidate for rehabilitation?

John J. Burnett:

Your Honor, I think it was certainly not justified on the basis of his record to totally rule out the fact of his rehabilitation.

I think right now–

William H. Rehnquist:

That’s, of course, the judgment that the South Dakota legislature made, saying that in these circumstances of multiple felonies that they would rule out that possibility.

I take it you say that the Eighth Amendment forbids that.

John J. Burnett:

–Your Honor, what I’m saying is that the Eighth Amendment requires… I think there were two tests laid out in Coker.

It requires that a punishment be not grossly proportionate to the offense and that it make… well, then, of course, a negligible contribution test also.

My contention is, Your Honor, and I think it’s based on decisions of this Court, that the proportionality requirement of the Coker test, also mentioned in Weems v. United States, the punishment must be graduated in proportion to the offense, that that puts a limit in accordance with the rehabilitative rationale of punishment on the extent to which the state can use utilitarian rationale in imposing a punishment.

Warren E. Burger:

Suppose this had been his fourteenth conviction instead of his seventh felony conviction.

What would your view be of it then?

John J. Burnett:

If it had been a sixteenth felony conviction?

Warren E. Burger:

Yes.

John J. Burnett:

I’m not sure what my position would be then, Your Honor.

I’m just stating that it was seven felonies… I mean, it could have been… when you get to some point I think that–

Warren E. Burger:

Let’s move it up to twenty then.

John J. Burnett:

–To twenty.

Warren E. Burger:

To twenty.

John J. Burnett:

I don’t know.

I just know that seven, life imprisonment without parole for seven would be cruel and unusual punishment.

Now twenty, I think it would… still in that circumstance I would be interested in knowing what the felony convictions were and what the circumstances behind each of those felony convictions were before I think it would be appropriate to rule out and reject completely rehabilitation as a basic goal of his punishment.

Sandra Day O’Connor:

Mr. Burnett, if Mr. Helm had been sentenced not to life but to 50 years in prison without possibility of parole, would you say we had to apply proportionality analysis?

John J. Burnett:

Fifty years without possibility of parole.

Again, I would have to… I’d have a difficult time answering that question.

John J. Burnett:

I think he would then, under those circumstances, have a possibility of being out before the end of his life.

Sandra Day O’Connor:

What if he were 60 years old?

John J. Burnett:

If he were 60 years old and you’re talking reform, the sentence would effectively then probably deprive him of his freedom for life.

I would… again, without knowing anything more about it, I would say that I would definitely have problems with a sentence like that.

I’d have to look at it more, but I could see that it could be analogized to this, then.

Sandra Day O’Connor:

You would suggest that the Court would have to apply proportionality analysis to terms of years as well, then, I take it?

John J. Burnett:

Excuse me, Your Honor?

Sandra Day O’Connor:

Your argument suggests that this Court would have to apply your same proportionality analysis even to sentences for specified terms of years.

John J. Burnett:

What I’m saying, Your Honor, is if a sentence cannot be clear… if you can clearly distinguish a sentence from traditional sentences of imprisonment, which a term of year sentence normally is, then a bright line could be drawn between that sentence and the proportionality test, as applied in Coker should apply.

In other words, Rummel v. Estelle is distinguishable from that sentence.

Now what… I’m addressing your question, too.

I think I can imagine if you, like for instance a sentence for a term of years, for 895 years, with no eligibility for parole, would, in my estimation, be a life sentence without parole, just called a different name.

Byron R. White:

Well, so would any sentence.

So would any sentence without parole that exceeded the man’s life expectancy.

John J. Burnett:

Well, if you could know for sure what his life expectancy would be–

Byron R. White:

Well, you go to the tables.

John J. Burnett:

–Okay.

Well, you could predict on the tables, but even then what I’m stating, Your Honor, is that the sentence that is designed to ensure that a person is in prison for the rest of his life, that does not consider his rehabilitation completely, that rejects his rehabilitation completely, that that sentence cannot be clearly distinguishable from the death penalty, as was the sentence involved in Rummel.

And such a sentence is clearly distinguishable from traditional forms of imprisonment.

I don’t think most sentences of imprisonment, and most traditional forms of imprisonment are not designed to keep someone in prison for the rest of his life, and I think that is why parole has achieved such a prominent role in our system of criminal justice, as has been pointed out by this Court in, for instance, Morrissey v. Brewer.

William H. Rehnquist:

Mr. Burnett, what was the crime involved in Coker?

Was it rape?

John J. Burnett:

In Coker it was rape, yes, Your Honor.

William H. Rehnquist:

Well, under your analysis would you say that a state could not sentence a person who is found guilty of the sort of rape that was involved in Coker to life imprisonment without the possibility of parole?

John J. Burnett:

No, Your Honor.

I’m not saying that.

William H. Rehnquist:

What, then, is the distinction between seven of this kind of felonies and the rape, so far as rehabilitation is concerned?

Supposing it was a 21-year-old person convicted of rape?

John J. Burnett:

Your Honor, what I’m saying in this case is that the proportionality principle applied in Coker should be applied in this case.

Now that also, I think, is mentioned in Rummel and is also mentioned in Coker in applying that proportionality principle.

John J. Burnett:

It’s important that the Court be informed by objective factors to the maximum extent possible.

Now there are three objective factors, I think, that have been identified.

Number one, the nature of the offense.

Now, for instance, rape, I think would contrast quite sharply from any of the offenses that Helm was convicted of.

In other words, the first objective factor would be considering the nature of the offense in terms of the harm caused, the harmfulness of the offense, and the mens rea with which it was committed, comparing that with the punishment inflicted.

The second objective factor is comparing the sentence imposed in that jurisdiction with the sentences imposed in other jurisdictions.

And the third, of course, is the sentence imposed on other criminals for different crimes within the same state.

Now I would not… I’d have to subject the crime of rape.

My suspicion right now is that all those objective factors would indicate that a life sentence without parole would be warranted for that particular–

William H. Rehnquist:

But under your test, if only two states in fact impose that sort of a punishment, those two would be lopped off by your test.

John J. Burnett:

–No, Your Honor.

The combined… that’s just one of the three objective factors that I’d use.

There is only one other state where Helm could have been sentenced to life imprisonment without parole for the offenses he was convicted of in this case.

But again I understand the concern with Federalism in applying just that interjurisdictional analysis.

But it is one objective factor that the Court can apply in determining the question of whether a punishment is proportionate to the offense committed.

William H. Rehnquist:

But wasn’t this, your whole approach, pretty well rejected by the Court opinion in Rummel?

John J. Burnett:

My approach was rejected by the Court–

William H. Rehnquist:

I mean, this breaking it down into numerous so-called objective factors.

That was really the approach taken by the Court of Appeals for the Fourth Circuit in Hart against Coiner, as I recall, and I thought the Court opinion in Rummel rejected that.

John J. Burnett:

–Your Honor, the Court opinion in Rummel, I think, it rejected that for one reason, and that was that Rummel’s sentence could not be clearly separated, a bright line could not be drawn between Rummel’s sentence and traditional forms of imprisonment.

Therefore, for the Court to say that his punishment was unconstitutional would involve the Court in the line-drawing process, preeminently the province of the legislature.

Therefore, the Court in Rummel distinguished Rummel’s sentence from the death penalty in Coker.

The reason that this case is different than Rummel and Rummel does not apply to this case is because when you’re talking about life imprisonment without parole you are not talking about a sentence that’s clearly distinguishable from the death penalty.

You’re talking about a sentence that approaches the irrevocability of a death sentence.

You’re talking about a sentence that rejects rehabilitation completely, as the death penalty does.

So for that reason the Court’s fear in applying the proportionality analysis of intruding more extensively than was required in Weems and in Coker into the line-drawing process is not present in this case.

So the reason that Rummel did not decide this case is because that fear in Rummel is not present.

Now Coker v. Georgia, when it talked about the objective factors… and I think it was pointed out in Rummel… that there was a certain degree of subjectivity involved in at least two of the objective factors that were argued in Rummel and that are argued here… the nature of the offense and the interjurisdictional comparisons.

In Coker v. Georgia, this Court said to the maximum extent possible.

Also, in Coker v. Georgia, it was stated that objective factors cannot determine this controversy entirely, for the Constitution contemplates our own judgment should be brought to bear.

John J. Burnett:

Now what… I’m telling Your Honors that interjurisdictional comparison does indicate by itself that the sentence in this case is unconstitutional, disproportionate to the punishment compared to every other state in the country.

Number two, analyzing that with the two other objective factors, which also indicate that his sentence is grossly disproportionate to the punishment, those three objective factors, utilizing them, do indicate–

Warren E. Burger:

In each case your argument seems to treat the offense as simply the seventh felony.

That’s your view, isn’t it?

John J. Burnett:

–Excuse me, Your Honor?

Warren E. Burger:

It’s just the seventh felony, but his offense in the view, in the eyes of the legislature of South Dakota, his offense is a continuing life of criminal conduct that endangers the safety and the peaceful life of the people of South Dakota.

John J. Burnett:

Your Honor, I do, as the Attorney General has said, I have not argued that the habitual offender, the enhancement of punishment for a prior offender, that that is in and of itself unconstitutional.

What I am pointing out, Your Honor, the reason that the last felony is so important is because he has already committed other crimes.

He’s already been punished for them.

The fact that he commits another crime does indicate, in looking at the last felony, more moral blameworthiness, which I think is about the best justification I’ve heard for enhanced penalties for an habitual offender… increased blameworthiness.

And you analyze that blameworthiness with the harm involved and so for that reason I think the last felony is more important than the other felonies.

For instance, if the last felony was a rape or an offense involving a gun or some type of threat of… violent offense, it would be different.

William H. Rehnquist:

What if the last felony were his fourth third-degree burglary?

John J. Burnett:

The fourth third-degree burglary.

I think all the… excuse me.

I think my argument would be pretty much the same as it is here today.

In South Dakota, entering structures with the intent to commit a crime is burglary.

I think all the prior burglaries that Mr. Helm was involved in, although this doesn’t appear in the record, I think they were all breaking into liquor stores.

But again the only thing the judge knew at the time of imposing the sentence on Mr. Helm was this.

The last offense he was convicted on was a $100 no-account check charge.

The judge asked him to explain what happened.

He needs a factual base for the plea.

Mr. Helm explains he was working in Sioux Falls.

He got paid that day, ended up in Rapid City with more money than he started out with.

He knew he must have done something wrong.

He didn’t remember exactly what.

He had stopped several places.

He was drinking.

If he would have known about the check, he would have paid it.

The judge also, the only thing he knew about the prior felonies at the time of his sentencing was that they were all a product of Mr. Helm’s alcoholism.

Warren E. Burger:

Is it a general practice to omit or to waive the pre-sentence reports?

John J. Burnett:

No, Your Honor, it’s not.

Warren E. Burger:

Would it not be particularly important to have a pre-sentence report on a seventh felony conviction with the invocation of the habitual criminal statute?

John J. Burnett:

I would think so, Your Honor.

Warren E. Burger:

He waived it here, didn’t he?

John J. Burnett:

He did, Your Honor.

I think the Eighth Circuit, in their opinion in this case, although knowing the fact that he had waived his right to a pre-sentence investigation, suggested that one be done in this case and I certainly think–

William H. Rehnquist:

Under… what authority did the Eighth Circuit have to make that sort of suggestion?

John J. Burnett:

–What?

William H. Rehnquist:

What authority did the Eighth Circuit have to make that sort of suggestion?

John J. Burnett:

No authority, Your Honor.

It was just a suggestion that they made in the case in a footnote, I believe.

There is no authority.

No case is cited, nothing like that.

It was just… I think it was their feeling that in imposing such a drastic sentence, life in prison without parole, on the minimal knowledge that the judge had about the offender, and imposing a punishment that completely rejected his rehabilitation, that certain… more things should be known about him in determining the punishment that should be imposed upon him.

Now, as I mentioned, the first objective factor is the nature of the offenses.

Now it’s pointed out that the prior felonies of Mr. Helm in this case were, as I think the Court’s already been informed, three third-degree burglaries, one grand theft, one obtaining money under false pretenses, and one third offense driving while intoxicated, and then the $100 no-account check.

None of those offenses involve violence.

I know that this Court pointed out in Rummel v. Estelle that distinguishing between violent and non-violent crimes involves a subjective judgment more eminently the problem of the legislature.

One thing I could inform the Court of is that there have been surveys taken of the general population.

One that I know was completed after Rummel was decided… I think 28 Wayne Law Journal number 3… indicated that the population as a whole in this country does draw a bright line between violent and non-violent crimes.

When that is combined with the fact of Mr. Helm’s alcoholism and you consider the harm involved in his offenses with the mens rea that they were committed, I think… and I would submit that alcoholism does affect the mens rea with which an offense is committed–

William H. Rehnquist:

Well, if it affects the mens rea sufficiently, the elements of the offense aren’t made out, are they?

John J. Burnett:

–No, they’re not, Your Honor.

William H. Rehnquist:

So presumably in each offense which he was found guilty of there was the necessary intent, whether or not he might have been drinking.

John J. Burnett:

Um-hum.

William H. Rehnquist:

So I don’t see why it would affect the mens rea.

John J. Burnett:

I’m just saying in terms of punishment, Your Honor.

Alcoholism could affect the mens rea to the extent that it would totally obliterate mens rea, therefore affecting an element of the offense.

William H. Rehnquist:

Well, but then he wouldn’t be guilty of the offense.

John J. Burnett:

No, he wouldn’t be guilty of the offense in that case.

But what I’m saying is, even if it does not affect his mens rea to the extent to totally obliterate it, that still is a factor to be considered in assessing his moral blameworthiness for the commission of the act.

William H. Rehnquist:

You say if he had been drinking and then formed the intent to commit a burglary and committed the burglary, he is less blameworthy than someone who hadn’t been drinking and formed the intent to commit a burglary and committed the burglary?

John J. Burnett:

In general, yes, Your Honor, because of–

William H. Rehnquist:

You think that’s implicit in the Eighth Amendment?

John J. Burnett:

–I don’t think it… I think it’s implicit in the Eighth Amendment to the extent… and this is going to be rather involved… but it’s implicit in the Eighth Amendment to this extent, that the Eighth Amendment prohibits cruel and unusual punishment.

That has been held by this Court to require that the punishment be graduated in proportion to the offense.

That that proportionality requirement requires distributive justice.

That distributive justice–

William H. Rehnquist:

What is distributive justice?

John J. Burnett:

–It means that a person should be treated as an individual, that justice should be gauged… his sentence should be gauged to his personal culpability, his personal blameworthiness for the offense that he did and the actual harm that was caused.

In other words, I think, for instance, in Robinson v. California the state may be threatened a lot by drug addicts, but distributive justice requires that they cannot be treated as criminals unless they have done something voluntary.

Thurgood Marshall:

Well, in this case at one time he was convicted of driving while drunk.

John J. Burnett:

Yes, Your Honor.

Thurgood Marshall:

Well, that is close to a crime of violence, but by sheer accident it wasn’t violence.

Isn’t that right?

John J. Burnett:

Well, if you’re talking about a car accident, it was a sheer accident that wasn’t–

Thurgood Marshall:

I’m talking about driving while drunk, using a lethal weapon in the hand of a drunk is dangerous.

John J. Burnett:

–Yes, Your Honor.

Thurgood Marshall:

So that’s in this case.

John J. Burnett:

Yes, Your Honor.

I’m not trying to argue that–

Thurgood Marshall:

Well, suppose he’d been convicted seven times of drunken driving.

Would that entitle him to life imprisonment?

John J. Burnett:

–Well, again, Your Honor, I think when you look at–

Thurgood Marshall:

Well, put it this way.

Three times with a small car, four times with a truck.

John J. Burnett:

–Well, I don’t… I’d still argue that I would have, I think, that there would still be problems under the Eighth Amendment in imposing a life sentence without parole for those.

I’d have to know a lot more than just that, but I think that driving while intoxicated, although it was true the danger of the offense, I think there’s no intent there to cause anybody any injury.

And that, I think, would be something that should be considered in determining what punishment should be imposed for that offense.

Thurgood Marshall:

You mean there’s no intent to do injury, yet you know what could happen.

John J. Burnett:

Well, Your Honor–

Thurgood Marshall:

You are presumed to know that.

John J. Burnett:

–Your Honor, I just–

Thurgood Marshall:

You are presumed to know that a drunken driver does not have the same reflexes as a sober one.

You are presumed to know that when you drive while drunk.

John J. Burnett:

–Yes, Your Honor.

It’s just… the only thing I’m saying is this, Your Honor.

I don’t think that I could… I don’t think it could quite be compared, the mens rea of a person driving a car while intoxicated with the mens rea of a person that, like, for instance, takes a gun into a store, give me all your money or I’ll shoot you.

I think that you’re talking about a more guilty frame of mind.

Thurgood Marshall:

In both are the victims equally dead?

John J. Burnett:

Yes–

Thurgood Marshall:

Whether he shoots a guy in a robbery or otherwise drives over him in a truck while drunk?

The dead person is just as dead.

John J. Burnett:

–That’s certainly true, Your Honor.

John Paul Stevens:

May I ask one other factual question?

How old was this man at the time of his first offense?

There’s some reference to his age, but I can’t quite sort it out.

I think twenty-one by the mathematics of it.

John J. Burnett:

That’s about what I was going to say.

I couldn’t… I can’t really recall right off the top of my head, but–

John Paul Stevens:

There’s reference to his having been 35 or 36 years old, but I didn’t know whether that was today or at the time of the last conviction or what.

John J. Burnett:

–He’s 40 today, because I think he was sentenced when he was 36, which would have been ’79, so he’s 40, I think, at this date.

John Paul Stevens:

Okay.

John J. Burnett:

Then, finally, the last objective factor that I mentioned, interjurisdictional approach, South Dakota… the only people in South Dakota that could be… receive a life sentence without parole, as Mr. Helm did, would be someone convicted of murder, first-degree manslaughter, first-degree arson or kidnapping.

All the offenses, then, for which a person can receive life imprisonment outside of the one Mr. Helm was convicted of, involve violence or the threat of violence or death to another person.

Mr. Helm, on the other hand, has never in his life committed any offense involving violence or the threat of violence or any injury to the person of another.

William H. Rehnquist:

You don’t think drunken driving involves any threat to the person of another?

John J. Burnett:

Well, Your Honor, it would if there was an accident involved.

To that extent, any time you drive while intoxicated there would be a threat of injury to another person.

John J. Burnett:

But to the extent that you commit an offense where you, for instance, in robbery where you threaten violence in order to obtain money, that certainly doesn’t apply to a third offense DWI.

So for that reason I do not count third offense DWI as an offense involving injury to the person of another or the threat of violence or a violent offense, for that matter.

When an accident happened, I would certainly have to agree that there was violence involved.

So comparison of the laws of the state of South Dakota and how South Dakota treats other criminals also indicates that the punishment in this case is excessive compared to the offense.

Every one of these objective factors, considered separately… the nature of the offense in terms of the harm involved and the mens rea with which it was committed, compared to the punishment, the first objective factor, to the interjurisdictional comparison, the fact that Nevada is the only state out of South Dakota… outside of South Dakota in this whole country where Mr. Helm could have received a sentence of life without parole for the offenses he was convicted of, and thirdly, the fact that South Dakota punishes only people, outside of Mr. Helm, convicted of violent crimes or crimes involving violence, or injury to a person of another… all of these objective factors, considered separately, indicate that Mr. Helm’s sentence in this case is grossly disproportionate to his punishment.

When all three objective factors are considered together, it should compel the conclusion, in this case, that his sentence is grossly disproportionate to his punishment.

The Eighth Circuit in this–

Warren E. Burger:

We will resume at 1:00.

John J. Burnett:

–Excuse me, Your Honor.

I believe I’m done.

Thank you.

Warren E. Burger:

Mr. Attorney General?

Mark V. Meierhenry:

Just a brief rebuttal, Your Honors.

I would call the Court’s attention to the appendix, specifically page 22.

I think by reviewing the appendix, wherein the 45 individuals who are serving life for all sorts of crimes in South Dakota are listed, you will see that this idea that was mentioned in my colleague’s argument that South Dakota is overly harsh is just not the case.

We only have three individuals in our entire penitentiary who have been there over 23 years, so I think that… that it’s fairly clear that most people, even if they murder, maim and rape people, do not spend all of their natural lives in the South Dakota penitentiary.

Additionally, I’d like to point out that from the record that in 1975 this man Helm was convicted of driving while intoxicated, third offense, which means three within four years.

Subsequently to that he’s been convicted of two more during this interim from 1975 until 1979.

It shows the type of man that the circuit court judge was faced with, one who was an absolutely unrepentant thief who will absolutely not follow the rules of society.

At some point society must preserve one thing, the right to protect itself, and that was done in this case and I believe nothing in the Eighth Amendment prohibits it, nor would the founders of our country ever believe that we could not protect ourselves from habitual offenders.

Thank you very much.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.