Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: 'Proportionality' Relative to What?

Abstract:     
This article examines constitutional proportionality requirements. The focus is on the assessment of lengthy prison sentences under the Eighth Amendment. However, the proportionality principles discussed have much broader application, both within and outside the field of sentencing. In the wake of the recent California three-strikes cases, upholding sentences of 25-to-life and 50-to-life imposed on two repeat property offenders, it is very unclear when a prison term will be held to violate the Eighth Amendment, and on what precise grounds. Justices Scalia and Thomas believe that the concept of proportionality is unworkable; they assert that the concept is inherently tied to retributive sentencing goals, yet the Court's cases specify that the Constitution permits sentences to be based on a variety of non-retributive (crime-preventive) goals. What does it mean to say that a penalty is disproportionate relative to non-retributive goals? None of the justices has ever addressed this question, and scholars have not done so in any systematic way. The answers to this question can be found in the Court's own cases. This article identifies one retributive and two non-retributive proportionality principles which are implicit in Eighth Amendment decisions, and also in cases from many other fields of constitutional law. The same three principles also find strong support in lower court decisions, in constitutional cases from other Western countries, and in regional and international law. The article examines the many forms these principles have taken, and suggests how they can be used to make proportionality analysis of prison terms more precise and more meaningful. The article is principally addressed to scholars, lawyers, and judges seeking to interpret the Eighth Amendment and its state constitutional counterparts. However, these proportionality principles can also be helpful in formulating subconstitutional sentencing law and policy. A third goal of the article is to increase awareness of proportionality principles that are implicit in U.S. law but rarely identified as such.

Keywords: sentencing, punishment, proportionality, Eighth Amendment

JEL Classifications: K14

Accepted Paper Series