underscore the fact that judicial deference toward legislative determinations of suitable sentences is particularly appropriate with regard to treatment of recidivist offenders.³ Adding the role of prosecutorial discretion to the mix of relevant sentencing factors makes the "gross disproportionality" analysis of questionable value when applied to recidivist offenders. See Rummel, 445 U.S. at 281 ("Another variable complicating the calculus is the role of prosecutorial discretion in any recidivist scheme."). In sum, "gross disproportionality," as applied in the recidivism context, requires adherence to the principles underlying the Kennedy opinion.

Bringing all of these factors to bear on the "gross disproportionality" inquiry, no other circuit has overturned a sentence imposed pursuant to a recidivist sentencing statute. Justice Scalia in Harmelin had it right."Disproportionality" is influenced by the prevailing attitude toward the seriousness of particular crimes and the appropriateness of harsh punishments. These judgments can be altered either within years, decades or centuries. "Neither Congress nor any state legislature has ever set out with the objective of crafting a penalty that is disproportionate; yet . . . many enacted dispositions seem to be so -- because they were made for other times or other places, with different social attitudes, different criminal epidemics, different public fears, and different prevailing theories of penology." Harmelin, 501 U.S. at 985 (Scalia, J.).

³Even assuming a court is competent to determine an offender's culpability (on a relative scale) by comparing him to others who have committed the same or more serious crimes, See Henderson v. Norris, 258 F.3d 706 (8th Cir. 2001), the complexity of this comparison is magnified when the offender in question has a lengthy criminal history. "If nothing else, the three-time offender's conduct supports inferences about his ability to conform with social norms that are quite different from possible inferences about first or second-time offenders." Rummel , 445 U.S. at 282 n.27.

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