On competence, legitimacy, and proportionality.

• Author: Gertner, Nancy

I asked Justice Aharon Barak, then president of the Israeli Supreme Court, why he considered himself competent to decide where the wall between Israel and the Palestinian territories should be located and further, why it was legitimate for him, a judge, to do so. The Israelis claimed that the wall was critical for the country's security. The Palestinians insisted that the barrier violated international law by severely restricting the ability of Palestinians to travel freely and to access work in Israel. Justice Barak answered, "As a judge, I don't pretend to know anything about security. But I know about proportionality. I know how to balance the security interests of the state against the rights of the Palestinians." (1) His response was not unusual for justices of constitutional high courts in common law countries--except in the United States. No other common law judge is likely to doubt his competence to use proportionality analysis in any number of areas or the legitimacy of the approach. Indeed, proportionality analysis has become a critical part of international human rights adjudication. (2)

While the use of proportionality analysis is widespread in constitutional courts throughout the world, sentencing is an area in which it is perhaps the most critical and has the oldest pedigree. Retributive theories of punishment use the proportionality principle to assign criminal blame; no offender should be punished more harshly than the crime deserves. (3) Prior to mandatory sentencing guidelines and mandatory minimum sentencing, proportionality analysis was part of the sentencing judge's toolkit in an individual case. (4) In most common law countries with appellate review of sentencing, it was also the means by which appellate courts reviewed lower court sentences. (5) To be sure, it was not a perfect approach and was hardly capable of mathematical precision, but it was accepted.

Except in the United States. Let me make a preliminary observation: a common theme links the Supreme Court's Eighth Amendment jurisprudence in which some Justices debate whether there is a constitutional proportionality principle in noncapital sentencing at all; the federal appeals courts' inability to give meaning to substantive reasonableness sentencing review even after United States v. Booker freed them to do so; (6) and the United States Sentencing Commission's inability to rank offenses based on any coherent proportionality principle. The theme (which I find quite troubling) is that proportionality analysis is simply not within the competence of the American judiciary. Worse yet, it is not even within their legitimate role; it is somehow too policy-centered, too "activist." It is a task best left to the legislature, or in the case of the federal sentencing guidelines, to an "independent" agency in the judicial branch the United States Sentencing Commission--but at all costs, not to the courts.

The problem is that Congress has never applied a proportionality principle in enacting the substantive criminal laws; all efforts to enact a rational and proportional federal criminal code (along the lines of the American Law Institute's Model Penal Code, for example) have failed. Congress largely targets the "crime du jour," increasing punishments not on the basis of proportionality analysis, but largely on the basis of public pressure. (7) And, as I describe below, the "expert" agency, the Sentencing Commission, which had the resources and even the charge to apply such a principle, simply threw up its hands.

It is no surprise, then, that over the course of my seventeen years on the federal bench the government regularly urged me to sentence a nonviolent crack offender to the same sentence as I would defendants convicted of crimes like attempted sedition, solicitation to commit murder, kidnapping, abduction, and unlawful restraint. (8) Or that the Court of Appeals overturned a decision in which I used empirical analysis to try to make the punishment of a drug offender proportional to the punishment of other similarly situated dealers within Massachusetts. (9) Or that it finally took Booker to permit judges to implement a de minimus proportionality principle--that the sentences of one defendant should be proportional to that of codefendants in the same case. (10)

It is beyond the scope of this Essay to understand in any depth what it is about the American judiciary or American judicial traditions that makes proportionality analysis so much more problematic here than in other countries. My purpose is descriptive. I describe how the same problems that afflict constitutional proportionality analysis spill over into other arenas, to the appellate courts in ordinary sentencing appeals, and ultimately to the Sentencing Commission. It is like an old comic strip, Alphonse and Gaston: "After you, Alphonse," says Gaston. Alphonse replies, "No, Gaston after you." Since neither will proceed before the other, they fail to get anything done. (11)

While the Supreme Court has addressed the constitutional implications of sentencing issues when the issue is a binary one--life or death and life with or without parole--it has been unwilling to impose constitutional limits on scalable punishments--the length of time an individual may be constitutionally imprisoned for a crime. The Court has concluded that the death penalty is disproportionately harsh for rape, (12) for a crime committed when the defendant was under eighteen, (13) or for a mentally retarded individual. (14) But where imprisonment is concerned, as Youngjae Lee noted, the Court's decisions reflect a "meaningless muddle," a "conceptual confusion" of "incoherent" rationales. (15) According to a plurality of the Court in Ewing v. California, a sentence is not unconstitutionally excessive so long as it can be justified under any one of the traditional justifications of punishment (16)--not a particularly high bar. The plurality could find no overarching theory by which it could set limits on a legislature's determination of Imprisonment (17) (although it had no such problem evaluating the excessiveness of punitive damages (18)). Since the Constitution is not clear regarding the metes and bounds of "cruel and unusual punishment" as applied to imprisonment, the plurality implies that the Court lacks either the competence or the legitimacy to make the decision in most cases. To choose one penological purpose and evaluate the sentence in reference to it would be to overstep the Court's role. Instead, the Court must defer to the legislature's choices of punishments and the justifications for them. (19)

In Ewing, for example, the Court held that a prison term of twenty-five years to life under California's three-strikes law was not excessive for the crime of shoplifting golf clubs worth $1200 by a repeat offender. (20) General, ill-defined notions of deterrence and incapacitation were sufficient to justify the law. The Court noted that the recidivism statute "is nothing more than a societal decision that when such a person commits yet another felony, he should be subjected to the admittedly serious penalty of incarceration for life, subject only to the State's judgment as to whether to grant him parole." (21) And the legislature is better suited to make "societal decisions" than the Court: "[F]ederal courts should be reluctant to review legislatively mandated terms of imprisonment, and ... successful challenges to the proportionality of particular sentences should be exceedingly rare." (22) Indeed, Justice Scalia, concurring in the judgment, was characteristically more emphatic: The proportionality principle, unmasked, raises policy questions, not issues of law, and policy questions do not belong in courts. (23)

It is ironic, however, that the Court in Ewing, and earlier in Solem v. Helm, (24) did articulate an empirical, comparative approach that would have cabined the Court's analysis, like the Court's methodology in...