As you read and think about the Harmelin case, be prepared to answer some of the following questions during class discussion.
1. What are the facts of the Harmelin case? How was the case decided in the lower courts? What was the issue for decision by the U.S. Supreme Court?
2. One of the foundations of the Scalia/Rehnquist opinion is the idea that the concept of proportional punishments is distinct from the notion of a cruel and unusual punishment. Why is the separation between these two concepts so important to maintain? What evidence do they produce to demonstrate that these two concepts are different?
3. On what basis do Scalia and Rehnquist argue that the "cruel and unusual" punishment clause is applicable to unauthorized or out of the ordinary punishments and not disproportionate ones?
4. Scalia and Rehnquist suggest that there are two possible ways of deciding whether or not a punishment is contrary to the cruel and unusual punishment clause. What are the two different methods? According to Scalia and Rehnquist, which method is closer to the original intent of the Framers of the Constitution?
5. Part of the Scalia/Rehnquist decision rests on a historical analysis; at some point, however, they discuss the practical problems that would arise if the cruel and unusual punishment clause were interpreted to include a guarantee against disproportionate punishments. What practical problems do they cite?
6. How do Scalia and Rehnquist reconcile their decision in Harmelin, with the holdings of several other cases that seem to suggest that disproportionate punishments are contrary to the Eighth Amendment?
7. Think about the historical arguments made by Scalia and Rehnquist to support their argument
8. In the Kennedy/O'Connor/Souter opinion, Justice Kennedy identifies several basic principles that have guided the Court's treatment of the issue of proportionality as it relates to punishment. For example, the first principle is that questions of punishment are questions most properly decided by legislators. What are the other principles?
9. Justice Kennedy refers to something called the "three part Solem test"? What is this test? According to Justice Kennedy, when should the test be used to determine if a punishment is disproportionate and contrary to the Eighth Amendment? Why is it not necessary in all cases where a proportionality challenge is made to a particular punishment?
10. Justices White, Blackmun and Stevens dissented in Harmelin. On what basis did they dismiss Scalia and Rehnquist's historical argument that the Eighth Amendment contains no proportionality guarantee?
11. According to White, Stevens and Blackmun, what aspect of Eighth Amendment jurisprudence does the Scalia/Rehnquist historical analysis overlook?
12. Why do White, Blackmun and Stevens reject Justice Kennedy's proposed modification of the three part Solem test?