Promulgating Proportionality

49 Pages Posted: 25 Feb 2011 Last revised: 24 Mar 2015

See all articles by William W. Berry

William W. Berry

University of Mississippi School of Law

Date Written: February 24, 2011


Two lines of cases have dominated the Supreme Court’s Eighth Amendment death penalty jurisprudence: the Furman-Gregg line of cases emphasizes the need to adopt rules to eliminate the arbitrariness inherent in unguided capital sentencing by juries, while the Woodson-Lockett line of cases emphasizes the opposite concern - the need for juries to make individualized sentencing determinations - highlighting the inadequacy of rules.

At first glance, these competing aims create some internal tension, if not outright conflict. In his concurrence in Walton v. Arizona, Justice Scalia argued that this conflict was irreconcilable: “[t]he latter requirement [individualized factual determinations] quite obviously destroys whatever rationality and predictability the former requirement [limitations on jury discretion] was designed to achieve...” And the Court has done little to reconcile this conflict. Indeed, in Kennedy v. Louisiana, Justice Kennedy recently stated, “this case still in search of a unifying principle.”

This article attempts to provide just that - a unifying principle - through the concept of “proportionality.” As herein construed, proportionality requires that the applicable punishment be commiserate with the crime in both a relative and absolute sense. Using this principle, the article develops a framework by which to apply the Court’s Eighth Amendment jurisprudence, incorporating both lines of cases in a way that alleviates the inherent tension of pursuing the competing goals of general consistency and case-specific consideration.

This article, then, argues that the Supreme Court ought to apply the Eighth Amendment in capital cases solely in terms of two distinct types of proportionality - absolute and relative. Specifically, the model requires that the state court (and jury) determine the issue of absolute proportionality first, narrowing the individuals eligible for the death penalty using case-specific mitigating facts. The state courts (typically through appellate review) must then determine the issue of relative proportionality, further narrowing the cases in which the offender is eligible to receive capital punishment.

Part I of the article describes the “problem” - the apparent tension between the Furman-Gregg arbitrariness principle and the Woodson-Lockett individualized determination principle. In Part II, the article defines the concept of proportionality, describing both its absolute and relative forms. In Part III, the article articulates a new model for implementing the Eighth Amendment that solves the Walton “problem.” Finally, in Part IV, the article demonstrates how proportionality can serve as the unifying principle for the Court’s capital jurisprudence.

Keywords: Eighth Amendment, Proportionality, Death Penalty, Capital Punishment, Walton

Suggested Citation

Berry, William W., Promulgating Proportionality (February 24, 2011). Georgia Law Review, Vol. 46, p. 69, 2011, Available at SSRN:

William W. Berry (Contact Author)

University of Mississippi School of Law ( email )

481 Chucky Mullins Drive
P.O. Box 1848
University, MS 38677
United States
6629156859 (Phone)

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