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JustinColannino-SecondPaper 30 - 18 May 2008 - Main.JustinColannino
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UNDER REVISION. To see the paper as submitted, including all of Eben's comments, click here.
To see my responses to Eben's comments, including my goals in revision, click here. | | | *How about looking to decriminalization and diminished penalties in Europe and Canada? Is it just the EU charter? You probably don't have the words to address it but maybe provide a link.
Proportionality in sentencing, using weak or limited retributivism as a constitutional cap on penalties. | |
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< | The current status of proportionality in United States law.
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. | >
> | Why the 8th amendment does not protect us.
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 the term 'proportional' means definition alludes us. | | | | |
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< | Part of the problem is answering the question of what ends the proportionality serves. According to the United States Sentencing Commission the purposes of punishment are "just punishment [retributivism], deterrence, incapacitation, and rehabilitation" [14]. In current jurisprudence on non capital cases concerning the 8th Amendment's guarantee of proportionality the supreme court has understood proportionality to be satisfied so long as one of the ends of punishment are addressed [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]. | >
> | Part of the problem is answering the question of what ends the proportionality serves. According to the United States Sentencing Commission the purposes of punishment are "just punishment [retributivism], deterrence, incapacitation, and rehabilitation" [14]. In current jurisprudence on non capital cases concerning the 8th Amendment's prohibition on cruel and unusual punishments the supreme court has understood proportionality to be satisfied so long as one of the ends of punishment are addressed [7][15]. 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]. There is also a branch of the court that interprets the prohibition of cruel and unusual punishment as providing no guarantee of proportionality between the crime and the punishment. | | | | |
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< | What this means is that under our current system legislatures may impose harsh jail time for any offense they deem to be serious, such as repeatated nonviolent thefts. This concept of proportionality does not protect the minority against penalty escalation, and leaves the decision of how much punishment is too much up to a majority easily influenced by outrage and moral panics. | >
> | What this means is that under our current system legislatures may impose harsh jail time for any offense they deem to be serious, such as repeatated nonviolent thefts [15]. This concept of proportionality does not protect the minority against penalty escalation, and leaves the decision of how much punishment is too much up to a majority easily influenced by outrage and moral panics. | | | Using weak retributivism as a constitutional cap on penalties.
One of the purposes of our constitution is to protect the minority's rights against the will of the majority. Thus, a constitutional guarantee that punishment and pain inflicted by the government must not violate retributist principals will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. The question then becomes how to define in jurisprudence when a punishment becomes disproportionate to the offense. | | | [14] An Overview of the United States Sentincing Commision
December, 2007. | |
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> | [15] Ewing v. California 538 US 11, 2003. | | |
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