NCJ Number
94873
Journal
Journal of Criminal Law and Criminology Volume: 75 Issue: 1 Dated: (Spring 1984) Pages: 272-289
Date Published
1984
Length
18 pages
Annotation
Current State determinate sentencing statutes violate the eighth amendment because their penalty terms have been fixed arbitrarily by legislatures without adequately considering the offense and punishment severity -- therefore failing the test of proportionality.
Abstract
The Supreme Court has interpreted the eighth amendment to impose a requirement of proportionality in criminal sentencing. This requirement implies that the severity of a punishment must be graduated to the severity of the offense. However, State sentencing statutes are defective. To correct the disproportionality inherent in State penal codes, the article suggests that the statutes be rewritten to impose punishments based on an empirically derived offense severity scale, which assesses the weight of each offense in terms of its social harm. The Sellin-Wolfgang crime severity scale is a good example of this concept. The scale uses an empirical measure of the community's perception of various offenses to rank them according to their severity. By determining the quantum of each offense's severity, a sequence of severity ratios is obtained, which in effect ranks all offenses in a severity continuum. Such a ranking can be used to determine a penalty scale commensurate with the offenses, thus satisfying the eighth amendment's prohibition against disproportionate penalties. Legislators should use an empirically derived offense severity scale -- modeled after the Sellin-Wolfgang scale -- in determining statutory penalty terms. The use of offense-punishment scales is the sentencing alternative most readily available to counter the problems of arbitrariness, disparity, and disproportionality in current State sentencing statutes. A valid and reliable offense severity scale can be an appropriate and objective measure through which to consider the gravity of both the offense and the penalty. Eighty-nine footnotes and two tables are supplied.