Proportionality as a principle of limited government!

Duke Law Journal

Volumn 55, Issue 2, 2005, Pages 65-139

  Ristroph, Alice ^a  

^a UNIVERSITY OF UTAH   (United States)

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EID: 33744805783     PISSN: 00127086     EISSN: 00127086     Source Type: Journal    
DOI: None     Document Type: Review

References (328)

1. The proportionality requirement of the Eighth Amendment was first recognized by the United States Supreme Court in Weems v. United States, 217 U.S. 349, 377 (1910) (striking down a criminal sentence as "cruel in its excess of imprisonment");
2. see also id. at 367 ("[I]t is a precept of justice that punishment for crime should be graduated and proportioned to offense.").
3. E.g., Lockyer v. Andrade, 538 U.S. 63, 77 (2003) (upholding a sentence of two consecutive terms of twenty-five years to life for petty theft of nine videotapes); Ewing v. California, 538 U.S. 11, 30-31 (2003) (upholding a sentence of twenty-five years to life for felony theft of golf clubs).
4. 124 S. Ct. 2531 (2004).
5. 125 S. Ct. 738 (2005).
6. The Court's somewhat unusual Booker decision did not strike down the Federal Sentencing Guidelines altogether. Id. at 738. One majority found that the Sixth Amendment prohibited applications of the Guidelines to increase a defendant's sentence solely on the basis of facts found by a judge rather than a jury. Id. at 749-51. A second majority held that the appropriate remedy was to strike down only the provision of the Sentencing Reform Act making the Guidelines mandatory; under the newly advisory Guidelines system, the maximum penalties for most federal offenses are much higher and judicial fact-finding does not increase sentences above an otherwise applicable legal ceiling. Id. at 756-57. Justice Ginsburg was the only Justice in both majorities.
7. As explained in greater detail in Part III, infra, recent Sixth Amendment sentencing decisions promise at the minimum certain procedural protections against disproportionate sentences. United States v. Booker, 125 S. Ct. 738 (2005); Blakely v. Washington, 124 S. Ct. 2531 (2004); Apprendi v. New Jersey, 530 U.S. 466 (2000). The same decisions may also assume a substantive proportionality requirement, but that reading is more debatable, and the constitutional home of a substantive proportionality requirement is more likely to be the Eighth Amendment or the Due Process Clauses of the Fifth and Fourteenth Amendments.
8. See infra notes 193-215 and accompanying text.
9. For example, the Supreme Court has repeatedly asserted a principle of "legislative primacy" as a reason for the judiciary to avoid searching proportionality review. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring) (citing "the primacy of the legislature" as one of four principles commanding judicial deference on questions of proportionality); Rummel v. Estelle, 445 U.S. 263, 275 (1980) (stating that proportionality determinations involve a "basic line-drawing process that is pre-eminently the province of the legislature").
10. At about the same time that the Supreme Court announced a minimal Eighth Amendment proportionality guarantee in Ewing v. California, 538 U.S. 11, 21 (2003) (but before the Supreme Court decisions in Blakely and Booker), the American Law Institute issued a report on proposed changes to the sentencing provisions of the Model Penal Code (MPC). MODEL PENAL CODE 1-6 (Sentencing Report 2003) [hereinafter MPC SENTENCING REPORT]. This report criticized the existing MPC sentencing provisions for omitting a proportionality requirement. Id. at 34-36. The Eighth Amendment proportionality debates seem to have been overshadowed, at least temporarily, by the controversy over the Court's recent cases requiring all facts determinative of sentence severity to be found by juries (or admitted by defendants) rather than found by judges. I argue that although these jury sentencing decisions do not use the language of proportionality, the Court's concern with marginal increases in the severity of sentences suggests an implicit assumption that sentences will be proportionate to offenses. See infra Part III. The commentary on Blakely is already voluminous, and Booker is likely to ensure that scholars focus on Sixth Amendment sentencing issues for some time. The academy's reaction to Blakely is evident in the titles of some of the earliest articles to address the decision. See, e.g., Douglas A. Berman, The Blakely Earthquake and Its Aftershocks, 16 FED. SENT'G REP. 307 (2004);
11. Frank O. Bowman, Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington, 41 AM. CRIM. L. REV. 217 (2004).
12. See Roper v. Simmons, 125 S. Ct. 1183, 1200 (2005) (holding that the death penalty is disproportionate punishment for offenders under eighteen years of age at the time of the offense); Atkins v. Virginia, 536 U.S. 304, 317-19 (2002) (holding that the death penalty is an excessive punishment for mentally retarded offenders).
13. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 429 (2003) (reversing a judgment for $145 million in punitive damages on the grounds that the award "was neither reasonable nor proportionate to the wrong committed"); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 585-86 (1996) (reversing a judgment for $2 million in punitive damages as "grossly excessive").
14. See, e.g., Erwin Chemerinsky, The Constitution and Punishment, 56 STAN. L. REV. 1049, 1070-79 (2004) (arguing for both procedural consistency and a unified approach to proportionality for all forms of punishment);
15. Richard S. Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: "Proportionality" Relative to What?, 89 MINN. L. REV. 571, 607-09 (2005) (arguing that the "retributive proportionality" and "utilitarian proportionality" limits placed on punitive damage awards by the Supreme Court could be used similarly to define constitutional limits on prison sentences);
16. Pamela S. Karlan, "Pricking the Lines": The Due Process Clause, Punitive Damages, and Criminal Punishment, 88 MINN. L. REV. 880, 882-83 (2004) (arguing that a proportionality determination is inherently subjective and that the Supreme Court gives more decisionmaking authority to juries in criminal sentencing than punitive damage awards because criminal punishments are institutionally limited by the role of the executive in a criminal proceeding);
17. Youngjae Lee, The Constitutional Right Against Excessive Punishment, 91 VA. L. REV. 677, 699 n.102 (2005) (noting the tension between the Court's disparate use of proportionality in the Eighth Amendment cases and the Due Process cases);
18. Rachel A. Van Cleave, "Death Is Different," Is Money Different? Criminal Punishments, Forfeitures, and Punitive Damages-Shifting Constitutional Paradigms for Assessing Proportionality, 12 S. CAL. INTERDISC. L.J. 217, 272-78 (2003) (arguing that the Supreme Court should apply consistent criteria to all forms of punishment, regardless of whether that punishment is a deprivation of life, liberty, or property).
19. Most arguments for proportionality review are variants of the call for the "constitutionalization" of substantive criminal law, a call famously made by Henry M. Hart almost 50 years ago and subsequently echoed by many others. See Henry M. Hart, Jr., The Aims of the Criminal Law, 23 LAW & CONTEMP. PROBS. 401, 409-11 (1958);
20. Herbert L. Packer, The Aims of the Criminal Law Revisited: A Plea for a New Look at "Substantive Due Process," 44 S. CAL. L. REV. 490, 494-95 (1970) (arguing for the subjection of criminal sanctions to a rational basis test that focuses on economic costs and moral arguments, particularly for so-called victimless crimes);
21. William J. Stuntz, Substance, Process, and the Civil-Criminal Line, 7 J. CONTEMP. LEGAL ISSUES 1, 29-38 (1996) (arguing that constitutional limits on criminal substance, such as a rule against strict liability or a doctrine of desuetude, would prevent the manipulation, and ultimately the impotence, of constitutional limits on criminal procedure). These calls have gone unheeded for the most part. General constitutional restrictions on the substantive criminal law are, like proportionality review, often rejected by courts as improper judicial meddling in matters of legislative prerogative. For an overview of the failed quest for a substantive constitutional criminal law,
22. see Louis D. Bilionis, Process, the Constitution, and Substantive Criminal Law, 96 MICH. L. REV. 1269, 1272-99 (1998).
23. See, e.g., Frase, supra note 12, at 588-596 (finding proportionality requirements in both retributive and utilitarian theories of punishment);
24. Lee, supra note 12, at 704-709 (arguing that the prohibition of cruel and unusual punishments establishes a retributive proportionality principle as a side constraint on the power to punish).
25. The power to punish is composed of subsidiary powers exercised by various state actors. The power to authorize punishment in the first instance-the power to define activity as criminal-is distinct from the power to impose punishment. The first power is exercised by the legislature against all those subject to the criminal laws. The second power is exercised by the judiciary and then by the executive, and it is exercised only against those individuals who are convicted and sentenced, and who actually serve their sentences.[0]
26. This principle underpins the void-for-vagueness doctrine of Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). The Papachristou Court explicitly rejected legislative authorization of a generalized power to punish: "It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." Id. at 165 (quoting United States v. Reese, 92 U.S. 214, 221 (1875)). [0]
27. See infra Part II.
28. See, e.g., Blakely v. Washington, 124 S. Ct. 2531, 2540 (2004) (citing Wash. Rev. Code 9.94A (2000)) (noting that Washington's sentencing guidelines were based on concerns about "proportionality to the gravity of the offense and parity among defendants");
29. see also Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, IT HOFSTRA L. REV. 1, 4-5 (1988) (noting Congressional intent to reduce sentencing disparities among similarly situated defendants).
30. One of the architects of the Federal Sentencing Guidelines, then Circuit Judge Stephen Breyer, described "uniformity and proportionality" as central (but competing) goals of a sentencing system. "Uniformity essentially means treating similar cases alike," whereas proportionality, as Breyer described it, requires "treat[ing] different cases differently." Breyer, supra note 18, at 13. In other words, uniformity requires that all similarly situated murderers get similar sentences, and proportionality requires that murders and thefts be punished differently.
31. See infra note 162 for a discussion of Pulley v. Harris, 465 U.S. 37 (1984), and "comparative proportionality review."
32. As explained in more detail below, this proportionality principle is political in the sense that it relates to the distribution of government power within a political system. See infra pp. 284-87. It is not "political" in the way that many legal scholars like to use that adjective: majoritarian and/or partisan (as in "the political branches").
33. See, e.g., Hyman Gross, Proportional Punishment and Justifiable Sentences, in SENTENCING 272 (Hyman Gross & Andrew von Hirsch eds., 1981) ("The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence that is justifiable.").
34. Ewing v. California, 538 U.S. 11, 31 (2003) (Scalia, J., concurring) (quoting Harmelin v. Michigan, 501 U.S. 957, 985 (1991) (Scalia, J., concurring)).
35. Id.
36. Id. (quoting id at 25 (plurality opinion) (quoting Harmelin, 501 U.S. at 999 (Kennedy, J., concurring in part and concurring in the judgment))).
37. See infra text accompanying note 81.
38. CESARE BECCARIA, OF CRIMES AND PUNISHMENTS (Jane Grigson trans., Marsilio Publishers 1996) (1764). Both Beccaria and Bentham were prodigies of sorts;
39. Beccaria was only twenty-five when he wrote Of Crimes and Punishments, which was first published in 1764. Jeremy Bentham was admitted to the bar at age twenty-one in 1769 and allegedly began to read Beccaria at about that time. See Ross Harrison, Introduction to JEREMY BENTHAM, A FRAGMENT ON GOVERNMENT x (J.H. Burns & H.L.A. Hart eds., Cambridge Univ. Press 1988) (1776);
40. see also Principal events in Bentham's life, in BENTHAM, A FRAGMENT, supra, at xxiv.
41. See BECCARIA, supra note 27, at 77.
42. Harrison, supra note 27, at vi, xiv.
43. BECCARIA, supra note 27, at 74.
44. BECCARIA, supra note 27, at 49 (emphasis added); see also id. at 74 ("Therefore the obstacles to crimes should be stronger according to the degree in which those crimes are contrary to the public good, and the degree of incentives which causes them.").
45. But see Morris B. Hoffman, The Case for Jury Sentencing, 52 DUKE L.J. 951, 996 n.164 (2003) ("Cesare Beccaria is generally credited with the first rigorous exposition of proportionality as a theorem of retribution."). Although Beccaria does not use the language of retribution, Judge Hoffman seems to assume that because Beccaria insists on guilt, he is necessarily a retributivist. After all, a typical complaint lodged against utilitarian theories of punishment is that in some circumstances, they would permit a state to punish an innocent person as a scapegoat. But guilt is not an exclusively retributive notion. There is a difference between the claim that the guilty must be punished and the claim that only the guilty can be punished. Retributivists typically make both claims, but many nonretributivists make the latter claim. See also infra Part III for a discussion of constitutional guilt.
46. Beccaria does argue at one point that torture is ineffective, BECCARIA, supra note 27, at 35-40, but he makes this claim to criticize the practice of investigative torture, not to denounce excessive sentences.
47. For Beccaria, human dignity, individual freedom, and utilitarianism are not mutually exclusive. He says that if he can demonstrate that the death penalty is "neither useful nor necessary," he will "have won the cause of humanity." Id. at 53. I emphasize his concerns for individual freedom and human dignity here only to show that his objections to excessive punishments are not strictly deterrence-based.
48. Id. at 62.
49. See, e.g., id. at 8 ("[V]ery few men have examined and set themselves against the cruelty of punishments and the irregularity of criminal procedure ...."); id. at 29 ("Among the evident yet time-honored abuses ... must be counted the custom of leveling secret accusations."); id. at 34 ("The torture of an accused man while the case against him is being prepared is a cruelty consecrated by long usage among the majority of nations ....").
50. Id. at 49.
51. Id. at 50; see also id. at 119 ("In order that punishment should never be an act of violence ... it is essential that it be ... as little as circumstance will allow, proportionate to the crime, and established by law.").
52. Id. at 119 (emphasis omitted).
53. Id. at 74. Beccaria frequently acknowledges his debt to Montesquieu, see, e. g., id. at 9, and on this point Montesquieu's influence seems particularly clear. It is an essential point that there should be a certain proportion in punishments, because it is essential that a great crime should be avoided rather than a smaller .... .... In China, those who add murder to robbery are cut in pieces: but not so the others; to this difference it is owing that though they rob in that country they never murder. In Russia, where the punishment of robbery and murder is the same, they always murder.
54. BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS 89-90 (Thomas Nugent trans., Hafner Publ'g 1962) (1748).
55. BECCARIA, supra note 27, at 75-76.
56. JEREMY BENTHAM, THE PRINCIPLES OF MORALS AND LEGISLATION 29 (Prometheus Books 1988) (1781).
57. Id. at 30-32.
58. Id. at 179.
59. Id. at 183.
60. Id. at 187. These various elements of the value of punishment suggest a weakness in any proportionality analysis that looks only at the length of a prison term-and not at the prison conditions and other variables that can affect the severity of a particular individual's punishment.
61. Id. at 182. Different individuals will experience similar penalties as different degrees of hardship, Bentham argues. "The same nominal punishment is not, for different individuals, the same real punishment." JEREMY BENTHAM, PRINCIPLES OF PENAL LAW (1771)
62. reprinted in 1 THE WORKS OF JEREMY BENTHAM 401 (John Bowring ed., 1843) [hereinafter BENTHAM, PRINCIPLES OF PENAL LAW].
63. BENTHAM, supra note 41, at 182.
64. Id.
65. See BENTHAM, PRINCIPLES OF PENAL LAW, supra note 46, at 399 ("Punishments may be too small or too great; and there are reasons for not making them too small, as well as for not making them too great.").
66. Id. at 390.
67. Id. at 401. Bentham here suggests a possible response to those who would resist proportionality review on procedural justice grounds-those who argue that criminal laws produced by majoritarian political procedures must not be second-guessed by activist judges. Criminal sentencing may be an area in which democratic processes are likely to produce unjust results. See infra Part III.
68. BENTHAM, supra note 41, at 182.
69. BENTHAM, PRINCIPLES OF PENAL LAW, supra note 46, at 401.
70. Rehabilitation and incapacitation are most frequently justified in consequentialist, utilitarian terms: it serves the greater good to rehabilitate or incapacitate offenders. But see Franklin E. Zimring, Principles of Criminal Sentencing, Plain and Fancy, 82 NW. U. L. REV. 73, 75 (1987) (suggesting that in some contexts, such as juvenile justice, rehabilitation may be a moral obligation rather than simply a utilitarian aim).
71. See MPC SENTENCING REPORT, supra note 9, at 35 ("[I]t is difficult to place a ceiling upon the goal [of] general incapacitation in the absence of a limiting principle derived from retributive theory ....").
72. See, e.g., BENTHAM, PRINCIPLES OF PENAL LAW, supra note 46, at 367 (noting that incapacitation through "physical restraint" is but one method of preventing "the recurrence of similar offences").
73. In very recent history, the Bush administration asserted an all-but-absolute right to incapacitate in certain contexts. The administration argued that it could detain suspected terrorists and "enemy combatants" indefinitely in the interests of public safety. See Hamdi v. Rumsfeld, 542 U.S. 507, 519-21 (2004) (rejecting the government's argument that national security interests precluded judicial review of detention of alleged "enemy combatants"). This detention is not quite equivalent to penal incapacitation, for many detainees, including Hamdi at the time that he brought his petition for a writ of habeas corpus, had not been charged, much less convicted, of criminal offenses. Id. at 510-11. Beyond the context of terrorism, many recent laws seek to increase the power of the state to incapacitate certain classes of offenders. For a survey and critique of these laws, see generally Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice, 114 HARV. L. REV. 1429 (2001).
74. See, e.g., Francis A. Allen, The Decline of the Rehabilitative Ideal, in PRINCIPLED SENTENCING 23, 22-30 (Andrew von Hirsch & Andrew Ashworth eds., Ne. Univ. Press 1992) (addressing the scope and causes of the "modern decline of penal rehabilitationism").
75. See, e.g., Edward Rubin, Just Say No to Retribution, 7 BUFF. CRIM. L. REV. 17, 50 (2003) (arguing that proportionality "serves to limit the punishments prescribed by utilitarian or instrumental theories of punishment, such as deterrence, incapacitation, and rehabilitation").
76. See, e.g., David O. Brink, Immaturity, Normative Competence, and Juvenile Transfer: How (Not) to Punish Minors for Major Crimes, 82 TEX. L. REV. 1555, 1568 (2004) ("The retributive formula ... determines the length or severity of punishment, [but] it does not otherwise tell us how to punish .... Provided that we punish all and only the guilty and that our punishments are proportional to their desert, we should punish in ways designed to rehabilitate the offender and deter crime.").
77. See, e.g., Kyron Huigens, Rethinking the Penalty Phase, 32 ARIZ. ST. L.J. 1195, 1203 (2000) ("The question is only whether, roughly speaking, the punishment imposed is accurate with respect to the person's desert.").
78. Lex talionis is compatible with nonretributive theories of punishment as well. See infra note 68.
79. "And if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe." Exodus 21:23-25 (King James).
80. See Jeremy Waldron, Lex Talionis, 34 ARIZ. L. REV. 25, 47 n.46 (1992) ("Proportionality may or may not be a byproduct of the application of lex talionis.").
81. IMMANUEL KANT, THE METAPHYSICS OF MORALS,
82. reprinted in KANT: POLITICAL WRITINGS 131, 155 (Hans Reiss ed., H.B. Nisbet trans., 2d ed. 1991).
83. See IMMANUEL KANT, GROUNDING FOR THE METAPHYSICS OF MORALS 30 (James W. Ellington trans., Hackett Publ'g 1981) (1785) ("Act only according to that maxim whereby you can at the same time will that it should become a universal law.").
84. Waldron, supra note 64, at 29.
85. See supra note 63. Note that lex talionis is compatible with utilitarian theories of punishment. For example, Bentham suggest that "offenses against honor" might require punishments in kind: "For an insult offered to a woman, the man might be muffled up in the headdress of a woman, and the like insult might be inflicted on him by the hand of a woman."
86. BENTHAM, PRINCIPLES OF PENAL LAW, supra note 46, at 381. Such methods are designed "to transfer to the insolent offender the contempt which he wished to fix upon the innocent." Id.
87. The ridicule is often initiated with the question whether the state should impose rape as punishment for rapists. Lex talionis can be interpreted in such a way as to exclude rape for rapists, but only at considerable cost to the integrity of the principle. Professor Jeremy Waldron has argued that lex talionis requires only that "the act of punishment be the same as the act that constituted the offense." Waldron, supra note 64, at 32. This requirement can be satisfied, Waldron argues, as long as the punishment shares the "wrong-making characteristics" of the crime. Id. at 37. The wrong-making characteristics of the crime can be defined at a fairly abstract level. So, for example, stealing is wrong because it renders property rights insecure and produces economic uncertainty. Lex talionis could be satisfied, Waldron suggests, by giving a thief "a taste of economic uncertainty in other ways: for example, sentencing him to community service on days determined arbitrarily, unpredictably and at the last minute by a probation officer." Id. at 44. This version of lex talionis is certainly consistent with Kant's account. Kant finds lex talionis satisfied if "a high-ranking official convicted of violence" were sentenced to make an apology and endure "painful solitary confinement."
88. KANT, supra note 65, at 156. "[A]part from the resultant discomfort, the perpetrator's vanity would also be painfully affected, and this humiliation would provide an appropriate repayment of like with like." Id. Notwithstanding this broad interpretation of lex talionis, it seems to me that the principle is of little use given the vast range of criminalized activities and the relative uniformity of criminal sanctions. One must generalize "wrong-making" to an almost meaningless abstraction in order to find incarceration, fines, and probation sufficient to capture the "wrong-making characteristics" of such diverse crimes as drug possession, financial fraud, physical assault, lying to federal agents, production of child pornography, and so on.
89. See KANT, supra note 65, at 154-55:
90. [W]hat kind and what degree of punishment does public justice take as its principle and norm? None other than the principle of equality in the movement of the pointer on the scales of justice ... it should be understood that only the law of retribution (ius talionis) can determine exactly what quality and quantity of punishment is required ....
91. Id. at 155 ("For a human being can never be manipulated just as a means of realising someone else's intentions and is not to be confused with the objects of the law of kind. He is protected against this by his inherent personality ....");
92. see also Don E. Scheid, Kant's Retributivism, 93 ETHICS 262, 272 (1983) (noting that for Kant, the purposes of punishment must "be pursued in a morally acceptable way, that is, in a way which gives full moral respect to the persons to whom the penal system is applied").
93. Norval Morris, Desert as a Limiting Principle, in PRINCIPLED SENTENCING, supra note 58, at 201, 201. For Morris, desert determines both upper limits on punishment,
94. NORVAL MORRIS, THE FUTURE OF IMPRISONMENT 73 (1974), and, for especially serious offenses, lower limits, id. at 74. The American Law Institute has proposed a codification of Morris's "limiting retributivism" into the sentencing provisions of the Model Penal Code.
95. See MPC SENTENCING REPORT, supra note 9, at 41 ("[B] road support has been voiced for the theory of limiting retributivism as the philosophical cornerstone of sentencing decisions under the revised Model Penal Code.").
96. See, e.g., Lee, supra note 12, at 704 ("Retributivism under the Eighth Amendment... serves as a side constraint on the socially desirable practice of punishment."). "Side constraints" is Robert Nozick's term for absolute or near-absolute individual rights that constrain the actions of other individuals and of states.
97. See ROBERT NOZICK, ANARCHY, STATE AND UTOPIA 28-31 (1974) (noting that to understand rights as side constraints means that one cannot violate those rights in pursuit of other goals).
98. Herbert Morris, Persons and Punishment,
99. reprinted in SENTENCING, supra note 22, at 95 ("[I]t is just to punish those who have violated the rules and caused the unfair distribution of benefits and burdens. A person who violates the rules has something others have-the benefits of the system-but by renouncing what others have assumed, the burdens of self-restraint, he has acquired an unfair advantage.").
100. See also WOJCIECH SADURSKI, GIVING DESERT ITS DUE: SOCIAL JUSTICE AND LEGAL THEORY 225-227 (1985) (explaining that punishment is "a method of restoring an overall balance of benefits and burdens").
101. Sadurski suggests that we view retributive justice as "the proportional relations between inputs and outputs"-the inputs are crimes, the outputs punishments. SADURSKI, supra note 74, at 221;
102. see also id. at 229 ("[C] riminal law reflects the hierarchy of protected values: the more precious the value, the bigger the benefit of non-self-restraint acquired by the criminal. The intuitively just principle that more serious crimes should be punished more heavily is not, therefore, violated by the proposition about punishment as a restoration of the balance of benefits and burdens.").
103. See Eric L. Muller, The Virtue of Mercy in Criminal Sentencing, 24 SETON HALL L. REV. 288, 296 (1993) ("[T]rue retributivism is, at its core, a deeply egalitarian theory of punishment."). Muller addresses proportionality in passing and, like some other commentators,
104. see supra note 22, seems to assume that it is a concept specific to retributive theories.
105. See Muller, supra, at 297 ("[T]he idea of proportionality between the seriousness of the offense and the amount of punishment is central to retributivism...");
106. see also id. at 340 ("The retributivist [in contrast to the utilitarian] would insist that the punishment bear some sense of proportion to the ... nature of the criminal's wrongdoing."). Nevertheless, Muller's arguments against excessive sentences, and for mercy in some instances, are explicitly based on the "equal inherent worth" of the offender as a human being. See id. at 296. This rationale for a limitation on sentence severity is not necessarily retributive; presumably, one need not be a retributivist to believe that all human beings have equal inherent worth.
107. I do not mean to suggest that every retributive theory of punishment can be interpreted to include a political argument for proportionality. For example, Hegel certainly demands proportionality in punishment, but his argument seems dependent on his particular account of the purpose of punishment-and on his unusual claims about the metaphysical effects of crime. Hegel argues that crime, or wrong, has a continuing presence ("a positive external existence") even after the moment the wrong is committed. G. W. F. HEGEL, ELEMENTS OF THE PHILOSOPHY OF RIGHT 123, § 97 (H. B. Nisbet trans., Cambridge University Press 1991) (italics in Nisbet's translation). Punishment serves to negate the crime and restore the world to its prewronged state. See id. § 97, Addition ("The criminal act ... is itself negative, so that the punishment is merely the negation of the negation.") Hegel's argument requires proportionality but not the strong form of lex talionis-the scope of the punishment must correspond to the scope of the injury, but the method of punishment need not correspond to the method of crime. Hegel, like other retributive theorists, assumes commensurability between diverse injuries, but Hegel is particularly explicit about this commensurability requirement. He assumes that we can measure the scope of wrong generated by, say, a physical assault, and choose a corresponding punishment that inflicts injury of the same scope. "The cancellation [Aufheben] of crime is retribution in so far as the latter, by its concept, is an infringement of an infringement, and in so far as crime, by its existence [Dasein], has a determinate qualitative and quantitative magnitude, so that its negation, as existent, also has a determinant magnitude. But this identity ... is not an equality in the specific character of the infringement, but in its character in itself-i.e., in terms of its value." Id. at 127, § 101; see generally id. at 121-32, § 95-104.
108. Restorative justice, a penological paradigm not previously discussed in this Article, arguably does not contain a proportionality requirement. Some commentators have suggested that restorative justice actively resists at least some versions of proportionality in criminal sentencing. See, e.g., Sara Sun Beale, Still Tough on Crime? Prospects for Restorative Justice in the United States, 2003 UTAH L. REV. 413, 433 ("Almost all the sentencing guidelines reflected core principles that are in conflict with the restorative justice movement, namely, proportionality ....");
109. John Braithwaite, A Future Where Punishment is Marginalized: Realistic or Utopian?, 46 UCLA L. REV. 1727, 1743 (1999) (noting that the restorative justice model "involves rejection of a justice that balances the hurt of the crime with proportionately hurtful punishment").
110. See supra note 57. It is important to recognize that even the death penalty does not give a liberal state absolute power over the condemned. Liberal justifications for capital punishment insist that the condemned retains various rights up to and beyond execution. For example, death row inmates may not be tortured or abused, and their corpses must be treated with dignity.
111. NOZICK, supra note 73, at 4.
112. JOHN RAWLS, POLITICAL LIBERALISM 97 (1993). Rawls argues that a political account of justice is necessarily distinct from a "comprehensive moral doctrine," id. at 90-91, and that justice must be political rather than metaphysical because citizens in a diverse, pluralistic society will never agree on any single transcendent moral authority, id. at 97.
113. This spin on "separation of powers" was invoked to explain Harriet Miers's withdrawal from consideration for the Supreme Court. After members of Congress demanded that the White House produce documents related to Miers's service there, Miers explained that "[p]rotection of the prerogatives of the Executive Branch and continued pursuit of my nomination are in tension." In response, President Bush claimed that "Harriet Miers's decision [to withdraw from consideration] demonstrates her deep respect for this essential aspect of the constitutional separation of powers...." See Timothy Williams, Bush's Pick for Court Withdraws Her Name; Miers, Under Attack from Both Parties, Calls Process 'Burden,' INT. HERALD TRIBUNE, October 28, 2005, at 1.
114. RICHARD NEUSTADT, PRESIDENTIAL POWER: THE POLITICS OF LEADERSHIP 29 (1960) (emphasis omitted).
115. See, e.g., LOUIS HARTZ, THE LIBERAL TRADITION IN AMERICA 5-6 (1963) (arguing that American democracy "begins with Locke" and "stays with Locke, by virtue of an absolute and irrational attachment it develops for him");
116. see also id. at 8 (describing the American South as "an alien child in a liberal family, tortured and confused, driven to a fantasy life which, instead of disproving the power of Locke in America, portrays more poignantly than anything else the tyranny he has had").
117. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 272, § 8 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690) (I have added emphasis, and, for the sake of clarity, I have removed Locke's original italics). References to Locke herein include section numbers after the page number.
118. See, e.g., id. at 274-75, § 12 ("Each Transgression may be punished to that degree, and with so much Severity as will suffice to make it an ill bargain to the Offender, give him cause to repent, and terrifie others from doing the like.").
119. See generally RAWLS, supra note 81.
120. Cf. Francis A. Allen, A Matter of Proportion, 4 GREEN BAG 2d 343, 344 (2001) (noting that the principle of proportionality in punishment used to be "understood in much the same way as other limitations on governmental powers set forth in the bills of rights of American federal and state constitutions").
121. For example, Professor Jeffrie Murphy has explained that two very different accounts of punishment emerge from Kant's work depending upon whether one focuses strictly on the famous passages on punishment in Part I of The Metaphysics of Morals or instead collects Kant's observations about punishment across all of his writings. See Jeffrie G. Murphy, Does Kant Have a Theory of Punishment?, 87 COLUM. L. REV. 509, 518 (1987) ("Is the above account in fact what we find consistently defended and amplified in the text of the Rechtslehre? Hardly!"). When one considers all of Kant's writings other than Part I of The Metaphysics of Morals, it is clear that for Kant, "justified punishment is a deterrence system functioning to maintain a system of ordered liberty of action. To set any more morally ambitious goal for punishment would be to adopt an unacceptable theory of the role of the state and would represent an attempt to play God ...." Id. at 517.
122. In Professor Murphy's terms, it is important to distinguish between moral and political justifications for punishment. Even if one is certain that punishment is morally just, one still needs an argument for why "the pursuit of these [moral] goals is part of the legitimate business of the state." Id. at 510;
123. see also Guyora Binder, Punishment Theory: Moral or Political?', 5 BUFF. CRIM. L. REV. 321, 371 (2002) ("[T]here is reason to hope that debate about utility and autonomy in criminal lawmaking will become more productive once it is redefined as a political debate about institutions rather than a moral debate about the conduct of criminals and officials.");
124. Don E. Scheid, Kant's Retributivism, 93 ETHICS 262, 265-271 (1983) (assessing whether Kant's legal justification for punishment is consistent with his moral theories).
125. Hart, supra note 13, at 401.
126. H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 10 (1968).
127. See id. at 4, 8-13.
128. "[I]t is perfectly consistent to assert both that the General Justifying Aim of the practice of punishment is its beneficial consequences and that the pursuit of this General Aim should be qualified or restricted out of deference to principles of Distribution which require that punishment should be only of an offender for an offense. Conversely it does not in the least follow from the admission of the latter principle of retribution in Distribution that the General Justifying Aim of punishment is Retribution though of course Retribution in General Aim entails retribution in Distribution." Id. at 9. 1 would not follow Hart in calling a requirement that punishment be imposed only on the guilty a principle of "retribution in distribution." A guilt requirement is justifiable on utilitarian grounds as well as not-necessarily-retributive liberal grounds (such as the principle of notice).
129. The U.S. Constitution twice uses the term proportion: Article I, section 9, clause 4 provides that "No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken." U.S. CONST, art. I, § 2. Section 2 of the Fourteenth Amendment specifies the apportionment of representatives to states, and provides that when male citizens lose their right to vote for reasons other than "participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state." U.S. CONST, amend. XIV, § 2.
130. For a description of the proportionality principle under the German constitution, see David S. Law, Generic Constitutional Law, 89 MINN. L. REV. 652, 689 n.135 (2005) ("Germany is credited with the invention of proportionality review ...."). Under the Canadian Charter of Rights and Freedoms, intrusions on individual rights may be upheld if the intrusions are "demonstrably justified in a free and democratic society." Canadian Charter of Rights and Freedoms, Canada Act, 1982, ch. 11, §§ 1-4, sched. B (U.K.), as reprinted in R.S.C., No. 44, (Appendix 1985). Canadian courts apply the "Oakes test" to evaluate intrusions on individual rights; that test includes an inquiry into whether the means chosen by the government are proportional to its purpose. Regina v. Oakes, [1986] S.C.R. 103, 114. For a comparative constitutional law analysis of proportionality, see
131. Vicki C. Jackson, Ambivalent Resistance and Comparative Constitutionalism: Opening Up the Conversation on "Proportionality, "Rights and Federalism, 1 U. PA. J. CONST. L. 583, 602-24 (1999).
132. For an overview of "proportionality" tests in several areas of constitutional law, see K.G. Jan Pillai, Incongruent Disproportionality, 29 HASTINGS CONST. L.Q. 645, 655-93 (2002). Professor Pillai examines proportionality standards in the contexts of the Fifth Amendment's Takings Clause, the Eighth Amendment's Cruel and Unusual Punishments and Excessive Fines Clauses, and the Fourteenth Amendment's Due Process Clause in an attempt to clarify the meaning of the "congruence and proportionality" standard announced in City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
133. See Frase, supra note 12, at 618. Frase argues that proportionality underlies an even broader array of constitutional rules, including not only the Eighth Amendment and the Due Process Clause but also Fourth and Fifth Amendment exclusionary rules, Fourth Amendment "reasonableness," public forum rules under the First Amendment, and balancing under the Dormant Commerce Clause. See id. at 598-621.
134. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 702-03 (1999); Dolan v. City of Tigard, 512 U.S. 374, 391 (1994).
135. Dolan, 512 U.S. at 391. The Dolan Court characterized its decision as a protection of individual rights against government power: [S]imply denominating a governmental measure as a "business regulation" does not immunize it from constitutional challenge on the ground that it violates a provision of the Bill of Rights .... We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation in these ... circumstances.
136. Id. at 392.
137. The Del Monte Dunes Court noted that, although "rough proportionality" is a test specific to the exactions context, "in a general sense concerns for proportionality animate the Takings Clause." 526 U.S. at 702. For the purposes of this Article, the more specific proportionality test used to evaluate exactions is the better illustration of political proportionality. The exactions test creates a link between private conduct (the conduct of the property owner) and government power. In the criminal context, there should be a similar link between the criminal conduct and the power to punish.
138. 521 U.S. 507 (1997).
139. Id. at 536. The Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb-2000bb-4 (1993), was Congress's response to Employment Division v. Smith, 494 U.S. 872 (1990), in which the Court held that facially neutral laws that happened to inhibit religious practices were not subject to heightened scrutiny. Id. at 878-79. The RFRA attempted to "overrule" Smith; it provided that in order to enforce facially neutral laws that substantially burdened religious exercise, a state or local government had to demonstrate that the law was the least restrictive means of serving a compelling government interest. 42 U.S.C. §§ 2000bb-2000bb-4.
140. City of Boerne, 521 U.S. at 525 (quoting South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966)).
141. Id. at 520. Similarly, [w]hile preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented. Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one.
142. Id. at 530 (citation omitted).
143. 531 U.S. 356 (2001).
144. Id. at 374.
145. Id. at 371 n.7.
146. Id. at 374.
147. 541 U.S. 509 (2004). George Lane, a wheelchair-bound paraplegic and one of the two plaintiffs, had been called to answer criminal charges in a courtroom on the second floor of a Tennessee courthouse that had no elevator. On one occasion, Lane crawled up two flights of stairs to get to the courtroom, but on a second trip to the courthouse for a hearing, Lane refused to be carried up the stairs or to crawl again. He was arrested and jailed for failure to appear, and subsequently filed suit against the state under the ADA for failure to provide access to the courts. Id. at 513-14.
148. 42 U.S.C. §§ 12, 131-12,165.
149. Lane, 541 U.S. at 531. Although the Court found Title II of the ADA to pass muster under the congruence and proportionality test, other doctrinal considerations may also have contributed to the different outcomes in Garrett and Lane. The Lane Court noted that Title II was not only a prohibition of "irrational disability discrimination" but also an effort "to enforce a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review." Id. at 522-23.
150. Justice Scalia joined the City of Boerne majority in its original statement of the congruence and proportionality test, and he subsequently voted with the majority in every case in which the City of Boerne standard was used to strike down antidiscrimination legislation. See Board of Trustees v. Garrett, 531 U. S. 356, 372-74 (2001) (applying City of Boerne and finding that Title I of the Americans with Disabilities Act was not a valid exercise of Congress's Section Five enforcement powers); United States v. Morrison, 529 U.S. 598, 619-20 (2000) (applying City of Boerne and finding that the Violence Against Women Act was not a valid exercise of Congress's Section Five enforcement powers); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 82-83 (2000) (applying City of Boerne to strike down the Age Discrimination in Employment Act as applied against state and local governments). When the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654 (2000), was sustained under the congruence and proportionality test, Justice Scalia dissented. Nev. Dept. of Human Res. v. Hibbs, 538 U.S. 721, 741 (2003) (Scalia, J., dissenting). Justice Scalia dissented again in Tennessee v. Lane, and went so far as to reject the congruence and proportionality test outright: "I yield to the lessons of experience. The 'congruence and proportionality' standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy-driven decisionmaking." 541 U.S. at 557-58 (Scalia, J., dissenting).
151. See Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (holding Title I of the Americans with Disabilities Act unconstitutional insofar as it subjected states to private suits in federal court); United States v. Morrison, 529 U.S. 598, 627 (2000) (striking down the Violence Against Women Act); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 92 (2000) (striking down the Age Discrimination in Employment Act's abrogation of state sovereign immunity). But the last two statutes scrutinized under the test were found to be congruent and proportional responses to discrimination and thus legitimate exercises of Congressional power. See Lane, 541 U.S. 509, 533-34 (2004) (upholding Title II of the Americans with Disabilities Act); Hibbs, 538 U.S. 721, 740 (2003) (upholding the Family and Medical Leave Act of 1993).
152. For an overview of the effects of City of Boerne and its progeny on equal protection jurisprudence, see generally Robert C. Post & Reva B. Siegel, Equal Protection By Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 YALE L.J. 441 (2000).
153. See, e.g., Kevin C. McMunigal, The Craft of Due Process, 45 ST. LOUIS U. L.J. 477, 480 (2001) (noting "the contrast between the Supreme Court's jurisprudence in the area of criminal procedure and roughly contemporaneous developments in other areas of law critical to the resolution of criminal cases: substantive criminal law, the law of sentencing and the law of evidence").
154. The intersection of sentencing and the substantive criminal law is particularly evident in Robinson v. California, 370 U.S. 660 (1962), in which the Court found a jail sentence of ninety days to be "cruel and unusual punishment" for the offense of "be[ing] addicted to the use of narcotics." Id. at 662, 667. Robinson is considered one of the Supreme Court's very few "substantive criminal law" decisions, but importantly, it was the imposition of the sentence that gave the Court a constitutional basis to strike down the law. See also William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1, 66-67 (1997) (discussing sentencing as part of the substantive criminal law).
155. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 429 (2003) (reversing a judgment for $145 million in punitive damages on the grounds that the award "was neither reasonable nor proportionate to the wrong committed"); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 585-86 (1996) (reversing a judgment for S2 million in punitive damages as "grossly excessive"); TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 453, 482 (1993) (affirming a $10 million punitive damage award against a challenge that the award was "grossly excessive").
156. Day v. Woodworth, 54 U.S. (13 How.) 363, 371 (1851); see also Gore, 517 U. S. at 575-76 (citing cases).
157. United States v. Bajakajian, 524 U.S. 321, 334 (1998).
158. Waters-Pierce Oil Co. v. Texas, 212 U.S. 86, 111 (1909).
159. 517 U.S. 559 (1996).
160. State Farm, 538 U.S. 408 at 418 (citing Gore, 517 U.S. at 575).
161. Id. at 408.
162. Id. at 416.
163. Id. (quoting Gore, 517 U.S. at 568).
164. Id.
165. Id. at 417.
166. 524 U.S. 321 (1998).
167. See id. at 327 ("This Court has had little occasion to interpret, and has never actually applied, the Excessive Fines Clause."). The Eighth Amendment provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted." U.S. CONST, amend. VIII.
168. Bajakajian, 524 U.S. at 334.
169. Id. at 335.
170. Id. at 336 n. 10. Just before announcing the standard of de novo review, the majority opinion reiterated the importance of judicial deference in the context of proportionality review. Id. at 336.
171. 463 U.S. 277 (1983). For a more detailed discussion of Solem v. Helm,
172. see infra text accompanying notes 186-192.
173. Bajakajian, 524 U.S. at 337-40. Since Bajakajian, the Court has not considered another challenge to a criminal fine under the Excessive Fines Clause.
174. See, e.g., Chemerinsky, supra note 12, at 1062 ("[T]he Court's decisions provide that taking away too much money is unconstitutional, but too many years in prison is not."); Karlan, supra note 12, at 882 ("So it's interesting that, having sharply cut back on proportionality review of criminal sentences, the Court has identified a proportionality principle for criminal fines ...."); Van Cleave, supra note 12, at 200 ("Yet, ironically, the Court has not shown the same concern about excessiveness and disproportionality [as it has in the monetary realm] when the punishment is imprisonment, a deprivation of liberty.");
175. Adam M. Gershowitz, Note, The Supreme Court's Backwards Proportionality Jurisprudence: Comparing Judicial Review of Excessive Criminal Punishments and Excessive Punitive Damages Awards, 86 VA. L. REV. 1249, 1252 (2000) ("It thus appears that the Supreme Court has not only analyzed excessive criminal punishment claims separately from excessive punitive damages verdicts, but it has also promulgated different levels of proportionality review for the two areas.").
176. See Solem, 463 U.S. at 312 & n.5 (Burger, C.J., dissenting) (noting that "historians and scholars have disagreed about the Framers' original intentions" with respect to the Cruel and Unusual Punishments Clause, and citing sources).
177. See infra notes 172-222 and accompanying text.
178. As Professor Joseph Raz has pointed out, equality is often mistakenly identified as an independent principle when it is actually the consequence of the general applicability of other principles. JOSEPH RAZ, THE MORALITY OF FREEDOM 220 (1986) ("Every moral and every political theory which claims either that it is a complete theory, or even merely that it is complete regarding some issue, contains a principle of equality in this sense."). If what I have called liberty-interest proportionality were universally realized, then the need for equality-interest proportionality would disappear. Even though the principle of liberty-interest proportionality contains within it equality-interest proportionality, I find it useful to speak of both forms of proportionality. The distinction helps explain the different ways the Supreme Court speaks of proportionality. Moreover, in practice liberty-interest proportionality is hard to achieve, and courts may use equality-interest
179. proportionality as a proxy for liberty-interest proportionality. If one is unsure of the demands of liberty-interest proportionality in a particular case, one can consider what other jurisdictions do in similar cases.
180. 217 U.S. 349 (1910).
181. Id. at 357, 366-67.
182. Id. at 367.
183. Id. at 373.
184. Id. (quoting Kepner v. United States, 195 U.S. 100, 122 (1904)). The Weems Court observed that the Philippine bill of rights' prohibition on cruel and unusual punishment was "intended to carry to the Philippine Islands those principles of our government which the President declared to be established as rules of law for the maintenance of individual freedom." Id. at 368 (quoting Kepner, 195 U.S. at 124).
185. Id. at 372. The Weems Court went on to note that a proportionality requirement for penalties is essential when the legislature has near-absolute power to define what activity is criminal. Id. For a discussion of the interrelationship between defining crime and fixing sentences, see infra Part III.
186. Justice (Edward) White dissented in Weems; he argued that the text and history of the Cruel and Unusual Punishments Clause showed that it prohibited only "illegal" (not legislatively authorized) punishments or certain "inhuman" bodily punishments. 217 U.S. at 389-96 (White, J., dissenting). Justice Scalia has advanced a similar historical argument. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 966-85 (1991) (opinion of Scalia, J.). Debates about the original meaning of the Eighth Amendment are far from settled, however. As noted, the Weems majority also relied on historical analysis. One leading article on the original meaning of the Eighth Amendment argues that proportionality was a component of the British ban on "cruel and unusual punishments," and if the American Framers left proportionality out of the Eighth Amendment, they almost surely did so unintentionally. Anthony F. Granucci, "Nor Cruel and Unusual Punishments Inflicted": The Original Meaning, 57 CAL. L. REV. 839, 860-65 (1969).
187. The Court reiterated the Weems holding in Solem v. Helm, 463 U.S. 277, 286-92 (1983), but was less explicit in Solem about the individual liberty interest that underlies the Eighth Amendment proportionality requirement.
188. 370 U.S. 660 (1962).
189. Id. at 666-67.
190. See, e.g., Jerold H. Israel, Selective Incorporation: Revisited, 71 GEO. L.J. 253, 292 n.313 (1982) (treating Robinson as part of the "ordered liberties" doctrine).
191. Robinson, 370 U.S. at 661, 667.
192. Id. at 667.
193. Id. at 666-67.
194. Later Supreme Court decisions characterize Robinson as a key proportionality decision. See, e.g., Atkins v. Virginia, 536 U.S. 304, 311 (2002) (quoting Robinson, 370 U.S. at 666-67).
195. 408 U.S. 238 (1972) (per curiam).
196. Id. at 240-41. Furman was decided 5-4, and each of the nine Justices filed a separate opinion.
197. Id. at 242, 245 (Douglas, J., concurring).
198. Id. at 245.
199. Id. at 274 (Brennan, J., concurring). Justice Brennan found three principles inherent in the Cruel and Unusual Punishments Clause: First, "a punishment must not be so severe as to be degrading to the dignity of human beings." Id. at 271. Second, "the State must not arbitrarily inflict a severe punishment." Id. at 274. Third, "a severe punishment must not be unacceptable to contemporary society." Id. at 277.
200. Id. at 309 (Stewart, J., concurring).
201. Gregg v. Georgia, 428 U.S. 153, 207 (1976).
202. Id. at 203. The Court later held-or, at least, strongly suggested-that this sort of proportionality review of death sentences was not, in fact, a constitutional requirement. Pulley v. Harris, 465 U.S. 37, 43-44 (1984). For two perspectives on the scope of the Pulley v. Harris holding, compare Barry Latzer, The Failure of Comparative Proportionality Review of Capital Cases (with Lessons From New Jersey), 64 ALB. L. REV. 1161, 1170 (2001) (arguing that Pulley definitely ended the Constitutional requirement of comparative review), with
203. Evan J. Mandery, In Defense of Specific Proportionality Review, 65 ALB. L. REV. 883, 899 (2002) (arguing that it is unclear what sort of proportionality review the Court considered and whether it rejected anything more than a mere procedural requirement).
204. Gregg, 428 U.S. at 173 (citing Trop v. Dulles, 356 U.S. 86, 100 (1958); Weems v. United States, 217 U.S. 349, 367 (1910)).
205. 433 U.S. 584(1977).
206. "[O]ut of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue." Id. at 596 n.10.
207. See id. at 593-97 ("These recent events evidencing the attitude of state legislatures and sentencing juries do not wholly determine this controversy . . . .").
208. Id. at 598 (quoting Gregg, 428 U.S. at 187 (citation omitted)). Notably, two of the three defendants in Furman and its companion cases were sentenced to death for rape rather than murder. Furman v. Georgia, 408 U.S. 238, 252-53 (1972) (Douglas, J., concurring).
209. Coker, 433 U.S. at 592. The Coker Court referred to Gregg but did not give a page citation. In fact, Gregg's statement of the rule does not directly mention penal purposes: "First, the punishment must not involve the unnecessary and wanton infliction of pain. Second, the punishment must not be grossly out of proportion to the severity of the crime." Gregg, 428 U.S. at 173 (citations omitted).
210. Coker, 433 U.S. 592 n.4 (emphasis added).
211. 458 U.S. 782 (1982).
212. Id. at 788.
213. Id. at 798 (quoting Coker, 433 U.S. at 592).
214. See, e.g., Roper v. Simmons, 125 S. Ct. 1183, 1196-98 (2005) (noting that "the penological justifications for the death penalty apply to [juveniles] with lesser force than to adults" and concluding that "the death penalty is disproportionate punishment for offenders under 18"); Atkins v. Virginia, 536 U.S. 304, 321 (2002) ("We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty .... [W]e therefore conclude that such punishment is excessive . . . .").
215. See, e.g., Rummel v. Estelle, 445 U.S. 263, 275-76 (1980) (noting that with respect to the appropriate severity of a criminal penalty, "the lines to be drawn are indeed 'subjective,' and therefore properly within the province of legislatures, not courts").
216. 445 U.S. 263 (1980).
217. Id. at 264-66.
218. The first offense involved fraudulent use of a credit card to obtain S80 worth of goods and services. The second offense involved a forged check for $28.36. The third offense involved obtaining S120.75 by false pretenses. Id. at 265-66.
219. Id. at 272.
220. See id. at 274 ("[O]ne could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative."). Since Rummel, Chief Justice Rehnquist, Justice Scalia, and Justice Thomas have been the only Justices to state explicitly that the Eighth Amendment does not require proportionality in criminal sentences. See Ewing v. California, 538 U.S. 11, 32 (2003) (Thomas, J., concurring) ("In my view, the Cruel and Unusual Punishments Clause of the Eighth Amendment contains no proportionality principle."); Harmelin v. Michigan, 501 U.S. 957, 966-85 (1991) (Scalia, J., joined only by Chief Justice Rehnquist) (arguing that the Framers did not intend the Cruel and Unusual Punishments Clause to require proportionality).
221. Rummel, 445 U.S. at 274 n.11.
222. Id at 278, 284-85.
223. Id. at 284.
224. Id at 285.
225. 454 U.S. 370 (1982).
226. Id. at 371, 374. The Davis Court quoted extensively from the Rummel opinion and offered few new principles to guide proportionality analysis. Id. at 372-74.
227. 463 U.S. 277 (1983).
228. Id. at 290.
229. Id. at 290-92.
230. Id. at 290-91.
231. Id. at 291.
232. Id.at 291-92.
233. Id. at 291.
234. 501 U.S. 957 (1991).
235. Id. at 994-97 (Scalia, J., joined by Rehnquist, C.J., and O'Connor, Kennedy, and Souter, JJ.).
236. Id. at 995.
237. Id.
238. Id. at 965, 966-94 (opinion of Scalia, J.).
239. Id. at 998 (Kennedy, J., concurring).
240. The first principle is that "the fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is 'properly within the province of legislatures, not courts.'" Harmelin v. Michigan, 501 U.S. 957, 998 (1991) (Kennedy, J., concurring) (quoting Rummel v. Estelle, 445 U.S. 263, 275-76 (1980)). Second, "the Eighth Amendment does not mandate adoption of any one penological theory." Id. at 999. Third, different theories of sentencing and different sentencing practices "are the inevitable, often beneficial, result of the federal structure." Id. Fourth, "proportionality review by federal courts should be informed by 'objective factors to the maximum possible extent.'" Id. at 1000 (quoting Rummel, 445 U. S. at 274-75).
241. Id. at 1001 (Kennedy, J., concurring) (quoting Solem v. Helm, 463 U.S. 277, 288 (1983)).
242. Id. at 1005 (Kennedy, J., concurring).
243. Id. Justice Kennedy did not specifically limit this revised Solem test to noncapital sentences, but his invocations of the value of deference to the legislature focus on the noncapital context. See id. at 998 (Kennedy, J., concurring) ("[T]he fixing of prison terms . . . involves a substantive penological judgment that, as a general matter, is properly with the province of legislatures, not courts." (internal quotations omitted) (citation omitted)); id. at 999 ("[M]arked divergences... in the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure.").
244. 536 U.S. 304 (2002).
245. Id. at 311.
246. Id. at 321.
247. Id. at 311.
248. Id. at 318-20.
249. 538 U.S. 11 (2003).
250. Id. at 19-20.
251. Id. at 14.
252. Id. at 24 ("Though three strikes laws may be relatively new, our tradition of deferring to state legislatures in making and implementing such important policy decisions is longstanding.").
253. Id. at 20 (quoting Harmelin v. Michigan, 501 U.S. 957, 996-97 (Kennedy, J., concurring in part and concurring in judgment)).
254. Id. at 29.
255. Id.
256. Coker v. Georgia, 433 U.S. 584, 592 n.4 (1977).
257. 538 U.S. 63 (2003).
258. Id. at 77. The specific question before the Court in Andrade was whether California state courts, in upholding Leandro Andrade's prison term of fifty years to life, had acted "contrary to ... clearly established federal law." Id. at 70-71 (citing 28 U.S.C. § 2254(d)(1)). Justice O'Connor, writing for the majority, observed that "our precedents in this area have not been a model of clarity." Id. at 72. All that is "clearly established," Justice O'Connor found, is the "gross disproportionality principle" articulated in Justice Kennedy's Harmelin concurrence. Id. at 73. The majority found that Andrade's sentence did not violate the gross disproportionality principle. Id. at 77.
259. Roper v. Simmons, 125 S. Ct. 1183 (2005).
260. Id. at 1190 ("As the Court explained in Atkins, the Eighth Amendment guarantees individuals the right not to be subjected to excessive sanctions."). Justice Kennedy has authored key discussions of proportionality in several contexts: he authored the Roper majority opinion, the majority opinion in City of Boerne v. Flores, announcing the "congruence and proportionality" requirement for Congressional action under Section Five of the Fourteenth Amendment, and a concurrence in Harmelin v. Michigan that first announced the "gross disproportionality" test later adopted by the Court in Ewing v. California.
261. Id. at 1186.
262. Id. at 1196.
263. Id.
264. For example, advocates have raised proportionality challenges to lengthy prison terms, and especially "life without parole" or LWOP sentences, imposed on juvenile offenders, but have had very little success. See, e.g., Harris v. Wright, 93 F.3d 581, 583-85 (9th Cir. 1996) (applying the "gross disproportionality" test to reject an Eighth Amendment challenge to a life without parole sentence imposed on a juvenile offender). See generally Wayne A. Logan, Proportionality and Punishment: Imposing Life Without Parole on Juveniles, 33 WAKE FOREST L. REV. 681, 684 (1998) (noting that proportionality challenges to LWOP sentences for juveniles have had only "limited" success in state courts and no success in the federal courts).
265. See, e.g., Rummel v. Estelle, 445 U.S. 263, 272 (1980) ("Because a sentence of death differs in kind from any sentence of imprisonment, no matter how long, our decisions applying the prohibition of cruel and unusual punishments to capital cases are of limited assistance in deciding the constitutionality of the punishment meted out to Rummel").
266. At the same time, it is unlikely that the Court could enforce constitutional rights with no conceptual account of what punishment is. The Constitution speaks of punishment on several occasions: Article I, §3, clause 7; Article I, § 8, clause 6; Article I, § 8, clause 10; Article III, § 3, clause 2; amendment VIII; amendment XIII. Consequently, the Court has often had to decide whether a legal consequence is a punishment within the meaning of the Constitution. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 556 (2004) (Scalia, J., dissenting) ("It is unthinkable that the Executive could render otherwise criminal grounds for detention noncriminal merely ... by asserting that it was incapacitating dangerous offenders rather than punishing wrongdoing."); United States v. Bajakajian, 524 U.S. 321, 328 (1998) (assessing whether a statute mandating currency forfeiture inflicted punishment); Kansas v. Hendricks, 521 U.S. 346, 360-66 (1997) (assessing whether a sex offender civil confinement statute imposed punishment); Austin v. United States, 509 U.S. 602, 619 (1993) (considering which statutory forfeitures should be considered punishment); Trop v. Dulles, 356 U.S. 86, 94-97 (1958) (assessing whether a statute providing for denationalization imposes punishment). But we can, and should, define punishment without adopting a particular theory of penological purpose. The very notion that a "punishment" could be "cruel and unusual" indicates that the Eighth Amendment assumes a positive definition of punishment rather than a normative one-in other words, punishment is not defined in terms of the purposes that allegedly legitimate it. I develop this argument more fully elsewhere. See Alice Ristroph, Sexual Punishments, 15 COLUM. J. GENDER & L. 139, 168-70 (2006).
267. Scholars arguing for a stronger constitutional proportionality requirement have, like the Court, tended to focus on the purposes of punishment (although academic commentators are typically much less deferential to legislative judgments about the goals of punishment and the best means to achieve those goals). For example, Professor Frase argues for a proportionality analysis that accommodates various penological purposes, including both retributive and utilitarian goals. See Frase, supra note 12, at 588-90. Frase identifies two different utilitarian proportionality principles-ends proportionality and means proportionality-and argues that both should figure into Eighth Amendment analysis. Id. at 592-97. The argument for a more searching means-ends analysis seems unlikely to persuade the Court unless it also addresses the Court's concern about institutional competence. In Hutto v. Davis, 454 U.S. 370 (1982), the Court explicitly rejected an argument for a "less restrictive means" analysis in proportionality review of criminal sentences. See id. at 373 n.2 (rejecting the lower court's "less restrictive means" analysis and noting that this analysis had been implicitly rejected in Rummel, because "the lines to be drawn are indeed 'subjective,' and therefore properly within the province of legislatures, not courts" (quoting Rummel, 445 U.S. at 275-76)).
268. See supra Part I.
269. "Overlapping consensus" is John Rawls's term; the Court does not use it. JOHN RAWLS, A THEORY OF JUSTICE 387-88 (1971);
270. RAWLS, supra note 81, at 15.
271. See, e.g., Roper v. Simmons, 125 S. Ct. 1183, 1196 (2005) ("[N]either retribution nor deterrence provides adequate justification for imposing the death penalty on juvenile offenders."); Atkins v. Virginia, 536 U.S. 304, 321 (2002) ("We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty.").
272. Roper, 125 S. Ct. at 1200 (striking down the death penalty as applied to juvenile offenders); Atkins, 536 U.S. at 321 (striking down the death penalty as applied to mentally retarded offenders); Enmund v. Florida, 458 U.S. 782, 801 (1982) (striking down the death penalty as applied to defendants who did not kill or intend to kill); Coker v. Georgia, 433 U.S. 584, 600 (1977) (striking down the death penalty as applied to defendants who committed rape but not murder).
273. See, e.g., MPC SENTENCING REPORT, supra note 9, at 36-37 (noting that the early revisions to the MPC borrow from Norval Morris's theory of "limiting retributivism");
274. Frase, supra note 12. at 590 ("[Limiting retribution], emphasizing limits on excessive measures, is consistent with both the text of the Eighth Amendment and the role of constitutional guarantees.");
275. Morris, supra note 72, at 201 ("My view is different: It is that desert is not a defining principle, but is rather a limiting principle.").
276. The two California three strikes cases, Ewing and Andrade, are particularly interesting on the question of desert. The state of California identified retribution as well as deterrence and incapacitation as purposes of the long mandatory sentences imposed under the three strikes statute. See, e.g., Cal. Penal Code § 667(b) (West 1999) (identifying the purposes of the three strikes statute, including to "ensure greater punishment"); Respondent's Brief on the Merits, Ewing v. California, at 8, 18, 21 (arguing that the California law is justified due to the "enhanced blameworthiness" and "aggravated ... culpability" of the repeat offender). The Ewing majority opinion based its decision to uphold the statute on the California legislature's alleged decision to adopt incapacitation as its central penological aim. See Ewing v. California, 538 U.S. 11, 25-26 (2003) ("When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice."); see also id. at 14 ("California's three strikes law reflects a shift in the State's sentencing policies toward incapacitating and deterring repeat offenders who threaten the public safety ...."). But the notion that the three strikes law was aimed at incapacitation instead of retribution was apparently supplied to counsel by one of the Justices at oral argument. See Transcript of Oral Argument, Ewing v. California, at * 44-45 ("QUESTION: I would have thought that your response ... would have been that... it depends on what you want your penal goals to be. California has decided that disabling the criminal is the most important thing. . . . QUESTION: I mean, proportionality-you necessarily have to look upon what the principal objective of the punishment is."). There is nothing obviously false about the claim that repeat offenders, after a certain number of triggering offenses, deserve life imprisonment. California made this claim repeatedly before the Supreme Court decided the three strikes law was better justified in terms of incapacitation.
277. Justice Scalia expresses this view with characteristic vehemence in his dissenting opinion in Roper v. Simmons. See 125 S. Ct. at 1230 (Scalia, J., dissenting) (suggesting that the majority opinion rests on little more than "a show of hands on the current Justices' current personal views about penology"). But Justice Scalia does not appear to argue that it is impossible for judges to determine whether an individual deserves a penalty. Instead, he is as certain that capital punishment for juvenile offenders -will serve penological purposes as the majority is certain that it -will not. "The Court's contention that the goals of retribution and deterrence are not served by executing murderers under 18 is ... transparently false." Id. at 1225.
278. See generally DERYCK BEYLEVELD, A BIBLIOGRAPHY ON GENERAL DETERRENCE RESEARCH (1980) (collecting statistical research to assess the deterrent effect of punishment).
279. See, e.g., Sara Sun Beale, What's Law Got to Do with It? The Political, Social, Psychological and Other Non-Legal Factors Influencing the Development of (Federal) Criminal Law, 1 BUFF. CRIM. L. REV. 23, 29 (1997) (noting the failure of empirical research to influence U.S. criminal justice policy); see also
280. Charles S. Lanier & James R. Acker, Capital Punishment, the Moratorium Movement, and Empirical Questions, 10 PSYCHOL. PUB. POL'Y & L. 577, 591 (2004) ("Although the empirical research concerning whether the death penalty deters homicide more effectively than life imprisonment has been exhaustive and consistent, its role in judicial and public policy decisions has been less definitive.").
281. Many scholars have examined various skeptical traditions in American legal thought-positivism, legal realism, the legal process school, conventionalism, and critical legal studies are all products of skepticism in one form or another. See, e.g., Michael Moore, Moral Reality, 1982 WIS. L. REV. 1061, 1064-67 (1982) (describing the influence of skepticism on legal process theorists, conventionalists, positivists, and law and economics scholars, among others);
282. Richard A. Posner, The Jurisprudence of Skepticism, 86 MICH. L. REV. 827, 827 (1988) ("The skeptical vein in American thinking about law runs from Holmes to the legal realists to the critical legal studies movement....").
283. How would one show that retributivism is "wrong"? One can argue against it on liberal grounds-for instance, there is a strong argument that even if punishment is morally justified, the liberal state has no business using physical force to satisfy (highly contested) moral demands. See Murphy, supra note 89, at 510 ("A complete theory of punishment must concern itself not merely with the moral desirability of the goals sought by punishment. . . but also with the equally important question of whether the pursuit of these goals is part of the legitimate business of the state . . . ."). But for many retributivists, the demand for retribution boils down to a first principle-people who do bad things deserve to be punished. This first principle is an article of faith; it cannot be proved or disproved but only shared or rejected.
284. One could also say that penological skepticism is based on a positive account of punishment-punishments are simply the penalties that the state imposes in response to crime-rather than a normative account that builds justifying aims into the definition of punishment. As noted above, the Eighth Amendment's contemplation that "punishments" can be "cruel and unusual" certainly seems to imply a positive understanding of punishment. See supra note 225.
285. At any rate, the moral theories that scholars often find to underlie the rules of substantive criminal law are not generally associated with the procedural rights of criminal defendants. See Markus Dirk Dubber, American Plea Bargains, German Lay Judges, and the Crisis of Criminal Procedure, 49 STAN. L. REV. 547, 553 (1997) (noting that "so-called substantive criminal law" and "criminal procedure" are relatively isolated in American law, and that it is only substantive criminal law that "associate[s] itself with moral philosophy as best it can").
286. The Supreme Court's musings on retribution and deterrence just don't appear in its decisions on constitutional criminal procedure. When those decisions attribute a purpose to the criminal justice system, that purpose is typically "effective law enforcement." See, e.g., California v. Acevedo, 500 U.S. 565, 574 (1991) (holding that probable cause to search a vehicle extends to containers found within the vehicle, and rejecting a distinction between the vehicle and containers within it as an impediment to "effective law enforcement"); Tennessee v. Garner, 471 U.S. 1, 19 (1985) ("We would hesitate to declare a police practice of long standing 'unreasonable' if doing so would severely hamper effective law enforcement."); Kolender v. Lawson, 461 U.S. 352, 365 (1983) (suggesting that the Fourth Amendment strikes a balance between "the public interest in effective law enforcement and the equally public interest in safeguarding individual freedom and privacy"). Neither federal courts nor, to my knowledge, academic commentators have attempted to explore or explain in detail what it means to enforce a law or what it means for enforcement to be effective. "Effective law enforcement" could encompass retributive or utilitarian accounts of punishment, but it need not embrace either of those theories. In fact, one could understand "enforcing the law" to be the act of ensuring that the law's terms are observed. Many criminal laws do not even contain explicit proscriptions (such as "do not steal"); instead, they define offenses and provide for penalties for those who commit those offenses. Thus, to enforce the law could mean no more than to ensure that those who commit the specified behavior are given the specified penalty. There is no theory of punishment here, no account of why the state attaches penalties to this behavior or what it hopes the penalties to accomplish.
287. See the discussions of a guilt requirement, supra notes 31 and 94.
288. This line of cases began in 1998 with Almendarez-Torres v. United States, 523 U.S. 224 (1998), and has since produced six other Supreme Court decisions: Jones v. United States, 526 U.S. 227 (1999); Apprendi v. New Jersey, 530 U.S. 466 (2000); Harris v. United States, 536 U.S. 545 (2002); Ring v. Arizona, 536 U.S. 584 (2002); Blakely v. Washington, 124 S. Ct. 2531 (2004); and United States v. Booker, 125 S. Ct. 738 (2005). The Court addressed similar issues in Monge v. California, 524 U.S. 721 (1998), but decided that case primarily on Double Jeopardy Clause grounds rather than Sixth Amendment grounds.
289. 530 U.S. 466 (2000).
290. Id. at 490. Although the Apprendi majority referred repeatedly to the right to a jury trial, it rested its analysis on the Fourteenth Amendment Due Process Clause and not explicitly on the Sixth Amendment. Id. at 469, 476.
291. Id. at 469-70. Apprendi was charged with, and pled guilty to, other offenses as well, but only the constitutionality of the sentence on the firearm possession count was at issue before the Supreme Court. Id. at 470, 474.
292. Id. at 470-71.
293. Id. at 471.
294. See Mullaney v. Wilbur, 421 U.S. 684, 704 (1975) (holding that because Maine law provided that "heat of passion on sudden provocation" reduced murder to manslaughter, the prosecution was required to prove beyond a reasonable doubt the absence of such passion); In re Winship, 397 U.S. 358, 364 (1970) ("[W]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.").
295. This reversal of typical proportionality reasoning is most clear in Justice Thomas' s Apprendi concurrence. Apprendi, 530 U.S. at 499 (Thomas, J., concurring). After noting that "[t]his case turns on the seemingly simple question of what constitutes a 'crime,'" id., Justice Thomas analyzed historical evidence and concluded that "a 'crime' includes every fact that is by law a basis for imposing or increasing punishment," id. at 518. The Court has extended the Apprendi analysis to capital sentencing, holding that facts necessary to the imposition of a death sentence must be found by a jury, Ring v. Arizona, 536 U.S. 584, 609 (2002), and to state and federal sentencing guideline statutes, holding that mandatory guidelines are unconstitutional insofar as they allow judges to find "sentencing factors" that increase the penalty beyond the maximum that could be imposed in the absence of the sentencing factor, United States v. Booker, 125 S. Ct. 738, 756-57 (2005); Blakely v. Washington, 124 S. Ct. 2531, 2543 (2004).
296. Ewing v. California, 538 U.S. 11, 32 (2003) (Thomas, J., concurring); Apprendi, 530 U.S. at 498 (Scalia, J., concurring); id. at 499 (Thomas, J., concurring); Harmelin v. Michigan, 501 U.S. 957, 966-94 (1991) (opinion of Scalia, J.). As far as I am aware, no Justice has explicitly contemplated a Sixth Amendment proportionality requirement.
297. 542 U.S. 296, 308-09 (2004).
298. Id. at 306-07 (citation omitted).
299. 530 U.S. at 490 n.16.
300. Id.
301. Id. at 491 n.16 (quoting Patterson v. New York, 432 U.S. 197, 228-29 n. 13 (1977) (Powell, J., dissenting)).
302. Professor Franklin Zimring has argued that even "populist" legislation such as California's three strikes law does not exactly originate from a spontaneous groundswell of majority support. See, e.g., FRANKLIN E. ZIMRING, GORDON HAWKINS, & SAM KAMIN, PUNISHMENT AND DEMOCRACY: THREE STRIKES AND YOU'RE OUT IN CALIFORNIA 160-61 (2001) (arguing that it is wrong to see public opinion as either "solely an input" or "solely an output" of the political process that determines crime policy, and suggesting that choices by political leaders sometimes shape public opinion on crime); see also id. at 166 ("The relative importance of crime as a government issue will also vary over time, and much of that variance will be produced by developments in noncrime issues" such as war or economic recession.).
303. See, e.g., Erik Lillquist, The Puzzling Return of Jury Sentencing: Misgivings about Apprendi, 82 N.C. L. REV. 621, 670 (2004) ("In our system, jurors in general are not given information about punishments, so all they can do is make assumptions about the likely sentence.").
304. For a collection of such cases, see Kristen K. Sauer, Note, Informed Conviction: Instructing the Jury about Mandatory Sentencing Consequences, 95 COLUM. L. REV. 1232, 1245 n.85 (1995) (citing cases).
305. As explained in Part II, supra, there is precedent for the notion of political proportionality in other doctrinal areas, including the Court's exactions jurisprudence, its limitations on punitive damages, and its pre-1980 Eighth Amendment decisions.
306. Mullaney v. Wilbur, 421 U.S. 684, 699-700 (1975); In re Winship, 397 U.S. 358, 361-62 (1970).
307. This distinction is particularly clear in capital punishment proceedings, which are divided into a "guilt phase" (at which the jury is instructed to decide whether the defendant engaged in conduct that constitutes a capital offense) and the "penalty phase," sometimes called the "culpability phase" (at which the jury is instructed to determine whether the defendant is sufficiently morally blameworthy to deserve the death penalty).
308. Whether a crime of omission must have an intent requirement was the issue in Lambert v. California, 355 U.S. 225 (1957). The Supreme Court suggested that intent or at least constructive knowledge of a legal duty was indeed a requirement-a legislature could not create strict liability crimes of omission.
309. [C]onduct alone without regard to the intent of the doer is often sufficient.... But we deal here with conduct that is wholly passive-mere failure to register. It is unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.
310. Id at 228.
311. Offenses are, of course, divided into degrees: first-degree larceny, second-degree larceny, and so forth. But with respect to any given offense, guilt is allor-nothing.
312. 463 U.S. 277, 290-92 (1983); see also supra Part II.C.
313. For a fascinating recent example of a similar approach, see United States v. Angelos, 345 F. Supp. 2d 1227 (D. Utah 2004). Considering a proportionality challenge brought under the Equal Protection Clause rather than the Eighth Amendment, the district court found a mandatory sentence enhancement for use of a firearm to be irrational (but, perhaps concerned with being overruled on appeal, the court ultimately imposed the irrational sentence). Id. at 1263.
314. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996).
315. See supra notes 99-101.
316. See supra Part II.A., which discusses City of Boerne v. Flores, 521 U.S. 507 (1997) and subsequent applications of its "congruence and proportionality" test.
317. Sherry F. Colb, Freedom From Incarceration: Why Is This Right Different From All Other Rights?, 69 N.Y.U. L. REV. 781, 785 (1994) ("An individual's interest in being free of physical confinement is a fundamental right.... [T]his fundamental right has been treated differently from all other fundamental rights under the [Supreme] Court's jurisprudence.").
318. See id. at 787-88 (citing Meyer v. Nebraska, 262 U.S. 390, 399 (1923), and other cases that classify freedom from bodily restraint as part of the "fundamental right" to liberty protected by the Due Process Clause).
319. See, e.g., Texas v. Johnson, 491 U.S. 397, 412 (1989) (applying "the most exacting scrutiny" to a Texas criminal statute prohibiting destruction of a venerated object, and reversing the defendant's sentence of one year in prison and a $2000 fine for burning an American flag (quoting Boos v. Barry, 485 U. 8.312, 321 (1988))).
320. See, e.g., Loving v. Virginia, 388 U.S. 1, 11-12 (1967) (applying the "most rigid scrutiny" to reverse criminal sentences under a Virginia statute that prohibited interracial marriage (quoting Korematsu v. United States, 323 U.S. 214, 216 (1944))).
321. Colb, supra note 269, at 803.
322. Civil disobedients get much more respect than "ordinary" criminals. Analyses by legal scholars and philosophers fully recognize the civil disobedient' s continuing interest in liberty, even after an intentional violation of the law. For example, some theorists wonder whether one who breaks the law for ideological purposes has an obligation to submit to punishment. See, e.g., A. D. Woozley, Civil Disobedience and Punishment, 86 ETHICS 323, 327 (1976) ("If we cannot make the moral demand of a civil disobedient that he await punishment, then we cannot refuse to call a man a civil disobedient on the ground that he does not await his punishment.").
323. See Hart, supra note 13, at 411 (questioning the wisdom of relying on the "legislature's sense of justice" rather than prescribing substantive constitutional limitations "on the kinds of conduct that can be declared illegal");
324. Stuntz, supra note 13, at 19 ("The normative argument that justifies the constitutionalization of criminal procedure justifies substantive constitutional restraints as well")
325. See, e.g., Ronald Jay Allen, Mullaney v. Wilbur, the Supreme Court, and the Substantive Criminal Law-An Examination of the Limits of Legitimate Intervention, 55 TEX. L. REV. 269, 291 (1977) ("The only clear directive in Wilbur is that Maine, in formulating its criminal statutes ran afoul of some unarticulated constitutional requirement.");
326. John Calvin Jeffries & Paul B. Stephan III, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 YALE L.J. 1325, 1328-33 (1979) ("Winship purported to fix the burden of proof as a matter of constitutional law. To make the scope of that doctrine depend on legislative allocation of the burden of proof is to assure the point in issue and thus reduce Winship to a circularity.").
327. Allen, supra note 276, at 290.
328. M at 296-98.