PROFESSOR John Stinneford follows his initial article concerning the original meaning of the Eighth Amendment1 with an excellent article in the Virginia Law Review, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause.2 In this latest piece, Stinneford argues that the original meaning of the Eighth Amendment's Cruel and Unusual Punishments Clause includes not only a prohibition against barbaric punishments (defined as ones without "long usage"), but also against excessive or "disproportionate" punishments.3 Stinneford then advocates rethinking the Supreme Court's Eighth Amendment evolving standards of decency jurisprudence to center the "cruel" inquiry on whether the punishment at issue is "proportionate," in a retributive sense, in light of prior punishment practices.4

Stinneford's article is important both in that it legitimizes, from an originalist perspective, the use of proportionality in the application of the Eighth Amendment, and in that it offers a proposal for restructuring the application of the Eighth Amendment around this principle. In doing so, Stinneford uses his historical interpretation of the Eighth Amendment to argue for a new approach to applying proportionality in a solely retributive manner.

In this brief Response, I raise two possible objections to Stinneford's analysis. First, Stinneford insists that proportionality must be solely a retributive concept for Eighth Amendment purposes, both as a matter of original interpretation and sound application. While retribution is certainly part of the "proportionality" analysis, I believe that utilitarian justifications of punishment are also relevant to the concept of proportionality. As explained below, this is true both as a matter of original interpretation and perhaps more importantly as a reasonable basis for the Court's current application of the Eighth Amendment.

Second, I question whether, if one adopts Stinneford's model of Eighth Amendment retributive proportionality, application of the Eighth Amendment would achieve the purposes he advocates. Specifically, I am not persuaded that limiting the application of the Eighth Amendment to the question of retributive proportionality would improve the much-criticized application of the Eighth Amendment in capital cases.5 Further, I am not convinced that the retributive model of proportionality Stinneford advocates would effectively bridge the gap between the two-tiered application of the Eighth Amendment in capital and non-capital cases.6

Despite these criticisms, I do believe that Stinneford rightly advocates the adoption of proportionality as an important part of applying the Eighth Amendment. My view, however, is that a broader concept of proportionality—including both retributive and utilitarian principles—would better achieve the goal of a more intelligible and robust Eighth Amendment in capital and non-capital cases alike.

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