Harmelin v. Michigan/Dissent Marshall

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. See Gregg v. Georgia, 428 U.S. 153, 231, 96 S.Ct. 2909, 2973, 49 L.Ed.2d 859 (1976) (MARSHALL, J., dissenting). I also believe that, "[b]ecause of the uniqueness of the death penalty," id., at 188, 96 S.Ct., at 2932 (opinion of Stewart, Powell, and STEVENS, JJ.,), the Eighth Amendment requires comparative proportionality review of capital sentences. See Turner v. California, 498 U.S., , 111 S.Ct. 768, 769, 112 L.Ed.2d 787 (1991) (MARSHALL, J., dissenting from denial of certiorari). However, my view that capital punishment is especially proscribed and, where not proscribed, especially restricted by the Eighth Amendment is not inconsistent with Justice WHITE's central conclusion, ante, at 1012-1015, 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.