Rethinking Proportionality Under the Cruel and Unusual Punishments Clause

Article — Volume 97, Issue 4

97 Va. L. Rev. 899
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Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic. The Court has never answered doubts about the legitimacy of proportionality review, leading a controlling plurality of the Court to insist that such review be limited to a narrow class of cases. The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent. Finally, the Court’s method of measuring proportionality is unreliable and self-contradictory. As a result, very few offenders have benefitted from the Court’s decision to engage in proportionality review. This area of doctrine needs rethinking.

This article is the first to establish that the Cruel and Unusual Punishments Clause was originally meant to prohibit excessive punishments as well as barbaric ones, and that proportionality review is therefore unquestionably legitimate. This article also demonstrates that proportionality is a retributive concept, not a utilitarian one. Punishments are unconstitutionally excessive if they are harsher than the defendant deserves as a retributive matter. Finally, this article shows that proportionality should be measured primarily in relation to prior punishment practice. The proposed approach will align the Court’s proportionality jurisprudence more closely with the core purpose of the Cruel and Unusual Punishments Clause, and will enable the Court to expand proportionality review to a much larger class of cases.

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  Volume 97 / Issue 4  

The Limits of Procedural Private Ordering

By Jaime Dodge
97 Va. L. Rev. 723

The (Willingly) Fettered Executive: Presidential Spinoffs in National Security Domains and Beyond

By Jon D. Michaels
97 Va. L. Rev. 801

Rethinking Proportionality Under the Cruel and Unusual Punishments Clause

By John F. Stinneford
97 Va. L. Rev. 899

Disorder Certifying a Class: Misinterpretations of Rule 23(c)(1)(B) and a Proposed Alternative

By Adam Milasincic
97 Va. L. Rev. 979