The Supreme Court’s proportionality jurisprudence under the Cruel and Unusual Punishments Clause appears to be undergoing a kind of renaissance. Since 2002, the Court has held that the death penalty is an excessive (and therefore cruel and unusual) punishment for the mentally disabled, minors, and anyone convicted of a non-homicide offense against an individual.  In the 2009 Term, the Court held that a life sentence without possibility of parole is an excessive punishment for juvenile non-homicide offenders.  These decisions have grabbed headlines and caused a great flurry of activity on television and in the blogosphere. They have been greeted with fanfare by those who wish to see the courts take a more active role in protecting the rights of people subjected to criminal punishment.  They have been greeted with consternation and condemnation by critics worried about judicial overreaching.

Yet it is fair to ask whether these decisions truly are significant to the criminal justice system as a whole. Approximately 1,150,000 offenders are convicted of felonies in the federal and state systems in a given year.  By contrast, the decisions noted above save fewer than seven offenders per year (on average) from cruel and unusual punishments.

In fact, if one takes all of the proportionality cases the Supreme Court has decided under the Cruel and Unusual Punishments Clause, only about ten defendants per year have been saved from cruel and unusual punishments.  Less than one one-thousandth of one percent of all felony offenders are better off than they would have been had the Supreme Court never engaged in proportionality review.

The limited impact of the Supreme Court’s proportionality review is not the happy by-product of a criminal justice system that almost always imposes proportionate sentences. Rather, it is the result of the Court’s deliberate effort to limit proportionality review to a narrow range of cases, almost all of which involve the death penalty.  In several recent cases, the Court has signaled a willingness to uphold virtually any sentence of imprisonment for virtually any felony offense without engaging in substantive proportionality review. For example, it upheld a sentence of twenty-five years to life for a recidivist who shoplifted three golf clubs and a sentence of fifty years to life for a recidivist who shoplifted videotapes on two occasions.  In the wake of these decisions, lower courts have held that it is constitutional to impose a sentence of twenty-five years to life on a recidivist who commits a crime as minor as stealing a slice of pizza.

A review of the Supreme Court’s proportionality jurisprudence suggests three problems with the Court’s approach that have caused it to limit proportionality review to a small class of cases.

First, there are doubts about the legitimacy of proportionality review. Unlike the Eighth Amendment’s Excessive Bail and Excessive Fine Clauses, the Cruel and Unusual Punishments Clause contains no obvious reference to proportionality.  Originalists like Justice Scalia have argued that the Clause was meant to forbid only barbaric methods of punishment, not disproportionate punishments.  The Court has never provided a real answer to the originalists’ claims, so the legitimacy of proportionality review has remained open to question.  This has led influential members of the Court – particularly Justice Kennedy – to conclude that proportionality review must be confined to a “narrow” class of cases.

Second, strangely, the Supreme Court has never clearly defined proportionality. When one says that a punishment must not be excessive, the natural next question is: “Relative to what standard?”  At times, the Court seems to define proportionality in relation to retribution; at times in relation to deterrence and incapacitation; and at times in relation to retribution, deterrence, incapacitation, and rehabilitation simultaneously.  The meaning of proportionality changes drastically depending on which theory of punishment is used as the point of reference. A proportionality jurisprudence that either switches between theories from case to case or tries to reference them all at once is bound to be incoherent. This incoherence has led the Court to defer to the legislature in virtually all proportionality cases involving sentences of imprisonment.

Finally, the Supreme Court’s method of measuring proportionality is ineffective and unreliable. Critics of proportionality review claim that there is no adequate constitutional standard for measuring proportionality and that any attempt to do so will be nothing more than the imposition of the subjective preferences of a majority of the Justices.  In response, the Court has held that proportionality can be measured in light of the “evolving standards of decency that mark the progress of a maturing society.”  Under this test, a punishment can be held unconstitutional only if there is a societal consensus – measured largely in terms of legislative enactments and jury verdicts – against it.  In practice, however, the evolving standards of decency test rarely yields an unambiguous showing of societal consensus against a given punishment, for virtually all punishments reviewed by the Supreme Court enjoy significant public support. Worse, this test makes the rights of criminal offenders dependent on current public opinion. When societal attitudes turn against criminal offenders and legislatures respond by ratcheting up the harshness of punishments – as has happened over the past forty years – the evolving standards of decency test provides no protection.

As these problems have become more obvious, the Court has increasingly emphasized its right to exercise its “independent judgment” to strike down punishments even where they enjoy strong public support.  The Court has not, however, articulated any binding constitutional standards to guide this exercise of judgment. Reliance on “independent judgment” thus leads back to the standardless subjectivity originally decried by critics of proportionality review. The Court has tried to limit the scope of this problem by creating a two-track approach to proportionality review. In cases where the Court wishes to invalidate a particular application of the death penalty (and now, life sentences for juvenile non-homicide offenders), it simply pretends to find a societal consensus against the punishment to back up its “independent judgment.” In most cases involving sentences of imprisonment, on the other hand, the Court uses its “independent judgment” as a kind of gatekeeper, upholding virtually any sentence of imprisonment for virtually any felony. In these cases, the Court does not even consult current “standards of decency.”  We thus have the worst of both worlds: a proportionality jurisprudence that is both narrow and unprincipled.  The Court’s approach to proportionality review needs rethinking.

As a starting point, it must be noted that both proponents and critics of proportionality review have failed to pay close attention to the text of the Cruel and Unusual Punishments Clause, focusing only on the word “cruel” and ignoring the word “unusual.” In a prior article, I showed that in the context of the Eighth Amendment, the word “unusual” does not mean rare or uncommon but “contrary to long usage.” Under the common law ideology that predominated at the time of the Eighth Amendment’s adoption, a governmental practice that enjoyed long usage was considered presumptively just, whereas a governmental practice that ran contrary to long usage – an “unusual” practice – was considered presumptively unjust, particularly where it undermined longstanding common law rights.  The Cruel and Unusual Punishments Clause thus does not focus on punishments that are “cruel and rare” but on those that are “cruel and new.” This focus on new punishments implies that the core purpose of the Clause is to protect criminal offenders when the government’s desire to inflict pain has become temporarily and unjustly enflamed, whether this desire is caused by political or racial animus, or moral panic in the face of a perceived crisis. In these situations, the Cruel and Unusual Punishments Clause is supposed to serve as a check on the impulse to ratchet up punishments to an unprecedented degree of harshness.

With these facts in mind, this Article will address the three problems, identified above, underlying the Court’s current approach to proportionality.

First, the Article will establish the legitimacy of proportionality review by demonstrating that the Cruel and Unusual Punishments Clause was originally understood to prohibit excessive punishments.  The phrase “cruel and unusual” was widely used as a synonym for “excessive” in several different contexts in the American legal system of the eighteenth and nineteenth centuries, and was thus a natural and appropriate means to express a prohibition of excessive punishments. Moreover, the historical evidence shows that the Cruel and Unusual Punishments Clauses in both the English and the American Bills of Rights were originally understood to forbid excessive punishments. The very Parliament that drafted the English Bill of Rights interpreted it to prohibit punishments that violated the common law prohibition (dating back to Magna Carta) against excessive punishments. In America, the Framers and early interpreters of the Cruel and Unusual Punishments Clause consistently interpreted it to encompass a principle of proportionality. Proportionality review is thus legitimate in light of the Constitution’s original meaning.

Second, this Article will provide a coherent definition of proportionality under the Cruel and Unusual Punishments Clause.  A punishment is unconstitutionally excessive if it is greater than the offender deserves as a retributive matter. Utilitarian theories of deterrence, incapacitation, and rehabilitation play no role in the excessiveness inquiry, because they focus on whether the punishment is useful to society, not on whether it is just to the offender.  The various protections the Constitution affords criminal defendants – including the protection against cruel and unusual punishments – are designed to insure that defendants are not punished in the absence of culpability. To the extent a punishment exceeds the offender’s culpability, it is given in the absence of culpability and is cruel and unusual.

Third, this Article will show that excessiveness should be determined primarily in light of prior punishment practice. As noted above, the Cruel and Unusual Punishments Clause prohibits punishments that are “cruel and new.” Whereas the evolving standards of decency test asks whether a punishment comports with current moral standards, the Cruel and Unusual Punishments Clause asks whether the punishment comports with the standards that have prevailed until now.  If a legislature or group of legislatures suddenly ratchets up the severity of punishment for a given crime beyond what the other states and the federal government have done up to that point, the punishment is unusual because it runs contrary to prior practice or usage. Because upward departures from prior practice are presumptively unjust, a large gap between the harshness of the new punishment and those that came before it would be strong evidence that the punishment is cruelly excessive.

This proposed approach to proportionality review would provide a more plausible basis for the Supreme Court’s decision to invalidate the death penalty for non-homicide offenses against individuals and for juvenile offenders and to restrict the imposition of life sentences without possibility of parole on juvenile offenders.  It would also permit the Court to engage in robust proportionality review of sentences of imprisonment imposed upon adult offenders whose sentences are currently beyond the purview of proportionality review.  It would not justify the Court’s decisions striking down traditional applications of the death penalty that have never fallen out of usage.

John Stinneford is Assistant Professor of Law at the University of Florida Law School.

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Recommended Citation: John Stinneford, Legal scholarship highlight: John Stinneford on the Court’s Eighth Amendment jurisprudence, SCOTUSblog (Oct. 18, 2011, 1:44 PM),