application" only when our independent review of the legal question "leaves us with a `firm conviction' that one answer, the one rejected by the [state] court, was correct and the other, the application of the federal law that the [state] court adopted, was erroneous -- in other words that clear error occurred." Id. at 1153-54.

IV. EIGHTH AMENDMENT

The Eighth Amendment to the United States Constitution provides that there "shall not be . . . cruel and unusual punishments inflicted."¹⁰ At issue here is whether this amendment proscribes a sentence of 50 years to life for two shoplifting offenses involving nine videotapes worth a total of $153.54 by a defendant with several previous convictions for non-violent offenses. The California Court of Appeal, in its 1997 decision affirming Andrade's conviction, concluded that it did not.

The constitutionality of life sentences for non-violent recidivists is controlled by several decisions rendered by the Supreme Court in the two decades prior to the state court's decision. In Rummel v. Estelle, 445 U.S. 263 (1980), the Court upheld a sentence of life in prison with the possibility of parole for a three-time non-violent felony recidivist. Three years later, in Solem v. Helm, 463 U.S. 277 (1983), the Court reversed a sentence of life in prison without the possibility of parole for a seven-time non-violent felony recidivist. Finally, in Harmelin v. Michigan, 501 U.S. 957 (1991), a decision without a majority opinion, Justice Kennedy, writing for himself and two other justices, reconciled the Court's prior decisions in Rummel and Solem and articulated a revised test. Under this test, the "Eighth Amendment does not require

¹⁰The Eighth Amendment "applies against the States by virtue of the Fourteenth Amendment." Harmelin v. Michigan , 501 U.S. 957, 962 (1991) (opinion of Justice Scalia, joined by Chief Justice Rehnquist) (citing Robinson v. California, 370 U.S. 660 (1962)).

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