Practicing Proportionality

35 Pages Posted: 3 Sep 2011 Last revised: 24 Mar 2015

See all articles by William W. Berry

William W. Berry

University of Mississippi School of Law

Date Written: September 2, 2011


At the heart of the Eighth Amendment’s “cruel and unusual” punishment clause are two concepts of proportionality – absolute and relative. Absolute proportionality (“cruel”) asks whether the sentence is commensurate with the state’s purposes of punishment. Relative proportionality (“unusual”), by contrast, asks whether the sentence is relatively similar to the outcomes of similar cases. Absolute proportionality sets limits on punishment based on the relationship between the punishment and the intended punitive goal; relative proportionality sets limits on punishment based on the sentencing outcomes in similar cases.

In recent years, the United States Supreme Court has utilized the concept of absolute proportionality to create categorical prohibitions for the use of the death penalty for minor offenders, intellectually disabled offenders, and for non-homicide crimes. The concept of relative proportionality, however, has received little attention recently. Indeed, ignoring this concept has perpetuated disparity in state court sentencing of death-eligible crimes.

This article argues for the restoration of relative proportionality under the Eighth Amendment and proposes a theoretical model for its application. Further, the article addresses the central problem of relative proportionality – the inherent difficulty in applying it to individual cases – by offering a practical framework for determining the relative proportionality of a given case.

This article first outlines the concept of relative proportionality and tracks its origins and jurisprudence. Part Two then explores the current applications of relative proportionality by various states and describes the unfortunate outcomes of these inadequate approaches. Part Three offers a theoretical model for “practicing” the concept of relative proportionality and describes its application. Lastly, Part Four illustrates the jurisprudential and sentencing benefits of practicing proportionality.

Suggested Citation

Berry, William W., Practicing Proportionality (September 2, 2011). Florida Law Review, Vol. 64, p. 687, 2012, 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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