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| | These models illustrate a problem with how criminal laws are made. Social events easily shift the harshness of penalties upwards, but there is little at work to mobilize the population to diminish penalties.
Proportionality in sentencing, using weak or limited retributivism as a constitutional cap on penalties. |
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< | One of the purposes of our constitution is to protect the minorities rights against the will of the majority. Thus, a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. |
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> | One of the purposes of our constitution is to protect the minorities
rights against the will of the majority.
- You meant "minority's." Even "minorities'" would have been wrong with a definite article before it. Proofreading missed.
Thus, a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. |
| | Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of five years for jaywalking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. |
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< | Part of the problem is answering the question of what ends the proportionality serves. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior, rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed, or retributivism principals by punishing until society believes that the scales of justice are even for the offense [2]. |
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> | Part of the problem is answering the question of what ends the proportionality serves. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior,
rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed,
- Since when is punishment a good way of teaching anybody anything?
or retributivism principals by punishing until society believes that the scales of justice are even for the offense [2]. |
| | In current jurisprudence on the 8th Amendment the supreme court has understood a guarantee of proportionality so long as the punishment satisfies one of the ends of proportional punishment [7]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent justification [3] [7].
We advocate a position of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe, where every system subscribes to some version of the principle [11]. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13]. |
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- But we are not there, we are here. In our case, proportionality as a concept must be read out of language used in 1689 in the Bill of Rights, and copied into American constitutions, including the Federal Bill of Rights, that "cruel and unusual punishments shall not be inflicted," which grounds two other meanings of proportionality: that punishment shall not reach an absolute limit of inhumanity that constitutes cruelty, and that it must not be meted out inequitably, so that some people are punished unusually.
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| | Consequences of a constitutional protection against disproportionate sentences.
Increased scrutiny for length of prison sentences
If there was a protection against disproportionate sentences then at every sentencing a judge would have to answer the question of whether the sentence proportional to the offense committed, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where protective guidelines would be addressed and followed. This would have the effect of harsh sentencing schemes proposed by the legislature held unconstitutional. |
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- But we have been using such a scheme, consisting a sentencing guidelines with a requirement to justify departures below and above, and that scheme--whatever its constitutionality--did not reduce the savagery of US sentences. Hadn't you better explain why it didn't work before asserting that it would?
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| | A Check against moral panics
Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [10]. However, this politically insulated body already exists in the judicial branch of government. A constitutional guarantee of not more than proportional punishment would provide a mechanism to strike down punishments deemed too harsh, thus stopping the cycle of escalation in punishments. |
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- But we have one, and it does not. So perhaps we'd better ask why not?
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| | A new jurisdictional hook for prison reform
The terrible conditions in prison have been well documented [9]. If criminals were guaranteed proportional punishment, the ability to send a criminal to a United States jail at all for some crimes could be challenged. Then, courts would be able to impose the choice: clean up jails or have no jail time for some classes of offense. |
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- I don't understand this assertion. If the legislature elected by the public thinks that some crime deserves a punishment of imprisonment, what is the basis for holding that it does not, or that jail conditions are relevant to why it does not? Apparently you have an argument in mind, but I cannot find out what it is from the text.
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| | References
[1] Folk Devils and Moral Panics,
Stanley Cohen, |
| | [13] Charter of Fundemental Rights of the European Union |
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- This is an interesting and potentially excellent essay, but I don't understand why it proceeds as though a constitutional requirement of proportionality would be something new in the US. I think your real subject is why our existing proportionality review doesn't work as you would have us believe it must.
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