The defendant Jerry Hayes, age thirty-four, was convicted in 1998 of the “serious” theft of property valued at over $500 from the cash register where he worked. Following his arrest, Hayes returned 69% of the $1,000 that he stole. The trial court found that Hayes was a three-time felon and habitual offender, and he was sentenced to life in prison at hard labor without the benefit of parole, probation, or the suspension of his sentence. Hayes had previously been convicted of two thefts under $100, one over $100, several counts of issuing worthless checks, check forgery, and simple robbery in addition to the instant offense of theft of over $500.

              The simple robbery (a violent felony) required to qualify Hayes for life imprisonment, in combination with two other felonies, took place in 1991 when Hayes pushed a juvenile and stole his bicycle. None of his crimes involved a dangerous weapon. Hayes’s probation officer recommended a sentence of 10 years to the prosecutor, and his employer favored imprisonment as a step toward rehabilitation. The Louisiana appellate court held that despite the provision for a mandatory sentence, a court may depart from the required presumptive minimum sentence if the defendant is able to establish that there is clear and convincing evidence in the particular case that the sentence is excessive in that the “defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the guilt of the offender, the gravity of the offense, and the circumstances.” The Louisiana appellate court ruled that a life sentence was disproportionate. Hayes undoubtedly is a “tenacious thief,” but a sentence of between 20 and 40 years would have met the “societal goals of incarceration.”

         The Louisiana Habitual Offender Law is intended to punish an individual for “the instant crime in light of the . . . individual’s continuing disregard of the law.” Was life imprisonment “disproportionate to the harm done” and a shock to “one’s sense of justice”? State v. Hayes, 739 So.2d 301 (La.App. 1999).

         The instant crime, theft of approximately $1000, is a serious offense, but Mr. Hayes admitted the thefts and returned what was left of the money, $693. The trial court found that this was a major economic offense, but failed to consider Mr. Hayes' return of 69% of the money. Mr. Hayes was 34 at the time of sentencing. The parole and probation officer recommended a sentence of 10 years. The manager of the business, from whom Mr. Hayes stole the money, stated that he would like Mr. Hayes to serve time, and hoped Mr. Hayes would be rehabilitated after serving time. At the time of the theft, Mr. Hayes had a second employer, who thought highly of Mr. Hayes. The employer found Mr. Hayes to be a good employee, and believed that Mr. Hayes could be rehabilitated. Mr. Hayes' criminal record contained the following convictions: two thefts under $100, one theft over $100, several counts of issuing worthless checks, check forgery, simple robbery, and the instant offense, theft of over $500. The simple robbery, was the "crime of violence" necessary for the life imprisonment sentence. La. R.S. 14:2(13); La. R.S. 14:2(13)(y); La. R.S. 15:529.1A(1)(b)(ii). The simple robbery occurred in 1991, when Mr. Hayes pushed a minor and stole his bicycle. None of Mr. Hayes' crimes involved a dangerous weapon. This particular life imprisonment imposes an undue burden on the taxpayers of the state, who must feed, house, and clothe this defendant for life. Mr. Hayes is a tenacious thief. He obviously needs lengthy incarceration. However, a severe sentence, for example, between twenty and forty years, would have met all of the societal goals of incarceration. For all the reasons above, and after a review of the facts and circumstances of this particular defendant and the instant crime, we find clear and convincing evidence that this "defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case." A sentence of life imprisonment for this defendant, on this record, is "disproportionate" to the harm done and shocks "one's sense of justice." Thus, the life sentence is constitutionally excessive. . . . 

         Mendez, 16, along with three other gang members, committed a carjacking and a string of robberies. At one point Mendez removed a gun from his waist and handed it to Ramos who pointed the gun at the head of a victim and later used the gun to hit the same victim over his head. Mendez brandished the gun during a carjacking and during one of the robberies. Both Ramos and Mendez and the two other individuals involved in the robberies were members of the Blythe Street gang and were determined by the jury to have committed the robberies to promote and to enhance the status of the gang and their own status within the gang, which resulted in an enhancement of the length of their prison sentence. Mendez, beginning at age 10, had accumulated arrests or convictions for theft, burglary, robbery, battery, and criminal threats and was sentenced to 88 years to life with 848 days of presentence credit. A California appellate court noted that the life expectancy of an 18-year-old American male is 76 years. Mendez would not be eligible for parole until he is 88 years of age. Did Mendez’s sentence constitute cruel and unusual punishment? See People v. Mendez, 188 Cal.App.4th 47 (2010).                       

People v. Mendez   (188 Cal.App.4th 47 (2010)
On June 30, 2007, at approximately 11:40 p.m., Jose Garcia was stopped at an intersection in Palmdale in his green Chevrolet Lumina when a white car with appellants and at least two other people pulled alongside him. Appellants got out and approached Garcia, and one of them asked him if he was “from anywhere.” Understanding the question to refer to gang membership, Garcia answered “no.” Either appellants or the people in the car said “Blythe Street” several times. Mendez had a gun and opened Garcia's car door, while Ramos stood behind him. Garcia got out of his car and appellants got in and drove away. Garcia's watch was in his car. He walked to a nearby friend's house, and his friend called the police.
       About an hour later, at 1:00 a.m. on July 1, 2007, Eduardo Bernal was walking home from work in Los Angeles when two people ran toward him, grabbed him, and told him to empty his pockets. One of the assailants was Ramos, who had his hand under his shirt as though he had a weapon. After Bernal handed over his cell phone, wallet, and a compact disc holder, Ramos and the other man ran across the street. Bernal did not call the police, but he did call the bank to report that his credit cards had been stolen.
    Approximately 15 minutes later, friends Ethan Shapiro, Curtis Doyal, David Guster, Robert Reber, and Daniel Hart were at an intersection in Los Angeles when Garcia's green Chevrolet Lumina passed them slowly, made a U-turn and pulled over to the curb. Appellants and one other person got out of the car and approached the group. Guster testified that when “they pulled up, they were, like, gangsters; and they told me what do I got, and I said, ‘I don’t bang.’ ” Appellants demanded the friends' belongings. When Doyal asked why he should hand anything over, Ramos replied that he had a gun. Doyal challenged him to prove it, and Ramos took the gun from Mendez and pointed it at Doyal's head and Guster's face. Doyal, Guster, and Shapiro gave up their wallets, while Reber handed over some change.
     Ramos began walking back to the car, then returned to Doyal, called him a “clown,” and struck him in the head with the gun. Appellants returned to the car and drove away. Shapiro called 911, and Doyal was taken to the hospital, where he received stitches above his left eyebrow.
     About 20 minutes later at 1:35 a.m., Sima Bislamyan was sitting on a curb near her car in North Hollywood with her husband, Arthur Sogoyan. A green Chevrolet Lumina stopped nearby and a man got out with a gun in his hands while three or four other people remained in the car. A few seconds later, a second man got out. The first man pointed a gun at Sogoyan's head, took the cell phone from Bislamyan's hand, pushed her against her car, and threatened to shoot her if she did not “shut up.” After Sogoyan handed his wallet to the assailant, the two men got back into the car and drove away.
     Sogoyan got into his car and began to follow the green Lumina. His wife tried to follow him in her car, but lost sight of him. At some point, the people in the Lumina realized that Sogoyan was following them. The car made a U-turn and got behind Sogoyan's car. Sogoyan spotted a police vehicle and flagged it down, told the two police officers in the car what had occurred, and pointed to the nearby Lumina. The officers made a U-turn and began following the Lumina, which contained four Hispanic males.
     The Lumina accelerated, made a left turn, and immediately collided with a parked vehicle. Ramos exited the driver's door of the Lumina, dropped a gun, and ran away. Two other occupants of the car, including Mendez, also ran away. A fourth person, Guillermo Torres, remained in the car and was taken into custody. A loaded .38-caliber revolver was found under the Lumina.
    Two other police officers responded as backup and were maintaining a perimeter around the crash site when they saw Ramos walking toward them wearing a black T-shirt and blue jeans. He was “sweating” and “out of breath.” The officers detained him, and noticed that he had a “huge tattoo on the back of his head” that said “B.S.T.” One of the officers asked Ramos about the tattoo, and Ramos admitted that he was a Blythe Street gang member with the moniker “Vago.”
    Meanwhile, other officers were conducting a canine search of the area. The dog had been trained to locate humans based on a “fear scent.” The dog followed a scent to the rear of a house, where Mendez was found hiding in a shed, stuck in a pile of tires. The dog bit Mendez, who was then taken into custody. A baseball cap was found in the tires.
     A couple of hours later, Bislamyan was taken to the crash site, where she identified appellants, and stated that Mendez was the person with the gun. Sogoyan was separately taken to the site, where he identified Ramos as the person who had robbed him, immediately stating, “That's him. That's him.” At trial, Sogoyan testified that the person who took his wallet was not the one who used the gun, and the person with the gun was wearing a white shirt. When detained, Mendez was wearing a white shirt.
     On July 2, 2007, the day after the crimes had been committed, several victims were shown photographic lineups (six-packs) containing pictures of Mendez and Ramos. Garcia identified Mendez as the person who took his car at gunpoint. Bernal saw a picture that looked similar to Ramos, but did not identify anyone. Shapiro identified Ramos as the person with the gun, and Doyal identified Ramos as the person who assaulted him. Neither Reber nor Guster was able to identify anyone with certainty. Hart identified Mendez as “one of the guys that came out of the car,” but not necessarily as the one with the gun.
     The Lumina contained Sogoyan's and Doyal's wallets; currency; identification cards belonging to Shapiro, Guster, and Doyal; Bernal's cell phone; and a T-shirt similar to the one Ramos had been wearing when he confronted Bernal. Garcia's watch was eventually recovered from the property of Guillermo Torres that was taken into evidence when he was booked at the Sylmar Juvenile Hall. Mendez's palm print was found on a Memorex plastic case found on the front floor of the Lumina, and his fingerprints were found on the inside and outside of the driver's side window. Ramos's prints were not recovered.
      Officer Anthony Smith of the Los Angeles Police Department (LAPD) testified as a gang expert. Officer Smith had been an officer with the LAPD for approximately 12 years, and was assigned to the violent crimes unit. He had previously worked with the FBI on major prison gangs, and held a five-year position in the Van Nuys Gang Unit, where he was assigned to monitor the Blythe Street gang, which he identified as “one of the largest gangs here in [the] Van Nuys division.” He has taught courses on Hispanic street gangs at various law enforcement agencies, and this was the fiftieth case in which he was testifying as a gang expert.
      Officer Smith testified that some of the reasons gang members commit violent crimes include (1) enhancing their status within the gang, (2) instilling fear in the community so that nongang persons will not report the crimes to the police, and (3) because nongang persons are easy targets. He also testified that respect is an important part of gang culture, and a sign of disrespect is “bad” because it is considered a form of weakness. If a gang member is considered weak, he could become the victim of a violent crime, and he would have to commit a violent act to gain back respect.
      While gang members sometimes commit crimes in their own territory, they often go outside their territory to commit crimes. In general, gang crimes are committed by two or more members because “there's strength in numbers,” and one person can act as a “backup,” “lookout,” or getaway driver. Though gang members sometimes commit offenses without stating their gang names, “most of the time” they state their gang name when committing crimes. Gang members often wear “multiple layers of clothing” when committing crimes, and then “switch clothing” to impair eyewitness identification.
     According to Officer Smith, the Blythe Street gang has more than 200 documented members, and is an “entrenched” and “territorial” gang that was started in the 1970's. The gang's territory is in the area of Panorama City. The Blythe Street gang is “turf-oriented,” and members identify themselves by a hand sign, usually involving a “C” and “B” for “Calle Blythe.” Blythe Street gang members also have “Blythe Street” tattoos, as well as “P” or “P.C.” tattoos representing Panorama City. They often wear Boston baseball caps with a “B” and blue or dark clothing. The gang's crimes tend to include gun possession, narcotics offenses, and robberies. Officer Smith testified about prior convictions suffered by Blythe Street gang members, including narcotics possession, assaults, and robberies.
       Officer Smith first met Mendez when Mendez was 11 or 12 years old. Mendez was one of the youngest gang members Officer Smith had documented. Mendez's older brother was also a member of the Blythe Street gang. Officer Smith documented Mendez as a “full-fledged, active” member of the Blythe Street gang. When Officer Smith took Mendez's photograph at the time he documented him, Mendez admitted that he was a member of the Blythe Street gang, and he was wearing a “Boston” baseball cap at the time. Mendez has several tattoos indicating his membership in the gang, including “B.S.T.” on his elbow and hands, “Blythe Street” on the back of his neck, “B” on one side of his wrist and an “S.T.” on the other side, and the beginning of either a “B” or “P” on his shoulder.
     Officer Smith testified that Ramos is also an active, documented member of the Blythe Street gang. Like Mendez, Ramos has several gang tattoos, including a “very large ‘B.S.T’ on the back of his head,” “Blythe Street” in “very large letters” on his right arm, and a “B” on his wrist. Nongang members would not have such tattoos, and would likely be assaulted if they did.
    Officer Smith researched Guillermo Torres, the person who remained in the Lumina, and Juan Alvarado, whose fingerprints were found on a calendar in the Lumina and on the driver's side window. Officer Smith discovered that they were also active, documented members of the Blythe Street gang. None of the victims were documented gang members.
      When asked a hypothetical question based on the facts of the case, Officer Smith opined that all of the crimes were committed for the benefit of the Blythe Street gang because the crimes “enhance[d]” and “promote[d]” the gang. He based his opinion on the following: the way the crimes were committed; the number of crimes committed in “a small amount of time”; the announcement of the gang's name; his knowledge that Blythe Street gang members “commit robberies to fuel the gang” (he opined “That's how this gang has been around so long. They will commit acts like that for money. . . . That's how they do such things as buy guns for the gang.”; the type of revolver used in the crimes was one that was often used by Blythe Street gang members because it was small, easy to conceal, and did not leave behind shell casings; the switching of clothing, which he has seen before with the Blythe Street gang; and one of the prior crimes he investigated involving a Blythe Street gang member was very similar, involving a robbery with multiple gang members attacking a victim and acting as lookouts.
         The gang enhancement in Section 186.22 (b)(1), imposes additional punishment when a defendant commits a felony “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” It applies when a crime is gang related. Here, there was substantial evidence to support the jury's true findings on the gang allegations. The evidence was undisputed that appellants were active, documented members of the Blythe Street gang, and that they were accompanied during their crime spree by at least two other Blythe Street gang members. Appellants do not claim that they were unaware of each other's membership in the same gang, nor could they, given the obvious Blythe Street tattoos each had. The evidence showed that during the carjacking, the first offense of the night, appellants asked the victim, Garcia, if he was from anywhere. Garcia testified that he understood this to mean that he was being asked if he belonged to a gang. More than once during the carjacking, appellants or the people accompanying them announced the gang's name. A jury could reasonably infer that the carjacking was committed for the benefit of and in association with a criminal street gang with the intent to promote, further, or assist in criminal conduct by gang members, and that the robberies which immediately followed were committed for the same reasons and with the same intent. This inference is also supported by the evidence that one of the robbery victims, Guster, stated, “I don't bang,” believing that appellants and their associates were gang members. The jury could also infer that Ramos returned to Doyal and pistol-whipped him after he challenged Ramos so that Ramos would not appear weak in front of his fellow gang members.
    Based on this evidence, Officer Smith, the gang expert, testified that the crimes were committed to benefit the Blythe Street gang and to “enhance” and “promote” the gang. “[A]n expert may render opinion testimony on the basis of facts given ‘in a hypothetical question that asks the expert to assume their truth.’ Such a hypothetical question must be rooted in facts shown by the evidence, however.” Officer Smith based his opinion on the facts of the case—the announcement of the gang's name in connection with at least the first offense, which would instill fear in the victim; that several robberies took place in a short amount of time with multiple gang members who could be used for protection, as lookouts and/or getaway drivers; that robberies were commonly committed by Blythe Street gang members “to fuel the gang,” i.e., to obtain money to buy guns for the gang; the type of revolver used in the crimes was one that was often used by Blythe Street gang members because it was small, easy to conceal, and did not leave behind shell casings; the switching of clothing; and the fact that the robberies were very similar in manner to a prior robbery Officer Smith had investigated involving a Blythe Street gang member. In addition, Officer Smith's testimony lent credence to the inference that the assault on Doyal was done to benefit and promote the gang, because weakness or disrespect is a serious negative characteristic in gang culture.
     Contrary to appellants' claim, Officer Smith's testimony was supported by a sufficient evidentiary foundation, and was bolstered by the fact that appellants each acted with other known gang members in committing their crime spree. “Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime,” fellow gang members. “[I]f substantial evidence establishes that the defendant is a gang member who intended to commit the charged felony in association with other gang members, the jury may fairly infer that the defendant also intended for his crime to promote, further or assist criminal conduct by those gang members. Reviewing the record in the light most favorable to the judgment, we are satisfied that substantial evidence supports the jury's true findings on the gang allegations.
       Mendez contends there was insufficient evidence to support the jury's findings as to the robberies of Reber and Guster that he personally used a firearm within the meaning of the law. Mendez also contends that the prosecutor proceeded on an incorrect theory of law with respect to the personal use of a firearm enhancement. We disagree.
      With respect to sufficiency of the evidence, it is true that neither Reber nor Guster identified Mendez in court as the assailant who approached them with a gun. But the evidence clearly showed that both appellants were involved in the robberies of Reber and his friends. Shapiro testified that Mendez was the one who approached Reber. And at some point during these robberies, Mendez had the gun because Ramos took it from him to pistol-whip Doyal. Guster testified that the person who approached him with the gun was wearing a baseball cap and black shorts. The evidence showed that Mendez was wearing black shorts when the police officers saw him flee from the scene, and a baseball cap was recovered in the shed where Mendez was detained. Mendez's personal use of a weapon was further substantiated by Guster's testimony that he believed the person who held a gun to him was different than the person who pistol-whipped Doyal, identified by witnesses as Ramos.
      In supplemental briefing, Mendez contends that his sentence of 84 years to life constitutes cruel and unusual punishment because it amounts to a de facto sentence of life without parole (LWOP). Mendez primarily relies on the recent United States Supreme Court case of Graham, in which a divided court held that a sentence of LWOP for any juvenile offender who did not commit a homicide is unconstitutional as cruel and unusual under the Eighth Amendment. Mendez argues that because he was 16 when he committed the nonhomicide crimes, his sentence cannot stand under Graham.
        Mendez supports his contention that his sentence is a de facto LWOP sentence by pointing out that he will not be eligible for parole until he is well past his life expectancy, which currently, for an 18-year-old American male, is 76 years. Mendez was sentenced at the age of 18, at which time he received 848 days of presentence credit. Since his offenses were violent felonies he is limited to 15 percent worktime credit on his determinate sentence. And since his life term on count 1, carjacking, carries a 15-year minimum parole eligibility against which he cannot earn prison worktime credit, he will not be eligible for parole until he is older than 88 years of age. We agree with Mendez that his sentence and an LWOP sentence are “materially indistinguishable.” We disagree with Mendez that his de facto LWOP sentence should be reversed pursuant to the holding in Graham. As the People note, Graham expressly limited its holding to juveniles actually sentenced to LWOP: “The instant case concerns only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense.” Mendez's sentence is not technically an LWOP sentence, and therefore not controlled by Graham. We are nevertheless guided by the principles set forth in Graham in evaluating Mendez's claim that his sentence is cruel and unusual.
      While Graham emphasized that a state is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime, the court does require that a state “must” give a juvenile “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Although the court did not define what constitutes a “meaningful” opportunity for parole, leaving it to “the State, in the first instance, to explore the means and mechanisms for compliance” common sense dictates that a juvenile who is sentenced at the age of 18 and who is not eligible for parole until after he is expected to die does not have a meaningful, or as the court also put it, “realistic,” opportunity of release. Mendez's sentence essentially “guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes.”
      The Supreme Court was careful to note that some juveniles who commit truly horrifying crimes may in fact turn out to be “irredeemable” and thus deserving of incarceration for the duration of their lives. But the court ruled that such an assessment may not be made at the “outset” because it denies the juvenile offender a chance to demonstrate growth and maturity. Mendez makes a compelling argument that the trial court here did just that. Just prior to imposing sentence, the trial court stated the following: “You know, when I was a young attorney, I used to appear in front of a judge who used to use the term ‘sociopath.’ He overused the term, because he used it for everyone who came before him who was sentenced on a serious case. I haven't used that term, either as an attorney or much as a judge. Then, I opened Mr. Mendez's probation report, and I looked at his juvenile record since age ten, and I saw that he was sent to the Youth Authority for robbery at age twelve in Los Angeles County. Then I saw the crime spree that I witnessed this defendant do. I'm totally convinced that this particular defendant has no conscience, has no conscience for society or other people's lives and property. He just doesn't understand the importance of being a law-abiding member of society, not at all, and he's proven that since age ten.” The court then proceeded to impose consecutive sentences, rather than concurrent sentences, for what it characterized as Mendez's “independent acts of violence against all separate victims.” The trial court may turn out to be correct in its implied assessment that Mendez is a sociopath, or at the very least that Mendez should be separated from society for the duration of his life, but Graham makes clear that a sentence based on such a judgment at the outset is unconstitutional.
      Even without Graham, we would conclude that Mendez's sentence is unconstitutional when evaluated under the traditional “proportionality” test used by the federal and state courts when evaluating individual claims that a sentence is cruel and unusual. Although articulated slightly differently, both standards prohibit punishment that is “grossly disproportionate” to the crime or the individual culpability of the defendant. (Under both standards, the court examines the nature of the offense and the defendant, the punishment for more serious offenses within the jurisdiction, and the punishment for similar offenses in other jurisdictions. Any one of these three factors can be sufficient to demonstrate that a particular punishment is cruel and unusual. There is no question that Mendez's crimes are serious crimes deserving serious punishment. He confronted his victims at night with other known gang members, usually outnumbering the victims; he brandished a loaded gun at several victims, thus increasing the risk of death or injury; and he demanded and took their personal belongings. But Mendez did not personally inflict physical injury on any of his victims or discharge his firearm. Certainly, his crimes are less serious than other crimes such as murder or rape. “[W]hen compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.”
      Mendez's age at the time he committed these crimes is also highly relevant to the analysis. “Petitioner's youth is relevant because the harshness of the penalty must be evaluated in relation to the particular characteristics of the offender.” “The age of the offender and the nature of the crime each bear on the analysis.” As Graham noted, Roper v. Simmons established that “[a]s compared to adults, juveniles have a ‘lack of maturity and an underdeveloped sense of responsibility ’; they ‘are more vulnerable or susceptible to negative influence and outside pressures, including peer pressure’; and their characters are ‘not as well formed.’ ” [noting, in reliance on United States Supreme Court precedent, that “ ‘ “[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside” ’ ”]. Here, it can be reasonably assumed that Mendez was influenced by peer pressure. He did not commit his crimes alone, but with fellow gang members, and his older brother was a Blythe Street gang member. As Chief Justice Roberts noted in his concurrence to Graham, “There is no reason to believe that [Mendez] should be denied the general presumption of diminished culpability that Roper indicates should apply to juvenile offenders.”
       We are particularly troubled here by the fact that the record is silent as to Mendez's personal and family life and upbringing. This is important because the particular characteristics of the offender are relevant to the harshness of the penalty and a defendant's culpability. The record is silent as to the reasons Mendez joined a gang in the first place, any drug use, mental health issues, educational level, etc. It may well be the case that there were mitigating factors that would diminish his culpability and expose the harshness of his sentence. But we simply have no such knowledge here. And it does not appear that the trial court had any such evidence before imposing consecutive sentences.
In Graham, the court described the defendant's background, noting that his parents were drug addicts, that he had been diagnosed with attention deficit hyperactivity disorder in elementary school, and that he began drinking at age nine and smoking marijuana at age 13.
     While the record contains a probation report indicating that Mendez has arrests and/or adjudications for theft, burglary, robbery, battery, and criminal threats beginning at the age of 10, there is no information about the specific dispositions or outcomes with respect to several of the offenses. For example, while the probation report indicates that he was arrested for battery at the age of 11, the only information stated is “no further disposition.” There is also no information concerning his second charge of battery at the age of 12, other than “disposition: to juvenile hall.”
     Additionally, we cannot ignore that codefendant Ramos received a sentence nearly half as long as Mendez's. The People argue this is because Ramos's lack of personal use of a firearm made him ineligible for the gang enhancement, and thus for a life term, on count 1 (carjacking). But Ramos, not Mendez, was the only defendant who physically injured a victim. The fact that a defendant's actions in committing the crimes did not result in physical injury “reflect[s] on his or her culpability and, in turn, serve[s] as some measure for the harshness of the sentence imposed.” We conclude that Mendez's youth and the absence of injury or death to any victim raise the strong inference that Mendez's de facto LWOP sentence is grossly disproportionate to his crimes and culpability. We therefore move to the second prong of the proportionality test, i.e., a comparison of the challenged penalty with the punishment in California for more serious crimes.
      Mendez devotes little of his briefing to this issue . . . Juvenile offenders who commit special circumstances murder under the age of 16 may only receive a term of 25 years to life with possibility of parole, and if the offender was 16 years or older, punishment may be LWOP or 25 years to life at the court's discretion. By contrast, Mendez received a de facto LWOP sentence for nonhomicide crimes in which he did not inflict any physical injury on his victims. That strikes us as a sentence that is grossly disproportionate to the crimes committed and the culpability of the defendant.
      As to the third prong of the test, Mendez does not provide any information regarding punishments for his crimes in jurisdictions outside of California. His briefing is therefore deficient in this regard. But as noted above, only one of the three proportionality factors is sufficient for a sentence to be declared cruel and unusual. The People cite to a handful of out-of-state statutes for the proposition that comparable sentences can be imposed on juveniles who commit gang related offenses, crimes involving the use of a firearm, carjacking and/or robbery. While this may be true, it does not change our analysis. Nor does the People's reliance on Hawkins v. Hargett, 200 F.3d 1279 (10th Cir. 1999), which found that a 100-year sentence for a juvenile who was almost 14 when he committed his crimes did not constitute cruel and unusual punishment. There, a defendant who was one month shy of turning 14 broke into his neighbor's house, brandished a kitchen knife, tied her with ropes and blindfolded her, then raped and sodomized her repeatedly during the course of two and a half hours, all the while threatening to kill her and her children if she told the police. In finding the lengthy sentence to be constitutional, the court noted that “good time” credits were available to the defendant, that he had already completed his sentence for the rape and sodomy convictions, that he was slated to serve a total of 35 years for all four of his convictions combined, and that he would be eligible for parole in approximately 15 years. The same cannot be said here. In reaching our conclusion that Mendez's sentence is the equivalent of LWOP and that it is cruel and unusual punishment, we are mindful of the fact that successful challenges to sentences on the grounds of cruel and unusual punishment are rare. Nevertheless, we find this to be such a rare case, and we therefore remand the matter to the trial court for reconsideration of Mendez's sentence.
      The matter is remanded to the trial court as to Mendez for reconsideration of his sentence in light of the principles discussed in this opinion. In all other respects, the judgments are affirmed.

         Clarence Ray Allen was sentenced to death for the murder of three individuals that he coordinated from his cell in Folsom prison in California. Allen was serving a life sentence with the possibility of parole for a murder and conspired to kill a number of individuals to prevent them from testifying in the event that an appellate court ordered a retrial of the murder charge. Allen was fifty years old at the time of the homicides and fifty-two when sentenced to death in 1982. He was to celebrate his seventy-sixth birthday the day before his scheduled execution date and claimed that the execution of someone of his age constituted cruel and unusual punishment. Allen was blind, had difficulty hearing, suffered from Type-2 diabetes and from the complications of a stroke and a heart attack had left him confined to a wheel chair. He noted that only two persons over seventy had been executed since 1973 and only twenty-seven of the 7,311 persons executed between 1608 and 2002 had been over seventy. Allen also claimed that his execution would be cruel because he had spent twenty-three “horrific” years on death row (the “death row phenomenon”). Allen relies on Simmons and Atkins to support his Eighth Amendment claim of cruel and unusual punishment. Will be successful? See Allen v. Ornoski, 435 F.3d 946 (9th Cir. 2003).

Allen v Ornoski, 435 F3d 946 (9th Cir 2003).

         Allen instead argues that the Supreme Court's recently developing Eighth Amendment jurisprudence naturally extends to a constitutional prohibition against executing the elderly and infirm. In support, Allen points to the Supreme Court's capital case decisions of the post-Furman era, in which the Court has gradually (1) enlarged the classes of persons who are ineligible for the death penalty, see Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986) (executing the mentally incompetent is unconstitutional); Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988) (executing youths under sixteen at time of offense is unconstitutional); Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (executing the mentally retarded is unconstitutional); Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (executing juveniles who committed the offense while under eighteen is unconstitutional); and (2) narrowed the range of offenses that are death-eligible, see Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977) (execution for offenses short of murder is unconstitutional); Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982) (executing those who aided a felony but did not kill or intend to kill is unconstitutional). Allen vaguely suggests that execution of an elderly person does not comport with "evolving standards of decency," in that the execution "offends humanity," provides no deterrence value, does not serve any retributive purpose, and violates the norms of domestic and international law. However, Allen's argument fails in two critical respects: (1) the Supreme Court's limitations on the use of the death penalty are grounded in the theory that some classes of persons are less culpable and therefore not deserving of the death penalty and Allen's age and infirmity do not render him less culpable at the time of his offenses; and (2) Allen cannot demonstrate the required "objective indicia of consensus" that "evolving standards of decency" now prohibit the execution of elderly and infirm persons. Thus, his contention that reasonable jurists could debate whether he has made a substantial showing of the denial of a constitutional right fails because there is no clearly established Supreme Court authority, or any legal authority, supporting his position, even if one stretches existing Supreme Court authority to its maximum reach.
     The Supreme Court's rulings in Roper, Atkins, Thompson and Enmund are inextricably bound to the concept that the execution of certain classes of inherently less-culpable persons offends the Eighth Amendment's proportionality requirement. In Roper the Supreme Court enumerated three traits of juveniles which, as a class, render them less culpable and therefore unsuitable to be placed in the worst category of offenders: (1) a "lack of maturity and an underdeveloped sense of responsibility" resulting in "impetuous and ill-considered actions and decisions;" (2) a heightened vulnerability to "negative influences and outside pressures;" and (3) personality that is "more transitory, less fixed." Roper, 125 S. Ct. at 1195. The Court found that "their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment," and therefore concluded that the social purpose of "retribution is not proportional if the law's most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity." The Court again focused on culpability in assessing whether executing juveniles fulfilled the social purpose of deterrence and found that "the absence of evidence of deterrent effect is of special concern because the same characteristics that render juveniles less culpable than adults suggest as well that juveniles will be less susceptible to deterrence." 
     In Atkins, the Court again linked "relative culpability" to the "penological purposes served by the death penalty." 536 U.S. at 317. With respect to retribution, the Court found that because "severity of the appropriate punishment necessarily depends on the culpability of the offender . . . an exclusion for the mentally retarded is appropriate." Culpability was again key to the Court's finding that execution of the mentally retarded did not serve the penological purpose of deterrence, because "it is the same cognitive and behavioral impairments that make these defendants less morally culpable—for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses—that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information." The Court applied the same rationale of lessened culpability undermining the deterrence and retributive effects of capital punishment in holding that the Eighth Amendment prohibits the execution of persons who were under sixteen at the time of their offense. See Thompson, 487 U.S. at 833-38. Similarly, in Enmund, the Court assessed proportionality based upon the personal culpability of the defendant, ruling that for an accomplice to a felony, "criminal culpability must be limited to his participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt."
     Allen heavily relies upon Ford, arguing that given Allen's age, failing health and length and conditions of confinement on death row the retributive purposes of capital punishment would not be served by his execution. In Ford, the Court held that the Eighth Amendment prohibits the execution of an insane defendant. In doing so, it relied in part on the rationale that the execution of a person who does not understand, or is not even aware of, the punishment that he is about to face does not serve the death penalty's aims of deterrence and retribution. By contrast, here, there is no indication that Allen's physical condition or his age has affected his mental acuity. To the contrary, Allen's mental state was last evaluated on December 27, 2005, and he was found competent. Indeed, he does not claim that he is mentally incompetent in any way. Ford, then, is inapposite because nothing in the record suggests that Allen's physical condition and age render him unable to comprehend the nature and purpose of the death penalty that he faces.
     Nor has Allen argued that his current physical incapacity somehow relates to his culpability at the time he committed the capital offenses. Allen was fifty years old when he orchestrated the murders of Bryon Schletewitz, Josephine Rocha, and Douglas White. His age and experience only sharpened his ability to coldly calculate the execution of the crime. Nothing about his current ailments reduces his culpability and thus they do not lessen the retributive or deterrent purposes of the death penalty.
     Moreover, in both Atkins and Roper the Supreme Court looked to objective indicia of consensus—"the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice"—to provide sufficient evidence that society viewed juveniles and the mentally retarded as "'categorically less culpable than the average criminal.'" As the Court noted in both Atkins and Roper, it is "not so much the number of these States that is significant, but the consistency of the direction of change." Allen's argument that sixteen states disallow the death penalty altogether is overly broad. We cannot equate contemporary judgment that the death penalty is generally inappropriate for all persons with the specific claim presented here. Allen's logic equally leads to the conclusion that the death penalty in general is contrary to evolving standards of decency, as to the conclusion that the death penalty as applied to elderly and infirm prisoners is contrary to the Eighth Amendment. This position is further weakened by the fact that, if sixteen states bar the death penalty, then thirty-four states must still permit the death penalty for elderly and infirm persons. Allen has not adduced any evidence showing that states are barring executions specifically of the elderly or infirm.
    Allen also argues that there is a de facto practice on the part of states not to execute elderly persons. He points out that since 1973, only two persons over the age of seventy have been executed—James Hubbard, who was seventy-four when executed by the State of Alabama in 2004, and John B. Nixon, who was seventy-seven when executed by the State of Mississippi in 2005. Allen also cites one study which asserts that only twenty-seven of the 7,311 people executed in the United States between 1608 and 2002 whose ages were ascertainable were over the age of seventy. Allen "infers" from the rarity of executions of elderly persons, as shown in the bare statistics he provides, that there is a pattern or practice, an evolving standard of decency, of not executing the elderly. Allen has not, however, adduced any direct evidence of a societal aversion to executing the elderly, such as evidence demonstrating that juries disproportionately elect not to impose the death penalty for elderly offenders, or that governors are more likely to commute death sentences of older prisoners or that any State has legislated against the execution of the elderly and infirm.
    It may very well be that other societal forces account for the paucity of elderly persons executed. It is possible that more elderly persons die on death row before their appeals are exhausted, given that the average time spent in prison for a death row inmate in 2004 was ten years and two months. In addition, most people commit crimes while in their twenties. In 2004, the mean age at the time of arrest for a person later sentenced to death was twenty-eight years old; it is rare for anyone over fifty to be arrested for a crime that carries the death penalty. . Allen presents no contrary evidence to suggest that a significant number of people commit capital crimes at age fifty and above. The DOJ Report also belies the notion that there is any "evolving standard of decency" rejecting execution of the elderly—a ninety-year-old man sits on death row in Arizona, forty-four persons aged sixty-five or older are on death row, and eighty-two persons aged sixty to sixty-four are on death row across the nation. 
     Thus, Allen's age and physical infirmity claim does not fit within the twin rationales motivating the Supreme Court's recent Eighth Amendment jurisprudence. The claim that the Eighth Amendment forbids the execution of the elderly and infirm finds no support in our existing law, that of our sister circuits, or of the Supreme Court. Therefore, Allen's claim is not "debatable among jurists of reason" such that another court could rule in a different manner, nor is it a question that is "adequate to deserve encouragement to proceed further."
 

Punishment for a term of years

State v. Hayes, 739 So.2d 301 (La.App. 1999).

         The instant crime, theft of approximately $ 1000, is a serious offense, but Mr. Hayes admitted the thefts, and returned what was left of the money, $693. The trial court found that this was a major economic offense, but failed to consider Mr. Hayes' return of 69% of the money. Mr. Hayes was 34 at the time of sentencing. The parole and probation officer recommended a sentence of 10 years. The manager of the business, from whom Mr. Hayes stole the money, stated that he would like Mr. Hayes to serve time, and hoped Mr. Hayes would be rehabilitated after serving time. At the time of the theft, Mr. Hayes had a second employer, who thought highly of Mr. Hayes. The employer found Mr. Hayes to be a good employee, and believed that Mr. Hayes could be rehabilitated. Mr. Hayes' criminal record contained the following convictions: two thefts under $ 100, one theft over $ 100, several counts of issuing worthless checks, check forgery, simple robbery, and the instant offense, theft of over $500. The simple robbery, was the "crime of violence" necessary for the life imprisonment sentence. La. R.S. 14:2(13); La. R.S. 14:2(13)(y); La. R.S. 15:529.1A(1)(b)(ii). The simple robbery occurred in 1991, when Mr. Hayes pushed a minor, and stole his bicycle. None of Mr. Hayes' crimes involved a dangerous weapon. This particular life imprisonment imposes an undue burden on the taxpayers of the state, who must feed, house, and clothe this defendant for life. Mr. Hayes is a tenacious thief. He obviously needs lengthy incarceration. However, a severe sentence, for example, between twenty and forty years, would have met all of the societal goals of incarceration. For all the reasons above, and after a review of the facts and circumstances of this particular defendant and the instant crime, we find clear and convincing evidence that this "defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case." A sentence of life imprisonment for this defendant, on this record, is "disproportionate" to the harm done and shocks "one's sense of justice." Thus, the life sentence is constitutionally excessive . . . .

         Joshua Phillips was convicted of first degree murder and sentenced to life imprisonment without the possibility of parole. Florida law punishes this type of homicide with either life imprisonment or the death penalty. Joshua was fourteen at the time that he murdered eight-year-old Maddie Clifton. Maddie disappeared on November 3, 1998, and on November 10, 1998, her body was found under the bed in Joshua’s room. He told the police that he had been playing baseball with Maddie and that he had hit a ball that hit Maddie near her left eye. She was bleeding and crying and Joshua feared that his father would discipline him for playing with the younger Maddie. He took Maddie to his room and when she continued to cry Joshua he stated that he took a knife and slit her throat. Joshua placed Maddie’s body under his bed and realized that his father who had arrived home would be able to hear her heavy breathing and stabbed her in the lungs., Forensic evidence indicated that Maddie suffered a blow to the head, neck wounds that perforated her windpipe and caused her to bleed to death and nine stab wounds to the chest after she likely was dead. Joshua claimed that it was cruel and unusual punishment to subject a juvenile offender to life without parole. See Phillips v. State, 807 So.2d 713 (Fla. App., 2002).

          Phillips v. State, 807 So.2d 713 (Fla. App. 2002).

         Exceeded only by the death penalty, a sentence of life imprisonment without parole is the second most severe penalty authorized by Florida law. Presently, for first-degree murder, only these two penalties are authorized by statute. We must now determine whether, in these circumstances, life imprisonment without parole violates the constitutional guarantee prohibiting cruel and unusual punishment.
Part of the Bill of Rights of the United States Constitution, the Eighth Amendment states that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." ¹ The Eighth Amendment's guarantee against cruel and unusual punishment has been interpreted as providing two guarantees, the first and foremost of which is a bar against unnecessarily painful or barbarous methods of punishment. An unconstitutional penalty, in this regard, is] one that is soundly rejected by the evolving standards of decency that mark the progress of a maturing society. The amendment also forbids penalties that are grossly disproportionate to the crime being punished. For example, a valid punishment, albeit severe, may be unconstitutional when it is paired with a sufficiently minor crime. However, proportionality challenges in noncapital cases should rarely be successful.
     Here, Mr. Phillips contends that sentencing him to life imprisonment without the possibility of parole for a first-degree murder he committed when he was fourteen years old is cruel and unusual punishment and bases his challenge upon the second protection afforded by the Eighth Amendment—the prohibition against disproportionate punishment. He does not contend, however, that his sentence would be disproportionate had it been imposed on an adult. To evaluate Mr. Phillips' contention, we must examine the contours of Eighth Amendment protections as set forth by the Supreme Court of the United States and the federal courts of appeal.
     We begin with the Supreme Court's pronouncements in Harmelin v. Michigan, 501 U.S. at 957. In responding to Harmelin's contention that Michigan was required by the Eighth Amendment to create a sentencing scheme whereby life imprisonment without the possibility of parole would be but the most severe of a number of discretionary penalties available to a sentencer, a majority of the Court rejected the claim as having no basis in the Eighth Amendment's text. "Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation's history." Furthermore, the Court noted that "there can be no serious contention, then, that a sentence which is not otherwise cruel and unusual becomes so simply because it is mandatory." Id. at 995. Accordingly, we conclude that a per se constitutional violation does not occur merely because Mr. Phillips' sentence is both mandatory and severe.
     Next, we examine whether the narrow proportionality principle provided for by the Eighth Amendment applies to this noncapital crime. Justice Kennedy explained for the Court in Harmelin, that the "Eighth Amendment proportionality principle also applies to noncapital cases." Justice Kennedy's opinion noted that in Solem v. Helm, 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983), the Supreme Court held "that a sentence of life imprisonment without possibility of parole violated the Eighth Amendment because it was grossly disproportionate to the crime of recidivism based on seven underlying nonviolent felonies." Although this case may be distinguished from Solem because it involves a crime of violence and does not involve a recidivist offender, the Solem analysis and its principles nonetheless apply.
     Applying Solem and Rummel v. Estelle, 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133 (1980), Justice Kennedy identified five principles encompassed within the proportionality rule. The first is that "the fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is properly within the province of legislatures, not courts." Harmelin, 501 U.S. at 998. As a reviewing court, we are required to grant substantial deference to the legislature's broad authority to determine an appropriate punishment. Solem, 463 U.S. at 290.
"The second principle is that the Eighth Amendment does not mandate adoption of any one penological theory." From the second principle flows the third, which recognizes the role of a state in our federal system. The state has an independent power to set forth societal norms through the use of criminal law. This power "may yield different, yet rational, conclusions regarding the appropriate length of prison terms for particular crimes."
     The fourth principle requires that proportionality review be directed by objective factors. The type of punishment imposed, Justice Kennedy stated, is the "most prominent objective factor." Id. Unfortunately, when confronted by a sentence for a term of years, Justice Kennedy noted that "our decisions recognize we lack clear objective standards to distinguish between sentences for different terms of years." Finally, "The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime."
     Applying these principles, we find that the Florida Legislature has fixed the second most severe penalty to the most severe crime recognized by our law. The responsibility for making this choice rests with the legislature and is entitled to substantial deference. Further, we recognize that not every citizen nor even every member of this court will agree with the penalty established by the legislature for this crime as applied to this offender, but the legislative determination falls within the bounds of a rational conclusion regarding an appropriate prison term for the crime of first-degree murder. Finally, we find that the penalty of life imprisonment is not grossly disproportionate to the crime of first-degree murder. If, as Justice Kennedy's opinion noted, "the crime of felony murder without specific intent to kill . . . [is] a crime for which no sentence of imprisonment would be disproportionate," then the sentence of life imprisonment for the specific intent crime of first-degree murder cannot be disproportionate. Accordingly, we hold that Mr. Phillips' sentence does not violate the proportionality principle mandated by the Eighth Amendment.
     A final issue in this analysis is whether Mr. Phillips' chronological age is a factor that must be considered in a proportionality review under Harmelin and Solem. We hold that his age is a factor that must be considered. In Eddings v. Oklahoma, 455 U.S. 104, 116, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982), the Supreme Court found the defendant's chronological age a mitigating factor in death penalty cases, and in State v. Green, 348 N.C. 588, 502 S.E.2d 819 (N.C. 1998), the Supreme Court of North Carolina reviewed a sentence of life imprisonment without possibility of parole imposed upon a thirteen-year-old rapist and held that chronological age can be considered in determining whether a punishment is grossly disproportionate to the crime. This approach was followed in Hawkins v. Hargett, 200 F.3d 1279, 1283-84 (10th Cir. 1999). We agree with the conclusions reached in Green and Hawkins. We further agree with Green and Hawkins that although Mr. Phillips' culpability may be diminished somewhat because of his age at the time of the commission of the crime, the factor of his age is outweighed by his heinous conduct and the ultimate harm—death—that he inflicted upon his victim. Clearly, our society "attaches moral significance to consequences as well as to states of mind." Rice v. Cooper, 148 F.3d 747, 752 (7th Cir. 1998). We reach the same result as in Hawkins, Green, and Rice and hold that even factoring in Mr. Phillips' chronological age there has been no Eighth Amendment violation. 

         Richard Vincent Paey experienced a catastrophic auto accident in 1985. Paey suffered from severe back pain and developed multiple sclerosis and other severe physical challenges and was confined to a wheelchair. Paey apparently developed a dependency on the drugs that he depended on to manage his pain. He was arrested after the police were alerted to Paey’s possible forgery of drug prescriptions and drug abuse. A search of his home revealed that he had filled prescriptions for 700 oxycodone pills, 400 hydrocodone pills and 320 diazepam pills over the course of thirty-four days. Paey was convicted of seven counts of trafficking in oxycodone (a morphine derivative), four counts of possession of hydrocodone and four counts of obtaining or attempting to obtain a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge. He was sentenced to the mandatory minimum of twenty-five years in prison on each trafficking count which was to run concurrently and to one year and one day in prison on each of the other eight counts. There as no indication that Paey unlawfully sold, purchased, manufactured, or delivered oxycodone. Each forged prescription for oxycodone resulted in 33 grams of oxycodone and Florida law makes the possession of 28 grams or more of oxycodone or of a mixture containing oxycodone punishable a trafficking offense. Paey claims that his twenty-five year prison sentence for trafficking constitutes cruel and unusual punishment. What is your view? Do you agree with the decision of Florida Governor Charlie Crist to pardon Paey after he had served three and a half years in prison? See Paey v. State, 943 So.2d 919 (Fld. App., 2006).

         Paey v. State, 932 So.2d 919 (Fla.App. 2006).

         Richard Vincent Paey appeals multiple judgments and sentences entered by the trial court after a jury trial. Mr. Paey raises six issues on appeal. We affirm without discussion on five of the issues, but we write to explain why Mr. Paey's twenty-five-year mandatory minimum prison sentences are constitutionally permissible. Shortly before his graduation from law school in 1985, Mr. Paey was involved in a calamitous automobile accident. As a result of the automobile accident and subsequent failed back surgeries, Mr. Paey suffers from severe and unremitting back pain. In 1990, Dr. Stephen Nurkiewicz began treating Mr. Paey in New Jersey, where the Paey family then lived. Dr. Nurkiewicz prescribed oxycodone (Percocet), hydrocodone (Lortab), and diazepam (Valium) for Mr. Paey to treat his chronic back pain. At the end of 1994, the Paey family moved to Pasco County, Florida. However, Dr. Nurkiewicz continued to act as Mr. Paey's treating physician, and Mr. Paey returned to New Jersey on several occasions for office visits. On December 26, 1996, Dr. Nurkiewicz treated Mr. Paey for the last time. During this last office visit, Dr. Nurkiewicz gave Mr. Paey a prescription for oxycodone and a prescription for hydrocodone to be used in January 1997.
     In 1997, Deputy Sheriff Bobby Joe Wright of the Pasco County Sheriff's Office investigated an allegation of drug trafficking involving Mr. Paey. Deputy Wright had been contacted by a local pharmacist who was concerned that Mr. Paey was abusing prescription drugs. On February 24, 1997, Deputy Wright observed Mr. Paey fill a prescription for 100 pills of oxycodone at the pharmacy where the pharmacist who had contacted the deputy was employed. On March 5, 1997, Deputy Wright interviewed Dr. Nurkiewicz in New Jersey concerning how frequently he prescribed medications to Mr. Paey. Dr. Nurkiewicz denied issuing, writing, authorizing, or signing prescriptions for Mr. Paey after Mr. Paey's last office visit. Afterwards, Deputy Wright obtained and executed a search warrant for Mr. Paey's home. The search resulted in the seizure of the following items: miscellaneous pieces of paper cut into the size of prescription forms; blank prescription forms with Dr. Nurkiewicz's name and address at the top; three prescription bottles; and an address book containing Dr. Nurkiewicz's name, phone number, and Drug Enforcement Administration (DEA) number.
     At trial, the State presented the testimony of six pharmacists from three different pharmacies. The testimony of these pharmacists established very substantial prescription activity by Mr. Paey during February and March 1997. On February 5, 1997, Mr. Paey filled a prescription for 100 pills of oxycodone, a prescription for 100 pills of hydrocodone, and a prescription for 80 pills of diazepam. On February 7, 1997, Mr. Paey filled a prescription for 100 pills of oxycodone and a prescription for 80 pills of diazepam. On February 20, 1997, Mr. Paey filled a prescription for 100 pills of oxycodone and a prescription for 100 pills of hydrocodone. On February 24, 1997, Mr. Paey filled a prescription for 100 pills of oxycodone. On February 27, 1997, Mr. Paey filled a prescription for 100 pills of oxycodone, a prescription for 100 pills of hydrocodone, and a prescription for 80 pills of diazepam. On March 6, 1997, Mr. Paey filled a prescription for 100 pills of oxycodone and a prescription for 80 pills of diazepam. On March 10, 1997, Mr. Paey filled a prescription for 100 pills of oxycodone and a prescription for 100 pills of hydrocodone. To summarize, Mr. Paey filled prescriptions for 700 oxycodone pills, 400 hydrocodone pills, and 320 diazepam pills over the course of thirty-four days. Dr. Nurkiewicz, the State's key witness, testified that he did not write any of these prescriptions.
     A jury found Mr. Paey guilty of seven counts of trafficking in oxycodone, four counts of possession of hydrocodone, and four counts of obtaining or attempting to obtain a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge. The trial court sentenced Mr. Paey to a twenty-five-year mandatory minimum prison sentence for each trafficking count in accordance with section 893.135(1)(c)(1)(c), Florida Statutes (Supp. 1996). For each possession count and obtaining by fraud count, the trial court sentenced Mr. Paey to imprisonment for one year and one day. The trial court designated all of the sentences to be served concurrently.
     Mr. Paey argues that the mandatory minimum sentencing framework in section 893.135(1)(c)(1)(c) violates the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution and the cruel or unusual punishment clause of a former version of article I, section 17 of the Florida Constitution. We disagree. However, before we proceed to our analysis, we pause to explain how Mr. Paey could be convicted of "trafficking in illegal drugs" under section 893.135(1)(c)(1) in the absence of proof that he sold any illegal drugs. As used in section 893.135(1)(c)(1), "trafficking in illegal drugs" is a term of art. Under this statute, a person need not sell anything to commit the "trafficking" offense. In addition to selling, purchasing, manufacturing, delivering, or importing a proscribed substance, a person may commit the offense by knowingly being in actual or constructive possession of an enumerated controlled substance in a quantity equal to or greater than a weight designated by statute. In Mr. Paey's case, there was no evidence that he was knowingly selling, manufacturing, or delivering oxycodone. Instead, Mr. Paey was convicted of trafficking in oxycodone because the State proved that he knowingly possessed at least four grams of oxycodone or four grams of any mixture containing oxycodone. Thus Mr. Paey's lengthy prison sentences are based on a jury verdict that he knowingly possessed at least twenty-eight grams of oxycodone or twenty-eight grams of any mixture containing oxycodone. See  893.135(1)(c)(1)(c).
     The Eighth Amendment to the United States Constitution states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."      
     Historically, the Eighth Amendment has protected individuals with respect to the method of punishment, not the length of a period of incarceration. The United States Supreme Court has not reached a consensus on the standard to be applied in assessing the constitutionality of long prison sentences. See generally Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003) (plurality opinion) (explaining the Supreme Court's history of analyzing Eighth Amendment issues). However, in 2003, a majority of the Court agreed that "[t]hrough th[e] thicket of Eighth Amendment jurisprudence, one governing legal principle emerges as 'clearly established' "-that a "gross disproportionality principle is applicable to sentences for terms of years." Lockyer v. Andrade, 538 U.S. 63, 72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). [**8] 
     As a review of the Supreme Court cases on Eighth Amendment questions reveals, successful proportionality challenges in noncapital cases have been exceedingly rare. In Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980), the Court held that a sentence of life imprisonment with the possibility of parole for a three-time offender did not violate the Eighth Amendment even though the triggering offense was a conviction for felony theft by obtaining $120.75 by false pretenses. Two years later, in Hutto v. Davis, 454 U.S. 370, 102 S. Ct. 703, 70 L. Ed. 2d 556 (1982), the Court held that a sentence of two consecutive terms of twenty years' imprisonment for possession with intent to distribute nine ounces of marijuana and distribution of marijuana was constitutional. The first and only case in which the Supreme Court has invalidated a prison sentence because of its length was Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). The defendant in Solem, who had previously been convicted of six nonviolent felonies, was sentenced to life imprisonment without the possibility of parole for writing a "no account" check for $100. The Court's proportionality analysis was "guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Id. at 292. The Court concluded that the sentence of life imprisonment without the possibility of parole was "the penultimate sentence for relatively minor criminal conduct" and was "significantly disproportionate" to the crime.
      Since Solem, the Court has heard only two cases in which a sentence has been challenged on proportionality grounds. The Court upheld both sentences, without agreeing on a rationale. In Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), the defendant was convicted of possessing 672 grams of cocaine and sentenced to a mandatory term of life in prison without parole. A majority of the court concluded that the sentence imposed did not violate the Eighth Amendment. Justice Scalia, joined by Chief Justice Rehnquist, opined that proportionality review should apply only in death penalty cases. Justice Kennedy, joined by Justices O'Connor and Souter, interpreted the Eighth Amendment as forbidding only extreme sentences that are " 'grossly disproportionate' " to the crime. Looking at the three criteria used in Solem, Justice Kennedy concluded that the second and third factors, which involve an intrajurisdictional and interjurisdictional comparison, should be used only in the rare instance in which an inference of gross proportionality exists based on the gravity of the offense and the harshness of the sentence. The four-member dissent criticized Justice Kennedy for abandoning the second and third factors because it "makes any attempt at an objective proportionality analysis futile."
     Twelve years after Harmelin, the Supreme Court could still not reach a rationale for an Eighth Amendment analysis that would command a majority in Ewing, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108. The defendant in Ewing was convicted of felony grand theft for shoplifting three golf clubs, each valued at $399. Id. at 18. Because of his prior convictions, the defendant was sentenced to prison for twenty-five years to life under California's "Three Strikes and You're Out" law. Writing for a plurality of three, Justice O'Connor applied Justice Kennedy's analysis in Harmelin and concluded that the sentence was not grossly disproportionate to the crime. Justices Scalia and Thomas concurred in the judgment but argued that prison sentences should not be subject to a proportionality analysis. The dissenters argued that Ewing was one of the rare cases in which a court can say that the "punishment is 'grossly disproportionate' to the crime."
     The Florida Supreme Court has required that at a minimum a prison sentence must be grossly disproportionate to the crime to constitute cruel and unusual punishment solely because of its length. Adaway v. State, 902 So. 2d 746, 750 (Fla. 2005). This conclusion is directly supported by the U.S. Supreme Court which has stated that the one principle clearly established in its case law was that a gross proportionality analysis is applicable to sentences for terms of years. Based on these principles, Mr. Paey must demonstrate that his sentences are grossly disproportionate to his convictions for his sentences to constitute cruel and unusual punishments that violate the Eighth Amendment.
     We conclude that Mr. Paey's mandatory minimum sentences of twenty-five years' imprisonment are not grossly disproportionate to his crime of trafficking in oxycodone. As a reviewing court, we are required to grant substantial deference to the broad authority that the Florida Legislature possesses in determining the types and limits of punishments for crimes. Beginning in Rummel, the Supreme Court has stressed the important role that a legislature plays in the criminal justice system by noting that for crimes punishable by terms of imprisonment, "the length of the sentence actually imposed is purely a matter of legislative prerogative." Justice Scalia's discussion in Harmelin of why a legislature is in the best position to assess the gravity of a crime is particularly pertinent to Mr. Paey's case: But surely whether it is a "grave" offense merely to possess a significant quantity of drugs—thereby facilitating distribution, subjecting the holder to the temptation of distribution, and raising the possibility of theft by others who might distribute—depends entirely upon how odious and socially threatening one believes drug use to be. Would it be "grossly excessive" to provide life imprisonment for "mere possession" of a certain quantity of heavy weaponry? If not, then the only issue is whether the possible dissemination of drugs can be as "grave" as the possible dissemination of heavy weapons. Who are we to say no? The members of the [] Legislature, and not we, know the situation on the streets . . . .

              The Florida statutes addressing the subject demonstrate that the legislature considers oxycodone to be a potentially dangerous substance. Section 893.03 contains standards and schedules for controlled substances. Oxycodone, a derivative of opium, is listed as a Schedule II substance. "A substance in Schedule II has a high potential for abuse" and "abuse of the substance may lead to severe psychological or physical dependence." 893.03(2)(a). Because of oxycodone's high potential for abuse and the effects of such abuse, the Florida Legislature could rationally conclude that the threat posed to the individual and to society by possession of at least twenty-eight grams of oxycodone is sufficient to warrant the deterrent and retributive effect of a twenty-five-year mandatory minimum sentence.
      To support the argument that his twenty-five-year mandatory minimum sentences are cruel and unusual punishments, Mr. Paey points to the fact that he had no prior criminal history and that his crime was not a violent crime. However, it is not unconstitutional to impose a mandatory term of imprisonment without regard to the absence of prior convictions. Additionally, the lack of violent behavior does not always determine the strength of society's interest in deterring a particular crime. The Supreme Court has declared that the "[p]ossession, use, and distribution of illegal drugs represent 'one of the greatest problems affecting the health and welfare of our population.' "Thus the Florida Legislature could reasonably decide that trafficking in oxycodone is serious enough to warrant a significant term of imprisonment even in the absence of a prior offense or violent behavior. Consequently, the circumstances that Mr. Paey relies upon to argue that his sentences are unconstitutional do not persuade us to engage in "the basic line-drawing process that is 'properly within the province of legislatures, not courts.'"
     The twenty-five-year mandatory minimum prison sentence the Florida Legislature prescribed in section 893.135(1)(c)(1)(c) for trafficking in twenty-eight or more grams of oxycodone falls within the outer limits of a rational weighing of the alternatives concerning an appropriate prison term for this offense. This is not one of those rare cases in which the sentence imposed is so grossly disproportionate in comparison to the crime committed that it is cruel and unusual. For this reason, we hold that Mr. Paey's sentences for trafficking in oxycodone do not violate the Eighth Amendment's prohibition against cruel and unusual punishments.