Proportionality and Parole

45 Pages Posted: 12 Apr 2012 Last revised: 7 Oct 2012

Richard A. Bierschbach

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: April 12, 2012


Commentators analyzing the Supreme Court’s watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping off point. Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of punishment to the institutional structure of sentencing. By requiring the state to revisit its first-order sentencing judgments at a later point in time, Graham mandates a procedural space for granular, individualized, and ultimately more reliable sentencing determinations. I expose this procedural and institutional side of parole’s constitutional significance, situate it within the constitutional landscape of sentencing, and sketch some of its implications for the future of sentencing regulation.

Keywords: criminal law, criminal procedure, sentencing, proportionality, Eighth Amendment, parole, Graham v. Florida

Suggested Citation

Bierschbach, Richard A., Proportionality and Parole (April 12, 2012). University of Pennsylvania Law Review, Vol. 160, No. 5, Forthcoming 2012; Cardozo Legal Studies Research Paper No. 367. Available at SSRN:

Richard A. Bierschbach (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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