« Detailing a notable capital punishment surge in the Sunshine State | Main | An (overly?) optimistic account of how GPS technology could "solve" mass incarceration »

July 2, 2014

"Into the Breach: The Case for Robust Noncapital Proportionality Review Under State Constitutions"

The title of this post is the title of this notable piece authored by Samuel Weiss now available via SSRN. Here is the abstract:

The Eighth Amendment forbids cruel and unusual punishments.  The Supreme Court has found in the Amendment a guarantee that punishment be proportionate to the crime. Although the requirement technically applies equally to all punishment, in practice the Court has used the guarantee strictly to regulate capital punishment — a practice it recently extended to life without parole sentences for juveniles — but has abdicated almost entirely on noncapital sentences.

States have authority to regulate excessive punishment under their state constitutions, but most have chosen to interpret their state proportionality clauses in lockstep with the Eighth Amendment.  Even the states that have found greater protection in their constitutions have done so cautiously, striking down only the rare sentence so absurd that the legislature could not possibly have intended the result.

This Note suggests that states should aggressively police the proportionality of noncapital sentences under their state constitutions.  Part I discusses extant noncapital proportionality, both the United States Supreme Court’s Eighth Amendment doctrine and states’ responses to either heighten standards of review or to march in lockstep with the Court.  Part II discusses the primary basis for state courts’ failure to regulate proportionality — that regulating sentences would be intervening into legislative judgment of retributive fit — and its deep flaws.  State courts ignore that criminal codes bear little relation to actual crime and punishment — criminal liability is so broad and sentences so punitive that legislatures have essentially delegated decisions on criminality and sentence length to prosecutors.  Prosecutors, in turn, routinely deliver disproportionate sentences because prosecutors are local political actors who push the actual costs of incarceration onto state governments; because the public pushes for ever-harsher sentences; and because prosecutors deliver trial penalties to defendants who refuse to plead guilty.  Much of the Supreme Court’s cautiousness comes from its broader fear about intervention in state criminal justice systems; this fear is legitimate but should carry no weight with state courts, which are part of state criminal justice systems.  Part III addresses the remaining arguments against aggressive state proportionality review — that states should interpret their parallel provisions in the same manner as the federal provision and that judges are institutionally incompetent to make decisions about comparative blameworthiness.  The Note concludes that states should use their constitutions to pursue aggressive noncapital proportionality review.

July 2, 2014 at 12:17 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "Into the Breach: The Case for Robust Noncapital Proportionality Review Under State Constitutions":


I agree, but politics is in the way, considering the crime for possession what the gov considers to be child porn (which can mean a nude photo of yourself as a teen) vs. an actual crime of rape or another violent crime, unfortunately politics gets involved as being too soft at certain crimes, there was an Arizona case but because each photo was viewed as a separate crime the life sentence was upheld.

I do agree we really haven't touch non-capital offenses that much, LWOP cases are not viewed that often and habeus corpus and other proceedings are not extended to LWOP, it seems LWOP came about in greater frequency because the Supreme court in the 1970s restricted the death penalty.

We can aruge LWOP as being against the Constitution as cruel and unusual in many instances, LWOP was not used commonly until the 1970s and beyond,
so is LWOP a liberal invention, against Bill Otis and others, since crime rates were lower when LWOP was not used, I wonder if conservatives can find common ground with certain liberals.

Posted by: Alex | Jul 2, 2014 4:35:09 AM

Now that prosecutors have more control over noncapital sentences than judges do, I am beginning to see judges in north carolina push back against lengthy sentences using the Eighth Amendment. On several occasions I have actually seen judges strike excessive sentences under the eighth amendment which fall within the permissible range allowed by the legislature.


Posted by: bruce cunningham | Jul 2, 2014 4:39:16 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB