Hutto v. Davis, 454 U.S. 370 (1982)

Author: Justice Powell

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Hutto v. Davis, 454 U.S. 370 (1982)

JUSTICE POWELL, concurring in the judgment.

The Court holds that the Eighth Amendment countenances a prison term of 40 years and a fine of $20,000 for respondent’s possession and distribution of approximately nine ounces of marihuana said to have a street value of about $200. I view the sentence as unjust and disproportionate to the offense. Nevertheless, for the reasons stated below, I reluctantly conclude that the Court’s decision in Rummel v. Estelle, 445 U.S. 263 (1980), is controlling on the facts before us. Accordingly, I join the judgment only.


The respondent Davis met Eads in prison. During Eads’ confinement, his wife had become a drug user. Concerned about this development and its effect on their 2-year-old child, Eads offered to cooperate with the police

to assist in the exposure and arrest of those supplying drugs to his wife and any illicit drug distributor in the area, including Davis, who Eads identified as an active drug dealer in Wythe County.

Davis v. Davis, 585 F.2d 1226, 1228 (CA4 1978).

On furlough from prison, Eads told Davis he wished to buy drugs for himself and some mutual friends currently in prison. Shortly thereafter, the two went to Davis’ home, where Davis sold Eads three ounces of marihuana for $74. Davis also gave Eads "drug pills which included L.S.D and another illicit controlled drug." Ibid. A police raid on Davis’ home later uncovered about six ounces of marihuana, two scales, and other drug paraphernalia.

Davis was found guilty of both distributing marihuana and of possessing marihuana with intent to distribute. On each count, he received a sentence of 20 years’ imprisonment and a $10,000 fine. These sentences were imposed on a consecutive basis. The District Court granted his petition for a writ of habeas corpus because the sentences were "so grossly out of proportion to the severity of the crimes as to constitute cruel and unusual punishment. . . ."{1} This judgment was reversed on appeal, Davis v. Davis, supra, but reinstated by the Court of Appeals on rehearing en banc.{2} We remanded for reconsideration in light of our decision in Rummel v. Estelle, supra.{3} By an equally divided vote en banc, the Court of Appeals again affirmed.{4}


The sole authority upon which the Court today relies is its decision in Rummel v. Estelle.Rummel decided that the Eighth Amendment’s proscription of cruel and unusual punishments{5} was not transgressed by the imposition of life imprisonment for a recidivist’s third felony, each a nonviolent fraud involving less than $125. The Court also observed, however:

This is not to say that a proportionality principle [viz., that grossly disproportionate punishments are unconstitutional] would not come into play in the extreme example mentioned by the dissent, post at 288, if a legislature made overtime parking a felony punishable by life imprisonment.

445 U.S. at 274, n. 11. The Rummel Court therefore did not reject the proportionality principle long settled by our cases.{6} It did take such a restricted view of the principle that -- in the future -- appellate courts, duty bound to follow the decision of this Court, often will be compelled to accept sentences that arguably are cruel and unusual.

I recognize, of course, that under our system the limits of a prison sentence normally are a matter of legislative prerogative, and trial courts have the primary responsibility to determine an appropriate sentence -- within these limits -- in light of the facts and circumstances of the particular case. Review of sentencing is not generally a function of appellate review. Yet 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. I therefore have no criticism of the District Court or the Court of Appeals for exercising this responsibility and reaching the judgments that are reversed here today.

There are features of this case that arguably distinguish it from Rummel. I identify these briefly. The first is a letter from the Commonwealth Attorney who successfully prosecuted Davis. The letter is set forth in full below.{7} It was solicited by Davis’ lawyer some three years after Davis had commenced to serve his 40-year term. One can say, of course, that such a letter often can be obtained from a prosecutor who may have second thoughts as to the justness of a sentence he had sought at trial. I normally would give little weight to such a letter. But the prosecutor here, in a thoughtful letter, did advance a nonfrivolous reason for his conclusion that Davis’ sentence was a "gross injustice." He referred to the "grave disparity in sentencing" in comparable drug offenses in the "Commonwealth [of Virginia] and the nation."{8}

The second and more important factor that arguably distinguishes Rummel is the action of the Virginia State Legislature in 1979. It then reduced the maximum penalty for offenses of which Davis was convicted to 10 years on each count -- regardless of aggravating circumstances. See Va.Code § 18.248.1(a)(2) (Supp.1981) and § 18.10(e) (1975). This maximum is less than half the sentence Davis received. Because it sets a maximum, the legislative action takes all relevant aggravating circumstances into account. This reduction -- five years after Davis’ conviction and two years after his prosecutor’s letter -- evidences Virginia’s present sentencing judgment that marihuana possession and distribution in small amounts no longer would justify Davis’ sentence.{9} Although this change in law was not made retroactive, it is evidence from the most authoritative state source that Davis’ sentence was unjust, and no longer would be valid.


Based on this evidence of comparative sentencing and the relatively minor degree of Davis’ criminality, affirmance of the judgment of the Court of Appeals arguably could be justified. I conclude, however, that Rummel requires reversal. Davis was convicted of distributing marihuana, and had dealt in other drugs as well. He was willing to sell marihuana for use by prison inmates and "probably as well to the wife of an inmate left alone with an infant child." 585 F.2d at 1233. He previously had been sentenced on a drug-related offense.{10} By comparison, Rummel’s offenses -- three minor frauds involving almost trifling sums of money -- were far less serious. Rummel’s sentence, moreover, was more severe than Davis’. And Davis has been unable to show -- by means of statutory comparisons -- that his sentences suffer from a greater degree of disproportionality than Rummel’s did. Compare Davis v. Zahradnick, 432 F.Supp. 444, 45253 (WD Va.1977), with 445 U.S. at 296-302.

These cases illustrate the seriousness of the disparity in sentencing that may distinguish our system of justice from other mature systems. 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. Nor should reform in this respect be addressed only to prevent excessive penalties. The criticism of courts occurs more frequently, often fully justified, when persons guilty of crimes of violence, or serious drug distribution offenses, are given sentences that are disproportionately light in view of their offenses, as well as disparate in comparison with other sentences. Sentencing that is just should take into account the paramount interest of society in being protected from criminal conduct, as well as the right of convicted persons to be dealt with fairly according to law.

I join the judgment of the Court.

1. Davis v. Zahranick, 432 F.Supp. 444, 453 (WD Va.1977).

2. Davis v. Davis, 601 F.2d 153 (CA4 1979).

3. Hutto v. Davis, 445 U.S. 947 (1980).

4. Davis v. Davis, 646 F.2d 123 (CA4 1981).

5. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

6. E.g., Coker v. Georgia, 433 U.S. 584 (1977); Weems v. United States, 217 U.S. 349 (1910).

7. The letter from the Commonwealth Attorney to Davis’ attorney reads as follows:

This will confirm our recent telephone conversation wherein I advised I would pose no objection to the release of Mr. Davis from the Virginia penal system on a suspended term basis.

Heretofore, I have steadfastly opposed his release. However, the sentences now being imposed throughout the majority of the Commonwealth and the nation for comparable acts of drug distribution are extremely light, and in most cases insignificant. In view of such, I think a gross injustice would be done should I not recommend his immediate release with the remainder of his term suspended.

I do wish to make it expressly clear that my recommendation should not be construed as being critical of the jury that convicted Mr. Davis. I actually asked for a heavier sentence than was imposed. The citizens of this county have not softened their views toward drug offenders, and neither have I, but, by the same token I cannot condone such grave disparity in sentencing.

I think our community, our jury, and our Court were correct in their approach to the drug problem. However, that we may be correct and others wrong in their assessment does not enable me to continue to ignore the wrong that would be perpetuated upon Mr. Davis by his continued confinement. My [conscience] dictates, in view of the lack of any semblance of uniformity of sentencing throughout the nation in dealing with the drug problem, that Mr. Davis’s continued incarceration is grossly unjust.

I trust that this is a fair summary of the content of our conversation, and if it is not, I hope you will please advise me.

Letter of Feb. 28, 1977 (emphasis added).

In the District Court, the parties stipulated that, had this prosecutor testified

with respect to the severity of the sentences imposed upon Petitioner for marijuana-related offenses, his testimony would comport with the contents of the attached letter. . . .

Supplemental Stipulation of Fact, Mar. 18, 1977.

8. Davis also prepared a study of drug-related sentencing in Virginia over a 92-month period in 1975-1976. This study summarized sentencing of 117 inmates convicted of possessing, selling, or manufacturing marihuana. The average of these sentences was three years, two months. The maximum -- for any quantity -- was 15 years. I give this study only slight weight, because of its short time period and its failure to give information about relevant aggravating circumstances.

9. Rummel also involved a legislative revision of the relevant crimes. The basis for Rummel’s life sentence was his conviction as a habitual offender. After conviction for two prior felonies, this habitual offender law provided for automatic imposition of a life sentence upon a third felony conviction. 445 U.S. at 278. Rummel’s third felony was theft by false pretext. After his conviction on that count, and as a habitual offender, Texas reclassified his third offense as a misdemeanor. Id. at 295. Unlike Virginia’s 1979 amendment with respect to Davis, however, Texas’ statutory reduction did not convey any basic change in its attitude toward the statutory basis for Rummel’s lengthy sentence: recidivism.


While not given all the details, the jury knew from Eads’ testimony that this was not Davis’ first trouble with the law in a drug-related offense.

Davis v. Davis, 585 F.2d 1226, 1228 (CA4 1978).

[T]he trial judge, who could have sentenced concurrently, sentenced consecutively. Not only had he heard the witnesses testify, which we have not; he knew, for example, which the jury did not, that Davis previously had been convicted of selling LSD, and that the two offenses for which Davis had just been found guilty were committed while on bail pending appeal from the previous conviction for selling LSD.

Id. at 1233. Cf. Vines v. Muncy, 553 F.2d 342, 349 (CA4 1977) (jury sentence not final under Virginia practice, since its findings are subject to suspension by the trial judge).


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Chicago: Powell, "Powell, J., Concurring," Hutto v. Davis, 454 U.S. 370 (1982) in 454 U.S. 370 454 U.S. 376–454 U.S. 381. Original Sources, accessed March 21, 2019,

MLA: Powell. "Powell, J., Concurring." Hutto v. Davis, 454 U.S. 370 (1982), in 454 U.S. 370, pp. 454 U.S. 376–454 U.S. 381. Original Sources. 21 Mar. 2019.

Harvard: Powell, 'Powell, J., Concurring' in Hutto v. Davis, 454 U.S. 370 (1982). cited in 1982, 454 U.S. 370, pp.454 U.S. 376–454 U.S. 381. Original Sources, retrieved 21 March 2019, from