Rummel v. Estelle

• Citation: 587 F.2d 651
• Decision Date: 20 December 1978
• Docket Number: No. 76-2946,76-2946
• Parties: William James RUMMEL, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 651

587 F.2d 651

William James RUMMEL, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.

No. 76-2946.

United States Court of Appeals, Fifth Circuit.

Dec. 20, 1978.

William James Rummel, pro se.

Scott J. Atlas (Court-appointed), Houston, Tex., for petitioner-appellant.

John L. Hill, Atty. Gen., Dunklin Sullivan, Asst. Atty. Gen., David M. Kendall, Jr., First Asst. Atty. Gen., Joe B. Dibrell, Gilbert J. Pena, Douglas M. Becker, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Keith W. Burris, Asst. Crim. Dist. Atty., San Antonio, Tex., for Crim. Dist. Atty. of Bexar County, Tex., amicus curiae.

Michael Kuhn, Asst. Dist. Atty., Houston, Tex., for Dist. Atty. of Harris County, Tex., amicus curiae.

Harry J. Schulz, Jr., Asst. Dist. Atty., Dallas County, Tex., for Henry Wade, Crim. Dist. Atty., Dallas County, Tex., amicus curiae.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, Chief Judge, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN and VANCE, Circuit Judges.

THORNBERRY, Circuit Judge:

This is a habeas corpus case in which the petitioner, William Rummel, challenges his life sentence under the Texas habitual criminal statute ¹ as cruel and unusual punishment in violation of the eighth amendment. A panel of this court held that his sentence violated the eighth amendment because his sentence was grossly disproportionate to his crimes. Rummel v. Estelle, 568 F.2d 1193 (5 Cir. 1978). The court has reheard this important case en banc and vacates the panel opinion.

I. Facts

As stated by the panel opinion, the relevant facts are:

In January 1973, a Texas grand jury indicted Rummel for the felony offense of obtaining $120.75 under false pretenses. The indictment also charged him with having two prior felony convictions: In 1964 he presented a credit card with the intent to defraud of approximately $80, and in 1969 he passed a forged instrument with a face value of $28.36. Rummel pled not guilty to the false pretense indictment, but a jury found him guilty as charged. After the state proved his two prior convictions, Rummel received an enhanced sentence of life imprisonment under the Texas habitual criminal statute then applicable, Tex.Penal Code Ann. art. 63 (Vernon 1925). 1 On appeal, the Texas Court of Criminal Appeals affirmed his conviction. Rummel v. State, 509 S.W.2d 630 (Tex.Cr.App.1974). Rummel applied for postconviction relief and raised in the Texas courts the issues now before us, but his application was denied without a hearing. Then Rummel sought habeas corpus relief in the federal district court, which also denied his petition without a hearing.

568 F.2d at 1195.

II.

As a preliminary matter, the State suggests that Rummel's petition is barred by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and the Texas "Contemporaneous Objection Rule" because Rummel failed to object to the mandatory life sentence at the punishment stage of his trial. In Sykes, the Court recognized the legitimate state interest inherent in a contemporaneous objection rule. See St. John v. Estelle, 563 F.2d 168 (5 Cir. 1977) (en banc). Since it is apparent that the Texas Court of Criminal Appeals has repeatedly rejected Rummel-like challenges to the Texas habitual criminal statute, ² we are at a loss to see how any state interest would be served by demanding that Rummel make a futile gesture at his trial. Moreover, Texas apparently does not require a contemporaneous objection when a defendant challenges the constitutionality of the statute under which he was convicted. Gann v. Keith, 151 Tex. 626, 253 S.W.2d 413, 417 (1952).

III. The Panel Opinion

The panel majority held that Rummel's life sentence under the Texas recidivist statute must be considered one for the entire term of Rummel's life, irrespective of any consideration of statutory good time. The majority reasoned that to consider good time credits would require the court to become involved in the parole process. 568 F.2d at 1196. Next, the court adopted the proportionality standards set out in Hart v. Coiner, 483 F.2d 136 (4 Cir. 1973), Cert. denied, 415 U.S. 983, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974). Id. Finally, the panel held that under these standards Rummel's life sentence violated the eighth amendment. Id. at 1200.

IV.

The initial question we must answer is: Does the eighth amendment prohibit some prison sentences for minor offenses solely because of their length? The State argues that this court is without power under the eighth amendment to review any prison sentence within the legislatively created maximum. And, to be sure, there is language in some of our opinions ³ and elsewhere ⁴ that supports this argument.

On the other hand, Rummel argues that an excessively long prison sentence for a trivial crime can be cruel and unusual punishment. Rummel, too, is aided by language in our opinions ⁵ and elsewhere. ⁶

As has been frequently noted, the Supreme Court has never held a punishment unconstitutional because of length alone. ⁷ We do know, however, that each of the nine Supreme Court Justices, at least in death cases, has embraced the proportionality concept. Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1976) (White, Stewart, Blackmun, Stevens, JJ., plurality opinion); Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (Stewart, Powell, Stevens, JJ., plurality opinion); Furman v. Georgia, 408 U.S. 238, 272 n.14, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring); Id. at 458, 92 S.Ct. at 2838 (Burger, Powell, Blackmun, Rehnquist, JJ., dissenting opinion).

Were this a question of history alone, we must admit that we would have great difficulty in accepting the proportionality analysis, despite the efforts to demonstrate to the contrary. See Granucci, "Nor Cruel and Unusual Punishment Inflicted: The Original Meaning," 57 Calif.L.Rev. 839 (1969), Comment, "The Eighth Amendment, Beccaria, and the Enlightment: An Historical Justification for the Weems v. United States Excessive Punishment Doctrine,"24 Buffalo L.Rev. 783 (1975). We conclude, however, that as a result of jurisprudential development the eighth amendment's cruel and unusual punishment provision also prohibits unreasonable punishment, and a component of unreasonable punishment can be an excessive sentence for a trivial offense. As early as Rogers v. United States, 304 F.2d 520, 521 (5 Cir. 1962), the court recognized that a punishment could be cruel and unusual if "it is so greatly disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice."

We do not wish to retreat from this rule and therefore we conclude that the eighth amendment does proscribe some punishments that are so disproportionate as to have no rational support. As the Second Circuit has recently said in Carmona v. Ward, 576 F.2d 405, 409 (2 Cir. 1978), Cert. denied, --- U.S. ----, 99 S.Ct. 874, 58 L.Ed.2d --- (1979) "(W)e accept the proposition that in some extraordinary instance a severe sentence imposed for a minor offense could, solely because of its length, be a cruel and unusual punishment."

V.

Since we have concluded that some criminal sentences can be so disproportionate as to amount to cruel and unusual punishment, the question then becomes one of the proper standard to apply.

First, we hold that a punishment must be viewed as it occurs in the real world. We will consider the system as it actually works and we will not pass on academic possibilities. Second, we will at all times be mindful that it is the legislature that selects the range of punishments and it is our duty to uphold the legislature if there is any rational basis for so doing. We will remember that the petitioner challenging his sentence carries a heavy burden, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 2926, 49 L.Ed.2d 859 (1976), and the petitioner does not discharge this burden merely by showing that he is treated more harshly than he would be treated in another state or by positing a more rational system than the one adopted by the legislature. Finally, we must remember that we can uphold a punishment as judges and disagree with that punishment as men.

Our ultimate disagreement with the panel opinion is not that it applied the Hart v. Coiner ⁸ standards, three of which we adopt today, but from its failure to uphold a sentence if there is any rational basis for so doing.

VI.

A. The Texas Habitual Criminal Law

Recidivist statutes have been upheld many times against a variety of challenges. ⁹ The starting point of our analysis is that Article 63 is constitutional. In Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 651, 17 L.Ed.2d 606 (1967), the Court said:

. . . No claim is made here that recidivist statutes are themselves unconstitutional, nor could there be under our cases. Such statutes and other enhanced-sentence laws . . . have been enacted in all the States, and by the Federal Government as well. . . . Such statutes, though not in the precise procedural circumstances here involved, have been sustained in this Court on several occasions against contentions that they violate constitutional strictures dealing with double jeopardy, Ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities. (Citations omitted.)

Article 63 provides:

Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.

Texas strictly construes this provision. Before one can be sentenced under the enhanced penalty provision, the State must prove that each succeeding conviction was subsequent to both the commission of and conviction for the preceding offense. Tyra v. State, 534 S.W.2d 695, 698 (Tex.Cr.App.1976). Moreover, the defendant...