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Just Desert: Why We Deserve a Right Against Disproportionate Punishment

Introduction: Harsh punishment in the United States

Since the 1970's America's incarceration rate has quadrupled [11] and has recently surpassed 1% of the total population [12]. This paper will explore some factors in why this has come to pass, and proposes a measure we can take to spark reform in our system of punishment.

Two factors in the increase of the prison population.

In his book Harsh Punishment [11], James Q. Whitman discusses how a sharp increase in the severity of two aspects of American punishment contribute to the increase in the 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. Thus, a factor in the rise of the prison poplulation is the escalation in the harshness of our criminal justice system.

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

To answer this question it is useful to examine the mechanisms that make criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh [8] and applied to the creation of criminal laws by Philip Pettit [10] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the 'evil' 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“ [8]. The fourth stage is a report that the evil has not been eradicated by the legislation, leading to outrage which 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 [1], 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 [5]. In the latter case it is not the criminalization of behavior that occured but an increase of punishments corresponding to the behavior.

These models illustrate a problem with how criminal laws are made. There are common events that easily shift the harshness of penalties upwards, but there is little force mobilizing the population to diminish penalties.

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

One of the purposes of our constitution is to protect the minorities rights against the will of the majority. Thus, nothing short of 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 jay walking 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.

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].

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 principals [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].

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 likely have the effect of some harsh sentencing schemes proposed by the legislature to be held unconstitutional.

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. Further, as the case would need to be tried before the penalties struck down, the panic and outrage may have subsided allowing politicians reprieve from their negative effects.

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, with courts able to impose the choice: clean up jails or have no jail time for some classes of offense.

References

[1] Folk Devils and Moral Panics, Stanley Cohen, MacGibbon & Kee, 1972.

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

[3] 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.

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

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

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

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

[8] The 19th century revolution in Government: A Reappraisal, Olivier MacDonagh, 1 Historical Journal 52, (1958).

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

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

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

[12] 1 in 100 U.S. Adults Behind Bars, New Study Says, Adam Liptak, New York Times, 28 Feb 2008.

[13] Charter of Fundemental Rights of the European Union