William James RUMMEL, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee, 587 F.2d 651

THORNBERRY, Circuit Judge: This is a habeas corpus case in which the petitioner, William Rummel, challenges his life sentence under the Texas habitual criminal statute as cruel and unusual punishment in violation of the eighth amendment. A panel of this court held that his sentence violated the eighth amendment because his sentence was grossly disproportionate to his crimes. Rummel v. Estelle, 568 F.2d 1193 (5 Cir. 1978). The court has reheard this important case en banc and vacates the panel opinion. I.

Facts As stated by the panel opinion, the relevant facts are: In January 1973, a Texas grand jury indicted Rummel for the felony offense of obtaining $120.75 under false pretenses. The indictment also charged him with having two prior felony convictions: In 1964 he presented a credit card with the intent to defraud of approximately $80, and in 1969 he passed a forged instrument with a face value of $28.36. Rummel pled not guilty to the false pretense indictment, but a jury found him guilty as charged.

After the state proved his two prior convictions, Rummel received an enhanced sentence of life imprisonment under the Texas habitual criminal statute then applicable, Tex.Penal Code Ann. art. 63 (Vernon 1925). On appeal, the Texas Court of Criminal Appeals affirmed his conviction. Rummel v. State, 509 S.W.2d 630 (Tex.Cr.App.1974). Rummel applied for postconviction relief and raised in the Texas courts the issues now before us, but his application was denied without a hearing. Then Rummel sought habeas corpus relief in the federal district court, which also denied his petition without a hearing. 568 F.2d at 1195.

II. As a preliminary matter, the State suggests that Rummel’s petition is barred by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and the Texas “Contemporaneous Objection Rule” because Rummel failed to object to the mandatory life sentence at the punishment stage of his trial. In Sykes, the Court recognized the legitimate state interest inherent in a contemporaneous objection rule. See St. John v. Estelle, 563 F.2d 168 (5 Cir. 1977) (en banc).

Since it is apparent that the Texas Court of Criminal Appeals has repeatedly rejected Rummel-like challenges to the Texas habitual criminal statute, we are at a loss to see how any state interest would be served by demanding that Rummel make a futile gesture at his trial. Moreover, Texas apparently does not require a contemporaneous objection when a defendant challenges the constitutionality of the statute under which he was convicted. Gann v. Keith, 151 Tex. 626, 253 S.W.2d 413, 417 (1952). III.

The Panel Opinion The panel majority held that Rummel’s life sentence under the Texas recidivist statute must be considered one for the entire term of Rummel’s life, irrespective of any consideration of statutory good time. The majority reasoned that to consider good time credits would require the court to become involved in the parole process. 568 F.2d at 1196. Next, the court adopted the proportionality standards set out in Hart v. Coiner, 483 F.2d 136 (4 Cir. 1973), cert. denied, 415 U.S. 983, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974). Id.

Finally, the panel held that under these standards Rummel’s life sentence violated the eighth amendment. Id. at 1200. IV. The initial question we must answer is: Does the eighth amendment prohibit some prison sentences for minor offenses solely because of their length? The State argues that this court is without power under the eighth amendment to review any prison sentence within the legislatively created maximum. And, to be sure, there is language in some of our opinions and elsewhere that supports this argument.

On the other hand, Rummel argues that an excessively long prison sentence for a trivial crime can be cruel and unusual punishment. Rummel, too, is aided by language in our opinions and elsewhere. As has been frequently noted, the Supreme Court has never held a punishment unconstitutional because of length alone. We do know, however, that each of the nine Supreme Court Justices, at least in death cases, has embraced the proportionality concept. Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1976) (White, Stewart, Blackmun, Stevens, JJ., plurality opinion); Gregg v.

Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (Stewart, Powell, Stevens, JJ., plurality opinion); Furman v. Georgia, 408 U.S. 238, 272 n.14, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring); id. at 458, 92 S.Ct. at 2838 (Burger, Powell, Blackmun, Rehnquist, JJ., dissenting opinion). Were this a question of history alone, we must admit that we would have great difficulty in accepting the proportionality analysis, despite the efforts to demonstrate to the contrary.

See Granucci, “Nor Cruel and Unusual Punishment Inflicted: The Original Meaning,” 57 Calif.L.Rev. 839 (1969), Comment, “The Eighth Amendment, Beccaria, and the Enlightment: An Historical Justification for the Weems v. United States Excessive Punishment Doctrine," 24 Buffalo L.Rev. 783 (1975). We conclude, however, that as a result of jurisprudential development the eighth amendment’s cruel and unusual punishment provision also prohibits unreasonable punishment, and a component of unreasonable punishment can be an excessive sentence for a trivial offense. As early as Rogers v.

United States, 304 F.2d 520, 521 (5 Cir. 1962), the court recognized that a punishment could be cruel and unusual if “it is so greatly disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice.” We do not wish to retreat from this rule and therefore we conclude that the eighth amendment does proscribe some punishments that are so disproportionate as to have no rational support. As the Second Circuit has recently said in Carmona v.

Ward, 576 F.2d 405, 409 (2 Cir. 1978), cert. denied, - U.S. -, 99 S.Ct. 874, 58 L.Ed.2d--(1979) “[W]e accept the proposition that in some extraordinary instance a severe sentence imposed for a minor offense could, solely because of its length, be a cruel and unusual punishment.” V. Since we have concluded that some criminal sentences can be so disproportionate as to amount to cruel and unusual punishment, the question then becomes one of the proper standard to apply. First, we hold that a punishment must be viewed as it occurs in the real world.

We will consider the system as it actually works and we will not pass on academic possibilities. Second, we will at all times be mindful that it is the legislature that selects the range of punishments and it is our duty to uphold the legislature if there is any rational basis for so doing. We will remember that the petitioner challenging his sentence carries a heavy burden, Gregg v.

Georgia, 428 U.S. 153, 96 S.Ct. 2909, 2926, 49 L.Ed.2d 859 (1976), and the petitioner does not discharge this burden merely by showing that he is treated more harshly than he would be treated in another state or by positing a more rational system than the one adopted by the legislature. Finally, we must remember that we can uphold a punishment as judges and disagree with that punishment as men. Our ultimate disagreement with the panel opinion is not that it applied the Hart v. Coiner standards, three of which we adopt today, but from its failure to uphold a sentence if there is any rational basis for so doing.

VI. A. The Texas Habitual Criminal Law Recidivist statutes have been upheld many times against a variety of challenges. The starting point of our analysis is that

Article 63 is constitutional. In Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 651, 17 L.Ed.2d 606 (1967), the Court said: No claim is made here that recidivist statutes are themselves unconstitutional, nor could there be under our cases. Such statutes and other enhanced-sentence laws . . . have been enacted in all the States, and by the Federal Government as well. . . .

Such statutes, though not in the precise procedural circumstances here involved, have been sustained in this Court on several occasions against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities. [Citations omitted.]

Article 63 provides: Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary. Texas strictly construes this provision. Before one can be sentenced under the enhanced penalty provision, the State must prove that each succeeding conviction was subsequent to both the commission of and conviction for the preceding offense. Tyra v. State, 534 S.W.2d 695, 698 (Tex.Cr. App.1976). Moreover, the defendant must actually have gone to prison before the State can use the previous conviction for enhancement, Cromeans v.

State, 160 Tex. Cr.R. 135, 268 S.W.2d 133, 135 (1954), and no conviction can be used for enhancement more than one time when establishing the habitual criminal status, Carvajal v. State, 529 S.W.2d 517, 521 (Tex.Cr.App.1975), cert. denied, 424 U.S. 926, 96 S.Ct. 1139, 47 L.Ed.2d 336 (1976); Ex Parte Montgomery, 571 S.W.2d 182, 183 (Tex.Cr.App.1978). In practice the following events must happen before

Article 63 is ever called into question:

(1) A defendant must be convicted of a felony and must be sent to prison.

(2) After the defendant has been convicted of the first felony, he must be convicted of a second felony. Again, the defendant must be given a prison term.

(3) After the defendant has been convicted of the second felony and sent to prison for the second time, the defendant must be convicted of a third felony. Most American jurisdictions do not interpret their recidivist statutes as strictly as Texas. According to Note, “Don’t Steal a Turkey in Arkansas — The Second Felony Offender in New York,” 45 Fordham L.Rev. 76, 78-79 (1976): Other states require that the defendant have been previously convicted, sentenced and “placed on probation, paroled, fined or imprisoned. . . . ” Florida demands a “formal adjudication of guilt,” ..

In other jurisdictions, a verdict or a plea of guilty is all that is necessary to implement added sanctions. Other opinions indicate that simultaneous, multiple convictions may be used for the purpose of applying recidivist statutes. [footnotes renumbered] B. Texas Good Time Credit The panel majority held that it could not consider good time credits. This holding is inconsistent with at least two other Fifth Circuit cases. Brown v. Wainwright, 574 F.2d 200, 201 (5 Cir. 1978) substitued opinion 576, 1148 (1978); Rodriguez v. Estelle, 536 F.2d 1096, 1097 (5 Cir. 1976).

The majority of the court sitting en banc has determined that Brown and Rodriguez establish the better rule for several reasons. First, Brown and Rodriguez are consistent with our view that the court is to look at the system realistically. To ignore the Texas good time system is to close our eyes to reality. Second, to assume Rummel’s sentence is one for life absolutely is to import a sentence unknown to Texas law. Third, we cannot assume, even though good time credits are not vested rights, that Texas will act arbitrarily, capriciously and unconstitutionally in administering its good time scheme.

Fourth, we note that reasoned authority in other jurisdictions consider the parole probability in reviewing sentences under the eighth amendment. In Carmona v. Ward, supra at 413-414, the Second Circuit stated: We cannot agree that the recognized probability of parole in the cases before us was to be ignored when the court determined whether the statutory punishment was unconstitutional as applied to appellees.

On the one hand, we are asked to look at all the circumstances which would ameliorate the seriousness of petitioners’ offenses and their individual culpability in order to justify a finding that their punishment was constitutionally offensive. On the other hand, we are asked in effect to consider the appellees so incorrigible that they must be deemed destined to durance vile for the rest of their natural lives because they will never be paroled. We do not consider this to be a realistic or practical approach. See 61 Calif.L.Rev. 418, 422 (1973).

We are told that the New York Parole Board is stringent, that it lacks standards and that its determinations are beyond the jurisdiction of the federal court. The suggestion that the federal court act as a New York parole board determining which prisoner should be released and under what conditions is not at all palatable as a practical matter, Wolfish v. Levi, 573 F.2d 118, 120 (2d Cir. 1978), to say nothing of the offense to the principles of comity and federalism. Cf. Rizzo v. Goode, 423 U.S. 362, 378-81, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976).

This court has properly reviewed cases where state prisoners have alleged denial of due process rights or other constitutional imperfections in parole procedures. There is no reason to anticipate that either the petitioners here will be denied a constitutionally proper parole hearing or that the federal courts will hesitate to intervene if their constitutional rights are violated in the state proceedings. We conclude that in determining the severity of the sentences imposed here we cannot consider them equivalent to life sentences without parole.

Rather we must view the punishment as set forth by the statute which provides that the defendants here are eligible for parole, as are all other felons in the state, at the conclusion of their mandatory minimum sentences. In Texas, a prisoner is eligible for parole after receiving credit for twenty years’ imprisonment or after serving one third of his sentence, whichever is less. Tex.Code Crim.Pro.Ann. art. 42.12 § 15(a) (Vernon 1974). Since Rummel is serving a life sentence, he is eligible for parole after accruing credit for twenty years. Texas employs a well-developed system of awarding good time credits.

Class I prisoners earn twenty days “good time” per month. Class II prisoners earn ten days “good time” per month, Tex.Civ.St.Ann. art. 61841 (Vernon 1974), and State-approved trusties earn thirty days credit for each thirty days service. Tex.Penal Code Ann. art. 61841 (Vernon 1974). Thus, a State-approved trusty can serve a life sentence in ten years. The State of Texas argues that its “good time” system is the most liberal in the country.

Were we to judge this assertion, we would require more study, however, the State has provided us with a compendium of each state’s good time credit system, and it appears that the Texas system compares favorably with most jurisdictions. This, we are told, is not an accident nor an example of Texas’ munificence, but a part of a very definite plan. As a popular journal has stated: Although the prisoners are not permitted by Texas law to earn money for their work, the prison does pay therh in time. State Approved Trusties (SAT) — half the inmate population — draw two-for-one good time.

Every month they serve puts two months in their time accounts; a man with ten remaining years who is made an SAT serves those ten years in five calendar years. Good time earned also brings parole-eligibility dates closer. The men in the Line are in one of three grades. Lines II and III are disciplinary: Line II draws forty days for every thirty days served, and Line III draws day for day. Everyone else, even men just arriving at the Diagnostic Unit in Huntsville in custody of their county sheriffs, is Line I, which draws fifty days for every thirty served.

Texas has the most liberal good-time laws in the country, which is curious since Texas also gives the longest sentences and is the most reluctant to grant parole. The good-time grades are particularly important at Ellis, where there are so many men doing heavy time and so few who have much chance of being paroled. A change in grade from SAT to Line III doubles the years ahead to be served. Men with trusty jobs are very careful.

George Beto, Estelle’s predecessor as TDC director and now on the faculty in the criminal justice program at Sam Houston State University, used to tell visitors that the administration of good time and the presence of the Line kept inmates working hard in school programs and behaving properly on other jobs. Jackson, Hard Time, Texas Monthly, December 1978, 138 at 258. Considering Texas’ good time system, the inevitable conclusion is that Rummel can be eligible for parole at the end of twelve calendar years, or considering his trusty status, even earlier. VII.

Both the panel majority and Hart looked to the nature of the crime in determining whether a particular legislatively selected punishment offended the eighth amendment’s proportionality element. The en banc majority agrees that looking to the nature of the offense is an inexorable part of proportionality analysis. Our disagreement with the panel majority is, however, that it failed to apply the first principle of our analysis — that every inference is to be made in favor of the selected punishment and that it erred by” looking to the underlying offenses to establish the asserted triviality of the offenses.

We adopt the dissent’s reasoning that “Rummel was not sentenced to life imprisonment for stealing $230.00; the life sentence resulted from his having committed three separate and distinct felonies under the laws of Texas.” Rummel v. Estelle, 568 F.2d 1193, 1201 (5 Cir. 1978) (dissenting opinion). As put another way by the Second Circuit: The recidivists’ statutes which provide for longer sentences for repeat offenders present an example of a penalty created by the legislature because of considerations other than the specifics of the final underlying crime. Carmona v. Ward, 576 F.2d at 411 n.9.

Rummel asserts that all of his offenses were “nuisance offenses”; if we were to judge this statement, we doubt that we could so blandly characterize his behavior. Manifestly, however, Rummel has demonstrated by his past behavior that he is unable to conform himself to the rules of society. Texas has justifiably found Rum-mel to be a habitual criminal and has imprisoned him for this reason. It is beyond peradventure that Texas intends to punish Rummel with at least a ten year sentence. And this does not violate the eighth amendment.

Beyond that, the burden is on Rummel to prove by his good behavior and diligent work that he is entitled to a place in free society. VIII. The panel majority argued that comparison of Rummel’s sentence with the sentences imposed in other jurisdictions confirms the gross disproportionality of Rum-mel’s sentence. 568 F.2d at 1199. We believe that the evidence on this point is, at best, inconclusive. Of course, if the court is forced to assume that Rummel’s sentence is automatically and invariably one for his natural life, then the majority’s assertion is probably accurate.

However, we have rejected this approach and have held that the likely probability of Rummel’s jail term should be compared with the experience of other states. This Rummel has not done, and our research suggests that Rum-mel’s actual jail time would not be significantly longer in Texas than his jail time in many other states. The record in this case reveals that Rum-mel was convicted of a fourth felony on the same day he was sentenced under Texas habitual offender statute.

Three states punish a three time offender with a mandatory life sentence, and three states provide for a discretionary life sentence for a three time offender. Three states punish a four time offender with a mandatory life sentence, and eight states provide for a discretionary life sentence for a four time offender. Given these facts, it appears that up to a possible six states would sentence Rummel to a life term and up to eleven states would give discretion to the court to determine Rummel’s sentence.

On the face of the record before us, we feel confident that few if any of the eleven discretionary states would sentence Rum-mel to the maximum discretionary life term. However, it is most important to remember that the record we have before us was developed under the particularly peculiar Texas system, and since we do not have occasion to examine the full extent of Rummel’s record, we cannot in complete confidence hold that no one of the discretionary states would sentence Rummel to a life sentence or a sentence that is essentially equal to the one Rummel is serving.

Finally, Rummel has made no attempt to demonstrate what the actual jail times in the various jurisdictions would amount to. An example will illustrate our point. Suppose that State A gives a ten year sentence for theft and State B gives a thirty year sentence for the same theft. State A has a practice of fixed and determinate sentence and does not award early release based on good time or discretionary parole. State B, however, is similar to Texas and through long experience it can be shown that the thirty year sentence amounts to about ten years’ imprisonment.

Can it justifiably be said that State B punishes the theft three times more severely than State A? This court thinks not. A variation of this very possibility might be found in our own circuit. In Georgia, upon conviction of the fourth felony, the defendant receives the mandatory maximum without parole. Ga.Code Ann. § 27-2511. Rummel’s equivalent offense in Georgia is theft by deception, Ga.Code Ann. § 26-1803, and the maximum penalty is ten years, Ga.Code Ann. § 26 — 1812. Considering the no parole provision, Rummel’s imprisonment in Georgia would be approximately the same as his imprisonment in Texas. IX.

The panel majority held that a “[C]om-parison of Rummel’s sentence with the punishment accorded other crimes under Texas law” highlighted the irrational severity of Rummel’s punishment. 568 F.2d at 1199. The majority compared Rummel’s underlying crimes with the various Texas penalties selected for a single act. This comparison is inappropriate in this case. If this challenge were to a sentence for one act of theft, then the comparison between the sentence given for the theft and the sentence given for murder or rape would be appropriate.

But this is not the case, Rummel’s sentence resulted from his status as a habitual criminal. X. Finally, the panel majority adopted from Hart a test that “seeks to determine whether a significantly less severe punishment could achieve the purposes for which the challenged punishment is inflicted.” 568 F.2d at 1198 citing Hart, 483 F.2d at 141. We reject that test as a part of the appropriate proportionality analysis. This test was taken from Justice Brennan’s concurring opinion in Furman v. Georgia, 408 U.S. 238, 300, 92 S.Ct. 2726, 2757-2758, 33 L.Ed.2d 346 (197:2). Mr.

Justice Brennan’s opinion stated a “lack of necessity” test or a “less drastic means” test: “Although the determination that a severe punishment is excessive may be grounded in a judgment that it is disproportionate to the crime, the more significant basis is that the punishment serves no penal purpose more effectively than a less severe punishment.” This test has never commanded a majority in the Supreme Court, even in death cases. And the very circuit that has given us Hart declared, in Hall v.

McKenzie, 537 F.2d 1232, 1235 (4 Cir. 1976), that death “occupies a special place in eighth amendment jurisprudence.” We believe that this passage from Wheeler, “Toward a Theory of Limited Punishment II: The Eighth Amendment After Furman v. Georgia," 25 Stanford L.Rev. 62, 77-78, succinctly expresses our reasons for not adopting the Hart “lack of necessity” test. The Brennan-Marshall necessity test is even more impractical in other eighth amendment adjudication, where the empirical data and long usage associated with capital punishment are absent.

If a convict were to challenge the length of his prison sentence or the length of the statutory maximum as being unnecessary to deter potential criminals from committing the same crime he committed, I am convinced that the government could never show that 10 years’ imprisonment deters more effectively than 5 years’ imprisonment or that one year in jail deters more effectively than a $500 fine. The problem would be even more substantial for a new punishment. If the government attempted to employ a new punishment, it would be impossible to adduce empirical data proving its necessity for deterrence purposes.

Thus, if the purpose of the punishment was to increase deterrence, it would be unconstitutional because its necessity was unproved. XI. Perhaps, the Texas habitual offender law and the Texas scheme that has developed under the law is not in accord with notions of modern penology, but our task is not to prod the State into adopting the latest theory of penal reform. The science of penology is an imprecise one that offers us few sure answers. The Supreme Court has said this many times but the best statement is from Gore v.

United States, In effect, we are asked to enter the domain of penology, and more particularly that tantalizing aspect of it, the proper apportionment of punishment. Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, see Radzi-nowicz, The History of English Criminal Law: The Movement for Reform, 1750-1833, passim, these are peculiarly questions of legislative policy. 357 U.S. 386, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405.

The legislature in our society selects the punishment scheme and we are justified to strike down the legislature’s choice only when the petitioner demonstrates that the legislative choice has no rational basis and is totally and utterly rejected in modern thought. So long as there is room for debate, the choice of the legislature will not be overturned. Rummel places great reliance on the fact that all of his crimes were nonviolent.

If a state were to limit its recidivist statute to only those who have been convicted of violent crimes, the state would have made a rational choice and perhaps a more rational choice than it has made in

Article 63. But Rummel cannot gain any advantage by positing a more rational system than the one in existence: He must demonstrate that the system in existence is an irrational one. After three felony convictions and two ineffectual prison terms, the State of Texas has chosen to place the burden on the offender to prove his entitlement to a place in society. This is not an irrational choice, and to many, one that is not particularly callous. We do not think that Texas has adopted a system that is cruel and unusual in violation of the eighth amendment, even as applied to William Rummel. XII.

Rummel also alleges that his trial counsel was ineffective at his state trial. The panel did not reach this issue, and we deem the issue unworthy for en banc treatment in the first instance. We therefore remand this issue to the panel for its decision on this matter. XIII. We affirm the district court’s denial of habeas corpus relief on the eighth amendment issue. We remand the sixth amendment issue to the panel for its original consideration. AFFIRMED in part; REMANDED to the panel in part. Appendix to follow. . Rummel was convicted under Tex.Penal Code Ann. art. 63 (Vernon 1925). This

article provides: Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary. With slight rewording, this provision is carried into the new Texas Penal Code. The provision is now found at Tex.Penal Code Ann. § 12.42(d) (Vernon 1974). The statute in various forms has been the law in Texas since 1856. See Tex.Laws 1856, Paschal, Digest of Texas Laws, art. 2464 (1866). . Shaver v. State, 496 S.W.2d 604 (Tex.Cr.App. 1974); Rogers v. State, 486 S.W.2d 786 (Tex. Cr.App.1972); Flores v.

State, 472 S.W.2d 146 (Tex.Cr.App. 1971); Vandall v. State, 438 S.W.2d 578 (Tex. Cr.App. 1969); Ex Parte Reyes, 383 S.W.2d 804 (Tex.Cr.App.1964); Mackie v. State, 367 S.W.2d 697 (Tex.Cr.App. 1963); Young v. State, 170 Tex.Cr.R. 498, 341 S.W.2d 911 (1960); Redding v. State, 159 Tex. Cr.R. 535, 265 S.W.2d 811 (1954). . Salazar v. Estelle, 547 F.2d 1226, 1227 (5 Cir. 1977) (semble); Rener v. Beto, 447 F.2d 20, 23 (5 Cir. 1971), cert. denied, 405 U.S. 1051, 92 S.Ct. 1521, 31 L.Ed.2d 787 (1972); Castle v. United States, 399 F.2d 642, 652 (5 Cir. 1968); Ginsberg v. United States, 96 F.2d 433, 437 (5 Cir. 1938). .

Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 565, 54 L.Ed. 793 (1910) (cases cited in dissenting opinion); Downey v. Perini, 518 F.2d 1288, 1292 (6 Cir. 1975) (dissenting opinion), vacated on other grounds, 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975); United States v. Pruitt, 341 F.2d 700, 703 (4 Cir. 1964); Anthony v. United States, 331 F.2d 687, 693-94 (9 Cir. 1964); Smith v. United States, 273 F.2d 462, 467-68 (10 Cir. 1959), cert. denied, 363 U.S. 846, 80 S.Ct. 1619, 4 L.Ed.2d 1729 (1960); Edwards v. United States, 206 F.2d 855, 857 (10 Cir. 1953); United States v.

Rosenberg, 195 F.2d 583, 604 (2 Cir.), cert. denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652 (1952); United States v. Sorcey, 151 F.2d 899, 902 (7 Cir. 1945), cert. denied, 327 U.S. 794, 66 S.Ct. 821, 90 L.Ed. 1021 (1946); Gurera v. United States, 40 F.2d 338, 340 (8 Cir. 1930); Parker v. Bounds, 329 F.Supp. 1400, 1402 (E.D.N.C. 1971); Ormento v. United States, 328 F.Supp. 246, 257 (S.D.N.Y.1971); Cases cited in footnote 2, supra. . United States v. Bondurant, 555 F.2d 1328, 1329 (5 Cir.), cert. denied, 434 U.S. 871, 98 S.Ct. 215, 54 L.Ed.2d 150 (1977); United States v.

Gamboa, 543 F.2d 545, 548 (5 Cir. 1976); United States v. Thevis, 526 F.2d 989, 991 (5 Cir. 1976); Bonner v. Henderson, 517 F.2d 135, 136 (5 Cir. 1975); Capuchino v. Estelle, 506 F.2d 440, 442 (5 Cir. 1975); United States v. Harbolt, 455 F.2d 970 (5 Cir. 1972); Yeager v. Estelle, 489 F.2d 276 (5 Cir. 1973), cert. denied, 416 U.S. 908, 94 S.Ct. 1616, 40 L.Ed.2d 113 (1974); United States v. Drotar, 416 F.2d 914, 916 (5 Cir. 1969); Rodriquez v. United States, 394 F.2d 825 (5 Cir. 1968); Rogers v. United States, 304 F.2d 520, 521 (5 Cir. 1962). . Moore v. Cowan, 560 F.2d 1298, 1302 (6 Cir. 1977); Roberts v.

Collins, 544 F.2d 168 (4 Cir. 1976); Hall v. McKenzie, 537 F.2d 1232, 1235 (4 Cir. 1976); Downey v. Perini, 518 F.2d 1288 (6 Cir. 1975), vacated on other grounds, 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975); Hart v. Coiner, 483 F.2d 136 (4 Cir. 1973), cert. denied, 415 U.S. 983, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974); Ralph v. Warden, 438 F.2d 786 (4 Cir. 1970), cert. denied, 408 U.S. 942, 92 S.Ct. 2846, 33 L.Ed.2d 766 (1972); Black v. United States, 269 F.2d 38, 43 (9 Cir. 1959); Hemans v. United States, 163 F.2d 228, 237 (6 Cir.), cert. denied, 332 U.S. 801, 68 S.Ct. 100, 92 L.Ed. 380 (1947); State v.

Farrow, 386 A.2d 808 (N.H. 1978); State v. Freeman, 223 Kan. 362, 574 P.2d 950, 956 (1978); State v. Mitchell, 563 S.W.2d 18, 27 (Mo. 1978) (en banc); State v. Remmers, 259 N.W.2d 779, 782 (Iowa 1977); Stockton v. Leeke, 237 S.E. 896, 897-98 (S.C. 1977); State v. Calendine, 233 S.E.2d 318, 330 (W.Va.1977); State v. Lee, 87 Wash.2d 932, 558 P.2d 236, 240 n.4 (1976) (en banc), appeal dismissed, 432 U.S. 901, 97 S.Ct. 2943, 53 L.Ed.2d 1074 (1977); People v.

Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338 (1975), cert. denied, 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 (1975); In Re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 (1973); People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972); Calhoun v. State, 85 Tex. Cr.R. 496, 214 S.W. 335, 338 (1919) (semble); McDonald v. Commonwealth, 173 Mass. 322, 53 N.E. 874, 875 (1899); State ex rel. Garvey v. Whitaker, 48 La.Ann. 527, 19 So. 457 (1896) (semble); State v. Driver, 78 N.C. 423 (1878) (semble). . Rummel’s reliance on Weems v.

United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), must be substantially discounted by the holding in Badders v. United States, 240 U.S. 391, 36 S.Ct. 367, 60 L.Ed. 706 (1916). In Badders, the Court, per Holmes, J., summarily dismissed a proportionality attack on a five year sentence for mail fraud. . Recently, the Fourth Circuit has apparently seen the difficulty in applying Hart v. Coiner to its fullest extent. In Davis v. Davis, 585 F.2d 1226 (1978), reversing Davis v.

Zahradnick, 432 F.Supp. 444 (W.D.Va.1977), the Fourth Circuit refused to overturn a forty year sentence for possessing and distributing approximately nine ounces of marijuana. The Fourth Circuit stated that the Hart inquiry was limited to cases in which a life sentence is imposed. Id. Interestingly, the Fourth Circuit relied on Yeager v. Estelle, 489 F.2d 276 (5 Cir. 1973), cert. denied, 416 U.S. 908, 94 S.Ct. 1616, 40 L.Ed.2d 113 (1974). In Yeager, we upheld a 500 year sentence for murder with malice.

Considering Texas law, we are unable to distinguish between Yeager’s 500 year sentence and Rummel’s life sentence. Therefore, we will not follow the Fourth Circuit’s lead and limit our inquiry to life cases. In Texas, a life sentence has essentially the same effect as one for sixty years. Certainly, the inquiry must be the same in both cases. . Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1961); Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948); Graham v. West Virginia, 224 U.S. 616, 623 (1912); McDonald v.

Massachusetts, 180 U.S. 311, 312, 21 S.Ct. 389, 45 L.Ed. 542 (1901); Moore v. Missouri, 159 U.S. 673, 677, 16 S.Ct. 179, 40 L.Ed. 301 (1895); Wilson v. Slayton, 470 F.2d 986 (4 Cir. 1972); Wessling v. Bennett, 410 F.2d 205 (8 Cir. 1969); Price v. All-good, 369 F.2d 376 (5 Cir. 1966), cert. denied, 386 U.S. 998, 87 S.Ct. 1321, 18 L.Ed.2d 349 (1967); see generally, Katkin, Habitual Offender Laws: A Reconsideration, 21 Buffalo L.Rev. 99 (1971). . This

section is new, however. If the felony is a third degree felony, the trial judge has the discretion under present Texas law to reduce the offense to a first degree misdemeanor. Tex.Penal Code Ann. § 12.44 (Vernon 1974). . Iowa’s

interpretation is similar to the Texas view: Our statute dictates that each offense must have been complete as to conviction, sentence and commitment to prison before the commission of the next in order that it qualify for application of the enlarged punishment of [Iowa’s habitual offender statute]. State v. Tillman, 228 N.W.2d 38, 41 (Iowa 1975). . State v. Abernathy, 515 S.W.2d 812, 814 (Mo.Ct.App.1974) (emphasis added). Accord, Lis v. State, 327 A.2d 746, 748 (Del.Supr.1974). . E. g., Woods v. Mills, 503 S.W.2d 706 (Ky.Ct.App.1974). . E. g., Cox v. State, 255 Ark. 204, 499 S.W.2d 630 (1973); State v.

Williams, 226 La. 862, 77 So.2d 515 (1955). . According to the respondent, only five states —Alabama, Arizona, Delaware, Georgia, and Tennessee — provide for a life sentence without possibility of parole. . Indeed, Rummel has informed this court that he has been a State-approved trusty since March 1, 1977. . We have attached an appendix of various jurisdiction’s good time provisions. . See Davis v. Davis, 585 F.2d 1226 (4 Cir. 1978); Wood v. South Carolina, 483 F.2d 149 (4 Cir. 1973). .

Rummel suggests that even if he is paroled, he is still on probation and lifetime probation is in itself cruel and unusual punishment. This argument need not detain us long. We cannot understand how a lifetime requirement of good behavior is too much to ask of a habitual criminal. . Texas Penal Code art. 12.42(d) (Vernon 1974); Wash.Rev.Code § 9.92.090 (perhaps limited by State v. Lee, 87 Wash.2d 932, 558 P.2d 236, 240 n.4 (1976) (en banc); W.Va.Code § 61-11-18 (limited by Hart). . Ark.Stat.Ann. § 41-1001; Idaho Code § 19-2514; Kan.Crim.Code & Code of Crim.Proc. § 21 — 4504. .

Colo.Rev.Stat. § 16-13-101; N.M.Stat.Ann. § 40A-29-5; Wyo.Stat. § 6-1. . Alaska Stat. § 12.55.050; La.Rev.Stat.Ann. § 15-529.1; Mich.Comp.Laws § 28.1084, M.C. L.A. § 769.12; Nev.Rev.Stat. § 207.010; N.J. Stat.Ann. § 2A:85-12; N.C.Gen.Stat. § 14-7.1, 7.6; S.D.Compiled Laws Ann. § 22-7-1; Vt. Stat.Ann. tit. 13, § 11. . Nor do we have occasion to examine the discretion of the prosecutor in bringing the enhanced indictment. But cf. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 671-72, 54 L.Ed.2d 604 (Powell, J., dissenting). . Of course, this detailed comparison of actual practices was not required in Coker v.

Georgia, 433 U.S. 584, 97 S.Ct. 2861, 2867, 53 L.Ed.2d 982 (1977), for obvious reasons. . We cannot know definitely if the Georgia enhancement provision would apply to Rum-mel, but we nevertheless supply this example because there is nothing on the face of the Georgia statute that suggests to us that Georgia would not apply its enhancement statute to Rummel. We wish to underscore the difficulty of comparing the various enhancement statutes to each other. . Mr. Justice White expressed a similar sentiment, 408 U.S. 238, 311, 92 S.Ct. 2726, 2763, 33 L.Ed.2d 346, and, Mr.

Justice Marshall id. at 331, 92 S.Ct. at 2773. . See e. g., Katkin, Habitual Offender Laws: A Reconsideration, 21 Buffalo L.Rev. 99 (1971); Furgeson, The Law of Recidivism in Texas, 13 McGill Law Journal 663, 665 (1967); Note, The Treatment of the Habitual Offender, 7 U. Richmond L.Rev. 525 (1973). . Moreover, this is to totally ignore the difficulty in determining the line between crimes that are violent or have a potential for violence or present a strong social interest. While we have not carefully surveyed the Texas Penal Code, it appears that there are approximately forty-five third degree felonies.

In combinations of three, this yields 45,190 possibilities, and sooner or later, this court could expect to see many of them. Finally, by what authority does Rummel denégrate the interest society has in punishing his crimes? Certainly, Rummel’s victims see the important social interest in deterring his behavior. Would there be a greater social interest if Rummel were to have stolen $2,300, $23,000, or $230,000 rather than the $230 he actually stole? Is it less serious to steal $230 from an elderly widow than to steal $2,300,000 from the First National Bank?