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July 13, 2008

"Resuscitating Proportionality in Noncapital Criminal Sentencing"

The title of this post is the title of this piece by Donna Lee just appearing here on SSRN.  Here's the abstract:

Although the Eighth Amendment guarantees proportionality in noncapital criminal sentencing, federal and state courts have struggled when deciding individual cases, and the Supreme Court has failed to articulate legal rules that could promote the development of a coherent jurisprudence. Working within the governing law and building on the work already done by scholars who have focused on this problem, I propose three principles: transparency, limited deference, and a "felt sense of justice," that could guide the process of proportionality review and contribute to defining a retributivist touchstone for proportionality judgments.  Focusing on the required threshold inquiry, I also outline an analytical framework for examining offense gravity and sentence severity, and determining gross disproportionality.  My proposal identifies four analytical factors for assessing offense gravity: harm, culpability, violence, and magnitude; and two for evaluating sentence severity: the offender's "real sentence," and likely age and life opportunities upon release from prison.

July 13, 2008 at 07:25 AM | Permalink


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You asked about the disconnect between lawprofs and practicioners? This epitomizes it. Granted, I have not read Prof. Lee's article, but this sure sounds like the pie-in-the sky, ivory-tower, completely impractical nonsense that divides the academy from practicing lawyers, and helps explains why lawyers often don't bother with the academy.u

Posted by: Anon | Jul 13, 2008 4:51:54 PM

Yeah, I tend to agree. So the law is not 100% coherent. Well neither are human beings. So what? I don't understand this slavish fanaticism towards uniformity and coherence in the law. "General principles do not decide specific cases." Amen!

Posted by: Daniel | Jul 14, 2008 1:45:18 PM

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