(dissenting).
In Lykken, upon which the majority relies, there were no supporting statistics, studies or data submitted, as I reflected in my special writing therein. Lykken is therefore absolutely inapposite.
In Holloway, upon which the majority also relies, I dissented to a sentence which was shocking to the conscience of men generally. State v. Bad Heart Bull, 257 *426N.W.2d 715, 720 (S.D.1977). There, a young Indian lad was sentenced to 146 years. Subsequent to our decision, Circuit Judge Hurd, in a very publicized hearing in Minnehaha County, see, Argus Leader article dated May 27, 1992, cut 46 years from Holloway, reflecting to the general public that his sentence was excessive. “I feel I acted too tough,” Judge Hurd said during the sentence modification hearing that he requested. “I usually don’t second-guess myself.” Our decision of March 11, 1992, did not survive. Therefore, it is also inap-posite.
This Court has never spiritually recognized the proportionality rule in Solem v. Helm, cited by the majority opinion. Why? This Court’s majority opinion was reversed in State v. Helm, 287 N.W.2d 497 (1980); a case in which I dissented vigorously. Repeatedly, this Court has skirted the ruling in Solem.
Harmelin is cited by the majority opinion for ostensible authority for its position. It is obvious that the Justices of the Supreme Court of the United States strongly disagree on this legal point: Is proportionality encompassed within the Eighth Amendment? Chief Justice Rehnquist and Justice Scalia contend that it is not; therefore, those gentlemen would reverse So-lem. Justices Kennedy, O’Connor, and Souter disagree and hold that Solem is good law. Justices White, Blackman and Stevens supported Solem but disagreed with the result in the Harmelin ease. Like it or not, by this Court, at least six United States Supreme Court Justices continue to believe in Solem. Continue to watch this legal saga. Count on it. This Court will continue to kick and flog and skirt the proportionality analysis in Solem. Our Court, if it had its way, would observe the old rule in State v. Huettl, 379 N.W.2d 298, 303 (S.D.1985) that the trial courts have broad discretion to fix sentences within statutory limits. Therefore, we would review the imposed punishment in a limited, restricted viewpoint, namely: Did the trial court abuse its discretion? State v. Phipps, 318 N.W.2d 128, 132 (S.D.1982). Conveniently Solem would be disregarded and the proportionality analysis. This Court has never found a sentence to be disproportionate, with exception of State v. Weiker (Weiker I), 342 N.W.2d 7, 11 (S.D.1983).
As is noted in the majority opinion, Gehrke was before us in an appeal in 1991. He was the recipient of a raw deal on sentencing then and we reversed. We now witness a second raw deal. Note that Henderson, J., specially concurred, noting inter alia:
Essentially, I agree, quite simply, upon the premise that Gehrke was sentenced under the habitual offender statute, SDCL 22-7-7, when it did not apply. He must be resentenced as a first offender (emphasis added mine).
In Weiker I, Justice Morgan wrote for this Court:
A punishment is unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the pointless infliction of suffering; or (2) is grossly disproportionate to the severity of crime. Citing standards for excessive punishment in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
In Weiker II, proudly cited by the majority, I vigorously dissented. In Weiker II, we affirmed even though the sentencing judge expressly violated the mandate of our decision in Weiker I. Unbelievable. If you students of the law — and you academicians have time — read the authorities set forth in my dissent in Weiker II. In my dissent (which I still hold to), I expressed, inter alia, at 830:
... [Ijmprisonment is not calculated to be brutal or to destroy mankind but is established to protect society and rehabilitate the offender so that once again he can breathe the air of a free man.
Let us review the words of Mr. Justice Powell of the United States Supreme Court in a specially concurring opinion in Hutto v. Davis 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982), and as further found in 30 Criminal Law Reporter 4159, 4160 (1982):
*427Yet, our system of justice always has recognized that appellate courts do have a responsibility — expressed in the proportionality principle — not to shut their eyes to grossly disproportionate sentences that are manifestly unjust.
Hutto, 454 U.S. at 377, 102 S.Ct. at 707, 70 L.Ed.2d at 562 (emphasis in original).
Again, Mr. Justice Powell expresses:
Sentencing disparity in our country primarily results not from varying statutory limits among the States. Rather, in a nation of our size and with the sentencing decision in particular cases vested— as it should be — in trial courts, a good deal of disparity is inevitable. Effort to minimize this, at least on a state-by-state basis, certainly should be continued. Hutto, 454 U.S. at 380, 102 S.Ct. at 709, 70 L.Ed.2d at 564.
I do not wish to shut my eyes and I do wish that the State of South Dakota would minimize disparity in sentencing. Before launching into an examination of disparity, testimony below disclosed at a resentenc-ing hearing that Gehrke (1) had grown spiritually (2) was taking responsibility of his actions (3) was genuinely working through his problems (4) was working hard in the state penitentiary (5) was taking courses and (6) had received five separate certificates of completion in courses he studied at the institution. Now in my 14th year of service on this Court, I have witnessed the demise of one state supported college to establish thereat a new “correctional facility.” Why? Because our State Penitentiary was crowded beyond its capacity. Another religious based college has been turned into a correctional facility for federal prisoners. In addition, other privately financed (for profit) facilities have sprung up in this state to warehouse other state prisoners. It seems that educational facilities are dying in South Dakota and walls and fences of confinement have been substituted in their place. This is a sad commentary on society and social justice. In DELIVERY OF JUSTICE, The College of William and Mary Press, Marshall-Wythe School of Law and West Publishing Co., 1990, former Chief Justice Warren E. Burger, at page 309 expresses:
In part the terrible price we are paying in crime is because we have tended— once the drama of the trial is over — to regard all criminals as human rubbish. It would make more sense, from a coldly logical viewpoint, to put all “rubbish” into a vast incinerator than simply store it in warehouses for a period of time, only to have most of the subjects come out of prison and to return to their old ways. Some of this must be due to our failure to try — in a really significant way — to change these men while they are confined. We lawyers and judges sometimes tend to fall in love with procedures and techniques and formalism. The imbalance in our system of criminal justice must be corrected so that we give at least as much attention to the defendant after he is found guilty as before. We must examine into the causes and consequences of the protracted warfare our system of justice fosters. Whether we find it palatable or not, we must proceed, even in the face of bitter contrary experiences, in the belief that every human being has a spark somewhere hidden in him that will make it possible for redemption and rehabilitation. If we accept the idea that each human, however “bad,” is a child of God, we must look for that spark.
From my reading herein, it appears from the evidence that Gehrke has that “spark.”
Earlier, I expressed Gehrke got a “raw deal.” The Eighth Amendment to the United States Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed nor cruel and unusual punishments inflicted. In Solem v. Helm, it was held that felony sentences must be proportionate to the offense. South Dakota has a similar state constitutional provision, South Dakota Constitution Art. VI, § 23. Decisional law in South Dakota reflects that challenges to sentences are rare. See State v. Myers cited in majority; however, see also Weiker II at 826 reflecting that no sentence is per se constitutional. Yes, this Court has a duty to look behind these sentences to determine if they are *428excessive or disproportional. Gehrke’s sentence is both.
In determining if a sentence is unconstitutional under an Eighth Amendment analysis, a two-part test is used. First, the Court must find that the sentence “shocks its conscience” or is so disproportionate that it activates the Eighth Amendment. After that circumstance is found, then the sentence must be considered in light of other sentences in the same jurisdiction and allowable sentences for similar offenses in other jurisdictions. State v. Dale, 439 N.W.2d 98, 111 (S.D.1989).
With the threshold question under Eighth Amendment analysis and considering the lesson of Weiker I, let us again consider Mr. Gehrke’s offense. Trooper Krumm testified that he felt no pain when the defendant kicked' him and that he wasn’t hurt at all. In connection with the blow to Krumm’s chin, he said that he had a sore jaw and later he had a headache. Although he was at a hospital for the defendant’s blood test when the pain from his jaw was most severe, with other officers present, he had neither a doctor nor a nurse look at his jaw. No weapon was used. Repeated blows were not struck. Defendant was handcuffed and in the immediate presence of two other officers when he kicked Krumm. The events were spontaneous, rather than premeditated. Mr. Krumm had handcuffed the defendant too tightly before the kicking. No, Gehrke should not have acted as he did, but this was hot so egregious that the 15 year maximum sentence had to be imposed.
Should not maximum sentences be imposed upon perpetrators of the most serious offenses? Yes, this seems logical and fair. Does it not make common sense that as the severity of the deed increases — that the sentence (penalty for the act) should increase? Yes — for this is the very essence of proportionality. Gehrke was intoxicated, he was not lying in ambush for this officer. When he was handcuffed too tight, with his hands behind his back, he surely over-reacted; so, also, in my opinion, did the trial court. This assault upon an officer was not justified but it took place in the presence of two other officers. This case arose in the Third Circuit of this state, Judge Martin presiding. Statistics, duly presented by showing below, are instructive:
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In my opinion, the disproportionality of Gehrke’s sentence is obvious and unmistakable. Gehrke was treated with disparity. We cannot have disproportionate sentences all over the state of South Dakota. Our Supreme Court in this state owes a duty to review these sentences to make sure they are meted out even-handedly. I fully appreciate that each case stands upon its own set of facts; further, I appreciate sentences cannot be uniform; but, surely, as the highest Court in this state, we have a duty to see that sentences have a reasonable relation to one another. If this Court does not take a leadership role in sentencing in this state, South Dakota will see more educational institutions turned into prisons. That kind of “order” is not acceptable to a free people.
*429As Justices of this Court, we are trustees of fairness. Gehrke’s sentence was not fair. Various sentencings, within the Third Circuit, reflect that Judge Martin’s sentence was excessive, disproportionate to other aggravated assault sentences.
In addition to the Third Circuit judgments, statistics were introduced below to reflect that this 15 year maximum sentence was not in keeping with the proportionality review concept. Let it be clearly understood that I do not deny Gehrke needed punishment; it is the degree of punishment in which I differ. Evidence at the resen-tencing hearing on September 25 consisted of several exhibits and three witnesses, all on behalf of the defendant. Exhibit 1 was a computer print-out of the sentences of inmates serving time for aggravated assault at the South Dakota State Penitentiary on September 3, 1991, including Mr. Gehrke; Exhibit 1A was a statistical summary of Exhibit 1; and Exhibit IB was the same information in the form of a graph.
Of the 98 inmates serving sentences within the range of the sentence which Mr. Gehrke could receive, up to 15 years, the mean of the sentences being served was 8.079 years, just less than 8 years 29 days. The median sentence was 8.25 years (8 years 3 months), and the mode, the most common sentence, was ten years. In other words, under two of three most common ways of calculating averages, the “average” sentence of prisoners serving time in South Dakota for this offense in early September, 1991 was just over 8 years.
Under a cold analysis of this record, statistics reveal Gehrke’s sentence was beyond the pale of sound discretion. Trial court abused its discretion. State v. Reed, 451 N.W.2d 409, 410 (S.D.1990). We, on this Court, should intervene. An epitome of over-reaction blankets the sentencing. Objectivity was forsaken. Sister states, i.e., Montana and Minnesota, when maximum sentences are compared, do not reflect a sentence as tough as this one by a considerable margin. Finally, this defense lawyer produced the statistics and data to win this appeal. Beautiful job. But he loses this appeal. Why? Not by or in law, my legal brethern; rather by statist mind set. Yes, the same mind set which has created new confinement/prison/correctional facilities (more mortar and bricks to imprison) and fewer colleges.
Therefore, I dissent.