On competence, legitimacy, and proportionality

University of Pennsylvania Law Review

Volumn 160, Issue 6, 2012, Pages 1585-1597

  Gertner, Nancy ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 84863450560     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Review

References (50)

1. In Mara'abe v. Prime Minister, Justice Barak held that Israel, in balancing its security against the harm to the Palestinians, must adhere to a standard of proportionality, consisting of three elements: (1) "a rational link between the means employed and the goal," (2) a demonstration that Israel has chosen the "least harmful means" to achieve its security objective, and (3) a showing that "the damage caused to the individual by the means employed. be of appropriate proportion to the benefit stemming from it." HCJ 7957/04 Mara'abe v. Prime Minister 60(2) PD 477 para. 30 [2005] (Isr.), available at http://elyon1.court.gov.il/files-eng/04/570/079/A14/ 04079570.a14.pdf
2. see also Geoffrey R. Watson, International Decisions, Mara'abe v. Prime Minister of Israel, 100 AM. J. INT'L L. 895, 898 (2006) ("[T]he Court reiterated its holding. that Israel must balance its own security against the harm to Palestinians and that Israel must, in particular, adhere to a standard of 'proportionality.'"). The Court concluded that the routing of a portion of Israel's "security fence" in the northern West Bank violated international humanitarian law.
3. Justice Barak has elaborated on his theory of judicial legitimacy in Aharon Barak, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 HARV. L. REV. 16, 100-04 (2002).
4. See Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47 COLUM. J. TRANSNAT'L L. 72, 147-48 (2008) (detailing the European Court of Human Rights's turn to proportionality).
5. ANDREW VON HIRSCH, DOING JUSTICE: THE CHOICE OF PUNISHMENTS 66 (1976). To be sure, there is a range of retribution theories. See Michael Tonry, Purposes and Functions of Sentencing, 34 CRIME & JUST. 1, 16-23 (2006) (discussing the normative functions of sentencing systems).
6. KATE STITH & JOSÉA. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS 14 (1998)
7. see also Ewing v. California, 538 U.S. 11, 35 (2003) (Stevens, J., dissenting) ("In exercising their discretion, sentencing judges wisely employed a proportionality principle that took into account all of the justifications for punishment-namely, deterrence, incapacitation, retribution, and rehabilitation." (citing STITH & CABRANES, supra, at 14)).
8. See Richard G. Fox, Case Note, Ryan v. The Queen: Paradox and Principle in Sentencing a Paedophilic Priest: Ryan's Case in the High Court, 26 MELB. U. L. REV. 178, 188 (2002) (discussing the application of proportionality to the sentencing of pedophiles)
9. Arie Freiberg, Australia: Exercising Discretion in Sentencing Policy and Practice, 22 FED. SENT'G REP. 204, 208, 211 & nn.49-50 (2010) (noting that courts in most parts of Australia are required by statute to consider proportionality).
10. See Stephanos Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability, 157 U. PA. L. REV. 959, 966 (2009) (stating that legislators respond to the "crime du jour" to gain political credit even if the new legislation is redundant);
11. Nancy Gertner, Sentencing Reform: When Everyone Behaves Badly, 57 ME. L. REV. 570, 571, 573 (2005) (mentioning Congress's attention to the "crime du jour" and failure to enact legislation that would provide consistency among sentences)
12. Robert H. Joost, Federal Criminal Code Reform: Is It Possible?, 1 BUFF. CRIM. L. REV. 195, 202 (1997) ("The federal government has never enacted a true criminal code.");
13. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 512-19, 529-33 (2001) (discussing redundancies in criminal codes that exist, in part, because of legislators' incentives to pass criminal laws in response to public fear).
14. E.g., United States v. Lacy, 99 F. Supp. 2d 108, 111-12 (D. Mass. 2000).
15. See United States v. Thompson, 234 F.3d 74, 77 (1st Cir. 2000) (finding that the proper approach in downward departure decisions is to compare any given defendant, regardless of the offense of which he has been convicted, to all defendants, and not those similarly situated with respect to the offense of conviction), vacating as moot 74 F. Supp. 2d 69, 71 (D. Mass. 1999) (using the presentence reports of fifty-four individuals sentenced for crack offenses in the same district and during the same time period as the defendant as a reference point to determine whether downward departure was appropriate).
16. See Ryan Scott Reynolds, Equal Justice Under Law: Post-Booker, Should Federal Judges Be Able to Depart from the Federal Sentencing Guidelines to Remedy Disparity Between Codefendants' Sentences?, 109 COLUM. L. REV. 538, 552-55 (2009) (finding that most circuits allow judges to consider codefendant disparity in sentencing).
17. See, e.g., Frederick Burr Opper, You First, My Dear, WIKIMEDIA, http://upload.wikimedia.org/wikipedia/commons/4/4b/Alphonsegaston.jpg (last visited Mar. 15,2012).
18. Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality opinion).
19. Roper v. Simmons, 543 U.S. 551, 578 (2005).
20. Atkins v. Virginia, 536 U.S. 304, 321 (2002).
21. Youngjae Lee, The Constitutional Right Against Excessive Punishment, 91 VA. L. REV. 677, 681, 684 (2005).
22. For this proposition, the Court cited Harmelin v. Michigan, 501 U.S. 957, 999 (1991) (Kennedy, J., concurring in part and concurring in the judgment), which noted that the Constitution "does not mandate adoption of any one penological theory." Ewing, 538 U.S. at 25.
23. While the Court is reluctant to address Eighth Amendment proportionality analysis in the context of imprisonment, it has no such problem with respect to punitive damages. See A. Benjamin Spencer, Due Process and Punitive Damages: The Error of Federal Excessiveness Jurisprudence, 79 S. CAL. L. REV. 1085, 1152 (2006) ("Beyond the historical and doctrinal difficulties with the Court's excessiveness jurisprudence, one may marvel at how odd it is for the Court ardently to impose prohibitions against punitive dollar awards beyond a certain amount while it freely permits states to imprison petty repeat offenders to life imprisonment." (footnotes omitted)).
24. Id. at 21 (emphasis added) (quoting Rummell v. Estelle, 445 U.S. 263, 278 (1980)).
25. Id. at 22 (quoting Hutto v. Davis, 454 U.S. 370, 374 (1982)).
26. Ewing, 538 U.S. at 22
27. (quoting Solem, 463 U.S. at 292).
28. See, e.g., Andrew Koppelman, The Right to Privacy?, 2002 U. CHI. LEGAL F. 105,106-07 (noting that while there is some "indeterminacy" in equality claims that leaves room for judicial discretion, the degree of indeterminacy is greater in substantive due process doctrines such as the privacy doctrine because it "inappropriately requires judges to decide what is important in life");
29. see also Watkins v. U.S. Army, 837 F.2d 1428, 1440 (9th Cir. 1988) ("[T]he practical difficulties of defining the requirements imposed by equal protection, while not insignificant, do not involve the judiciary in the same degree of value-based line-drawing that the Supreme Court. found so troublesome in defining the contours of substantive due process."), vacated and aff'd on other grounds, 875 F.2d 699 (9th Cir. 1989) (en banc).
30. Ewing, 538 U.S. at 23-24
31. (quoting Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J., concurring in part and concurring in the judgment)).
32. Id. at 39 (Breyer, J., dissenting) (citing Solem, 463 U.S. at 282).
33. In Solem, the defendant received life for writing a bad check. 463 U.S. at 281-82.
34. Ewing, 538 U.S. at 39 (Breyer, J., dissenting)
35. (citing Rummel v. Estelle, 445 U.S. 263, 266-68 (1980)). In Rummel, the defendant received life with eligibility for parole at twelve years for felony theft. 445 U.S. at 266-67.
36. Ewing, 538 U.S. at 42-47 (Breyer, J., dissenting). As Lee noted, "comparative desert" analysis is better suited for judicial enforcement than noncomparative desert. Lee, supra note 15, at 716. He outlines two kinds of "comparative desert" analysis. The first is a type of overbreadth analysis that asks "whether the sentencing scheme sufficiently distinguishes among offenders of different levels of seriousness." Id. The second inquiry "asks whether the punishment in question stands in appropriate relation to punishment for crimes that are as serious as, or more serious than, the crime at issue." Id.
37. Nancy Gertner, From Omnipotence to Impotence: American Judges and Sentencing, 4 OHIO ST. J. CRIM. L. 523, 524 (2007).
38. See Nancy Gertner, Supporting Advisory Guidelines, 3 HARV. L. & POL'Y REV. 261, 265-67 (2009) (describing the initial ambiguity as to whether federal judges would critically evaluate the Guidelines or enforce them mechanically).
39. U.S. SENTENCING GUIDELINES MANUAL ch.1, pt. A, intro. (("The Basic Approach") policy statement) (1987).
40. See, e.g., United States v. Dorvee, 616 F.3d 174, 187 (2d Cir. 2010) (discussing the perverse result under the Guidelines that a first-time distributor of child pornography would receive a sentence of at least 168 to 210 months, while a person who had actually sexually assaulted a child would receive 151 to 188 months).
41. See, e.g., United States v. Wilson, 350 F. Supp. 2d 910, 912 (D. Utah 2005) (concluding that "considerable weight should be given to the Guidelines in determining what sentence to impose").
42. See Nelson v. United States, 555 U.S. 350, 352 (2009) (per curiam) ("The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable.");
43. Spears v. United States, 555 U.S. 261, 263-64 (2009) (per curiam) (stating that district courts can choose to depart from Guidelines "based on policy disagreement with them");
44. Kimbrough v. United States, 552 U.S. 85, 90 (2007) ("[T]he Guidelines, formerly mandatory, now serve as one factor among several. .");
45. Gall v. United States, 552 U.S. 38, 46 (2007) (observing that "the Guidelines are now advisory");
46. Rita v. United States, 551 U.S. 338, 354 (2007) (explaining that Booker held unconstitutional the aspects of the Guidelines that made them mandatory).
47. See Nancy Gertner, What Yogi Berra Teaches About Post-Booker Sentencing, 115 YALE L.J. POCKET PART 137, 137 (2006), http://yalelawjournal.org/images/ pdfs/50.pdf (noting that simply "announcing that the Guidelines are advisory does not make them so," and urging the appellate courts to critically evaluate Guideline sentences (emphasis omitted)).
48. United States v. Booker, 543 U.S. 220, 262-64 (2005).
49. The courts' approaches to sentencing appeals reflect the concerns raised by William Stuntz that our Constitution overprotects procedural rights and underprotects substantive rights. WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE (2011). But with "ordinary sentencing," engaging with substantive concerns is unavoidable. Someone must make proportionality decisions, and after Booker, that "someone" is the judicial system.
50. See, e.g., United States v. Garrison, 560 F. Supp. 2d 83, 89-91 (D. Mass. 2008) (comparing the case of one defendant to similarly situated defendants in the district).