Law in Contemporary Society
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Just Desert: Why We Deserve a Right Against Disproportionate Punishment

Introduction: Harsh punishment in the United States

Since the 1970's America's incarceration rate has quadrupled [11] and has recently surpassed 1% of the total population [12]. This paper explores some factors in why this has come to pass, and proposes a measure we can take to spark reform in our system of punishment.

Two factors in the increase of the prison population.

In his book Harsh Punishment [11], James Q. Whitman discusses how a sharp climb in the severity of two aspects of American punishment contribute to the increase in the incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second is a dramatic upturn in the length of sentences for inmates, which are now so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Thus, a factor in the rise of the prison population is the escalation in the harshness of our criminal justice system.

Why has our punishment become harsh? The outrage dynamic and moral panic.

To answer this question it is useful to examine the mechanisms that make criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh [8] and applied to the creation of criminal laws by Philip Pettit [10] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the 'evil' behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [8]. The fourth stage is a report that the 'evil' has not been eradicated by the legislation, leading to outrage which begins the process anew, leading to steeper penalties.

This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with media reports, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior or heightened punishment for the behavior, including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. A modern example is the California three strikes law, which drastically increased penalties for recidivist criminals. The law was passed by popular vote after a child was kidnapped and murdered by a repeat offender [16], but efforts to lessen the harshness of the law for non-violent crimes were defeated using advertising that sparked outrage and panic [17].

These models illustrate a problem with how criminal laws are made. Social events easily shift the harshness of penalties upwards, but there is little at work to mobilize the population to diminish penalties.

Proportionality in sentencing, using weak retributivism as a constitutional cap on penalties.

Why the 8th amendment does not protect us.

Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of five years for jaywalking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what the term 'proportional' means definition alludes us.

Part of the problem is answering the question of what ends the proportionality serves. According to the United States Sentencing Commission the purposes of punishment are "just punishment [retributivism], deterrence, incapacitation, and rehabilitation" [14]. In current jurisprudence on non capital cases concerning the 8th Amendment's prohibition on cruel and unusual punishments the supreme court has understood proportionality to be satisfied so long as one of the ends of punishment are addressed [7][15]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent justification [3] [7].

What this means is that in our current system legislatures may impose harsh jail time for any offense they deem to be serious under a deterrent justification, such as repeated nonviolent thefts [15]. This concept of proportionality does not protect the minority against penalty escalation, and leaves the decision of how much punishment is too much up to a majority easily influenced by outrage and moral panics.

Why we should use weak retributivism as a constitutional cap on penalties.

One of the purposes of our constitution is to protect the minority's rights against the will of the majority. Thus, a constitutional guarantee that the pain inflicted by the government will be proportional to the offense committed will protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. However, the current reading of the 8th amendment does not provide the protection necessary to guard citizens against this type of escalation in punishment. The constitutional guarantee we deserve should be in the form of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13].

Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, which would provide protection against moral panics [10]. However, this politically insulated body already exists in the judicial branch of government. A protection against sentences violating retributist principals would force the judge to answer the question of whether the sentence imposed by the legislature was proportional to the offense at every sentencing, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where protective guidelines would be addressed and followed. This would also force harsh sentencing schemes approved by the legislature to be held unconstitutional, breaking the cycle of punishment escalation.


[1] Folk Devils and Moral Panics, Stanley Cohen, MacGibbon & Kee, 1972.

[2] Excessive Prison Sentences, Punishment Goals,and the Eighth Amendment: “Proportionality”Relative to What?, Richard S. Frase, 89 Minnasota Law Review 571, 2005.

[3] Limiting Retributivism: The Consensus Model of Criminal Punishment, Richard S. Frase, in The Future of Imprisonment in the 21st Century, Michael Tonry, ed., Oxford University Press, December 2003.

[4] Proportionality Principles in the American System of Criminal Justice, Richard S. Frase, Perspectives, The Magazine of the University of Minnesota Law School, Fall 2005.

[5] Moral Panics: The Social Construction of Deviance, Erich Goode & Nachman Ben-Yehuda, Blackwell Publishing, 1994.

[6] Proportionate Sentincing, Andrew von Hirsch and Andrew Ashworth, Oxford University Press, 2005.

[7] The Constitutional Right Against Excessive Punishment, Youngjae Lee, 91 Virginia Law Review 677, 2005.

[8] The 19th century revolution in Government: A Reappraisal, Olivier MacDonagh, 1 Historical Journal 52, (1958).

[9] Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to Constitutional Discourse, Eva S. Nilsen, 41 UC-Davis Law Review 111, 2007.

[10] Is Criminal Justice Politically Feasible, Philip Pettit, 5 Buffalo Criminal Law Review 427, 2002.

[11] Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe, James Q. Whitman, Oxford University Press, 2005.

[12] 1 in 100 U.S. Adults Behind Bars, New Study Says, Adam Liptak, New York Times, 28 Feb 2008.

[13] Charter of Fundemental Rights of the European Union

[14] An Overview of the United States Sentincing Commision December, 2007.

[15] Ewing v. California 538 US 11, 2003.

[16] California Rethinking '3-Strikes' Sentencing, Dean E. Murphy, New York Times, 24 Oct 2004.

[17] AD WATCH: Proposition 66, San Francisco Chronicle, 27 Oct, 2004.



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r38 - 13 Jan 2012 - 23:34:34 - IanSullivan
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