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Talking Points: Why Oppose the Proportionality Requirement?

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. -The 8th Amendment to the U.S. Constitution, as taken from The Heritage Guide to the Constitution What is the Proportionality Requirement? The proportionality requirement is a principle first articulated by the U.S. Supreme Court in a dissenting opinion in ONeil v. Vermont (1892), first adopted by a majority of the Court in Weems v. United States (1910), and refined through the Courts subsequent 8th Amendment case law. The modern proportionality requirement takes the following form: To avoid a violation of the 8th Amendments guarantee against cruel and unusual punishments, a punishment must be proportional in relation to both the offense and the offender. -The Proportionality Requirement On its face, the proportionality requirement sounds reasonable. For example, few would consider it just to sentence an individual to 30 years in prison for the crime of simple assault, or to sentence an individual to even a single day in jail for a minor traffic infraction. However, upon further examination of the proportionality requirement, problems become evident. Why Oppose the Proportionality Requirement?
1. Because it has little basis in original intent: The 8th Amendment was based on the

English Bill of Rights of 1689, which-in relevant part-contained the following language: And excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects; And excessive fines have been imposed; And illegal and cruel punishments inflicted -English Bill of Rights of 1689 According to The Heritage Guide to the Constitution, the American colonial understanding of the English prohibition of cruel and unusual punishment was that it applied to cruel methods of punishment, such as disembowelment. In other words, only intrinsically cruel punishments were prohibited. By contrast, under the proportionality requirement, even certain punishments that are not intrinsically cruel-such as terms of

imprisonment-are prohibited as disproportionate in relation to a particular offense or offender. Given that the provision of the English Bill of Rights on which the 8th Amendment is based was understood to apply only to intrinsically cruel punishments, we can conclude that the 8th Amendment was intended to have a similar scope. In sum, when viewed in light of original intent, the 8th Amendment does not contain a proportionality requirement.
2. Because the concept of proportionality is inherently subjective: Under our system of

separation of powers, the legislative branch is tasked with making the laws. Part of this task involves defining criminal offenses and assigning punishments, which inevitably involves subjective judgments regarding the proportionality of a punishment to a particular offense. Judges also inevitably make subjective judgments when determining whether a punishment violates the proportionality requirement, despite their assurances that their determinations are guided by objective factors to the maximum possible extent. For example, in Coker v. Georgia (1977), the U.S. Supreme Court held that the death penalty was a disproportionate punishment for the crime of rape. The following passage from Justice Byron Whites plurality opinion sums up the Courts reasoning in this case: [I]n Georgia, a person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. He also commits that crime when, in the commission of a felony, he causes the death of another human being, irrespective of malice. But even where the killing is deliberate, it is not punishable by death absent proof of aggravating circumstances. It is difficult to accept the notion, and we do not, that the rapist, with or without aggravating circumstances, should be punished more heavily than the deliberate killer as long as the rapist does not himself take the life of his victim. -Justice Byron White, Coker v. Georgia (1977) At bottom, Coker was a clash between competing-and subjective-determinations regarding the proportionality of the death penalty for the crime of rape. On one hand, Georgia determined that rape was a heinous crime that warranted the death penalty. On the other hand, Coker asserted that rape warranted a lesser punishment. Ultimately, the Court sided with Coker, reasoning that the death penalty is disproportionate, since the rapist-as such-does not take the life of his victim. In essence, what the Court did in Coker was reject Georgias determination of proportionality, and impose its own.

Graham v. Florida (2010) and Miller v. Alabama (2012)-Grahams sister case-provide additional examples of the Court rejecting a states determination of the proportionality of a punishment, and imposing its own determination. In these two cases, the Court held that a sentence of life imprisonment without the possibility of parole was a disproportionate punishment for juvenile offenders.1 Graham and Miller featured a conflict-similar in nature to the conflict in Coker-between multiple subjective determinations of the proportionality of life without parole for juvenile offenders. On one hand, Florida and Alabama determined that certain juvenile offenders-due to the gravity of their criminal acts-should not be given an opportunity for rehabilitation. On the other hand, Graham and Miller (in their respective cases) argued that the lessened culpability of juvenile offenders-established as part of the Courts 8th Amendment case law in Roper v. Simmons (2005)2-as well as juveniles heightened susceptibility to rehabilitation, rendered life without parole a disproportionate punishment. The Court-as it did in Coker-rejected the two states determinations of proportionality, reasoning that they did not sufficiently emphasize rehabilitation. However, judges subjective determinations of proportionality do not always work out in favor of offenders. In Ewing v. California (2003), the Court-after applying a proportionality analysis-upheld a sentence of 25 years to life in prison imposed pursuant to an anti-recidivism law. Writing for a plurality of the Court, Justice Sandra Day OConnor concluded that the sentence was proportionate given Ewings lengthy criminal history. Because determinations of the proportionality of punishments are inevitably subjective, the legislature-not the judiciary-is the best forum for making them.
3. Because it violates state sovereignty: As stated earlier, judges purport to rely on

objective factors to the maximum possible extent in determining the proportionality of a punishment. Among these objective factors are the legislative enactments of each of the states, the District of Columbia, and the federal government. For example, two facts were critical to the Courts decision in Coker:

At most, 18 states, the District of Columbia, and the federal government authorized the death penalty for the rape of an adult woman, and At the time the Court handed down its decision, Georgia was the only jurisdiction that still authorized the death penalty for the rape of an adult woman

The Courts holding in Graham was limited to juvenile non-homicide offenders. In Miller, the Court extended its reasoning in Graham to apply to juvenile homicide offenders.

In Roper, the Court held that the characteristics of youth lessen the culpability of juvenile offenders, and therefore render the death penalty a disproportionate punishment.

The Court has made clear that the number of states enacting a particular law is not the only important factor in its analysis. Writing for the majority in Atkins v. Virginia (2002)-in which the Court held that the death penalty was a disproportionate punishment for mentally-retarded offenders-Justice John Paul Stevens stated the following: It is not so much the number of these States [that have enacted legislation prohibiting the execution of mentally-retarded offenders] that is significant, but the consistency of the direction of change. -Justice John Paul Stevens, Atkins v. Virginia (2002) Other examples of the Court looking to the practices of the states, the District of Columbia, and the federal government as part of its proportionality analysis abound in its 8th Amendment case law. When the Court applies this aspect of its proportionality analysis, it effectively subjects states to the laws of other states. This violates the principle of federalism on which our system of government is based.
4. Because it violates national sovereignty: In its proportionality analysis, the Court has

counted the practices of foreign countries among the objective factors that it considers. Justice Anthony Kennedy put it succinctly in the majority opinion in Graham: There is support for our conclusion [that life imprisonment without the possibility of parole is disproportionate for juvenile non-homicide offenders] in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over. This observation does not control our decision. The judgments of other nations and the international community are not dispositive as to the meaning of the Eighth Amendment. But [t]he climate of international opinion concerning the acceptability of a particular punishment is also not irrelevant. The Court has looked beyond our nations borders for support for its independent conclusion that a particular punishment is cruel and unusual. -Justice Anthony Kennedy, Graham v. Florida (2010) Justice Kennedy goes on to cite numerous 8th Amendment cases in which the Court has looked to foreign law in making its decision. Justice Kennedys assurances that foreign law is not the deciding factor in his ruling do not mean that a violation of national sovereignty has not occurred. A violation of national sovereignty occurs whenever foreign law plays any role in a courts decision.

While it is bad for courts to subject states to the laws of other states, it is much worse for courts to subject states to the laws of other countries.
5. Because it is unnecessary: As stated previously in these Talking Points, legislatures

make proportionality determinations every time they assign a punishment to a crime. Ultimately, legislatures are accountable to the people. This accountability serves as an important check against the imposition of disproportionate punishments. Few voters will support punishments that they see as excessively harsh (or excessively lenient). Because voters will hold legislatures accountable for the enactment of disproportionate punishments, no judicially-enforced proportionality requirement is necessary.