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Proportionality in criminal penalties.

Introduction: Harsh penalties in the United States

The United States has a problem with incarceration. Since the 1970's America's incarceration rate has quadrupled CITE and has recently surpassed 1% of the total population CITE NEW YORK TIMES. This paper will explore some reasons why this has come to pass, and propose a measure we can take towards punishment to help reform our system of punishment.

Why the high incarceration rate?

In his book Harsh Punishment, James Q. Whitman discusses two aspects of the American law of punishment that are responsible for the increase in incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second, is a dramatic increase in the length of sentences for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Longer sentences and more crimes which demand a prison term are two clear factors which lead to a larger prison population.

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

To answer this question we look at the dynamics of making criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonough and applied to the creation of criminal laws by Philip Pettit [cite] identifies a cycle by which behavior becomes criminal. First, an example or examples of the 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“ [cite MacDonough]. The fourth stage is a report that the evil has not been eradicated, outrage again by the population 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, are a societal drama which follow a similar script to the outrage dynamic, with the media outlets, population, political authorities and evil playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior including marijuana use and the sexual psychopath laws of the 1930's to 1950's [CITE]. In the latter case it is not the criminalization of behavior that occurs but the increase of punishments corresponding to that behavior.

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

One of the purposes of a constitutions in democratic society is to protect the minorities rights against the will of the majority. Thus, nothing short of a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect us from punishments easily ratcheted up by the sentencing system, but not easily ratcheted down.

Proportionality is at once a difficult and easy concept to define. Most, if not all, would agree that a two-hundred dollar fine for rape is too lenient or that a sentence of 5 years for jay walking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. Part of the problem is answering the question of to what ends does the proportionality serve. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior, rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed, or retributivism principals by satisfying societies belief that the scales of justice are even for the offense. [cite the case book].

We advocate a position 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. However, other definitions exist. In current jurisprudence on the 8th amendment the supreme court has understood a guarantee of proportionality so long as the punishment satisfies one of the ends of proportional punishment (cite fraise). Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent principals. Beyond a suggestion of “weak“ retributivism, Ricahrd Fraise and Youngjae Lee have independently suggested a disjunctive theory of proportionality where the punishment should be capped at whatever goal is satisfied by the least harsh punishment. Note that this paper does not attempt to answer the important question of whether this end can be achieved better through Supreme Court interpretation of the 8th amendment or a new constitutional amendment.

SAY SOMTHING ABOUT REDUCING PRISON SENTINCES:!!!!!

Consequences of a constitutional protection against disproportionate sentences.

Increased scrutiny for length of prison sentences

If there was an right against disproportionate sentences then at every sentencing a judge would have to answer the question of whether the sentience proportional to the offense committed, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where guidelines would be addressed and followed and would likely have the effect of some sentencing schemes proposed by the legislature to be held unconstitutional.

A Check against moral panics

Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [CITE]. However, this politically insulated body already exists in the judicial branch of government. A constitutional guarantee of not more than proportional punishment would provide a mechanism to strike down punishments deemed too harsh, thus stopping the cycle of escalation in punishments. Further, as the case would need to be tried before the penalties struck down, the panic and outrage may have subsided allowing politicians reprieve from the negative effects.

A new jurisdictional hook for prison reform

The terrible conditions in prison have been well documented [CITE Nielson]. If criminals were guaranteed proportional punishment, the ability to send a criminal to a United States jail at all for some crimes could be challenged, with courts forcing with the choice: clean up jails or have no jail time for some classes of offense.

References

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

[] 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.

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

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

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

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

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

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

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

Thanks Julian. I would appricate more comments on the recent revision.

-- JustinColannino - 03 Apr 2008

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