Allocating Punishment: Proportionality and Constitutional Limits on Sentences
Constitutional Limits on Sentence
Bentham – utilitarian principles, pg 187
-p169- 172 – other rationales
At Issue
a) How to flesh out the meaning of frameworks like due process?
b) Federalism
c) Relationship of courts to political branches (and criminal justice policies), role of the courts and con. values
8th Amendment
No cruel & unusual punishment
-In capital punishment arena, the 8th amendment has been used to say no capital punishment for rape, felony murder, juveniles, mentally handicapped.
Issue: is there proportionality of sentences in the 8th amend?
Yes, but very little. Ewing Standard of proprtionality:
Ewing v. California US 2003 p172 THREE STRIKES LAW
• stole 3 golf clubs. Had many priors, including armed robbery.
• Prosecutor has discretion on “wobbler” crimes to make them felonies or misdemeanors, which would determine whether this is ∆’s third strike
• Prosecution pushed third strike law, sentenced to 25-life.
• Holding: SCOTUS plurality affirms sentence as not disproportionate. Outside capital punishment, successful challenges to proportionality of a sentence are very rare.
• SCOTUS develops Ewing standard below, which is a very low standard for proportionality
• Sentence reflects a rational legislative judgment that repeat offenders must be incapacitated.
Ewing Standard for Proportionality of Punishment Under 8th Amend:
1. Does punishment surpasses threshold of grossly disproportionate?
2. If yes, then can consider:
• Gravity of the offense and harshness of the penalty
• Sentences imposed on other criminals in the same jurisdiction
• Sentences imposed for same crime in other jurisdictions
Prior SCOTUS Court Decisions rejecting proportionality challenges:
Case Sentence Offense Prior Offense and Statutory Scheme
Rummel v. Estelle Life with parole obtaining $120 by forgery Three time offender statute (if prior convictions resulted in temrs of imprisonment). Prior offenses -- $80 fraud using credit card; passing a forged check of $28. Eligible for parole in 10 years
Are three strikes rules double jeopardy?
• entrenched that longer records equal less leniency
• Pro 3 strikes: deterrence (but Breyer says overkill), incapacitation, retributivism b/c career criminals, punishing society’s freeloaders, gets rid of rehab approach
Hutto v Davis 40 Years possession w/ intent to distribute 9oz of pot He receive 20 year consequtive terms. No prior record required. He did have a prior record.
In a 9.5 month period in 1975-76, of 117 inmates convicted of possessing, manufacting, or selling marijuana, average sentence was 3 yeas, 2 months, and highest sentence was 15 years.
Harmelin v MI Life w/o parole for possession possession of 672 grams of cocaine No record.
Possession of more than 650 grams of cocaine imposes mandatory life sentence without parole.
Minimum mandatory does not require any prior record of conviction
3. SCOTUS upheld Proportionality Challenges:
Case Sentence Offense Prior Offense and Statutory Scheme
Solem v Helm Life without parole Pasing a bad check for $100 3rd strike rule makes felon eligible for life without parole
Had 6 prior felony convictions (all nonviolent): 3 for burglary, one for obtaining money under false pretenses, one for grand larceny, and one for DUI
Graham v. Florida (2010)
Life without parole for juveniles (categorical challenge) Armed burglary with assault and battery Same conduct also constituted attempted robbery. Graham pled guilty, but the court initially withheld adjudication. When Graham later was arrested for two robberies on the same night, and admitted to police having committed 203 additional robberies. These crimes were not adjudicated, but were the basis for revoking Graham’s probation and resentencing him on the armed burglary with assault and battery
Did not apply the Ewing test b/c doesn’t start by having to pass a grossly disproportionate threshold. Instead:
• still does jurisdictional comparison.
• Makes a normative judgment: Juveniles have a diminished moral culpability. Life without parole is the 2nd most severe penalty allowed by law
Categorical rule for all juvenile non-homicide offenders, but this holding:
1) focused on the nature of the offense
2) focused on the sentence of life without parole
3) Key is categorical role for class
Miller v. Alabama (2012) (felony murder) Life w/o parole for juevenile who committed homicide homicide The defendant’s challenge was not that life without parole may never be imposed on a juvenile who commits homicide. It was, instead, that the legislature cannot make life without parole mandatory for a juvenile and thereby deprive the sentencing judge of discretion to consider whether this particular juvenile deserves that harsh of a sentence.
Mandatory life w/out parole sentence is excessive because it precludes an individualized decision. Not an outlier, but 2k in the country were mandatory life sentences.
Cannot have mandatory scheme for life w/out parole; instead, need discretion
Graham v. Florida
• Can’t justify under retribution (juvenile isn’t morally culpable enough) nor deterrence (juveniles are irrational) nor incapacitation (for non-homicide crimes) nor rehabilitation (jail sucks).
• Looks at other nations – none of them allow life without parole for minors.
• Concur: 1) youth 2) didn't tentd to kill 3) non conscoios leg decision 4) life w/out parole for jueveniles is harsher because higher proportion of life behind bars
• Concur: society changes and criminal law needs to reflect evolving standards of decency.
Open Questions Following Graham:
What about other statuses like mental retardation
What about life without parole @60 years?
What about 50 years in prison for youth? Or rephrasing to 75/100 years, etc?
Other cases:
State v. Berger AZ 2006 p180
• AZ court upheld 200 year sentence for 1st offender possessing 20 images of child pornography.
United States v. Bajakigian US 1998 p178
• violated currency laws by not reporting attempt to take ~$350k out of the country in cash (which he hadn’t acquired illegally).
• Statute provided for forfeiture of the sum to the government.
• Holding: SCOTUS said this would be excessive under 8th amend considering the technical nature of the offense and the minimal harm to the government.
Comparison to Punitive Damages via Substantive Due Process :
Due process clause limits punitive damage awards put similar challengeds (court are more willing to intervene here). No legislature in the picture/no deterrence concept?
Constitutional Limits on Sentence
Bentham – utilitarian principles, pg 187
-p169- 172 – other rationales
At Issue
a) How to flesh out the meaning of frameworks like due process?
b) Federalism
c) Relationship of courts to political branches (and criminal justice policies), role of the courts and con. values
8th Amendment
No cruel & unusual punishment
-In capital punishment arena, the 8th amendment has been used to say no capital punishment for rape, felony murder, juveniles, mentally handicapped.
Issue: is there proportionality of sentences in the 8th amend?
Yes, but very little. Ewing Standard of proprtionality:
Ewing v. California US 2003 p172 THREE STRIKES LAW
• stole 3 golf clubs. Had many priors, including armed robbery.
• Prosecutor has discretion on “wobbler” crimes to make them felonies or misdemeanors, which would determine whether this is ∆’s third strike
• Prosecution pushed third strike law, sentenced to 25-life.
• Holding: SCOTUS plurality affirms sentence as not disproportionate. Outside capital punishment, successful challenges to proportionality of a sentence are very rare.
• SCOTUS develops Ewing standard below, which is a very low standard for proportionality
• Sentence reflects a rational legislative judgment that repeat offenders must be incapacitated.
Ewing Standard for Proportionality of Punishment Under 8th Amend:
1. Does punishment surpasses threshold of grossly disproportionate?
2. If yes, then can consider:
• Gravity of the offense and harshness of the penalty
• Sentences imposed on other criminals in the same jurisdiction
• Sentences imposed for same crime in other jurisdictions
Prior SCOTUS Court Decisions rejecting proportionality challenges:
Case Sentence Offense Prior Offense and Statutory Scheme
Rummel v. Estelle Life with parole obtaining $120 by forgery Three time offender statute (if prior convictions resulted in temrs of imprisonment). Prior offenses -- $80 fraud using credit card; passing a forged check of $28. Eligible for parole in 10 years
Are three strikes rules double jeopardy?
• entrenched that longer records equal less leniency
• Pro 3 strikes: deterrence (but Breyer says overkill), incapacitation, retributivism b/c career criminals, punishing society’s freeloaders, gets rid of rehab approach
Hutto v Davis 40 Years possession w/ intent to distribute 9oz of pot He receive 20 year consequtive terms. No prior record required. He did have a prior record.
In a 9.5 month period in 1975-76, of 117 inmates convicted of possessing, manufacting, or selling marijuana, average sentence was 3 yeas, 2 months, and highest sentence was 15 years.
Harmelin v MI Life w/o parole for possession possession of 672 grams of cocaine No record.
Possession of more than 650 grams of cocaine imposes mandatory life sentence without parole.
Minimum mandatory does not require any prior record of conviction
3. SCOTUS upheld Proportionality Challenges:
Case Sentence Offense Prior Offense and Statutory Scheme
Solem v Helm Life without parole Pasing a bad check for $100 3rd strike rule makes felon eligible for life without parole
Had 6 prior felony convictions (all nonviolent): 3 for burglary, one for obtaining money under false pretenses, one for grand larceny, and one for DUI
Graham v. Florida (2010)
Life without parole for juveniles (categorical challenge) Armed burglary with assault and battery Same conduct also constituted attempted robbery. Graham pled guilty, but the court initially withheld adjudication. When Graham later was arrested for two robberies on the same night, and admitted to police having committed 203 additional robberies. These crimes were not adjudicated, but were the basis for revoking Graham’s probation and resentencing him on the armed burglary with assault and battery
Did not apply the Ewing test b/c doesn’t start by having to pass a grossly disproportionate threshold. Instead:
• still does jurisdictional comparison.
• Makes a normative judgment: Juveniles have a diminished moral culpability. Life without parole is the 2nd most severe penalty allowed by law
Categorical rule for all juvenile non-homicide offenders, but this holding:
1) focused on the nature of the offense
2) focused on the sentence of life without parole
3) Key is categorical role for class
Miller v. Alabama (2012) (felony murder) Life w/o parole for juevenile who committed homicide homicide The defendant’s challenge was not that life without parole may never be imposed on a juvenile who commits homicide. It was, instead, that the legislature cannot make life without parole mandatory for a juvenile and thereby deprive the sentencing judge of discretion to consider whether this particular juvenile deserves that harsh of a sentence.
Mandatory life w/out parole sentence is excessive because it precludes an individualized decision. Not an outlier, but 2k in the country were mandatory life sentences.
Cannot have mandatory scheme for life w/out parole; instead, need discretion
Graham v. Florida
• Can’t justify under retribution (juvenile isn’t morally culpable enough) nor deterrence (juveniles are irrational) nor incapacitation (for non-homicide crimes) nor rehabilitation (jail sucks).
• Looks at other nations – none of them allow life without parole for minors.
• Concur: 1) youth 2) didn't tentd to kill 3) non conscoios leg decision 4) life w/out parole for jueveniles is harsher because higher proportion of life behind bars
• Concur: society changes and criminal law needs to reflect evolving standards of decency.
Open Questions Following Graham:
What about other statuses like mental retardation
What about life without parole @60 years?
What about 50 years in prison for youth? Or rephrasing to 75/100 years, etc?
Other cases:
State v. Berger AZ 2006 p180
• AZ court upheld 200 year sentence for 1st offender possessing 20 images of child pornography.
United States v. Bajakigian US 1998 p178
• violated currency laws by not reporting attempt to take ~$350k out of the country in cash (which he hadn’t acquired illegally).
• Statute provided for forfeiture of the sum to the government.
• Holding: SCOTUS said this would be excessive under 8th amend considering the technical nature of the offense and the minimal harm to the government.
Comparison to Punitive Damages via Substantive Due Process :
Due process clause limits punitive damage awards put similar challengeds (court are more willing to intervene here). No legislature in the picture/no deterrence concept?
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