Proportionality Reviews

Under the Eighth Amendment, all criminal sentences are subject to a proportionality review—an evaluation of the appropriateness of a sentence for a particular crime. In deciding whether a particular sentence is appropriate, the Supreme Court has looked to the gravity of the offense and the severity of the penalty imposed for other crimes and to Sentencing practices in other jurisdictions. The Court has occasionally performed proportionality reviews in order to determine whether a sentence is proportionate when applied to certain classes of offenders.

The Supreme Court has performed proportionality reviews of death sentences in several cases. It has held that a death sentence is not per se disproportionate to the crime of murder. The Court, however, has held that the Eighth Amendment does not require that a particular death sentence be compared to sentences that have been meted out in similar cases. Had it imposed such a requirement, a death sentence could have been reversed on the ground that similarly situated defendants were not sentenced to death. By statute or under their constitution, several states have required their highest court to perform proportionality reviews of death sentences as a means of ensuring that death sentences are not being imposed arbitrarily.

The Court has held that a death sentence is disproportionate to the crimes of rape and robbery. It has also held that the imposition of the death penalty would be disproportionate in the case of a person who participated in the commission of a felony but who had not killed, attempted to kill, intended to kill, or not acted with extreme indifference to human life. The Court has also held that because of their diminished ability to reason and lesser culpability, death is a disproportionate punishment for offenders younger than eighteen years old and for the mentally retarded.

Some jurisdictions have expanded the death penalty to include crimes not involving murder, such as espionage, treason, drug trafficking, and the rape of a child less than twelve years old. The argument will be made in the case of a defendant who commits one of these crimes that death is a disproportionate punishment for these offenders since their crimes do not involve the taking of human life. The Supreme Court will be forced to resolve these issues in the coming years under its proportionality jurisprudence.

KENNETH A. WILLIAMS

Cases and Statutes Cited

• Coker v. Georgia, 433 U.S. 584 (1977)
• Gregg v. Georgia, 428 U.S. 153 (1976)
• Pulley v. Harris, 465 U.S. 37 (1984)
• Roper v. Simmons, 543 U.S. 551 (2005)
• Sinclair v. State, 657 So.2d 1138 (Fla. 1995)
• Tison v. Arizona, 481 U.S. 137 (1987)
• Ala. Code 13A - 5-53(b)(3)
• Del. Code Ann. tit. 11, 4209(g)(2)(a)
• Ga. Code Ann. 17-10-35(c)(3)
• Ky. Rev. Stat. Ann. 532.075(3)(c)
• Wash. Rev. Code. Ann. 10.95.130(2)(b)