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.

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 explores 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 climb 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 upturn in the length of sentences for inmates, which are now 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 population 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 media reports, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior or heightened punishment for the behavior, including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5].

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.

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 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.

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,

• Does punishment deter?

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].

• 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.

• • Another possible reading of "unusual," that I have some affinity for, is that it means "uncommon" or "not regularly meted out." While losing some of the individual protection that the "inequity" interpretation provides, it would serve as an absolute bar to some of the punishments that our system only rarely uses (the death penalty being a prime example). -- AdamCarlis 8 May 2008

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.

• 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?

• I think my lack of clarity about what type of proportionality I was arguing for in the heading is the reason for this comment. The sentencing commission attempts to incorporate "just punishment, deterrence, incapacitation, and rehabilitation" into the guidelines. With an guarantee of 'weak' retributivism the guidelines themselves would have to be restructured and there would begin to be jurisprudence drawing hard lines (for example, 'no more than 3 years for theft of less than 100,000k') that the legislature could not exceed.

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.

• But we have one, and it does not. So perhaps we'd better ask why not?

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.

• 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.

• The idea here was that courts could distinguish between the degree of punishment for detention and the degree of punishment for detention in terrible conditions. Thus, for some classes of crime it would be possible that detention would be acceptable, but detention in jails as they are would be unacceptable. Regardless, the idea is not very important to this paper, has some holes, and will likely be cut when I figure out how to reformat my middle section.

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

• 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.

• I've been looking to spot the place where my argument becomes unclear. I think it is in my section on proportionality where my main thesis gets swallowed by definitions and trying to address the swirling waters of 8th amendment jurisprudence. The section attempts to convey three related points.

1. The unclear definition of proportionality (beyond our intuitions) makes it a difficult legal term to apply.
2. The supreme court interprets proportionality of punishment statutes (excepting life sentinces and death) as 'can this punishment conceivably be related to a goal of punishment'.
3. We need a constitutional guarantee for what is known as 'weak' retributivism to protect us from how criminal laws are made.

• I think I further confused the final point with my heading title in the next section. I should have made explicit what type of proportionality I was arguing for - that was a blunder.

• I think the way forward is to revamp the section on proportionality, trying to make my intention clearer and focus on why the 8th amendment as interpreted by the court does not offer the protection that we deserve. Further comments on something I may have missed, or other methods towards improvement are very welcome.