Proportional Punishment

Western culture at its core embraces proportionality. The ancient Greeks, especially Pythagoras, saw the universe as a kosmos: well ordered, measurable, proportional. Good order could only be maintained by imposing limits on the chaotic and unlimited. It is this way, too, with punishment. Proportionality operates as an aspiration and limitation. Although, like-forlike, ‘‘an eye for an eye,’’ exact 1:1 reciprocity was simplest, some crimes required less symmetric measures: ‘‘If the guilty man deserves to be beaten,’’ Deuteronomy declares, ‘‘the judge shall cause him to lie down and be beaten with a number of stripes in proportion to his offense’’ or, in another translation, ‘‘according to the measure of his wickedness.’’ The Magna Carta (1215) continued this commitment to proportionality in punishment: ‘‘A free man shall be amerced for a small fault only according to the measure thereof, and for a great crime according to its magnitude.’’ But how does one compare the fault to the severity of the sanction?

The European Enlightenment embraced liberty and rationality. Instead of beating a person in proportion to the offense, the new punitive proportionality consisted of depriving the criminal of units of freedom. Thus, as Foucault described it, ‘‘The pain of the body itself is no longer the constituent element of the penalty. From being an art of unbearable sensations punishment has become an economy of suspended rights.’’ The infant American Republic embraced this rational proportionality by building penitentiaries and substituting prison time for bodily punishment.

Although several early state constitutions specifically included proportionality principles—‘‘All penalties ought to be proportioned to the nature of the offence,’’ declared New Hampshire’s in 1784—the U.S. Constitution nowhere explicitly commands proportional punishment. The Eighth Amendment, however, does prohibit ‘‘excessive Bail,’’ ‘‘excessive fines,’’ and ‘‘cruel and unusual punishment.’’

In 1892, declaring the Eighth Amendment ‘‘directed’’ not only at torture, but ‘‘against all punishments that by their excessive length or severity are greatly disproportioned to the offenses charged,’’ Justice Field, dissenting, would have prohibited Vermont from Sentencing a seller of unlicensed liquor to 54 years at hard labor (O’Neil). Such a harsh punishment, ‘‘six times as great as any court in Vermont could have imposed for manslaughter’’ and ‘‘appropriate only for felonies of an atrocious nature,’’ was ‘‘greatly disproportioned to the offense’’ and therefore ‘‘cruel and unusual.’’ How can judges know disproportionality? The thought of imposing this punishment for that crime would cause ‘‘any man of right feeling and heart’’ to ‘‘shudder.’’

These last hundred years, the U.S. Supreme Court has divided sharply over whether the judiciary can determine that a popular, legislatively enacted punishment is or is not truly proportional to the particular crime to which it responds. Controversy still swirls about the constitutional status of ‘‘proportionality’’ for punishment generally and Capital Punishment particularly. In the leading case (Harmelin v. Michigan, 501 U.S. 957, 1991), the U.S. Supreme Court affirmed Michigan’s right to mandate life without parole for simple possession of a little more than a pound of cocaine. ‘‘The Eighth Amendment contains no proportionality guarantee,’’ insisted Justice Scalia, joined by Chief Justice Rehnquist. ‘‘There is no objective standard of gravity.’’ So-called ‘‘proportionality’’ was a nonconstitutional means for justices to impose their ‘‘subjective values.’’

‘‘Courts have not baldly substituted their own subjective moral values for those of the legislature,’’ countered Justice White, joined by Justices Blackmun and Stevens, dissenting in Harmelin. Michigan, with no death penalty, could not constitutionally reserve the same punishment for drug possession as it had for first-degree murder. ‘‘The Eighth Amendment does not require strict proportionality between crime and sentence,’’ declared Justice Kennedy, joined by Justices O’Connor and Souter, upholding Harmelin’s life sentence but occupying middle ground. ‘‘Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.’’ In the ‘‘rare case’’ where ‘‘a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality,’’ a judge should compare ‘‘the sentences imposed on other criminals in the same jurisdiction and sentences imposed for the same crime in other jurisdictions.’’ More recently in Ewing v. California, 538 U.S. 11 (2003), the court again split into three factions, a majority (five to four) affirming California’s right to its popular ‘‘three strikes and you’re out’’ life sentence for a career criminal whose latest crime was shoplifting three golf clubs.

Essentially unrevised for four decades, the Model Penal Code’s ‘‘new approach’’ now calls for ‘‘punishment within a range of severity proportionate to the gravity of offenses, the harms done to crime victims, and the blameworthiness of offenders.’’ The official commentary attacks ‘‘the toothless standard of ‘gross disproportionality’ that has taken root in federal constitutional law,’’ while reaffirming an essential connection between proportionality and retribution. Just deserts should provide the floor and ceiling to a range of permissible punishments. The commentary continues:

[Although] moral intuitions about doing justice in specific cases are almost always rough and approximate, most people’s moral sensibilities, for most crimes, will orient them toward a range of permissible sanctions that are ‘‘not undeserved.’’ At the perimeters of the range, some punishments will appear clearly excessive to do justice, and some will appear clearly too lenient—but there will nearly always be a gray area between the two extremes.

Proportionality advocates are left with unsettling and unsettled questions in balancing the seriousness of the crime against the severity of the punishment. What makes a crime more serious—the defendant’s intention and motives, his prior criminal record, the harm he caused? What makes a punishment disproportionately harsh? Although courts and commentators typically focus on the length of the prison sentence, Justice Field had located disproportionality in the ‘‘excessive length or severity.’’ Severity of prison depends upon the quality of life inside, not only on how long but also on how intense the deprivation of liberty. Three years in a dungeon at hard labor might be more severe than twenty years in an airconditioned cell with canteen privileges and color TV. Perhaps most intractable, how can a judge substitute an independent objective judgment of proportionality for the legislature’s?

Pythagoras could only maintain the kosmos by going beyond the strictly rational to embrace an incommensurably richer real but ‘‘irrational’’ or ‘‘nonrational’’ realm. Centuries later, Plato and Aristotle emphasized equity—a nonrational, richer justice. Although a majority of the Court has adopted Justice Field’s ‘‘gross disproportionality’’ limit while also attempting to ban the emotional and intuitive from that assessment, justices really committed to ‘‘objective’’ Constitutional proportionality may also need to embrace Field’s intuitive, emotive measuring device or something like it: A punishment is grossly disproportionate and unconstitutional when the thought of its imposition for the particular crime would make any person of right feeling and heart shudder.

ROBERT BLECKER

References and Further Reading

• Blecker, R. ‘‘Roots.’’ In America’s Experiment With Capital Punishment, 2nd ed. Durham, NC: Duke University Press, 2003, Ch. 6.
• Ewing v. California, 538 U.S. 11 (2003).
• Foucault, M. Discipline and Punish (A. Sheridan, trans.) New York (1979).
• Harmelin v. Michigan, 501 U.S. 957 (1991)
• Robinson v. California, 370 U.S. 660 (1962)
• Rummel v. Estelle, 445 U.S. 263 (1980)
• Solem v. Helm, 463 U.S. 277 (1983)
• Trop v. Dulles, 356 U.S. 86 (1958)

See also Capital Punishment: Proportionality; Proportionality Reviews