(dissenting):
The Joint Committee of the Association of the Bar of the City of New York and the Drug Abuse Council have concluded that the operation of the 1973 New York drug law has had no real deterrent effect on drug abuse or on resulting felonious property crimes. If anything, the Committee found, the law has caused a reduction in the number of drug convictions obtained and has made no measurable contribution to acceptable goals of punishment. See Association of the Bar of the City of New York/Drug Abuse Council, Inc., The Nation’s Toughest Drug Law: Evaluating the New York Experience at 3, 7, 33, 41, 43 — 44, 59, 61, 87, 89, 95, 96 (1977) (Pinal Report of the Joint Committee on New York Drug Law Evaluation). Indeed, as the majority notes, ante at 416, Governor Carey has appointed a committee to suggest revision of the laws. Nevertheless, possible future legislative change does not absolve this court from its duty of determining here and now whether the imposition of life imprisonment on these two appellees contravenes the Eighth Amendment.
Appellee Martha Carmona was convicted of possessing one ounce of cocaine1 and appellee Roberta Fowler for a “street sale” of $20 worth or .00455 ounce of the same substance.2 For each of these crimes, which we are told thousands of New Yorkers .regularly if regrettably commit, a sentence with a maximum term of life imprisonment was imposed.3 The majority purportedly accepts the well-established rule that the Eighth and Fourteenth Amendments 4 prohibit punishments which are grossly disproportionate to the crimes which occasion them. But in reality, their opinion pays only lip service to the proportionality requirement. The opinion improperly fo*418cuses on less severe sentences than those actually imposed, undervalues the historical justifications and precedents which support the proportionality rule and affords undue deference to the legislative election of penalties. I, therefore, respectfully dissent.
I. THE SENTENCE
Before applying the constitutional standard to appellees’ punishments, the fundamental question of precisely what sentence is to be evaluated must be resolved. I believe that we must test the validity of the maximum sentence imposed, while the majority would select some lesser sentence.
The majority opinion recognizes that the “major question on appeal is whether the mandatory maximum sentence of life imprisonment imposed on appellees is unconstitutional under the Eighth Amendment.” Ante at 408 (footnote omitted) (emphasis added). But then it declines to examine the validity of a life sentence for the crimes committed. Instead, it discounts the life sentence by the “probability of parole” and tests the constitutionality of that ill-defined lesser sentence. This approach is, I suggest, unacceptable.
In Judge Motley’s scholarly opinion below, she tested the constitutionality of appellees’ punishments by looking to the maximum prison term they might serve even though it was “entirely possible, and indeed probable” that they would both be released substantially sooner. Carmona v. Ward, 436 F.Supp. 1153, 1165 (S.D.N.Y.1977). To support this approach, the district judge relied upon People v. Broadie, 37 N.Y.2d 100, 110, 371 N.Y.S.2d 471, 474, 332 N.E.2d 338, 341, cert. denied, 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 (1975), where the New York Court of Appeals considered mandatory lifetime sentences with the possibility of “lifetime parole on parole release” as life sentences.5 She also cited In re Lynch, 8 Cal.3d 410, 419, 105 Cal.Rptr. 217, 223, 503 P.2d 921, 927 (1972) (en banc), where the California Supreme Court treated a sentence of “not less than one year” as equivalent to a punishment of one year to life imprisonment6 and then judged the constitutionality of the maximum sentence. See Comment, 44 Fordham L.Rev. 637, 641 (1975).
While Judge Mulligan’s opinion does not attempt to distinguish Lynch, it finds Broadie “readily distinguishable.” Ante at n.13. The majority points out that the New York sentencing laws in effect at the time of Broadie7 provided that persons convicted of *419Class A drug-related felonies could never be discharged from parole.8 This harsh treatment was repealed by a 1977 amendment9 to allow Class A drug felons to be discharged from parole on the same basis as all other parolees. Therefore, the majority reasons, “the lifetime threat that a parolee may return to prison has been removed,” id., and Judge Motley’s reliance on Broadie is misplaced. This reasoning is unsound.
It is true that Broadie is distinguishable on the basis that prior to the 1977 amendment to the corrections law, see note 9 supra, Class A drug felons were subject to mandatory lifetime parole whereas thereafter discharge from lifetime parole is in the parole board’s discretion. However, that distinction does not make a difference for three reasons.
First, nothing in Broadie indicates that selecting the Class A drug felon’s maximum sentence for evaluating its constitutionality was dependent upon serving mandatory lifetime parole rather than discretionary lifetime parole. That a Class A drug felon might be discharged from lifetime parole in the exercise of the parole board’s discretion does not take away from the proposition that any violation of parole prior to the actual exercise of the parole board’s discretion subjects the felon to the full life term.
Second, the majority’s approach will inevitably enmesh federal courts in parole discharge decisions. Ordinarily such decisions are matters for state authority, absent some peculiar, constitution-implicating circumstance. However, if appellees have “a constitutional right not to be [maintained on parole for life, post at 422-426], then [New York] may not deprive [them] of that right by suggesting it may be willing to interdict its denial by the future exercise of discretion which [is] a matter of administrative grace.” Rummel v. Estelle, No. 76-2946, 568 F.2d 1193, 1196 (5th Cir. 1978) (rejecting Texas’ claim that possibility of parole prevents evaluation of constitutionality of life imprisonment imposed pursuant to Texas’ recidivist statute). “Indeed, if the proportionality of [appellees’] sentence^] and hence [their] constitutionality depended upon the availability of [discharge from] parole, we would have to make a careful review of procedures and evidence in [discharge] proceedings, since the availability of [discharge] in fact and the accuracy of individual [discharge] decisions then would measure constitutional dimensions.” Id. The point is that if the maximum sentences 10 here at issue were unconstitutionally disproportionate to the crimes, as I suggest that they are, post at 422-426, then the determination of some lesser sentence’s constitutionality — lesser by virtue of the possibility of discharge from parole— would ultimately depend on federal court entanglement in state decisions denying discharge. This is an unsatisfactory prospect, and one whose full implications are not appreciated by the majority.
And third, Judge Motley’s and the Broadie and Lynch courts’ approach is sound as *420a matter of common sense. It is true that appellees might be paroled and discharged from parole before the expiration of their full terms. However, both parole11 and discharge from parole 12 are within the discretion of the parole board, so that it is also possible that appellees might never be paroled or discharged from parole.13 Thus, the majority’s argument for testing the constitutionality of a lesser sentence than defendant’s maximum exposure is not analytically very different from saying that the defendant’s sentence in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), should not have been considered to be the death penalty because of the possibility of executive pardon. Clearly, such a result is nonsensical in the Coker context. It hardly makes any more sense here because the possibility of serving the full term exists, and it is “[t]he threat [that] makes the punishment obnoxious.” Trop v. Dulles, 356 U.S. 86, 102, 78 S.Ct. 590, 599, 2 L.Ed.2d 630 (1958).
II. THE PROPORTIONALITY RULE
While the majority accepts the principle that a punishment grossly disproportionate to the crime for which it is imposed violates the Eighth Amendment, it nevertheless avoids applying the rule. The majority belittles the rule’s historical and precedential underpinnings by unduly emphasizing that “[n]o decision of the Supreme Court, this court or the highest court of the State of New York has ever found a sentence of imprisonment to transgress the Eighth Amendment merely because of its length.”14 In my view, the approach is both historically and analytically unsound.
A. History and Development of the Rule
1. The Supreme Court
The Eighth Amendment’s history and the development of its decisional law15 firmly support the conclusion that length of imprisonment can be sufficiently disproportionate to the underlying crime to be cruel and unusual punishment.16 For present-day analysis, the bedrock decision in the proportionality strand of Eighth Amendment law is Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), which held that disproportionate punishment violates the prohibition against cruel and unusual punishment. The majority here strongly intimates that the Weems holding is really based on cruelty in the sentence. Ante at n.5 & accompanying text. While it is true that the Weems penalty involved an element of cruelty, a more perceptive reading of the case demonstrates that the holding actually rested on the principle of proportionality. Writing for the Court, Mr. Jus*421tice McKenna did not invalidate the punishment because the method was barbarous.17 Instead, he relied heavily upon the dissent of Mr. Justice Field in O’Neil v. Vermont, 144 U.S. 323, 337, 339-40, 12 S.Ct. 693, 36 L.Ed. 450 (1892), which was an unequivocal statement that the Constitution demands that the punishment fit the crime.18 Weems enunciated a test19 directed at the degree of punishment rather than the method because there can be “exercises of cruelty by laws other than those which inflict . . . bodily pain or mutilation.” Weems v. United States, supra, 217 U.S. at 372, 30 S.Ct. at 551. See Note, Effectiveness of the Eighth Amendment: An Appraisal of Cruel and Unusual Punishment, 36 N.Y.U.L.Rev. 846, 875 (1961).
2. Other Jurisdictions
Other courts, both federal and state, have been far less hesitant to embrace the Weems doctrine of proportionality than is the majority of this panel. In the federal system, the Fifth Circuit recently invalidated a life sentence under a recidivist statute because it was grossly disproportionate to the underlying crimes.20 Rummel v. Estelle, supra. The Fourth Circuit has also held a life sentence under a similar statute unconstitutional.21 Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), cert. denied, 415 U.S. 938, 983, 94 S.Ct. 1454, 39 L.Ed.2d 495 (1974). The court in Downey v. Perini, 518 F.2d 1288 (6th Cir.), vacated and remanded on other grounds, 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975), used proportionality analysis to find a thirty- to sixty-year sentence for possession for sale and sale of a small amount of marijuana to be cruel and unusual. And in Adams v. Carlson, 368 F.Supp. 1050, 1053 (E.D.Ill.1973), sixteen-month solitary confinement of prisoners who had participated in a prison work stoppage was declared to be unconstitutionally disproportionate.
The state courts have also been less hesitant to view disproportionate punishments as unconstitutional. Even before Weems, the Supreme Judicial Court of Massachusetts had accepted the principle of proportionality: “[i]t is possible that imprisonment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment.” McDonald v. Commonwealth, 173 Mass. 322, 328, 53 N.E. 874, 875 (1899), aff’d, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901). The Supreme Court of Michigan has given real meaning to the proportionality concept. In People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972), a mandatory minimum sentence of twenty years’ imprisonment for selling any amount of marijuana was held to violate the Eighth Amendment. And in In re Lynch, supra, the California Supreme Court *422invalidated a sentence of “not less than one year”22 as unconstitutionally severe for a second conviction of indecent exposure.
Lower courts in New York have found lengthy sentences unconstitutionally excessive. See Politano v. Politano, 146 Misc. 792, 262 N.Y.S. 802 (Sup.Ct.1933) (thirty-one-month prison term for failure to pay alimony). Prior to Broadie one New York Supreme Court justice held a Class A-III life sentence under the New York drug laws cruel and unusual. People v. Mosley, 78 Misc.2d 736, 358 N.Y.S.2d 1004 (Monroe County Court 1974), rev’d sub nom. People v. McNair, 46 A.D.2d 476, 363 N.Y.S.2d 151 (4th Dep’t 1975).23
B. The Rule in This Case
Whether the proportionality rule has been violated depends on a three-part inquiry: (1) into the nature of the crime, Coker v. Georgia, supra, 433 U.S. at 597-98, 97 S.Ct. 2861; (2) into the punishments for other crimes in the same jurisdiction, id. at 598-600, 97 S.Ct. 2861; and (3) into the punishments for the same crime in other jurisdictions, id. at 594-96, 97 S.Ct. 2861. See Rummel v. Estelle, supra at 1197-1198; Hart v. Coiner, supra, 483 F.2d at 140-42. Though the majority purports to apply this rubric, in reality it glosses over the three basic elements. It fails first to focus on the actual crimes of these two appellees, emphasizing instead the general evils of drugs and drug trafficking. Second, in comparing the sentences imposed by the legislature in connection with other New York crimes, the majority does not mention more serious crimes which carry lesser sentences in New York State.24 Finally, the majority makes no real comparison with the sentences imposed by other states for drug crimes, conclusorily stating instead that the problems created by drugs are greater in the state of New York than in other states, a matter of which the majority takes judicial notice. A proper application of the proportionality test, however, leads inexorably to the conclusion that the sentences here were grossly disproportionate to the crimes and are hence unconstitutional.
1. Seriousness of the Crimes Here Involved.
We must first evaluate the seriousness of the crimes for which the individual defendants were sentenced. The fact that New York houses half the drug addicts in the country, if indeed it does, is only peripherally relevant. New York’s drug problem is a socioeconomic phenomenon or set of phenomenae attributable to a great many factors with which the appellees have had nothing whatsoever to do. Appellees were not prosecuted for having initiated the phenomenon. They have participated only at the very lowest level of the scale.
Stripped to the essentials of what is involved, Ms. Fowler sold one individual dose of cocaine; Ms. Carmona possessed one ounce of cocaine; and both received sentences of life imprisonment. Yet, their crimes can hardly be considered as intrinsically serious on the one hand25 and as inherently essential to the business of drug trafficking on the other as the crimes of the *423bigger wholesalers, importers, dealers or distributors of that drug or of heroin.26 Nevertheless all receive the same maximum life sentence.
New York has completely lost sight of the true nature of the crimes involved. Appellees are not major traffickers or hardened criminals. Their offenses are simply not sufficiently horrendous to warrant life imprisonment. A perceptive federal judge has noted that “[ljife imprisonment is the penultimate punishment. Tradition, custom, and common sense reserve it for those violent persons who are dangerous to others. It is not a practical solution to petty crime in America. Aside from the proportionality principle, there aren’t enough prisons in America to hold all the [Carmonas and Fowlers] that afflict us.” Hart v. Coiner, supra, 483 F.2d at 141.
2. Other Crimes in This Jurisdiction
The second step in the proportionality test is to compare the challenged punishment to punishments for more serious crimes in the same jurisdiction. The New York drug laws fare very badly in this respect. As Judge Motley pointed out below, appellees received the same maximum sentence as New York felons convicted of first degree murder,27 first degree arson,28 and kidnapping in the first degree.29 They are punished more severely than New York felons convicted of second degree arson,30 first degree rape,31 first degree manslaughter,32 first degree burglary33 and second degree kidnapping,34 all of which carry a discretionary maximum term of twenty-five years’ imprisonment. See 436 F.Supp. at 1166. It is difficult to believe that the possession of an ounce of cocaine or a $20 “street sale” is a more dangerous or serious offense than the rape of a ten-year-old, the burning down of a building occupied by people, or the killing of another human being while intending to cause him serious injury. Yet these crimes are punished less severely by the sovereign State of New York than the drug offenses in these cases.
The majority finds the crimes involved here more serious than they first appear on the basis that drug use and trafficking foster other crimes. Drug involvement may well engender the collateral crimes of robbery, burglary and prostitution; so do other evil habits, social or economic inequality or just plain greed. However, the maximum prison term in New York for first degree robbery35 and first degree burglary36 is twenty-five years; and prostitution carries a maximum prison sentence of three months.37 Surely it makes little sense to argue, as the majority seems to do, that a more severe punishment may be imposed for an act because it may lead to the commission of other crimes than may be imposed for those crimes themselves. One would not rationally penalize the horse player who bets illegally with a bookmaker more than the bank embezzler even though (a) bookmakers need illegal horse bettors to operate and (b) horseplayers who work in banks and lose too much money gambling sometimes embezzle.
*4243. This Crime in Other Jurisdictions
The final element in the proportionality equation is a comparison of the punishment in question to punishments for the same crime in other jurisdictions. Again, the New York punishments appear excessive. Both the majority and the New York Court of Appeals in Broadie concede that drug offenses are punished more severely in New York than in other jurisdictions, but seek to meliorate the harshness by emphasizing that the drug traffic is more serious in New York than elsewhere. Even so, no other jurisdiction in the United States prescribes a mandatory life sentence for sale of one ounce or less of cocaine. Indeed, only six states have statutes permitting a court to consider imposition of a life sentence on a first felony offender.38 The most common maximum permitted is between ten and twenty years and not one of the thirty-four states in this range requires imposition of the maximum term.39 Neither Fowler nor Carmona would have faced a mandatory sentence of life imprisonment under the law of any other state. As for Carmona, in thirty-one states the maximum penalty provided by law is less than the minimum sentence which she is serving.40 Under the federal drug laws life sentence is authorized only where a defendant is convicted of engaging in a “continuing criminal enterprise,” 21 U.S.C. § 848, which requires, inter alia, that he act as an organizer, supervisor or manager in concert with five or more other persons.
Certainly, as Judge Motley painstakingly demonstrated below, the New York laws are not in proportion with the laws in the rest of the country. Because of New York’s size, location, social and economic structure, and varied demographic factors, I suppose that it is entirely possible that New York also has more serious traffic in stolen securities and counterfeit money and more income tax, nursing home and welfare fraud than other states, but if these facts were true they would not justify disproportionately higher sentences for those crimes.
III. DEFERENCE TO THE LEGISLATURE
The majority speaks pervasively of the great deference which must be given to the legislative election of penalties, ante at 409 — 410; 416, weighing this against the prohibition of cruel and unusual punishment as though it somehow displaces the duty to apply the proportionality rule. I recognize fully, of course, the deference that must be paid to legislative determinations of sentence.41 Such deference is not unlimited, however. Otherwise, the Eighth Amendment would be the deadest of letters. Mr. Justice Brennan has observed that “[j]udicial enforcement of the [Cruel and Unusual Punishments] Clause . cannot be evaded by invoking the obvious truth that legislatures have the power to prescribe punishments for crimes. That is precisely the reason the Clause appears in the Bill of Rights.” Furman v. Georgia, 408 U.S. 238, 269, 92 S.Ct. 2726, 2741, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring).
It is true that there must be room for legislative discretion, particularly in dealing with the serious drug problem in the State and the City of New York. See 436 F.Supp. at 1168. But the remedies which the legislature fashions must comply with the demands of the Constitution. Mr. Justice McKenna described the proper degree of deference owing the legislature:
*425The function of the legislature is primary, its exercises fortified by presumptions of right and legality, and is not to be interfered with lightly, nor by any judicial conception of their wisdom or propriety. They have no limitation, we repeat, but constitutional ones, and what those are the judiciary must judge.
Weems v. United States, supra, 217 U.S. at 379, 30 S.Ct. at 554. Unconstitutional laws cannot be allowed to stand simply out of deference to the legislature. At some point a given penalty may by virtue of its inordinate length be cruel and unusual. Once one analyzes the sentences here imposed in the cool light of reason and considers the specific crimes involved, the relation of the sentences to those for other crimes in the state and to those for the same crimes in other states, life imprisonment is simply too much to withstand constitutional scrutiny.
APPENDIX
THE ORIGIN AND MEANING OF THE EIGHTH AMENDMENT
I. Introduction
The prohibition against cruel and unusual punishment is a basic part of the American constitutional heritage. Expressions of both the concept that punishment should be suited to the crime and the idea that punishment should not be barbarous can be found in early colonial documents.1 Both conceptions antedated the promulgation of the English Bill of Rights in 1689, which formulated the now familiar wording “[tjhat excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” That clause was included verbatim in the Virginia constitution of 1776. Subsequently, eight other states included it in their constitutions with only slight variations; it was made part of the Northwest Ordinance of 1787; and it became the Eighth Amendment to the United States Constitution in 1791.2
II. The English Origins
The English Bill of Rights of 1689 is often said to be a response to the Bloody Assizes.3 More recent scholarship views it as a reaction to the sentence on the perjury conviction of Titus Oates.4 The former view supports somewhat the idea that the provision in the English Bill of Rights was *426directed at preventing torturous practices and barbarous punishments since the Bloody Assizes were the culmination of a policy of torture and terror employed by the Stuarts.5 The latter view is more consonant with the idea that the clause in the Bill of Rights of 1689 was “first, an objection to the imposition of punishments which were unauthorized by statute and outside the jurisdiction of the sentencing court, and second, a reiteration of the English policy against disproportionate penalties.”6
Before 1689, England had established a policy against disproportionate punishment, the ancient origins of which can be traced to the laws of Moses.7 The lex talionis —an eye for an eye, a tooth for a tooth — was often a harsh law, but it did demand an equivalency between the offense and the punishment.8 A similar concept can be found in the law and philosophy of the early Greeks, the Angles and Saxons of pre-Norman England, the Germanic peoples in the Middle Ages, and the Norse Vikings.9
After the Norman conquest of England in 1066, the existing system of fixed, proportionate penalties was replaced with a system of discretionary amercements or fines. Excessive amercements became such a problem that three chapters of the Magna Carta were addressed to their regulation. The principal chapter clearly expressed the principle of proportionality: “A free man shall not be amerced for a trivial offense, except in accordance with the degree of the offence; and for a serious offence he shall be amerced according to its gravity, saving his livelihood . . . .”10 A fourteenth century document, which purports to be a copy of the Laws of Edward the Confessor (1042-66), applied the same policy to physical punishment: “We do forbid that a person shall be condemned to death for a trifling offense. But for the correction of the multitude, extreme punishment shall be inflicted according to the nature and extent of the offense.”11 Thus, even before the adoption of the Bill of Rights of 1689, English law embodied the principle of proportionate punishment and a corollary prohibition of excessive punishment.12 The English “cruel and unusual punishment” clause, especially in the context of Titus Oates’ life imprisonment, would seem to have been a reiteration of this existing policy.
III. The American Meaning
As a number of authorities have indicated, there is little in the way of recorded debate concerning the cruel and unusual punishment clauses in the United States Constitution or in the constitutions of the various states which points to the Framers’ intention. At one time it was generally accepted that the American prohibition was directed against tortures and barbarous methods of punishment, despite the different thrust of the English provision.13 Certainly, the early Eighth Amendment cases seen to adopt this view, and they gave rise to a line of cases which judge the constitu*427tionality of a punishment by examining the method of punishment.14
However, more recent research suggests that the Framers were familiar with the writings of many Enlightenment thinkers, especially Beccaria, who advocated criminal law reform with the specific aim of making punishment proportionate to crime.15 The proportionality concept appears in the writings of Thomas Jefferson.16 In addition, several others who were instrumental in the drafting or passage of the state constitutions prohibiting cruel and unusual punishment or specifying that penalties should be proportionate to offenses — including George Mason of Virginia, the “Whig Society” in Philadelphia, Benjamin Franklin, and Dr. Benjamin Rush — were also familiar with Beccaria and Enlightenment penal philosophy, by way of Montesquieu and Voltaire.17 In drafting the Bill of Rights for the United States Constitution, Madison relied upon these older, Enlightenment-influenced state constitutions, especially those of Virginia and Massachusetts,18 to be sure, but he was also a student of Beccaria and had included Beccaria’s treatise in the list of recommended books for use by the Continental Congress.19 Thus, it is not unlikely that the “original understanding” of the Eighth Amendment prohibition was that it embodied the concept of proportion between crime and punishment in addition to precluding excessively severe and barbarous punishments.
A. The Supreme Court
Admittedly, the first Eighth Amendment cases before the Supreme Court involved methods of punishment, and it was established early that torture and barbarities were prohibited. In doing so, however, the Court was careful not to limit the scope of the Amendment to that type of case. Thus, in Wilkerson v. Utah, 99 U.S. 130, 135-36, 25 L.Ed. 345 (1878), the Court noted: “Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture . and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.” Later, in In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519 (1889), the Court held that death by electrocution was not “cruel and unusual” within the prohibition of the United States and New York constitutions: “Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.”20
*428The first articulation of the doctrine that excessive or disproportionate punishment violates the Eighth Amendment came in O’Neil v. Vermont, 144 U.S. 323, 12 S.Ct. 693, 36 L.Ed. 450 (1892). The majority of the Court failed to reach the issue whether long imprisonment can be cruel and unusual, but Justice Field in a vigorous dissent maintained that it could:
The inhibition is directed, not only against [tortures], but against all punishments which by their excessive length or severity are greatly disproportioned to the offences charged. The whole inhibition is against that which is excessive either in the bail required, or fine imposed, or punishment inflicted.
Id. at 339-40, 12 S.Ct. at 700. However, in Howard v. Fleming, 191 U.S. 126, 136, 24 S.Ct. 49, 48 L.Ed. 121 (1903), the Court, without clearly stating that a sentence could be cruel and unusual because of its length, held that a ten-year sentence for conspiracy to defraud was not cruel.
The first clear holding by a majority of the Court that a punishment could violate the Eighth Amendment by virtue of being excessive came in Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). The crime in question was falsification of government documents, for which the defendant was sentenced to 15 years at hard and painful labor, with chains at his ankle and wrist, accompanied by various civil disabilities during the term of his imprisonment and life-time surveillance after his release. The Court said that “[s]uch penalties for such offenses amaze those who believe that it is a precept of justice that punishment for crime should be graduated and proportioned to offense.” Id. at 366-67, 30 S.Ct. at 549. Justice McKenna, writing for the majority, reviewed the precedents of the Supreme Court and some of the states21 and discussed the origin of the prohibition. Accepting the proposition that prevention of torture may have been foremost in the Framers’ minds, he argued: “But surely they intended more than to register a fear of the forms of abuse that went out of practice with the Stuarts. . . . [I]t must have come to them that there could be exercises of cruelty by laws other than those which inflicted bodily pain or mutilation.”. Id at 372, 30 S.Ct. at 551. He noted that “a principle, to be vital, must be capable of wider application than the mischief which gave it birth.” Id. at 373, 30 S.Ct. at 551. Thus, it was appropriate to find the sentence in question cruel and unusual even though it did not involve torture. In making that determination, the Court enunciated a comparative test. It compared the penalty for the crime in question to penalties for more serious crimes in the same jurisdiction and to those for similar crimes in other jurisdictions and found the sentence in question to be so much more rigorous than other penalties that it was unconstitutionally excessive.
Six years after Weems, in Badders v. United States, 240 U.S. 391, 36 S.Ct. 367, 60 L.Ed. 706 (1916), the Court, citing but not *429discussing Howard v. Fleming, supra, held that five years in prison and a $7,000 fine for seven counts of placing letters in the mail as part of a scheme to defraud was not unconstitutional punishment. Justice Brandéis, dissenting in United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 41 S.Ct. 352, 65 L.Ed. 704 (1921), argued that denial of second class postage rate to a subversive publication was “unusual in character” and might violate the Eighth Amendment, id. at 435, 41 S.Ct. 352, but the majority of the Court did not discuss the issue. A majority of five in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947), held that subjecting a convict to electrocution a second time after a first attempt at execution failed was not cruel and unusual punishment since “[t]here is no purpose to inflict unnecessary pain . . .” and “[t]he cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment . . . .” Id. at 464, 67 S.Ct. at 376. In that case attention was focused on the method rather than the proportionality of punishment.
In Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), a four-member plurality of the Court concluded that denationalization for wartime desertion was cruel and unusual punishment. Although the desertion consisted merely of escaping from a stockade, being absent from base for less than twenty-four hours and voluntarily returning to the base, the Court did not view the case as one of disproportionate punishment. “Since wartime desertion is punishable by death, there can be no argument that the penalty of denationalization is excessive in relation to the gravity of the crime.” Id. at 99, 78 S.Ct. at 597. It seemed again to be the method of punishment which the Court found reprehensible. “It is a form of punishment more primitive than torture . . ..” Id. at 101, 78 S.Ct. at 598. Still, the Court looked to Weems for guidance in applying the Eighth Amendment, and actually used a Weems comparative test in noting that civilized countries almost unanimously agreed that denationalization should not be used as a punishment. Id. at 102-03, 78 S.Ct. 590. The Court also emphasized the flexibility of the prohibition: "The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Id. at 101, 78 S.Ct. at 598. Thus, although Trop appears to be primarily a methods case, it stresses the flexibility of the Eighth Amendment and employs a comparative test, both of which suggest the continuing vitality of the proportionality strand of Eighth Amendment law.
A California law which required ninety days’ imprisonment for being addicted to narcotics was held invalid in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). The Court said: “Tobe sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” Id. at 667, 82 S.Ct. at 1421. While the analysis indicates that the Court felt the California statute punished a status or condition which involved no actual criminality at all, it also suggests that a sentence, even one which does not seem excessive, must be judged in relationship to the offense which it punishes.
The remaining Supreme Court Eighth Amendment cases all involve the death penalty. Three members of the Court, dissenting from a denial of certiorari in Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963), argued that imposing the death penalty for rape might violate the Eighth and Fourteenth Amendments. One question which Mr. Justice Goldberg found worthy of consideration was whether punishing rape by death would violate “ ‘evolving standards of decency that mark the progress of [our] maturing society’ ” in view of the trend away from such punishment, or alternatively whether it would be acceptable under a Weems comparative test. Id. at 889-91, 84 S.Ct. at 155 (footnote omitted) (bracket in original). Another was whether inflicting death for rape would be “consist*430ent with the constitutional proscription against ‘punishments which by their excessive . . . severity are greatly disproportioned to the offenses charged.’ ” Id. at 891, 84 S.Ct. at 155. This was clearly a call for a proportionality analysis of the death penalty.
The Court had the opportunity to make such an analysis in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), but it was an opportunity of which little use was made. Five members of the Court held that the death penalty was cruel and unusual, but the same majority could not be mustered for the rationale that it was unconstitutionally disproportionate to the offenses charged. Three of the majority Justices relied primarily on arbitrariness in the imposition of the penalty in finding it cruel and unusual;22 and while Justices Brennan and Marshall engaged in a proportionality analysis, they also took into account elements of arbitrariness.23
In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), Georgia’s statutory scheme for imposing the death penalty, designed to answer the charge of arbitrariness in Furman, was upheld as constitutional. There at least five Justices24 clearly accepted the argument that a punishment can violate the Eighth Amendment simply because it is disproportionately severe. They merely differed in their evaluations of the severity of the death penalty with respect to the crime charged. But most recently, of course, the Court utilized proportionality analysis to invalidate Georgia’s imposition of the death penalty for the crime of rape in certain aggravated circumstances. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). The Court’s methodology was to focus on the nature of the crime, the punishment for other crimes in the same jurisdiction, and the punishment for the same crime in other jurisdictions — a classic proportionality approach.
B. Lower Courts
State and federal courts generally regard Weems as establishing the principle that a punishment may be unconstitutionally cruel because it is disproportionate to the offense. However, the rule has infrequently been invoked to invalidate punishments.25 For example, Hemans v. United States, 163 F.2d 228 (6th Cir.), cert. denied, 332 U.S. 801, 68 S.Ct. 100, 92 L.Ed. 380 (1947), said that “long-term imprisonment could be so disproportionate to the offense as to fall within the inhibition [of the Eighth Amendment],” id. at 237, but held that the statutory maximum of five years’ imprisonment for fleeing to avoid giving testimony was not excessive. Kasper v. Brittain, 245 F.2d 92, 96 (6th Cir.), cert. denied, 355 U.S. 834, 78 S.Ct. 54, 2 L.Ed.2d 46 (1957), cited Weems but articulated a fairly strict test of constitutionality: “Punishment is not ‘cruel and unusual,’ unless it is so greatly disproportionate to the offence committed as to be completely arbitrary and shocking to the sense of justice.” Id. at 96. The court held that a one-year sentence for contempt of court in willfully violating a court order was not excessive.
Long periods of imprisonment resulting from consecutive sentences for multiple convictions have in the past been upheld as constitutional. Anthony v. United States, 331 F.2d 687, 693-94 (9th Cir. 1964) (consecutive sentences amounting to forty years for two convictions of sale of marijuana was not cruel and unusual punishment); Smith v. United States, 273 F.2d 462, 467-*43168 (10th Cir. 1959) (consecutive sentences amounting to fifty-two years and fines of $30,000 for fourteen violations of the marijuana and narcotics law for a first time offender were not cruel and unusual under, the Eighth Amendment), cert. denied, 363 U.S. 846, 80 S.Ct. 1619, 4 L.Ed.2d 1729 (1960); United States ex rel. Darrah v. Brierley, 290 F.Supp. 960, 964 (E.D.Pa.1968) (a total sentence of fifty to 100 years resulting from consecutive sentences on five burglary convictions was not “arbitrary and shocking to our sense of justice” and was therefore constitutional), aff’d, 415 F.2d 9, 13 (3d Cir. 1969).
Harsh sentences for single offenses have also been held constitutional. In United States v. Del Toro, 426 F.2d 181, 184 (5th Cir.), cert. denied, 400 U.S. 829, 91 S.Ct. 58, 27 L.Ed.2d 60 (1970), the court upheld a mandatory five-year sentence without possibility of probation for a first offense sale of heroin. Likewise, a mandatory five-year minimum sentence for smuggling marijuana was found not to be cruel and unusual in United States v. Avey, 428 F.2d 1159, 1164 (9th Cir.), cert. denied, 400 U.S. 903, 91 S.Ct. 140, 27 L.Ed.2d 139 (1970). In Rener v. Beto, 447 F.2d 20 (5th Cir. 1971), cert. denied, 405 U.S. 1051, 92 S.Ct. 1521, 31 L.Ed.2d 787 (1972), an even more severe sentence was upheld, the court there finding that a thirty-year sentence for a second offense possession of marijuana was not cruel and unusual. The possession was of one marijuana cigarette. The court did not discuss the severity of the crime in relation to the offense, but simply said that the sentence was within the limits prescribed by statute and was therefore constitutional. The Second Circuit Court of Appeals has upheld a twenty-year sentence without parole for a second offense sale of heroin in United States v. Fiore, 467 F.2d 86, 89-90 (2d Cir. 1972), cert. denied, 410 U.S. 984, 93 S.Ct. 1510, 36 L.Ed.2d 181 (1973). The sentence was upheld with a rather summary citation to precedents, most of which involved shorter sentences, and held that denial of parole did not render a sentence cruel and unusual.
IV. Recent Developments
In the more recent past several states have rendered decisions which are consistent with the Weems rationale. The Michigan Supreme Court overturned a sentence of twenty to twenty-one years for a first offense conviction of selling marijuana in People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972).26 The state statute mandated a minimum sentence of twenty years. The Michigan court applied a three-tiered test to determine whether the sentence was cruel and unusual. First, it evaluated the proportionality of the sentence by comparing it to statutory penalties for other offenses in Michigan. Then the court tested it against “evolving standards of decency” by comparing it to penalties in other states for the same offense. Finally, the court engaged in an analysis of legislative ends and means, asking whether any valid legislative goals would be furthered by the imposition of the particular sentence in the specific case. The court vacated the sentence and remanded the case for resentencing, but did not go so far as to hold the statute unconstitutional.27
The California courts have issued a series of decisions adopting the Weems proportionality principle.28 In the first, In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 (1972) (en banc), the state supreme *432court held that a sentence of not less than one year for a second conviction of indecent exposure was unconstitutionally disproportionate. In reaching this conclusion, the court first considered the length of the sentence in light of the seriousness of the offense and the character of the offender. Second, it compared the sentence to penalties for more serious offenses in the same jurisdiction, and finally it compared the sentence to punishments imposed for the same offense in other jurisdictions. Thus, both California and Michigan took the Weems comparative test as the starting point of their analysis.
The California Supreme Court applied the Lynch test in In re Foss, 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073 (1974),29 to invalidate a sentence for a conviction under a statute relating to narcotics other than marijuana. Under the provisions of the statute, the defendant was to be denied consideration for parole for ten years because he had a prior drug conviction. The statute made no provision for consideration of mitigating circumstances. The court held that the penalty imposed by the statute constituted cruel and unusual punishment.
The federal courts of appeals have also exhibited a recent trend toward giving force to the Weems principle. In Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), cert. denied, 415 U.S. 938, 983, 94 S.Ct. 1454, 39 L.Ed.2d 495 (1974), and quite recently in Rummel v. Estelle, No. 76-2946, 568 F.2d 1193 (5th Cir. 1978), life sentences under recidivist statutes were found so disproportionate to the underlying crimes as to be unconstitutional. In Downey v. Perini, 518 F.2d 1288 (6th Cir.), vacated and remanded on other grounds, 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975),30 the issue before the court was whether a thirty- to sixty-year sentence for a first narcotics-related conviction of possession for sale and sale of a “small amount” of marijuana was cruel and unusual punishment.31 The Downey court stated unequivocally that “a sentence which is disproportionate to the crime for which it .is administered may be held to violate the Eighth Amendment solely because of the length of imprisonment imposed.” Id. at 1290. It based its invalidation of the sentence squarely on this principle. The court employed a comparative test, comparing the sentence to penalties for more serious crimes in the same jurisdiction and to penalties for the same crime in other jurisdictions. Id. at 1291-92. The comparisons led to the conclusion that the sentence was disproportionate to the crime and was therefore constitutional.
. Carmona was indicted for possession of 33/s ounces of a substance containing cocaine. However, she was convicted only for possession of one ounce. See note 25 infra. This constitutes a Class A-II felony under the 1973 Drug Laws. N.Y.Penal Law § 220.18 (McKinney Supp.1977). The law provides in part:
A person is guilty of criminal possession of a controlled substance in the second degree when he knowingly and unlawfully possesses:
1. one or more preparations, compounds, mixtures or substances of an aggregate weight of one ounce or more containing a narcotic drug
Criminal possession of a controlled substance in the second degree is a class A-II felony.
. A street sale is a transaction for a small amount. Nevertheless, sale of any amount of cocaine is classified as a Class A -III felony under the New York law. N.Y.Penal Law § 220.39(1) (McKinney Supp.1977). The statute provides in part:
A person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawfully sells:
1. a narcotic drug .
Criminal sale of a controlled substance in the third degree is a class A — III felony.
. The phrase “life imprisonment” fails to convey the full impact of the sentences. Ms. Carmona was about 38 yéars old when she committed her crime. Ms. Fowler was about 20. According to standard life expectancies, a sentence of life imprisonment for these defendants means approximately 40.5 years and 54.6 years respectively. Absent parole, this amounts to 14,792 and 19,944 days behind cement walls and steel bars.
. Robinson v. California, 370 U.S. 660, 664, 666-67, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), made it clear that the Eighth Amendment is applicable to the states through the Fourteenth Amendment.
. All of the convictions in Broadie were for either A-II or A — III felonies under New York’s 1973 drug laws. Penal Law §§ 220.18, 220.39 (McKinney Supp.1977). People v. Broadie, 37 N.Y.2d 100, 110, 371 N.Y.S.2d 471, 474, 332 N.E.2d 338, 341, cert. denied, 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 (1975). Ms. Carmona’s possession of one ounce of a controlled substance constitutes an A-II felony under the same statutes. See note 1 supra. Ms. Fowler’s street sale of cocaine, which was also before the Broadie court, is classified as an A — III felony. See note 2 supra. In Broadie, as here, the defendants were all meted sentences with mandatory maximum terms of life imprisonment. The New York Court of Appeals viewed the sentences as life sentences: “The principal issue is whether the so-called ‘drug’ laws, in mandating life imprisonment and, therefore, lifetime parole on parole release, prescribe sentences so disproportionate as would constitute cruel and unusual punishment in violation of constitutional limitations.” People v. Broadie, supra, 37 N.Y.2d at 110, 371 N.Y.S.2d at 474, 332 N.E.2d at 341 (citations omitted).
. The California court reached this conclusion because their statutes treat a sentence of imprisonment for not less than a specified number of years with no limit on the duration as imprisonment during the offender’s natural life. In re Lynch, 8 Cal.3d 410, 419, 105 Cal.Rptr. 217, 223, 503 P.2d 921, 927 (1972) (en banc).
. N.Y.Correction Law § 212.8 (McKinney Supp. 1977) read:
If the board of parole is satisfied that an absolute discharge from parole or from conditional release is in the best interest of society, the board may grant such a discharge prior to expiration of the full maximum term to any parolee under an indeterminate sentence for a felony, other than the class A-I felonies of criminal possession of a controlled substance in the first degree, criminal sale of a controlled substance in the first degree, the attempt to commit such class A-I felonies, or any class A-II or A — III felony, who has been on unrevoked parole for at least five consecutive years or to any person who has been on unrevoked conditional release for at least two consecutive years. Discharge of persons *419under a reformatory sentence may be granted at any time, as provided in the penal law.
A discharge granted under this section shall constitute a termination of the sentence with respect to which it was granted.
. The discriminatory treatment accorded Class A drug felons was held unconstitutional by a Justice of the Supreme Court and affirmed on appeal by the Appellate Division. People v. Farr, 80 Misc.2d 250, 362 N.Y.S.2d 915 (Sup.Ct. 1974), aff’d, 48 A.D.2d 769, 371 N.Y.S.2d 1002 (1st Dep’t 1975) (mem.).
. The new provision provides:
If the board of parole is satisfied that an absolute discharge from parole or from conditional release is in the best interests of society, the board may grant such a discharge prior to the expiration of the full max-
imum term to any person who has been on unrevoked parole or conditional release for at least three consecutive years. A discharge granted under this section shall constitute a termination of the sentence with respect to which it was granted.
1977 N.Y.Laws § 259-j, at 1885-86.
. Under New York law, a prisoner on parole release is still in the legal custody of the State. Note 12 infra; see People v. Broadie, supra, 37 N.Y.2d at 110, 371 N.Y.S.2d at 474, 332 N.E.2d at 341. Consequently, I treat the maximum sentence as the combined total of time in prison plus time on parole. The majority view is that what makes appellees’ sentences less than life terms is solely the possibility of absolute discharge from parole. See ante at n.13.
. 1977 N.Y.Laws § 259-i(2)(c), at 1881.
. An absolute discharge from parole may be granted only in the discretion of the board if it is satisfied that such a discharge is “in the best interests of society . . ..” Id. § 259-j, at 1885-86, quoted in note 9 supra. The range of discretion this provision affords is nearly limitless.
. Absent an absolute discharge, the parolee is in the legal custody of the State “until expiration of the maximum term or period of sentence, or expiration of the period of supervision, or return to such institution, as the case may be,” id. § 259-i(2)(b), and is therefore constantly subject to reincarceratior. for the remainder of his or her full term, in this instance, life.
. Ante at 417. The majority’s use of the word “merely” to refer to the length of a sentence of imprisonment trivializes the important constitutional principle of proportionality.
. What seems to me to be the best historical exegesis is by Schwartz & Wishingrad, The Eighth Amendment, Beccaria, and the Enlightenment: An Historical Justification for the Weems v. United States Excessive Punishment Doctrine, 24 Buffalo L.Rev. 783 (1975).
. At the risk of some repetition, I have attached an appendix which discusses in greater detail the origin and meaning of the Eighth Amendment and its treatment by the courts, following the example of Chief Judge Breitei in People v. Broadie, supra. The emphasis of this appendix is somewhat different from that of the Broadie appendix. In addition, I do not discuss the New York State constitutional prohibition against cruel and unusual punishment, because, of course, I accept the New York Court of Appeals’ view that New York’s constitution is inapplicable.
. Indeed, the Weems dissent characterized the opinion as striking down solely disproportionate penalties. Weems v. United States, 217 U.S. 349, 385, 30 S.Ct. 544, 54 L.Ed. 793 (1910).
. Mr. Justice Field said of the Eighth Amendment, “The whole inhibition is against that which is excessive either in the bail required, or fine imposed, or punishment inflicted.” O’Neil v. Vermont, 144 U.S. 323, 340, 12 S.Ct. 693, 700, 36 L.Ed. 450 (1892).
. The Weems test calls for a comparison of the punishment in question first to punishments for more serious crimes in the same jurisdiction and second to punishments for the same crime in other jurisdictions. Weems v. United States, supra, 217 U.S. at 380-81, 30 S.Ct. 544.
. The Texas recidivist statute required the trial court to sentence a defendant to life imprisonment upon a third conviction for any felony. Rummel was sentenced to life upon being convicted of obtaining $120.75 under false pretenses. His prior felony convictions were for presenting a credit card with the intent to defraud of $80 and passing a forged instrument with a face value of $28.36. Rummel v. Estelle, 568 F.2d 1193, 1195 (5th Cir. 1978).
. The West Virginia recidivist statute mandated life imprisonment for anyone who was convicted three separate times of offenses punishable by penitentiary confinement. Hart was convicted of writing a check for $50 on insufficient funds, transporting forged checks in the amount of $140 across state lines, and perjury; he was therefore sentenced to life. Hart v. Coiner, 483 F.2d 136, 138 (4th Cir. 1973), cert. denied, 415 U.S. 938, 983, 94 S.Ct. 1454, 39 L.Ed.2d 495 (1974).
. See note 6 supra.
. For a full consideration of judicial treatment of the Eighth Amendment, see Appendix.
. The majority does correctly note that first and second degree murder, first degree arson and first degree kidnapping are the only crimes not related to drugs with mandatory sentences as severe as those involved here. Ante at 414.
. Possessing or selling even the smallest conceivable amount of cocaine engenders a maximum life sentence. In this regard, I note that New York classifies drug felonies by a single aggregate weight standard. Because cocaine is sold in mixtures as weak as 5% pure, see Turner v. United States, 396 U.S. 398, 401, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); United States ex rel. Daneff v. Henderson, 501 F.2d 1180, 1184 (2d Cir. 1974), looking to the aggregate weight of narcotic and inert dilutant may subject the holder of a truly minuscule amount of cocaine to the severe penalty for possession of an ounce. Since sale of one-eighth aggregate ounce rises to the level of an A-II felony, N.Y. Penal Law § 220.41 (McKinney Supp.1977), the trace of cocaine which may subject one to life imprisonment under this law is extraordinarily minute.
. I do not suggest that a maximum life sentence for the large dealer, distributor, wholesaler or importer who doubtless causes great harm to many people would in and of itself be cruel and unusual. I do not even say that punishing the small possessor or single-dose seller in the same fashion is necessarily so irrational as to amount to a violation of due process in the abstract or of equal protection of the laws. But I agree with the district judge that to do so is to impose a disproportionate sentence in violation of the Eighth Amendment.
. N.Y. Penal Law § 125.27 (McKinney 1975). The same maximum sentence is also awarded for second degree murder. Id. § 125.25.
. Id. § 150.20.
. Id. § 135.25.
. Id. § 150.15.
. Id. § 130.35.
. Id. § 125.20.
. Id. § 140.30.
. Id. § 135.20.
. Id. §§ 160.15, 70.00(2)(b).
. Id. §§ 140.30, 70.00(2)(b).
. id. §§ 230.00, 70.15(2) (McKinney 1975 § Supp.1977).
. Ariz.Rev.Stat. §§ 36-1002.02(A)-.03(A) (1974 & Supp.1977); Idaho Code § 37-2732(a)(1)(A) (1977); Mo.Ann.Stat. § 195.-200(1)(4) (Vernon Supp.1978); Mont.Rev. Codes Ann. § 54-132 (Supp.1977); R.I.Gen. Laws § 21-28-4.01(A)(1) (Supp.1977); Tex. Rev.Civ.Stat.Ann. art 4476-15, § 4.03 (Vernon 1976). See Brief for Appellees at 41-42.
. See Brief for Appellees at 41-42.
. Id. at 42-43.
. My opinion for the panel in United States ex rel. Daneff v. Henderson, supra, is proof positive of this and a recognition of that deference in the very area of drug laws involved in this case. However, in reserving the question of constitutionality of life imprisonment for certain offenders, 501 F.2d at 1185 n.6, the panel surely had in mind the very case here involved.
. Several pre-1689 documents contained one or both ideas. For example, the Charter of Maryland (1632) recognized that punishment should be proportionate to the crime in allowing the Baron of Baltimore to establish proper penalties, “even if it be necessary and the Quality of the Offence require it, by Privation of Member, or Life.” Sources of Our Liberties 107 (R. Perry ed. 1959). As early as 1632 it was considered proper that extreme penalties should attach only to very serious crimes.
The Massachusetts Body of Liberties (1641) embodies the idea of proportionality in its limitation on the maximum number of lashes which could be administered and its specification that no gentleman could be punished by whipping “unles [s/'c] his crime be very shame-full.” Id. at 153. It also addressed the question of acceptable methods of punishment, saying that “[f]or bodilie punishments we allow amongst us none that are inhumane Barbarous or cruel.” Id.
The Charter of Rhode Island (1663) allowed “the imposing of lawfull and reasonable ffynes, mulcts, imprisonments . Id. at 173. Finally, the Frame of Government of Pennsylvania (1682) provided “[t]hat ail fines shall be moderate Id. at 218.
. Granucci, “Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Calif.L.Rev. 839, 840 (1969). Patrick Henry opposed adoption of the United States Constitution in Virginia in part because it did not contain the prohibition. Id. at 841 & n.10; see Weems v. United States, 217 U.S. 349, 372, 30 S.Ct. 544, 54 L.Ed. 793 (1910).
. Granucci, supra note 2, at 853; Schwartz & Wishingrad, The Eighth Amendment, Beccaria, and the Enlightenment: An Historical Justification for the Weems v. United States Excessive Punishment Doctrine, 24 Buffalo L.Rev. 783, 788-89 (1975); Note, The Cruel and Unusual Punishment Clause and the Substantive Criminal Law, 79 Harv.L.Rev. 635, 636-37 (1966) [hereinafter Note, Cruel and Unusual].
. Granucci, supra note 2, at 856-60. It is interesting to note that a principal element of Oates’ sentence was imprisonment for life:
On 17th May Sir Francis Withens, the puisne judge, pronounced the sentence of the Court upon Oates. He was to be stripped of his canonical habit, fined, and to be whipped — on Wednesday, 20th May, from *426Aldgate to Newgate, and upon Friday, 22nd May, from Newgate to Tyburn. In addition he was to be imprisoned for life and to be pilloried three times every year.
The Bloody Assizes 155 (J. Muddiman ed. 1929). It is also noteworthy that the Whig Convention of 1689 “declared that Oate’s punishment was illegal, because a person convicted of perjury could not be imprisoned for life . . ..” Id. at 156.
. Schwartz & Wishingrad, supra note 3, at 788-89; see Granucci, supra note 2, at 852-56; Note, The Effectiveness of the Eighth Amendment: An Appraisal of Cruel and Unusual Punishment, 36 N.Y.U.L.Rev. 846, 847 (1961) [hereinafter Note, Effectiveness].
. Granucci, supra note 2, at 860; see Schwartz & Wishingrad, supra note 3, at 789 n.15.
. Granucci, supra note 2, at 844.
. “Talio” is, of course, Latin for “equivalent to” or “equal.”
. Granucci, supra note 2, at 844.
. - Magna Carta, Chapter 14, quoted in Granucci, supra note 2, at 846.
. Quoted in Granucci, supra note 2, at 846.
. For a full discussion of the origins and development of the English law, see id. at 844-47.
. Id. at 860; Note, Cruel and Unusual, supra note 3, at 636-37.
. In chronological order, see, e. g., Wilkerson v. Utah, 99 U.S. 130, 136, 25 L.Ed. 345 (1878) (“it is safe to affirm that punishments of torture . . . and all others in the line of unnecessary cruelty are forbidden . ..”); In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519 (1890) (penalty would be unconstitutionally cruel if it involved “torture or a lingering death,” or “something inhuman and barbarous”); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947) (“The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment . . . .”); Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (denationalization for wartime desertion held to be cruel and unusual because it is “a form of punishment more primitive than torture . ..”).
. Schwartz & Wishingrad, supra note 3, at 808-15.
. Id. at 817-19; see, e. g., Letter to Edmund Pendleton, Aug. 26, 1776, quoted in The Portable Thomas Jefferson 355, 357 (M. Peterson ed. 1975).
. Schwartz & Wishingrad, supra note 3, at 819-26; B. Bailyn, The Ideological Origins of the American Revolution 26-29 (1967).
. Schwartz & Wishingrad, supra note 3, at 829-30.
. Id. at 830.
. The Kemmler court, In re Kemmler, 136 U.S. 436, 446-48, 10 S.Ct. 930, 933, 34 L.Ed. 519 (1890), assumed without deciding that the Eighth Amendment applied to the states through the Fourteenth. This issue was not actually decided until 1962 in Robinson v. California, 370 U.S. 660, 664, 666-67, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), where the Court held that *428the Fourteenth Amendment guarantee of Due Process included the Eighth Amendment protection against cruel and unusual punishment.
. Justice McKenna referred to McDonald v. Commonwealth, 173 Mass. 322, 328, 53 N.E. 874, 875 (1899), aff’d, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901) (“[I]t is possible that imprisonment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment.”), quoted in Weems v. United States, 217 U.S. 349, 368, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910). But McDonald held that 25 years for forging checks where defendant had two previous convictions for three years or more was not excessive. Justice McKenna also discussed State v. Driver, 78 N.C. 423, 427 (1877) (five years’ imprisonment in county jail followed by security of $500 to keep the peace for five years for assault and battery upon wife held cruel and unusual), discussed in Weems v. United States, supra, 217 U.S. at 375-76, 30 S.Ct. 544, and Hobbs v. State, 133 Ind. 404, 32 N.E. 1019 (1893) (two years in state prison for combining to assault, beat and bruise a man in the night time held not cruel and unusual. The Indiana court indicated both that the prohibition applied only to tortures, and that it was obsolete except as an admonition to the courts “against the infliction of punishment so severe as not to fit the crime”), quoted in Weems v. United States, supra, 217 U.S. at 376, 30 S.Ct. at 553.
. Furman v. Georgia, 408 U.S. 238, 240, 306, 310, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (opinions of Douglas, J., Stewart, J., and White, J.); see Schwartz & Wishingrad, supra note 3, at 804-05.
. Furman v. Georgia, 408 U.S. 238, 257, 314, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (opinions of Brennan, J., and Marshall, J.); see Schwartz & Wishingrad, supra note 3, at 805-06.
. Gregg v. Georgia, 428 U.S. 153, 171-72, 173, 187, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (Stewart, Powell and Stevens, JJ,); id. at 227, 96 S.Ct. 2909 (Brennan, J., dissenting); id. at 231, 96 S.Ct. 2909 (Marshall, J., dissenting).
. Note, Cruel and Unusual, supra note 3, at 640; Note, Effectiveness, supra note 5, at 848-49.
. For a discussion of the case, see Comment, 44 Fordham L.Rev. 637, 640^1 (1975).
. This departs from the general rule that a sentence within prescribed statutory limits is invalid only if the entire statute is unconstitutional. See Comment, supra note 26, at 641 n.30.
. In re Adams, 14 Cal.3d 629, 122 Cal.Rptr. 73, 536 P.2d 473 (1975); In re Foss, 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073 (1974); In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 (1972) (en banc); People v. Wilson, 50 Cal.App.3d 811, 123 Cal.Rptr. 663 (1st Dist. 1975); People v. Ruiz, 49 Cal.App.3d 739, 122 Cal.Rptr. 841 (1st Dist. 1975); People v. Thomas, 45 Cal.App.3d 749, 119 Cal.Rptr. 739 (1st Dist. 1975); see Comment, supra note 26, at 641 & n.32.
. For a brief discussion of this case, see Comment, supra note 26, at 642 n.41.
. The Supreme Court remanded the case for reconsideration in light of amendments to the Ohio statutes. The Court’s disposition does not appear to affect the validity of the Sixth Circuit’s analysis of the cruel and unusual punishment issue. See id. at 637 n.4.
. Id. at 637.