CRUEL AND UNUSUAL PUNISHMENTS - THE PROPORTIONALITY RULE

• NCJ Number: 57991
• Journal: Fordham Law Review Volume: 47 Issue: 5 Dated: (APRIL 1979) Pages: 639-650
• Author(s): W H MULLIGAN
• Date Published: 1979
• Length: 12 pages
• Corporate Author: Fordham University
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: TAKEN FROM THE NINTH ANNUAL JOHN F SONNETT MEMORIAL LECTURE, DELIVERED AT THE FORDHAM UNIVERSITY SCHOOL OF LAW, JANUARY 30, 1979

Annotation

RECOMMENDATIONS ARE OFFERED FOR THE PROPER SENTENCING OF CONVICTED CRIMINALS IN ACCORDANCE WITH THE PRINCIPLE THAT PUNISHMENT SHOULD BE PROPORTIONAL TO THE OFFENSE COMMITTED.

Abstract

PUNISHMENT GROSSLY IN EXCESS OF THE GRAVITY OF THE OFFENSE MAY BE IN VIOLATION OF THE EIGHTH AMENDMENT WHICH PROHIBITS CRUEL AND UNUSUAL PUNISHMENTS. THERE ARE, HOWEVER, INHERENT WEAKNESSES IN APPLYING A STANDARD FOR SENTENCING WHICH MERELY ATTEMPTS TO MAKE THE PUNISHMENT PROPORTIONAL TO THE CRIME. THE PROPORTIONALITY RULE OUGHT NOT TO BE A DEVICE FOR THE IMPOSITION OF JUDICIAL CONCEPTS OF CRIMINAL PUNISHMENT IN THE GUISE OF CONSTITUTIONAL INTERPRETATION. THE U.S. SUPREME COURT ACCEPTS THE PROPORTIONALITY RULE AS BEING CONSTITUTIONALLY MANDATED, YET GIVES PRESUMPTIVE VALIDITY TO PENALTIES ESTABLISHED BY THE LEGISLATURES. WHEREAS THE EIGHTH AMENDMENT DRAWS ITS MEANING FROM THE EVOLVING STANDARDS OF DECENCY IN SOCIETY, THE LEGISLATURE PRESUMABLY HAS THE PRIVILEGE OF ASSESSING CONTEMPORARY STANDARDS. IN THE REVIEW OF LEGISLATIVE DECISIONS ON APPROPRIATE PUNISHMENT, THE COURTS EXAMINE THE SENTENCE IN RELATION TO THE GRAVITY OF THE OFFENSE, COMPARE THE SENTENCE UNDER REVIEW WITH THAT IMPOSED IN THE SAME JURISDICTION FOR OTHER MORE SERIOUS CRIMES, AND COMPARE THE CHALLENGED SENTENCE WITH THOSE IMPOSED IN OTHER JURISDICTIONS FOR THE SAME CRIME. THIS TEST REDUCES THE DEGREE OF JUDICIAL SUBJECTIVITY IN EIGHTH AMENDMENT JURISPRUDENCE, YET DEFERS TO LEGISLATORS WHO ARE MORE ATTUNED TO THE CONCERNS OF THE COMMUNITY ABOUT CRIMINAL ACTIVITY. THE RESPONSIBILITY OF THE FEDERAL JUDICIARY IN THE AREA OF THE EIGHTH AMENDMENT HAS BEEN NARROWED BY CASE LAW AND GUIDELINES. FOOTNOTES ARE PROVIDED. (TWK).