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.
Issue 3
A Forest with No Trees: The Supreme Court and International Law in the 2003 Term
The Supreme Court’s docket in the 2003-2004 term included five cases directly presenting questions of international law. Republic of Austria v. Altmann raised issues of the international law of expropriation and the immunity of foreign sovereigns. Sosa v. Alvarez-Machain concerned a statute authorizing suits to redress “a tort . . . committed in violation of the law of nations.” Rumsfeld v. Padilla, Hamdi v. Rumsfeld, and Rasul v. Bush concerned the status of individuals taken prisoner in the war on terror, thereby raising the subject of that best-known of all international agreements, the Geneva Convention.
The thesis of this Article is that, despite the direct relevance of international law to these cases, the Court repeatedly ignored international law and, when faced with no plausible way to ignore international law, took a highly constricted approach to its application. The Article argues that the Court decided three of the five cases—Altmann, Padilla, and Hamdi—without resolving any substantive international legal questions. In Rasul, the Article asserts, the Court ignored the Geneva Convention, although it did take a pragmatic, control-oriented view of what constituted “sovereignty.” Even in Sosa, where the statute’s plain language—giving federal courts jurisdiction over suits for a “tort, committed in violation of the law of nations”—unavoidably required some attention to international law, the Court repeatedly took a constricted reading of the meaning and relevance of international law, both by ignoring the importance of treaties to the statutory scheme (and history) and by repeatedly limiting the scope of the customary “law of nations.” In all five cases, the Court focused on purely procedural issues and on statutory interpretation instead of on international law.
A concluding section of the Article speculates that the Court downplayed international legal issues not for fear of public, legislative, or executive backlash, but rather because the Court simply is more comfortable with traditional methods of statutory and originalist interpretation than it is with the unfamiliar, decentralized world of international law.
Crossroads in Cambodia: The United Nations’ Responsibility to Withdraw Involvement from the Establishment of a Cambodian Tribunal to Prosecute the Khmer Rouge
For almost twenty-five years, the former leaders of the Khmer Rouge, responsible for the deaths of over 1.7 million of their fellow Cambodians, have enjoyed freedom absent domestic and international accountability for their actions. Since 1997, the United Nations and Cambodia have engaged in contentious negotiations for the establishment of a criminal tribunal to try the former leaders of the Khmer Rouge. In March 2003, the United Nations and Cambodia agreed on an internationally supported, yet Cambodian-controlled, tribunal to prosecute the former members of the Khmer Rouge for genocide and crimes against humanity that occurred between 1975 to 1979. The U.N. General Assembly is awaiting its expected ratification by the Cambodian National Assembly. While these developments appear to signal a shift toward international justice and domestic reconciliation, the presence of widely asymmetrical goals and intentions between the U.N. and the Cambodian government poses unfortunate risks both to the Cambodian people and to the international community.
This Note will argue that the agreed-upon proposal will both fail to meet international standards of justice and prove to be a greater risk than complete withdrawal of international involvement. To this end, the Note will argue that the U.N. should either demand the establishment of an ad hoc international tribunal for Cambodia (with goals and structure similar to existing tribunals created for the former Yugoslavia and Rwanda), or completely withdraw from any involvement in the adjudication of the Khmer Rouge crimes. Any alternative would compromise the best interests of the international community, the development and enforcement of international law, and the stability and rehabilitation of Cambodia.