Procedural Proportionality

38 Pages Posted: 14 Feb 2015

See all articles by William W. Berry

William W. Berry

University of Mississippi School of Law

Date Written: February 13, 2015

Abstract

Given the Supreme Court’s recent foray into applying the Eighth Amendment to non-capital cases combined with its long history of applying procedural restrictions at sentencing in death cases, this Article argues for the application of procedural due process principles to criminal sentencing under the Eighth Amendment. Specifically, the Article develops the concept of procedural proportionality, which contemplates a relationship between the extent of the deprivation and the amount of procedure required.

Part I of the Article explains the procedural components of the cruel and unusual punishment clause and explores the expansion of these principles to non-capital cases. Part II of the Article articulates the theory of procedural proportionality, describing the procedural rights needed at sentencing and outlining a sliding scale for its application.

Keywords: Eighth Amendment, Miller, Graham, death penalty, LWOP, procedural due process, proportionality

Suggested Citation

Berry, William W., Procedural Proportionality (February 13, 2015). George Mason Law Review, Vol. 22, No. 2, 2015, Available at SSRN: https://ssrn.com/abstract=2564643

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)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
304
Abstract Views
788
rank
119,215
PlumX Metrics