May 2005, Volume 91, Issue 3|
The Constitutional Right Against Excessive Punishment
91 Va. L. Rev. 677 (2005)
When is a death sentence, a sentence of imprisonment, or a fine so "excessive" or "disproportionate" in relation to the crime for which it is imposed that it violates the Eighth Amendment? Despite the urgings of various commentators and the Supreme Court's own repeated, albeit uncertain, gestures in the direction of proportionality regulation by the judiciary, the Court's answer to this question within the past few decades is a body of law that is messy and complex, yet largely meaningless as a constraint. In the core of this ineffectual and incoherent proportionality jurisprudence lies a conceptual confusion over the meaning of proportionality. The Court's latest statement on this question, Ewing v. California, is symptomatic of the Court's confusion. This Article seeks to prepare the ground for a more coherent and potent jurisprudence of proportionality to develop by clarifying the concept of proportionality. First, this Article describes the way in which the Court's confusion over the meaning of "proportionality" has been the source of the problem by discussing four different ways in which the Court has understood the term. Second, this Article proposes "retributivism as a side constraint" as a conception of proportionality that would bring together the disparate elements of the case law to establish a more coherent and effective constitutional doctrine. Third, this Article specifies the meaning of retributivism as a side constraint, emphasizing the distinction between comparative and noncomparative aspects of retributivism and the significance of the distinction for understanding not only what it means for one to "deserve" a punishment, but also the Supreme Court case law on excessive punishment.
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