Harmelin v. Michigan
501 U.S. 957 (1991)
Justice Scalia announced the judgment of the Court and delivered the opinion of the Court with respect to Part V, and an opinion with respect to Parts I, II, III, and IV, in which The Chief Justice joins.
Petitioner was convicted of possessing 672 grams of cocaine and sentenced to a mandatory term of life in prison without possibility of parole [under a Michigan statute that mandated a life sentence for possession of more than 650 grams]. The Michigan Court of Appeals initially reversed his conviction because evidence supporting it had been obtained in violation of the Michigan Constitution. . . . On petition for rehearing, the Court of Appeals vacated its prior decision and affirmed petitioner's sentence, rejecting his argument that the sentence was "cruel and unusual" within the meaning of the Eighth Amendment. . . . The Michigan Supreme Court denied leave to appeal . . . and we granted certiorari. 495 U. S. (1990).
Petitioner claims that his sentence is unconstitutionally "cruel and unusual" for two reasons. First, because it is "significantly disproportionate" to the crime he committed. Second, because the sentencing judge was statutorily required to impose it, without taking into account the particularized circumstances of the crime and of the criminal.
The Eighth Amendment . . . provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." In Rummel v. Estelle, 445 U.S. 263 (1980), we held that it did not constitute "cruel and unusual punishment" to impose a life sentence, under a recidivist statute, upon a defendant who had been convicted, successively, of fraudulent use of a credit card to obtain $80 worth of goods or services, passing a forged check in the amount of $28.36, and obtaining $120.75 by false pretenses. We said that "one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative." . . . We specifically rejected the proposition asserted by the dissent . . . that unconstitutional disproportionality could be established by weighing three factors: (1) gravity of the offense compared to severity of the penalty, (2) penalties imposed within the same jurisdiction for similar crimes, and (3) penalties imposed in other jurisdictions for the same offense. Id., at 281-282, and n. 27. A footnote in the opinion, however, said: "This is not to say that a proportionality principle would not come into play in the extreme example mentioned by the dissent, . . . if a legislature made overtime parking a felony punishable by life imprisonment." . . .
[W]e uttered what has been our last word on this subject . . .[in] Solem v. Helm, 463 U.S. 277 (1983) [which] set aside under the Eighth Amendment, because it was disproportionate, a sentence of life imprisonment without possibility of parole, imposed under a South Dakota recividist statute for successive offenses that included three convictions of third-degree burglary, one of obtaining money by false pretenses, one of grand larceny, one of third-offense driving while intoxicated, and one of writing a "no account" check with intent to defraud. . . .
It should be apparent from the above discussion that our 5to-4 decision eight years ago in Solem was scarcely the expression of clear and well accepted constitutional law. . . . Accordingly, we have addressed anew, and in greater detail, the question whether the Eighth Amendment contains a proportionality guarantee. . . . We conclude from this examination that Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee. . . .
[In omitted portions of the opinion of the Court, Justice Scalia reviews the historical background of the Eighth Amendment and its interpretation by the Supreme Court. He concludes that the Eighth Amendment that was not originally intended to encompass a principle of proportionality. He then turns in part III of the opinion to Solem's three part test.]
We think it enough that those who framed and approved the Federal Constitution chose, for whatever reason, not to include within it the guarantee against disproportionate sentences that some State Constitutions contained. It is worth noting, however, that there was good reason for that choice a reason that reinforces the necessity of overruling Solem. While there are relatively clear historical guidelines and accepted practices that enable judges to determine which modes of punishment are "cruel and unusual," proportionality does not lend itself to such analysis. Neither Congress nor any state legislature has ever set out with the objective of crafting a penalty that is "disproportionate," yet as some of the examples mentioned above indicate, many enacted dispositions seem to be so because they were made for other times or other places, with different social attitudes, different criminal epidemics, different public fears, and different prevailing theories of penology. This is not to say that there are no absolutes; one can imagine extreme examples that no rational person, in no time or place, could accept. But for the same reason these examples are easy to decide, they are certain never to occur. The real function of a constitutional proportionality principle, if it exists, is to enable judges to evaluate a penalty that some assemblage of men and women has considered proportionate and to say that it is not. For that real-world enterprise, the standards seem so inadequate that the proportionality principle becomes an invitation to imposition of subjective values.
This becomes clear, we think, from a consideration of the three factors that Solem found relevant to the proportionality determination: (1) the inherent gravity of the offense, (2) the sentences imposed for similarly grave offenses in the same jurisdiction, and (3) sentences imposed for the same crime in other jurisdictions. [Solem] 463 U. S., at 290-291. As to the first factor: Of course some offenses, involving violent harm to human beings, will always and everywhere be regarded as serious, but that is only half the equation. The issue is what else should be regarded to be as serious as these offenses, or even to be more serious than some of them. On that point, judging by the statutes that Americans have enacted, there is enormous variation even within a given age, not to mention across the many generations ruled by the Bill of Rights. The State of Massachusetts punishes sodomy more severely than assault and battery . . . whereas in several States, sodomy is not unlawful at all. In Louisiana, one who assaults another with a dangerous weapon faces the same maximum prison term as one who removes a shopping basket "from the parking area or grounds of any store . . . without authorization." . . . A battery that results in "protracted and obvious disfigurement" merits imprisonment "for not more than five years" . . . one half the maximum penalty for theft of livestock or an oilfield seismograph . . . . We may think that the First Congress punished with clear disproportionality when it provided up to seven years in prison and up to $1,000 in fine for "cut[ting] off the ear or ears, . . . cut[ting] out or disabl[ing] the tongue, . . . put[ting] out an eye, . . . cut[ting] off . . . any limb or member of any person with intention . . . to maim or disfigure," but provided the death penalty for "run[ning] away with [a] ship or vessel, or any goods or merchandise to the value of fifty dollars." . . . But then perhaps the citizens of 1791 would think that today's Congress punishes with clear disproportionality when it sanctions "assault by . . . wounding" with up to six months in prison . . . unauthorized reproduction of the "Smokey Bear" character or name with the same penalty . . . offering to barter a migratory bird with up to two years in prison . . . and purloining a "key suited to any lock adopted by the Post-Office Department" with a prison term of up to 10 years . . . . Perhaps both we and they would be right, but the point is that there are no textual or historical standards for saying so.
The difficulty of assessing gravity is demonstrated in the very context of the present case: Petitioner acknowledges that a mandatory life sentence might not be "grossly excessive" for possession of cocaine with intent to distribute . . . . But surely whether it is a "grave" offense merely to possess a significant quantity of drugs thereby facilitating distribution, subjecting the holder to the temptation of distribution, and raising the possibility of theft by others who might distribute depends entirely upon how odious and socially threatening one believes drug use to be. Would it be "grossly excessive" to provide life imprisonment for "mere possession" of a certain quantity of heavy weaponry? If not, then the only issue is whether the possible dissemination of drugs can be as "grave" as the possible dissemination of heavy weapons. Who are we to say no? The Members of the Michigan Legislature, and not we, know the situation on the streets of Detroit.
The second factor suggested in Solem fails for the same reason. One cannot compare the sentences imposed by the jurisdiction for "similarly grave" offenses if there is no objective standard of gravity. Judges will be comparing what they consider comparable. Or, to put the same point differently: when it happens that two offenses judicially determined to be "similarly grave" receive significantly dissimilar penalties, what follows is not that the harsher penalty is unconstitutional, but merely that the legislature does not share the judges' view that the offenses are similarly grave. Moreover, even if "similarly grave" crimes could be identified, the penalties for them would not necessarily be comparable, since there are many other justifications for a difference. For example, since deterrent effect depends not only upon the amount of the penalty but upon its certainty, crimes that are less grave but significantly more difficult to detect may warrant substantially higher penalties. Grave crimes of the sort that will not be deterred by penalty may warrant substantially lower penalties, as may grave crimes of the sort that are normally committed once-in-a-lifetime by otherwise law-abiding citizens who will not profit from rehabilitation. Whether these differences will occur, and to what extent, depends, of course, upon the weight the society accords to deterrence and rehabilitation, rather than retribution, as the objective of criminal punishment (which is an eminently legislative judgment). In fact, it becomes difficult even to speak intelligently of "proportionality," once deterrence and rehabilitation are given significant weight. Proportionality is inherently a retributive concept, and perfect proportionality is the talionic law. . . .
As for the third factor mentioned by Solem the character of the sentences imposed by other States for the same crime it must be acknowledged that that can be applied with clarity and ease. The only difficulty is that it has no conceivable relevance to the Eighth Amendment. That a State is entitled to treat with stern disapproval an act that other States punish with the mildest of sanctions follows a fortiori from the undoubted fact that a State may criminalize an act that other States do not criminalize at all. Indeed, a State may criminalize an act that other States choose to reward punishing, for example, the killing of endangered wild animals for which other States are offering a bounty. What greater disproportion could there be than that? "Absent a constitutionally imposed uniformity inimical to traditional notions of federalism, some State will always bear the distinction of treating particular offenders more severely than any other State." . . . Diversity not only in policy, but in the means of implementing policy, is the very raison d'etre of our federal system. Though the different needs and concerns of other States may induce them to treat simple possession of 672 grams of cocaine as a relatively minor offense, see Wyo. Stat. 35-7-1031(c) (1988) (6 months); W. Va. Code 60A-4-401(c) (1989) (6 months), nothing in the Constitution requires Michigan to follow suit. The Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling the States from giving effect to altered beliefs and responding to changed social conditions. . . .
Petitioner claims that his sentence violates the Eighth Amendment for a reason in addition to its alleged disproportionality. He argues that it is "cruel and unusual" to impose a mandatory sentence of such severity, without any consideration of so-called mitigating factors such as, in his case, the fact that he had no prior felony convictions. He apparently contends that the Eighth Amendment requires Michigan to create a sentencing scheme whereby life in prison without possibility of parole is simply the most severe of a range of available penalties that the sentencer may impose after hearing evidence in mitigation and aggravation.
As our earlier discussion should make clear, this claim has no support in the text and history of the Eighth Amendment. Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation's history. As noted earlier, mandatory death sentences abounded in our first Penal Code. They were also common in the several States both at the time of the founding and throughout the 19th century. . . .
Petitioner's "required mitigation" claim, like his proportionality claim, does find support in our death-penalty jurisprudence. We have held that a capital sentence is cruel and unusual under the Eighth Amendment if it is imposed without an individualized determination that that punishment is "appropriate" whether or not the sentence is "grossly disproportionate." . . . Petitioner asks us to extend this so-called "individualized capitalsentencing doctrine" . . . to an "individualized mandatory life in prison without parole sentencing doctrine." We refuse to do so.
Our cases creating and clarifying the "individualized capital sentencing doctrine" have repeatedly suggested that there is no comparable requirement outside the capital context, because of the qualitative difference between death and all other penalties. . . .
"The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its ab solute renunciation of all that is embodied in our concept of humanity."
Furman v. Georgia, 408 U. S., at 306 (Stewart, J., concurring).
It is true that petitioner's sentence is unique in that it is the second most severe known to the law; but life imprisonment with possibility of parole is also unique in that it is the third most severe. And if petitioner's sentence forecloses some "flexible techniques" for later reducing his sentence . . . it does not foreclose all of them, since there remain the possibilities of retroactive legislative reduction and executive clemency. In some cases, moreover, there will be negligible difference between life without parole and other sentences of imprisonment for example, a life sentence with eligibility for parole after 20 years, or even a lengthy term sentence without eligibility for parole, given to a 65-year-old man. But even where the difference is the greatest, it cannot be compared with death. We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further.
The judgment of the Michigan Court of Appeals is
Justice Kennedy, with whom Justice O'Connor and Justice Souter join, concurring in part and concurring in the judgment.
I concur in Part V of the Court's opinion and in the judgment. I write this separate opinion because my approach to the Eighth Amendment proportionality analysis differs from Justice Scalia's. . . . [S]tare decisis counsels our adherence to the narrow proportionality principle that has existed in our Eighth Amendment jurisprudence for 80 years. Although our proportionality decisions have not been clear or consistent in all respects, they can be reconciled, and they require us to uphold petitioner's sentence. . . .
[Justice Kennedy reviews the Court's Eighth Amendment precedents and concludes they do not require "strict proportionality between crime and sentence" but only prohibit "extreme sentences grossly disproportionate to the crime."]
With these considerations stated, it is necessary to examine the challenged aspects of petitioner's sentence: its severe length and its mandatory operation.
Petitioner's life sentence without parole is the second most severe penalty permitted by law. It is the same sentence received by the petitioner in Solem. Petitioner's crime, however, was far more grave than the crime at issue in Solem. The crime of uttering a no account check at issue in Solem was " `one of the most passive felonies a person could commit.' " Solem, 463 U. S., at 296 (citation omitted). It "involved neither violence nor threat of violence to any person," and was "viewed by society as among the less serious offenses." Ibid. The felonies underlying the defendant's recidivism conviction, moreover, were "all relatively minor." Id., at 296-297. The Solem Court contrasted these "minor" offenses with "very serious offenses" such as "a third offense of heroin dealing," and stated that "[n]o one suggests that [a statute providing for life imprisonment without parole] may not be applied constitutionally to fourth-time heroin dealers or other violent criminals." Id., at 299, and n. 26.
Petitioner was convicted of possession of more than 650 grams (over 1.5 pounds) of cocaine. This amount of pure cocaine has a potential yield of between 32,500 and 65,000 doses. . . . From any stand point, this crime falls in a different category from the relatively minor, nonviolent crime at issue in Solem. Possession, use, and distribution of illegal drugs represents "one of the greatest problems affecting the health and welfare of our population." Treasury Employees v. Von Raab, 489 U.S. 656, 668 (1989). Petitioner's suggestion that his crime was nonviolent and victimless, echoed by the dissent, . . . is false to the point of absurdity. To the contrary, petitioner's crime threatened to cause grave harm to society.
Quite apart from the pernicious effects on the individual who consumes illegal drugs, such drugs relate to crime in at least three ways: (1) A drug user may commit crime because of drug-induced changes in physiological functions, cognitive ability, and mood; (2) A drug user may commit crime in order to obtain money to buy drugs; and (3) A violent crime may occur as part of the drug business or culture. . . . Studies bear out these possibilities, and demonstrate a direct nexus between illegal drugs and crimes of violence. . . . [L]ast year an estimated 60 percent of the homicides in Detroit were drug-related, primarily cocaine-related.
These . . . facts and reports detailing the pernicious effects of the drug epidemic in this country do not establish that Michigan's penalty scheme is correct or the most just in any abstract sense. But they do demonstrate that the Michigan Legislature could with reason conclude that the threat posed to the individual and society by possession of this large an amount of cocaine in terms of violence, crime, and social displacement is momentous enough to warrant the deterrence and retribution of a life sentence without parole.
The severity of petitioner's crime brings his sentence within the constitutional boundaries established by our prior decisions. In Hutto v. Davis, 454 U. S., 370 (1982), we upheld against proportionality attack a sentence of 40 years' imprisonment for possession with intent to distribute nine ounces of marijuana. Here, Michigan could with good reason conclude that petitioner's crime is more serious than the crime in Davis. . . .
Justice White, with whom Justice Blackmun and Justice Stevens join, dissenting.
The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Justice Scalia concludes that "the Eighth Amendment contains no proportionality guarantee." . . . With all due respect, I dissent.
The language of the Amendment does not refer to proportionality in so many words, but it does forbid "excessive" fines, a restraint that suggests that a determination of excessiveness should be based at least in part on whether the fine imposed is disproportionate to the crime committed. Nor would it be unreasonable to conclude that it would be both cruel and unusual to punish overtime parking by life imprisonment . . . or, more generally, to impose any punishment that is grossly disproportionate to the offense for which the defendant has been convicted.
[Justice White then explains the explains how he reads the Court's precedents to support the poportionality requirement announced in Solem.]
Because there is no justification for overruling or limiting Solem, it remains to apply that case's proportionality analysis to the sentence imposed on petitioner. Application of the Solem factors to the statutorily mandated punishment at issue here reveals that the punishment fails muster under Solem and, consequently, under the Eighth Amendment to the Constitution.
Petitioner, a first-time offender, was convicted of possession of 672 grams of cocaine. The statute under which he was convicted . . . provides that a person who knowingly or intentionally possesses any of various narcotics, including cocaine, "[w]hich is in an amount of 650 grams or more of any mixture containing that substance is guilty of a felony and shall be imprisoned for life." No particular degree of drug purity is required for a conviction. Other statutes make clear that an individual convicted of possessing this quantity of drugs is not eligible for parole. . . . A related statute . . . which was enacted at the same time as the statute under which petitioner was convicted, mandates the same penalty of life imprisonment without possibility of parole for someone who "manufacture[s], deliver[s], or possess[es] with intent to manufacture or deliver," 650 grams or more of a narcotic mixture. There is no room for judicial discretion in the imposition of the life sentence upon conviction. The asserted purpose of the legislative enactment of these statutes was to " `stem drug traffic' " and reach " `drug dealers.' " . . .
The first Solem factor requires a reviewing court to assess the gravity of the offense and the harshness of the penalty. . . . The mandatory sentence of life imprisonment without possibility of parole "is the most severe punishment that the State could have imposed on any criminal for any crime," . . . for Michigan has no death penalty.
Although these factors are "by no means exhaustive," . . . in evaluating the gravity of the offense, it is appropriate to consider "the harm caused or threatened to the victim or society," based on such things as the degree of violence involved in the crime and "[t]he absolute magnitude of the crime," and "the culpability of the offender," including the degree of requisite intent and the offender's motive in committing the crime . . . .
Drugs are without doubt a serious societal problem. To justify such a harsh mandatory penalty as that imposed here, however, the offense should be one which will always warrant that punishment. Mere possession of drugs even in such a large quantity is not so serious an offense that it will always warrant, much less mandate, life imprisonment without possibility of parole. Unlike crimes directed against the persons and property of others, possession of drugs affects the criminal who uses the drugs most directly. The ripple effect on society caused by possession of drugs, through related crimes, lost productivity, health problems, and the like, is often not the direct consequence of possession, but of the resulting addiction, something which this Court held in Robinson v. California, 370 U. S., at 660-667, cannot be made a crime.
To be constitutionally proportionate, punishment must be tailored to a defendant's personal responsibility and moral guilt. . . . Justice Kennedy attempts to justify the harsh mandatory sentence imposed on petitioner by focusing on the subsidiary effects of drug use, and thereby ignores this aspect of our Eighth Amendment jurisprudence. While the collateral consequences of drugs such as cocaine are indisputably severe, they are not unlike those which flow from the misuse of other, legal, substances. For example, in considering the effects of alcohol on society, the Court has stressed that "[n]o one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it," . . . but at the same time has recognized that the severity of the problem "cannot excuse the need for scrupulous adherence to our constitutional principles," . . . Thus, the Court has held that a drunken driver who has been prosecuted for traffic offenses arising from an accident cannot, consistent with the Double Jeopardy Clause, subsequently be prosecuted for the death of the accident victim. . . . Likewise, the Court scrutinized closely a state program of vehicle checkpoints designed to detect drunken drivers before holding that the brief intrusion upon motorists is consistent with the Fourth Amendment. . . . It is one thing to uphold a checkpoint designed to detect drivers then under the influence of a drug that creates a present risk that they will harm others. It is quite something else to uphold petitioner's sentence because of the collateral consequences which might issue, however indirectly, from the drugs he possessed. Indeed, it is inconceivable that a State could rationally choose to penalize one who possesses large quantities of alcohol in a manner similar to that in which Michigan has chosen to punish petitioner for cocaine possession, because of the tangential effects which might ultimately be traced to the alcohol at issue. . . .
The "absolute magnitude" of petitioner's crime is not exceptionally serious. Because possession is necessarily a lesser included offense of possession with intent to distribute, it is odd to punish the former as severely as the latter. . . . Nor is the requisite intent for the crime sufficient to render it particularly grave. To convict someone under the possession statute, it is only necessary to prove that the defendant knowingly possessed a mixture containing narcotics which weighs at least 650 grams. There is no mens rea requirement of intent to distribute the drugs, as there is in the parallel statute. Indeed, the presence of a separate statute which reaches manufacture, delivery, or possession with intent to do either, undermines the State's position that the purpose of the possession statute was to reach drug dealers. . . .
There is an additional concern present here. The State has conceded that it chose not to prosecute Harmelin under the statute prohibiting possession with intent to deliver, because it was "not necessary and not prudent to make it more difficult for us to win a prosecution." The State thus aimed to avoid having to establish Harmelin's intent to distribute by prosecuting him instead under the possession statute. Because the statutory punishment for the two crimes is the same, the State succeeded in punishing Harmelin as if he had been convicted of the more serious crime without being put to the test of proving his guilt on those charges.
The second prong of the Solem analysis is an examination of "the sentences imposed on other criminals in the same jurisdiction." . . . As noted above, there is no death penalty in Michigan; consequently, life without parole, the punishment mandated here, is the harshest penalty available. It is reserved for three crimes: first-degree murder; . . . manufacture, distribution, or possession with intent to manufacture or distribute 650 grams or more of narcotics; and possession of 650 grams or more of narcotics. Crimes directed against the persons and property of others such as second-degree murder, . . . rape, . . . and armed robbery . . . do not carry such a harsh mandatory sentence, although they do provide for the possibility of a life sentence in the exercise of judicial discretion. It is clear that petitioner "has been treated in the same manner as, or more severely than, criminals who have committed far more serious crimes." . . .
The third factor set forth in Solem examines "the sentences imposed for commission of the same crime in other jurisdictions." . . . No other jurisdiction imposes a punishment nearly as severe as Michigan's for possession of the amount of drugs at issue here. Of the remaining 49 States, only Alabama provides for a mandatory sentence of life imprisonment without possibility of parole for a first-time drug offender, and then only when a defendant possesses ten kilograms or more of cocaine. . . . Possession of the amount of cocaine at issue here would subject an Alabama defendant to a mandatory minimum sentence of only five years in prison. . . . Even under the Federal Sentencing Guidelines, with all relevant enhancements, petitioner's sentence would barely exceed ten years. . . . Thus, "[i]t appears that [petitioner] was treated more severely than he would have been in any other State." . . .
Application of Solem's proportionality analysis leaves no doubt that the Michigan statute at issue fails constitutional muster. The statutorily mandated penalty of life without possibility of parole for possession of narcotics is unconsti tutionally disproportionate in that it violates the Eighth Amendment's prohibition against cruel and unusual punishment. Consequently, I would reverse the decision of the Michigan Court of Appeals.
Justice Marshall, dissenting.
I agree with Justice White's dissenting opinion, except insofar as it asserts that the Eighth Amendment's Cruel and Unusual Punishments Clause does not proscribe the death penalty. I adhere to my view that capital punishment is in all instances unconstitutional. . . . However, my view that capital punishment is especially proscribed . . . by the Eighth Amendment is not inconsistent with Justice White's central conclusion, . . . that the Eighth Amendment also imposes a general proportionality requirement. As Justice White notes, this Court has recognized and applied that requirement in both capital and noncapital cases, and had it done so properly here it would have concluded that Michigan's law mandating life sentences with no possibility of parole even for first-time drug possession offenders is unconstitutional.
Justice Stevens, with whom Justice Blackmun joins, dissenting.
While I agree wholeheartedly with Justice White's dissenting opinion, I believe an additional comment is appropriate.
The severity of the sentence that Michigan has mandated for the crime of possession of more than 650 grams of cocaine, whether diluted or undiluted, does not place the sentence in the same category as capital punishment. I remain convinced [of the characterization of] the penalty of death as "unique" because of "its absolute renunciation of all that is embodied in our concept of humanity." . . . Nevertheless, a mandatory sentence of life imprisonment without the possibility of parole does share one important characteristic of a death sentence: The offender will never regain his freedom. Because such a sentence does not even purport to serve a rehabilitative function, the sentence must rest on a rational determination that the punished "criminal conduct is so atrocious that society's interest in deterrence and retribution wholly outweighs any considerations of reform or rehabilitation of the perpetrator." . . . Serious as this defendant's crime was, I believe it is irrational to conclude that every similar offender is wholly incorrigible.