Immigration Lawyers New York



Proportionality

Can the legislature set any penalty it wants for a drug crime or is its severity capped by the Eighth Amendment's prohibition of excessive punishments? Should the law enforcement employ the same methods in trying to catch a murder suspect as in apprehending a marijuana smoker?

The excerpts from opinions written by our top judges are illustrative in making out the courts' approach to these issues.

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Petitioners argue that those selling different numbers of doses, and, therefore, with different degrees of culpability, will be subject to the same minimum sentence because of choosing different carriers. The same objection could be made to a statute that imposed a fixed sentence for distributing any quantity of LSD, in any form, with any carrier. Such a sentencing scheme -- not considering individual degrees of culpability -- would clearly be constitutional. Congress has the power to define criminal punishments without giving the courts any sentencing discretion. Ex parte United States, 242 U.S. 27 (1916).

[...]

Harmelin v. Michigan (1991)
Opinion by: SCALIA
The language [of the Eighth Amendment] bears the construction, however -- and here we come to the point crucial to resolution of the present case -- that "cruelty and unusualness" are to be determined not solely with reference to the punishment at issue ("Is life imprisonment a cruel and unusual punishment?") but with reference to the crime for which it is imposed as well ("Is life imprisonment cruel and unusual punishment for possession of unlawful drugs?"). The latter interpretation would make the provision a form of proportionality guarantee. The arguments against it, however, seem to us conclusive.

First of all, to use the phrase "cruel and unusual punishment" to describe a requirement of proportionality would have been an exceedingly vague and oblique way of saying what Americans were well accustomed to saying more directly.

Secondly, it would seem quite peculiar to refer to cruelty and unusualness for the offense in question, in a provision having application only to a new government that had never before defined offenses, and that would be defining new and peculiarly national ones.

Finally and most conclusively, [...] the fact that what was "cruel and unusual" under the Eighth Amendment was to be determined without reference to the particular offense is confirmed by all available evidence of contemporary understanding.

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Harmelin v. Michigan (1991)
Opinion by: SCALIA
While there are relatively clear historical guidelines and accepted practices that enable judges to determine which modes of punishment are "cruel and unusual," proportionality does not lend itself to such analysis. Neither Congress nor any state legislature has ever set out with the objective of crafting a penalty that is "disproportionate," yet as some of the examples mentioned above indicate, many enacted dispositions seem to be so -- because they were made for other times or other places, with different social attitudes, different criminal epidemics, different public fears, and different prevailing theories of penology. This is not to say that there are no absolutes; one can imagine extreme examples that no rational person, in no time or place, could accept. But for the same reason these examples are easy to decide, they are certain never to occur. The real function of a constitutional proportionality principle, if it exists, is to enable judges to evaluate a penalty that some assemblage of men and women has considered proportionate -- and to say that it is not. For that real-world enterprise, the standards seem so inadequate that the proportionality principle becomes an invitation to imposition of subjective values.

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Harmelin v. Michigan (1991)
Opinion by: SCALIA
The first holding of this Court unqualifiedly applying a requirement of proportionality to criminal penalties was issued 185 years after the Eighth Amendment was adopted. In Coker v. Georgia, 433 U.S. 584 (1977), the Court held that, because of the disproportionality, it was a violation of the Cruel and Unusual Punishments Clause to impose capital punishment for rape of an adult woman. Four years later, in Enmund v. Florida, 458 U.S. 782 (1982), we held that it violates the Eighth Amendment, because of disproportionality, to impose the death penalty upon a participant in a felony that results in murder, without any inquiry into the participant's intent to kill. Rummel v. Estelle, 445 U.S. 263, treated this line of authority as an aspect of our death penalty jurisprudence, rather than a generalizable aspect of Eighth Amendment law. We think that is an accurate explanation, and we reassert it. Proportionality review is one of several respects in which we have held that "death is different," and have imposed protections that the Constitution nowhere else provides.

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Harmelin v. Michigan (1991)
The Honorable Justice KENNEDY, with whom JUSTICE O'CONNOR and JUSTICE SOUTER join, concurring in part and concurring in the judgment:
...[C]lose analysis of our decisions yields some common principles that give content to the uses and limits of proportionality review. [...]

The first of these principles is that the fixing of prison terms for specific crimes involves a substantive penological judgement that, as a general matter, is "properly within the province of legislatures, not courts." [...] The second principle is that the Eighth Amendment does not mandate adoption of any one penological theory. [...] Third, marked divergences both in underlying theories of sentencing and in the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure. [...]The fourth principle at work in our cases is that proportionality review by 'federal courts should be informed by "'objective factors to the maximum possible extent.'"

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