proportionality analysis in Tennessee

2022The Court’s later opinions applying the proportionality principle do not chart a straight course.9 In 1983, after noting that ‟[t]he principle that a punishment should be proportionate to the crime is deeply rooted and frequently repeated in common-law 8 Briefs were filed as amici curiae by a coalition of religious organizations in Tennessee; the Tennessee State Conference of the NAACP; the Campaign for the Fair Sentencing of Youth and the Children’s Defense Fund; the Juvenile Law Center; the Tennessee and National Associations of Criminal Defense Lawyers; Charles Lowe-Kelley; Amos Brown; the

2020In State v. Harris, 844 S.W.2d 601, 602-603 , our supreme court also held that a proportionality analysis is mandated in noncapital cases by article I, section 16 of the Tennessee Constitution.

2022The Court’s later opinions applying the proportionality principle do not chart a straight course.9 In 1983, after noting that ‟[t]he principle that a punishment should be proportionate to the crime is deeply rooted and frequently repeated in common-law 8 Briefs were filed as amici curiae by a coalition of religious organizations in Tennessee; the Tennessee State Conference of the NAACP; the Campaign for the Fair Sentencing of Youth and the Children’s Defense Fund; the Juvenile Law Center; the Tennessee and National Associations of Criminal Defense Lawyers; Charles Lowe-Kelley; Amos Brown; the

2007Harmelin v. Michigan, 501 U.S. 957, 994 , 111 S. Ct. 2680, 2701 (1991); cf. Solem v. Helm, 463 U.S. 277, 296-97 , 103 S. Ct. 3001, 3013 (1983) (holding unconstitutional sentence of life without the possibility of parole for recidivist defendant’s conviction of uttering a no account check, which did not involve violence or threat of violence, when prior offenses were all “relatively minor.”) Our supreme court has held that the proper means by which to evaluate a defendant’s proportionality challenge under the Tennessee Constitution is that set forth by Justice Kennedy in Harmelin . . .

2005"Since the proportionality requirement on review is intended to prevent caprice in the decision to inflict the [death] penalty, the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does not create a substantial risk of arbitrariness or caprice." Godsey, 60 S.W.3d at 784 -85 (quoting Gregg v. Georgia, 428 U.S. 153, 203 , 96 S. Ct. 2909, 2939 ); see also Robinson, 146 S.W.3d at 502 .

2005See State v. Godsey, 60 S.W.3d at 793-800 (Birch, J., concurring and dissenting).

2014State v. Pruitt, 415 S.W.3d at 230 (Koch and Lee, JJ., concurring and dissenting).

2014State v. Pruitt, 415 S.W.3d at 230 (Koch and Lee, JJ., concurring and dissenting).

2002Chalmers, 28 S.W.3d at 923 (Birch, J., concurring and dissenting).

2002Chalmers, 28 S.W.3d at 923 (Birch, J., concurring and dissenting).

2001See State v. Keen, 31 S.W.3d 196, 223-24 (Tenn.2000).

2001See State v. Keen, 31 S.W.3d at 223-24 .

2013Bland, 958 S.W.2d at 665 .20 19 The dissent’s claim that Bland changed the proportionality analysis this Court had applied from 1977 to 1997 is inaccurate.

2013A diligent search of this Court’s death penalty decisions employing the proportionality analysis has failed to identify any case prior to State v. Bland in which the Court stated that a death sentence could be found disproportionate only when "the case, taken as a whole, is plainly lacking in circumstances consistent with those in similar cases in which the death penalty has been imposed." State v. Bland, 958 S.W.2d at 665 . .

2022The Court’s later opinions applying the proportionality principle do not chart a straight course.9 In 1983, after noting that ‟[t]he principle that a punishment should be proportionate to the crime is deeply rooted and frequently repeated in common-law 8 Briefs were filed as amici curiae by a coalition of religious organizations in Tennessee; the Tennessee State Conference of the NAACP; the Campaign for the Fair Sentencing of Youth and the Children’s Defense Fund; the Juvenile Law Center; the Tennessee and National Associations of Criminal Defense Lawyers; Charles Lowe-Kelley; Amos Brown; the

2007Harmelin v. Michigan, 501 U.S. 957, 994 , 111 S. Ct. 2680, 2701 (1991); cf. Solem v. Helm, 463 U.S. 277, 296-97 , 103 S. Ct. 3001, 3013 (1983) (holding unconstitutional sentence of life without the possibility of parole for recidivist defendant’s conviction of uttering a no account check, which did not involve violence or threat of violence, when prior offenses were all “relatively minor.”) Our supreme court has held that the proper means by which to evaluate a defendant’s proportionality challenge under the Tennessee Constitution is that set forth by Justice Kennedy in Harmelin . . .

2013In two cases decided in April 1997, the Court’s proportionality analysis included “Rule 12 reports from trial judges submitted over the past eighteen years in all criminal trials for first degree murder in which life imprisonment or a sentence of death has been imposed.” State v. Hodges, 944 S.W.2d 346, 358 (Tenn. 1997) (emphasis added); State v. Bush, 942 S.W.2d 489, 507 (Tenn. 1997).

2013In two cases decided in April 1997, the Court’s proportionality analysis included "Rule 12 reports from trial judges submitted over the past eighteen years in all criminal trials for first degree murder in which life imprisonment or á sentence of death has been imposed." State v. Hodges, 944 S.W.2d 346, 358 (Tenn.1997) (emphasis added); State v. Bush, 942 S.W.2d 489, 507 (Tenn.1997).

2013In two cases decided in April 1997, the Court’s proportionality analysis included “Rule 12 reports from trial judges submitted over the past eighteen years in all criminal trials for first degree murder in which life imprisonment or a sentence of death has been imposed.” State v. Hodges, 944 S.W.2d 346, 358 (Tenn. 1997) (emphasis added); State v. Bush, 942 S.W.2d 489, 507 (Tenn. 1997).

2013In two cases decided in April 1997, the Court’s proportionality analysis included "Rule 12 reports from trial judges submitted over the past eighteen years in all criminal trials for first degree murder in which life imprisonment or á sentence of death has been imposed." State v. Hodges, 944 S.W.2d 346, 358 (Tenn.1997) (emphasis added); State v. Bush, 942 S.W.2d 489, 507 (Tenn.1997).

2017Mr. Thurman does not contest that he was driving while his license was revoked; he argues that the forfeiture of his truck constituted an excessive fine, in violation of the Eighth Amendment to the United States Constitution.2 In Stuart v. State Department of Safety, 963 S.W.2d 28 (Tenn. 1998), the Tennessee Supreme Court determined that the excessive fines clause applied to civil in rem forfeitures; the court established a proportionality test, in which the value of the 2 Article I, section 16 of the Tennessee Constitution, which also prohibits the imposition of an excessive fine as punishmen

2014The Tennessee Supreme Court further held that “any analysis under the excessive fines clause must include a proportionality test.” Id. at 35 .

1994According to the dissent, inclusion of the term “reckless” within the substantive definition of the offense of first-degree murder, combined with a judicial construction of the statute to require defendants to have participated in a substantial way in the underlying felony, comports with the proportionality requirement enunciated by the United States Supreme Court in Enmund v. Florida, 458 U.S. 782 , 102 S.Ct. 3868 , 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137 , 107 S.Ct. 1676 , 95 L.Ed.2d 127 (1987), and, therefore, accomplishes narrowing.

1994According to the dissent, inclusion of the term “reckless” within the substantive definition of the offense of first-degree murder, combined with a judicial construction of the statute to require defendants to have participated in a substantial way in the underlying felony, comports with the proportionality requirement enunciated by the United States Supreme Court in Enmund v. Florida, 458 U.S. 782 , 102 S.Ct. 3868 , 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137 , 107 S.Ct. 1676 , 95 L.Ed.2d 127 (1987), and, therefore, accomplishes narrowing.

2022See Graham, 560 U.S. at 86 (Roberts, C.J., concurring in the judgment).

2022The Court said that “[t]he concept of proportionality is central to the Eighth Amendment.” Id. at 59 .

2020However, both the United States and Tennessee Supreme Court have noted that “outside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare.” Ewing, 538 U.S. 11 at 21 (quoting -21- Rummel v. Estelle, 445 U.S. 263, 272 (1980)); Harris, 844 S.W.2d at 602 (quoting Rummel, 445 U.S. at 272 ).

2020However, both the United States and Tennessee Supreme Court have noted that “outside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare.” Ewing, 538 U.S. 11 at 21 (quoting -21- Rummel v. Estelle, 445 U.S. 263, 272 (1980)); Harris, 844 S.W.2d at 602 (quoting Rummel, 445 U.S. at 272 ).

2012Because “‘the proportionality requirement on review is intended to prevent caprice in the decision to inflict the [death] penalty, the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does not create a substantial risk of arbitrariness or caprice.’” State v. Hall, 958 S.W.2d 679, 699 (Tenn. 1997) (quoting Gregg, 428 U.S. at 203 ).

2000Because “ ‘the proportionality requirement on review is intended to prevent caprice in the decision to inflict the [death] penalty, the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does not create a substantial risk of arbitrariness or caprice.’” Hall, 958 S.W.2d at 699 (quoting Gregg v. Georgia, 428 U.S. 153, 203 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976)) (alteration in original).

2022In determining whether Tennessee’s automatic life sentence when imposed on juvenile homicide offenders complies with the Eighth Amendment’s requirement of proportionality, we consider whether “the punishment for the crime conforms with contemporary standards of decency,” “whether the punishment is grossly disproportionate to the offense,” and whether the sentence goes beyond what is necessary to accomplish “legitimate penological objectives.” Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 306 (Tenn. 2005) (citing Roper, 543 U.S. at 560–61; Atkins, 536 U.S. at 311–12; Solem, 463 U.S. at 292 ).

2020However, both the United States and Tennessee Supreme Court have noted that “outside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare.” Ewing, 538 U.S. 11 at 21 (quoting -21- Rummel v. Estelle, 445 U.S. 263, 272 (1980)); Harris, 844 S.W.2d at 602 (quoting Rummel, 445 U.S. at 272 ).

2020Id. at 35; see also U.S. v. Bajakajian, 524 U.S. 321, 336-37 (1998) (explaining that courts must “compare the amount of the forfeiture to the gravity of the . . . offense”).

2017State v. Taylor, 70 S.W.3d 717, 720 (Tenn. 2002) (citing Stuart v. State Dep’t of Safety, 963 S.W.2d 28, 34 (Tenn. 1998)). 3 forfeited property is compared to the gravity of the criminal conduct to determine whether forfeiture of the property at issue constitutes an excessive fine.

2005"Since the proportionality requirement on review is intended to prevent caprice in the decision to inflict the [death] penalty, the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does not create a substantial risk of arbitrariness or caprice." Godsey, 60 S.W.3d at 784 -85 (quoting Gregg v. Georgia, 428 U.S. 153, 203 , 96 S. Ct. 2909, 2939 ); see also Robinson, 146 S.W.3d at 502 .

2001As the United States Supreme Court has expressed, a court must “gauge whether a punishment is disproportionate by comparing the ‘gravity of the offense,’ understood to include not only the injury caused, but also the defendant’s moral culpability, with the ‘harshness of the penalty.’ ” Penny v. Ly-naugh, 492 U.S. at 342 , 109 S.Ct. at 2959-60 (Brennan, J., concurring and dissenting) (quoting in part Solem v. Helm, 463 U.S. 277, 292 , 103 S.Ct. 3001, 3010 , 77 L.Ed.2d 637 (1983) (emphasis added)); see also En-mund v. Florida, 458 U.S. 782, 825 , 102 S.Ct. 3368, 3391 , 73 L.Ed.2d 1140 (1982) (O’

2001As the United States Supreme Court has expressed, a court must “gauge whether a punishment is disproportionate by comparing the ‘gravity of the offense,’ understood to include not only the injury caused, but also the defendant’s moral culpability, with the ‘harshness of the penalty.’ ” Penny v. Ly-naugh, 492 U.S. at 342 , 109 S.Ct. at 2959-60 (Brennan, J., concurring and dissenting) (quoting in part Solem v. Helm, 463 U.S. 277, 292 , 103 S.Ct. 3001, 3010 , 77 L.Ed.2d 637 (1983) (emphasis added)); see also En-mund v. Florida, 458 U.S. 782, 825 , 102 S.Ct. 3368, 3391 , 73 L.Ed.2d 1140 (1982) (O’

1999State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).