NCJ Number
111117
Journal
University of California Davis Law Review Volume: 18 Issue: 4 Dated: (Summer 1985) Pages: 1165-1175
Date Published
1985
Length
11 pages
Annotation
This essay discusses the role of proportionality in the moral justification of punishment with reference to Hubbard's (1985) consideration of reasonable levels of arbitrariness in capital sentencing.
Abstract
For execution to be fair under the liberal ideal of the rule of law, it must at least be administered nonarbitrarily. Given that a moral judgment of desert is involved in the imposition of punishment, this aspiration of nonarbitrariness is at odds with the modern liberal propensity to view moral choices as inherently subjective or arbitrary. The debate over proportionality is a subcategory of the debate over desert, which in turn is a microcosm of the modern debate over the ontology and epistemology of morals. The requirement of equal treatment makes systematic concerns about the operation of the criminal justice system and its procedures morally central and puts the liberal ideal of the rule of law to test. If the rule of law cannot choose who dies with satisfactory (appearance of) equal treatment, then under that rule of law, no one chosen can deserve to die. 15 footnotes.