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March 19, 2017

A Canadian perspective on constitutional proportionality review

Given the US Supreme Court's various struggles with proportionality review of sentences under the Eighth Amendment, I was intrigue to see this article recently posted on SSRN discussing how the Supreme Court of Canada has approached this same issue. The article authored by Lauren Witten is titled "Proportionality As a Moral Process: Reconceiving Judicial Discretion and Mandatory Minimum Penalties," and here is its abstract:

This article reconceives proportionality in sentencing as a constructive reasoning process rather than as an instrumental means of achieving a fair quantum of punishment.  It argues that the Supreme Court of Canada has wrongly adopted the latter view by determining the constitutionality of mandatory minimum sentences according to hypothetical outcomes. R v. Nur is a paradigmatic example of how this error presumes a false objectivity in proportionality assessments that leaves the Court vulnerable to critiques of judicial activism.

This paper claims that a process-based conception of proportionality offers a stronger defence of judicial discretion in sentencing than the current framework offers; it better respects institutional roles and provides a more principled basis for declaring the current structure of mandatory minimum penalties unconstitutional. The proportionality as a process theory contends that judges alone are capable of reconciling the values of three constituencies in sentencing — the offender, the judge, and the public — and that this tripartite justification is integral to moral punishment.  This paper shows how the process view of proportionality in sentencing is an implicit, but under-theorized, current in the law that should be explicitly developed as part of Canadian constitutional theory.

March 19, 2017 at 01:49 PM | Permalink


Judges owe their jobs to criminals. They will coddle them, and falsely call coddling, proportionality. Proportionality is a feature of retribution. It is unrelated to public safety, the sole real purpose of criminal law and policy. For public safety purposes, some murderers may be sent home. Some shop lifters should be executed. That is beyond the mental grasp of judges. They are lawyers and just don't know anything. What is self evident to ordinary people is beyond their mental ability.

Posted by: David Behar | Mar 19, 2017 4:39:29 PM

Please DEMs filibuster Gorsuch. Do not Garland.

Posted by: youtalkingtome@gmail.com | Mar 19, 2017 4:52:41 PM

"Some shop lifters should be executed."

Correct. For example, if I were to catch David Behar shoplifting I would argue that he should be executed. Not because he was shoplifting--that would plainly be silly--but because he is David Behar and that is reason enough.

Posted by: Daniel | Mar 19, 2017 5:06:13 PM

@Daniel. Annoying by pointing out facts is not a crime. It is not even unconvicted conduct.

My death would deprive the economy of a $trillion of value. On the other hand, the incapacitation of the lawyer hierarchy would enhance the economy by $trillion each year, compounded.

Imagine, no crime whatsoever, 10% year over year economic growth, and a multiplication of technology advances by 10. The $trillion destroyed by the lawyer would go into research and development, raising the gross domestic product going to it to 20%. I do not see any other way for people to survive robots than to get 1000 times more creative than everyone is today. As usual, the lawyer profession has never achieved anything, save to obstruct, drag, and destroy.

Only technology will serve us.

Posted by: David Behar | Mar 19, 2017 5:18:57 PM

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