NCJ Number
162463
Journal
European Journal of Crime, Criminal Law and Criminal Justice Volume: 3 Issue: 4 Dated: (1995) Pages: 369-380
Date Published
1995
Length
12 pages
Annotation
This paper shows that the principle of proportionality in sentencing is not merely a matter of penal philosophy, but rather forms a fundamental part of a number of constitutional traditions.
Abstract
The author also shows that prohibitions on cruel, unusual, inhuman, or degrading punishment should not be applied only to the consideration of whether certain forms of punishment are acceptable. On the contrary, where certain forms of punishment, such as the death penalty, have been outlawed and where crime is perceived as a growing problem, there is a danger that the remaining, constitutionally acceptable forms will be applied with disproportionate severity. An understanding of what constitutional disproportionality means can be helped by comparative analysis. A characteristics of determining when disproportionality is constitutionally unacceptable is that courts must make value judgments about whether the standard set by the constitution of their country may have been breached. Where offenders are threatened by disproportionate sentences, constitutional courts cannot abdicate their responsibility for protecting fundamental rights. Nor is it acceptable for courts to abdicate their responsibility by leaving it to the executive to correct gross disproportionality in sentencing by administrative actions. This paper indicates that courts in various countries have not been prepared in all circumstances to be equally vigilant to ensure that prosecutorial practice and the implementation of sentences do not produce constitutionally unacceptable disparities. In these areas also, arguments from first principles, bolstered by comparative jurisprudence, are required to produce reforms. 80 notes