Ricky J. Terrebonne v. Frank Blackburn, Warden, Louisiana State Penitentiary

FRANK M. JOHNSON, Jr., Circuit

Judge, specially concurring:

I concur in the majority’s conclusion that this case must be remanded to the district court for further consideration in light of the Supreme Court’s recent opinion in Rum-mel v. Estelle, - U.S. -, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). I write separately because I have difficulty with that part of the majority’s opinion that states that Rummel “endorse[sj” the use of proportionality analysis in considering non-capital Eighth Amendment claims and that Rummel leaves “intact” the particular mode of proportionality analysis adopted by the Fifth Circuit in its decision in Rummel en banc. See Rummel v. Estelle, 587 F.2d 651 (5th Cir. 1978) (en banc).

I read the Supreme Court opinion to provide that, although proportionality analysis may be appropriate in extremely egregious situations (e. g., if a legislature made overtime parking a felony punishable by life imprisonment, 100 S.Ct. at 1139 n.ll), courts should be extremely reluctant to use it. This is so (1) because a court’s “Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum extent possible,” 100 S.Ct. at 1139, citing and quoting Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977); and (2) because a judgment that a particular length of sentence is grossly disproportionate to the severity of the crime is extremely unlikely to be capable of being informed by objective factors. See, e. g., 100 S.Ct. at 1135. Although the Court’s opinion gives little indication of what the “objective factors” capable of informing such a judgment to the maximum extent possible might generally be, the Court does seem to me to make clear that it holds in disrepute the three prongs of proportionality analysis which were suggested by our circuit in its opinion in Rummel en banc and which are reiterated by the majority today: (1) study of the nature of the crime, see 100 S.Ct. at 1139, (2) comparison of the punishment with that imposed for similar crimes in other jurisdictions, see 100 S.Ct. at 1139-43 (criticizing such a comparison as extremely complicated and likely to be inconclusive), and (3) comparison of the punishment with that imposed for other crimes in the same jurisdiction, see 100 S.Ct. at 1143 n.27.

On its face, Terrebonne’s habeas corpus petition seems to me to present in many *1372ways a much more compelling case for application of proportionality analysis than did Rummel. Here the claim is that Terre-bonne will have to spend the rest of his life in prison as a result of his brokering a single purchase of a small amount of heroin for undercover police officers, at the insistence of the officers, in order to get for himself only a badly needed fix.1 In Rum-mel, by contrast, it was established that the defendant, as a convicted ‘recidivist,’ could expect to be eligible for parole within 12 years.2 Because this is on its face a more compelling case, I agree with the majority that a remand is necessary. As the Supreme Court’s opinion in Rummel indicates, a hearing must be held for the purpose of determining whether Terrebonne’s claim of disproportionality is supported by “objective factors.” Unlike the majority, however, I do not interpret “objective factors” to include only those factors suggested by our prior three-prong Fifth Circuit analysis that the Supreme Court in Rummel so criticized. The Supreme Court made clear that that analysis is suspect. Reliance on this suspect analysis by litigants should not be encouraged, nor should courts be led to interpret its prongs as limits on a proportionality hearing’s scope. In my opinion, the identification and development of the “objective factors” necessary to a determination of disproportionality in this case are best left to the participants below in the hearing before the district court.

On this basis I concur in the judgment of the court.

. As the majority notes, the trial judge in sentencing Terrebonne stated as follows:

THE COURT:
As you know, you’ve been found guilty of the crime of distribution of heroin. This Court has no choice in what it may do. The Legislature has prescribed the punishment that is mandatory. I must sentence you to what I do, you understand that?
MR. TERREBONNE:
Yes, sir.
THE COURT:
I have no choice. The Court sentences you to life imprisonment at hard labor. You will be committed to the Louisiana Department of Corrections for execution of said sentence. I will give you credit for any time served in this matter. I wish you good luck, somehow something will work out for you down the line.
Cf. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (statute making it a crime to be addicted to the use of narcotics violates the Eighth and Fourteenth Amendments). See also Ingraham v. Wright, 430 U.S. 651, 667, 97 S.Ct. 1401, 1410, 51 L.Ed.2d 711 (1977) (Eighth Amendment “imposes substantive limits on what can be made criminal and punished as such”). It may well be appropriate on remand to consider the applicability of these Eighth Amendment cases to Terrebonne’s claim. Each was cited, with apparent approval, by the Supreme Court in Rummel.

. See also 100 S.Ct. at 1140 (“In this case . we need not decide whether Texas could impose a life sentence upon Rummel merely for obtaining $120.75 by false pretenses.”).