Resuscitating Proportionality in Noncapital Criminal Sentencing
44 Pages Posted: 7 Jul 2008
Date Written: July 7, 2008
Although the Eighth Amendment guarantees proportionality in noncapital criminal sentencing, federal and state courts have struggled when deciding individual cases, and the Supreme Court has failed to articulate legal rules that could promote the development of a coherent jurisprudence. Working within the governing law and building on the work already done by scholars who have focused on this problem, I propose three principles: transparency, limited deference, and a "felt sense of justice," that could guide the process of proportionality review and contribute to defining a retributivist touchstone for proportionality judgments. Focusing on the required threshold inquiry, I also outline an analytical framework for examining offense gravity and sentence severity, and determining gross disproportionality. My proposal identifies four analytical factors for assessing offense gravity: harm, culpability, violence, and magnitude; and two for evaluating sentence severity: the offender's "real sentence," and likely age and life opportunities upon release from prison.
Keywords: Eighth Amendment, proportionality, noncapital criminal sentencing, offense gravity, sentence severity
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