On September 18, 1975, Agents Machauer and Higginbothem of the Jefferson Parish, Louisiana, Sheriff's Department and a paid informant were driving through Westwego, Louisiana to purchase heroin in an undercover capacity. In the course of their search for drugs, the three drove past the residence of petitioner, Ricky J. Terrebonne, whom they knew to be a then twenty-one years-old heroin addict. When the agents' car approached, Terrebonne left his porch and walked to the vehicle. A conversation concerning narcotics ensued. When Terrebonne was asked whether he had any heroin, he replied that he did not, but volunteered to "score a bundle"1 for the car's occupants.2 The agents agreed that Terrebonne should arrange this purchase for them.

Terrebonne was then driven to a phone booth to call his connection. After Terrebonne successfully contacted his connection, he, the two agents, and the confidential informant returned to his residence where he and Agent Machauer awaited the arrival of the connection. During this period of waiting, Terrebonne's brother arrived, and he, along with Agent Machauer, cleaned Terrebonne's syringe and heroin cooker.3

After Terrebonne and Agent Machauer waited a brief time, the connection drove up to the front of Terrebonne's residence. Agent Machauer counted out $175 in bills which he then folded and handed to Terrebonne. Without counting the money, Terrebonne placed the bills into his pocket and left to meet the connection outside.

Terrebonne returned with approximately twenty-two packets of heroin of which he gave Agent Machauer nineteen. In return, he was either given, or allowed to return, two or three of the packets.4

Some months later, Terrebonne was arrested, tried, and convicted of distributing heroin in violation of La.Rev.Stat.Ann. § 40:966A (West 1977) which mandates a life sentence imprisonment term. Following the affirmance of this conviction by the Louisiana Supreme Court, see State v. Terrebonne, 354 So. 2d 1356 (La.1978) (without opinion), Terrebonne sought a writ of habeas corpus in the state courts, contending that the sentence of life imprisonment constituted cruel and unusual punishment in violation of the eighth amendment.5 The denial of this petition was also affirmed by the Louisiana Supreme Court. See State v. Terrebonne, 364 So. 2d 1290 (La.1978).6 Terrebonne now appeals to this court from the district court's denial of his petition for writ of habeas corpus brought under 28 U.S.C. § 2254. For the reasons detailed below, we vacate the district court's order and remand the case for proceedings not inconsistent with this opinion.

Terrebonne contends that his sentence of life imprisonment is disproportionate to his offense and thus violative of the eighth amendment. He does not attack the authority of Louisiana to impose, consonant with the eighth amendment, a sentence of life imprisonment on heroin traffickers. Rather, he contends that, given the facts and circumstances of his offense, a life sentence is so disproportionate as to violate the eighth amendment.

In rejecting this claim, the district court, without opinion, adopted the recommendations of the magistrate who concluded that "(a) careful review of the opinion of the Louisiana Supreme Court . . . and the authority cited therein, discloses that the Louisiana Supreme Court correctly applied the federal constitutional principles. The issue raised in this Court is without merit. It is recommended that this Court adopt the opinion of the Louisiana Supreme Court as its opinion . . . ." Accordingly, we must review the opinion of the Louisiana Supreme Court which contains the rejection of Terrebonne's eighth amendment claim.

Even the most cursory reading of this opinion evidences the fact that the Louisiana Supreme Court never considered Terrebonne's disproportionality claim. After detailing the facts and the procedural posture of the case, the court stated that it has repeatedly upheld the statute's constitutionality and that "(t)he federal courts have likewise upheld its constitutionality."7 364 So.2d at 1291. The court reasoned that "legislative bodies can properly view criminal narcotics sales not as a series of isolated transactions, but as a pernicious system producing widespread societal harm. As so viewed, each distributor is part of the destructive system." Id. at 1292. The court thus held that "the statute is constitutional." Id.

Unfortunately, this holding is completely wide of the mark. Terrebonne does not contend that the statute under which he was convicted and sentenced is facially invalid. Instead, he contends that the statute's application to his offense violates the eighth amendment's prohibition against cruel and unusual punishment because the statute's imposition of life imprisonment for his offense is disproportionate to that crime. This claim is simply not resolved by a holding that the statute is constitutional. Accordingly, the district court erroneously relied on this reasoning; its order can be upheld only if, in the present posture of this case, another basis for affirmance exists. To this inquiry, we now turn.

Our consideration of Terrebonne's disproportionality claim must begin with an examination of the Supreme Court's recent decision in Rummel v. Estelle, --- U.S. ----, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980), which affirmed our decision reported at 587 F.2d 651 (5th Cir. 1978) (en banc). Rummel, who had been convicted and sentenced under the Texas habitual offender statute which mandates a life sentence after a third felony conviction, contended that his sentence was so disproportionate to his offense as to render it cruel and unusual punishment in contravention of the eighth amendment. We rejected this challenge, and the Supreme Court affirmed our holding.

A few isolated sentences in the Supreme Court's opinion might lead one to conclude that a sentence cannot be disproportionate to the severity of the punished offense solely because of the sentence's length. See, e. g., id., 100 S.Ct. at 1139 ("one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative." (note 11 omitted)). However, because the Court qualified such blanket statements, see id. at 1139 n.11 ("This is not to say that a proportionality principle would not come into play in the extreme example mentioned by the dissent . . . if a legislature made overtime parking a felony punishable by life imprisonment."), and because numerous other passages of the opinion, as well as the manner by which Rummel's eighth amendment challenge was rejected, belie this conclusion, we believe that the proportionality principle remains applicable to challenges to length of sentence.

Reviewing its statement "that the Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime," id. at 1138, and noting that "(i)n recent years this proposition has appeared most frequently in opinions dealing with the death penalty," id., the Court observed that "(b)ecause a sentence of death differs in kind from any sentence of imprisonment, no matter how long, our decisions applying the prohibition of cruel and unusual punishments to capital cases are of limited assistance in deciding the constitutionality of the punishment meted out to Rummel." Id. Significantly, the Court did not state that the capital cases are of no import to the review of noncapital punishments. It thus left intact the applicability of its holding in Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), that a punishment is unconstitutionally excessive "if it (1) makes no measurable contributions to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime." Id. at 592, 97 S.Ct. at 2866.

In addition, after reviewing the difficulties with Rummel's disproportionality attack, the Court stated that it "offer(ed) these additional considerations not as inherent flaws in Rummel's suggested interjurisdictional analysis (8 but as illustrations of the complexities confronting any court that would attempt such a comparison." Rummel, supra, 100 S.Ct. at 1143 (emphasis added). Thus, the Court again endorsed the continued viability of the proportionality principle as applied to sentence length.

Moreover, the holding of the Court that Rummel's sentence did not violate the eighth amendment is itself based on the disproportionality analysis. After examining the operation of the Texas habitual offender scheme, the Court refuted Rummel's contention that the Texas recidivist program was the most severe:

In comparing this recidivist program with those presently employed in other states, Rummel creates a complex hierarchy of statutes and places Texas' recidivist scheme alone on the top rung. This isolation is not entirely convincing. Both West Virginia and Washington, for example, impose mandatory life sentences upon the commission of a third felony.

Id. at 1141-1142. The Court observed that "Rummel's charts and tables do appear to indicate that he might have received more lenient treatment in almost any state other than Texas, West Virginia, or Washington." Id. at 1142. Nevertheless, the Court concluded that these "distinctions, however, are subtle rather that gross." Id. (emphasis added). Since the eighth amendment requires gross, rather that just any degree of, disproportionality, see Coker, supra, 433 U.S. at 592, 97 S. Ct. at 2866 (quoted in text at p. 1367, supra ), the Court's conclusion that Rummel's sentence conformed to the eighth amendment was based on its holding that, on the facts of that case, Rummel's sentence was not grossly disproportionate to the severity of his offense.9 Thus, its utilization of the disproportionality analysis to reject Rummel's challenge to his sentence, as well as the passages of its opinion discussed above, indicate the Court's view that a sentence, because of its length, can be grossly disproportionate to the severity of the punished offense and thus violative of the eighth amendment. Since the Court therefore left intact the method employed in our Rummel decision, which is the view of this Court sitting en banc, we shall proceed to review Terrebonne's sentence by means of that analysis.

The disproportionality analysis which we adopted in Rummel v. Estelle, 587 F.2d 651 (5th Cir. 1978) (en banc), aff'd, --- U.S. ----, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980), consists of three parts. First, we must look at the nature of the defendant's crime to assess his moral turpitude and the degree of danger to which his conduct subjected society. Hart v. Coiner, 483 F.2d 136, 140-41 (4th Cir. 1973), cert. denied, 415 U.S. 983, 94 S. Ct. 1577, 39 L. Ed. 2d 881 (1974); see Rummel, supra, 587 F.2d at 659. Second, we must compare the offender's actual sentence with that which would be actually imposed in other jurisdictions. Hart, supra, 483 F.2d at 141-42; Rummel, supra, 587 F.2d at 659-60. Third, we must compare the sentencing jurisdiction's treatment of this offender with the punishment imposed on other criminals. Hart, supra, 483 F.2d at 142; Rummel, supra, 587 F.2d at 660.

Our initial difficulty in undertaking this disproportionality analysis is satisfying the command of the en banc court "to consider the system as it actually works and . . . not pass on academic possibilities." Id. at 655. We are directed to determine the "likely probability" of the length of Terrebonne's jail term. See id. at 659.10 However, given the absence of proof concerning this probability, we are unable to accomplish this task.

Terrebonne was sentenced under La.Rev.Stat.Ann. § 40:966(B) (West 1975) which then provided, in pertinent part, that an offender "shall be sentenced to life imprisonment at hard labor . . . ." However, the Supreme Court of Louisiana has held that neither probation nor parole is barred by the statute,11 see State v. Whitehurst, 319 So. 2d 907 (La.1975), although parole is available only after a life sentence has been commuted to a term of years. See State v. Terrebonne, supra, 364 So.2d at 1291 n.2.12

Given these possibilities for reduction of Terrebonne's sentence, the State argues that his sentence should not be viewed as one for life. In support of this argument, the State presses upon us statistics, contained in an appendix to its brief, indicating that the average term of imprisonment for drug offenders in Terrebonne's position is 5.4 years. It is true that we must consider these possibilities for reduction of Terrebonne's sentence; it is not true, however, that we can consider statistics contained in a brief to determine the "likely probability" of what that term will be. Accordingly, we must remand the case so that the district court can take evidence on this matter.13

In considering the seriousness of Terrebonne's offense, the State argues that we should take cognizance of the fact that drug abuse is a matter of grave concern to our society, a problem that engenders concomitant criminal activity. The State points to the following reasoning of the Supreme Court of Louisiana:

It is a matter of common knowledge, and it is a fact, that social conditions in this state are adversely affected by the pervading traffic in and use of drugs. This condition is a serious menace to good social order, which law seeks to protect and maintain. . . . In light of these conditions the facts relied upon by the defense do not demonstrate that the legislative wisdom expressed in the contested statute violates any constitutional limitation on its power, particularly that which proscribes cruel and unusual punishment.

It is no defense to this prosecution that distribution of drugs is not a violent crime and consequently punishment for this offense should not be on a par with second-degree murder and aggravated kidnapping. Assuming the punishments are equal, traffic in narcotics is an insiduous crime which, although not necessarily violent, is surely as grave. Indeed, the effect upon society of drug traffic is pernicious and far-reaching. For each transaction in drugs breeds another and in the case of heroin the degeneracy of the victim is virtually irreversible. Compared to the effect of drug traffic in society, isolated violent crimes may well be considered the lesser of the two evils.

State v. Mallery, 364 So. 2d 1283, 1285 (La.1978).

The State has again missed the point of the proportionality doctrine in arguing that in each and every case of drug distribution we must consider the societal harm caused by drug trafficking as a whole without regard to the facts of the particular case under review. It is quite true that the trade in drugs is an ugly enterprise which preys upon both the physical and psychological weaknesses of man, and that this enormous danger to society may justify severe sanctions in many or most distribution cases. Thus, this argument may be sufficient to preserve the facial validity of La.Rev.Stat.Ann. § 40:966 B (West 1977).14 However, the great potential harm to society can justify such harsh treatment in all cases of distribution only "if individual traffickers may constitutionally be punished for the social harm caused by the drug traffic as a whole." Note, Disproportionality in Sentences of Imprisonment, 79 Colum.L.Rev. 1119, 1145 (1979).

Acceptance of this argument would necessarily eliminate the proportionality principle as applied to individual cases. This application of the principle is founded on the premise that the legislature may constitutionally set a punishment proportioned to the degree of danger posed by the normal range of proscribed conduct, but that an individual case may so substantially deviate from this norm that the imposition of that punishment for that particular offense violates the notion of just deserts and renders the sanction grossly disproportionate to the offense. See generally id. Thus, a court faced with an attack on a sentence as being disproportionate to a particular offense must determine the gradations of culpability that may exist within the range of conduct proscribed by the statute. See, e. g., People v. Wingo, 14 Cal. 3d 169, 121 Cal. Rptr. 97, 534 P.2d 1001 (1975); In re Foss, 10 Cal. 3d 910, 112 Cal. Rptr. 649, 519 P.2d 1073 (1974). If we examine Terrebonne's offense in light of the danger posed by drug distribution as to a whole, we are in effect ignoring these degrees of culpability. A disproportionality attack on a sentence imposed for a distinct offense focuses on that distinct offense. The Supreme Court has indicated that these attacks may be brought under the eighth amendment. Accordingly, we must consider only the particular offense in this case; we cannot sweep into our analysis the harm posed by the conduct of others.15

Thus, on remand, the district court, in assessing the seriousness of Terrebonne's offense under our Rummel analysis, should consider the danger and moral turpitude presented by his particular crime. It should consider, inter alia, Terrebonne's age, the small amount of heroin involved, and the fact that he distributed heroin to adults as opposed to children. The court should also consider the uncontradicted facts that Terrebonne was an addict at the time of the transaction,16 that he distributed heroin to receive a dose necessary to stave off the pain of withdrawal, that he did not distribute heroin for pecuniary gain, and that he had never before distributed any drugs.

Finally, the district court should compare Terrebonne's sentence with those which would be imposed in other jurisdictions for the same conduct and with those imposed in Louisiana for other criminal acts.17 In making these comparisons, the district court should consider those statutory schemes as they actually work just as it must assess the "likely probability" of Terrebonne's jail term. See Rummel, supra 587 F.2d at 660.18

We recognize that what we ask of the district court is quite a complicated task. Nevertheless, the proportionality principle, embodied within the eighth amendment's proscription against cruel and unusual punishment, demands no less.

VACATED and REMANDED for proceedings not inconsistent with this opinion.

FRANK M. JOHNSON, Jr., Circuit Judge, specially concurring:

I concur in the majority's conclusion that this case must be remanded to the district court for further consideration in light of the Supreme Court's recent opinion in Rummel v. Estelle, --- U.S. ----, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). I write separately because I have difficulty with that part of the majority's opinion that states that Rummel "endorse(s)" the use of proportionality analysis in considering non-capital Eighth Amendment claims and that Rummel leaves "intact" the particular mode of proportionality analysis adopted by the Fifth Circuit in its decision in Rummel en banc. See Rummel v. Estelle, 587 F.2d 651 (5th Cir. 1978) (en banc).

I read the Supreme Court opinion to provide that, although proportionality analysis may be appropriate in extremely egregious situations (e. g., if a legislature made overtime parking a felony punishable by life imprisonment, 100 S. Ct. at 1139 n.11), courts should be extremely reluctant to use it. This is so (1) because a court's "Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum extent possible," 100 S. Ct. at 1139, citing and quoting Coker v. Georgia, 433 U.S. 584, 592, 97 S. Ct. 2861, 2866, 53 L. Ed. 2d 982 (1977); and (2) because a judgment that a particular length of sentence is grossly disproportionate to the severity of the crime is extremely unlikely to be capable of being informed by objective factors. See, e. g., 100 S. Ct. at 1135. Although the Court's opinion gives little indication of what the "objective factors" capable of informing such a judgment to the maximum extent possible might generally be, the Court does seem to me to make clear that it holds in disrepute the three prongs of proportionality analysis which were suggested by our circuit in its opinion in Rummel en banc and which are reiterated by the majority today: (1) study of the nature of the crime, see 100 S. Ct. at 1139, (2) comparison of the punishment with that imposed for similar crimes in other jurisdictions, see 100 S. Ct. at 1139-43 (criticizing such a comparison as extremely complicated and likely to be inconclusive), and (3) comparison of the punishment with that imposed for other crimes in the same jurisdiction, see 100 S. Ct. at 1143 n.27.

On its face, Terrebonne's habeas corpus petition seems to me to present in many ways a much more compelling case for application of proportionality analysis than did Rummel. Here the claim is that Terrebonne will have to spend the rest of his life in prison as a result of his brokering a single purchase of a small amount of heroin for undercover police officers, at the insistence of the officers, in order to get for himself only a badly needed fix.1 In Rummel, by contrast, it was established that the defendant, as a convicted 'recidivist,' could expect to be eligible for parole within 12 years.2 Because this is on its face a more compelling case, I agree with the majority that a remand is necessary. As the Supreme Court's opinion in Rummel indicates, a hearing must be held for the purpose of determining whether Terrebonne's claim of disproportionality is supported by "objective factors." Unlike the majority, however, I do not interpret "objective factors" to include only those factors suggested by our prior three-prong Fifth Circuit analysis that the Supreme Court in Rummel so criticized. The Supreme Court made clear that that analysis is suspect. Reliance on this suspect analysis by litigants should not be encouraged, nor should courts be led to interpret its prongs as limits on a proportionality hearing's scope. In my opinion, the identification and development of the "objective factors" necessary to a determination of disproportionality in this case are best left to the participants below in the hearing before the district court.

On this basis I concur in the judgment of the court.

Before COLEMAN, Chief Judge, BROWN, AINSWORTH, GODBOLD, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, JR., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, THOMAS A. CLARK and WILLIAMS, Circuit Judges.

A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,

IT IS ORDERED that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.