Proportionality in criminal penalties.

Introduction: Harsh penalties in the United States

The United States has a problem with incarceration. Since the 1970's America's incarceration rate has quadrupled CITE and has recently surpassed 1% of the total population CITE NEW YORK TIMES. This paper will explore some reasons why this has come to pass, and propose a measure we can take towards punishment to help reform our system of punishment.

Why the high incarceration rate?

In his book Harsh Punishment, James Q. Whitman discusses two aspects of the American law of punishment that are responsible for the increase in incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second, is a dramatic increase in the length of sentences for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Longer sentences and more crimes which demand a prison term are two clear factors which lead to a larger prison population.

Why has our punishment become harsh? The outrage dynamic and moral panic.

To answer this question we look at the dynamics of making criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonough and applied to the creation of criminal laws by Philip Pettit [cite] identifies a cycle by which behavior becomes criminal. First, an example or examples of the behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [cite MacDonough]. The fourth stage is a report that the evil has not been eradicated, outrage again by the population which begins the process anew, leading to steeper penalties.

This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen, are a societal drama which follow a similar script to the outrage dynamic, with the media outlets, population, political authorities and evil playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior including marijuana use and the sexual psychopath laws of the 1930's to 1950's [CITE]. In the latter case it is not the criminalization of behavior that occurs but the increase of punishments corresponding to that behavior.

Proportionality in sentencing, using weak or limited retributivism as a cap on penalties.

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. We propose a different solution, that of a constitutional guarantee of not more than proportional sentences.

This solution is not new. Commentators have recommended such a policy in sentencing, calling it names from Limited or Weak retributivism to the Proportionality principle. Further, most have advocated that the 8th amendment should be construed to make such a guarantee of proportionality [cite]. Still, the Supreme Court has refused to agree on how to read such a guarantee, most recently in Ewing v. California [cite] [cite Frase].

Consequences:

Increased scrutiny for sentinces

Checks against moral panic

A difference between the United States and Europe is the willingness for judges and legislatures in the United States to depart upwards from proportionality in criminal punishment [Cite Whitman]. In fact, the European Union's Charter of Fundamental Rights states that “the severity of penalties must not be disproportionate to the criminal offense“ [link to PDF]. Whitman thinks that it is this difference that accounts for the disproportion between the United States and Europe in harsh punishment.

Provides a hook for prison reform

Use Nielson here Proportionality may stop imprisonment all together for some crimes, and may force reforms inside jails.

References

[] Excessive Prison Sentences, Punishment Goals,and the Eighth Amendment: “Proportionality”Relative to What?, Richard S. Frase, 89 Minnasota Law Review 571, 2005.

[] Limiting Retributivism: The Consensus Model of Criminal Punishment, Richard S. Frase, in The Future of Imprisonment in the 21st Century, Michael Tonry, ed., Oxford University Press, December 2003.

[] Proportionality Principles in the American System of Criminal Justice, Richard S. Frase, Perspectives, The Magazine of the University of Minnesota Law School, Fall 2005.

[] Moral Panics: The Social Construction of Deviance, Erich Goode & Nachman Ben-Yehuda, Blackwell Publishing, 1994.

[] Proportionate Sentincing, Andrew von Hirsch and Andrew Ashworth, Oxford University Press, 2005.

[] The Constitutional Right Against Excessive Punishment, Youngjae Lee, 91 Virginia Law Review 677, 2005.

[] Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to Constitutional Discourse, Eva S. Nilsen, 41 UC-Davis Law Review 111, 2007.

[] Is Criminal Justice Politically Feasible, Philip Pettit, 5 Buffalo Criminal Law Review 427, 2002.

[] Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe, James Q. Whitman, Oxford University Press, 2005.