The inadequacy of fiscal constraints as a substitute for proportionality review.

• Author: Dewar, Elizabeth Napier

An Act Concerning Prison Overcrowding, Pub. Act No. 04-234, 2004 Conn. Acts 982 (Reg. Sess.).

The Constitution does not prohibit "everything that is intensely undesirable." (1) In particular, Justice Scalia argues, the Eighth Amendment does not prohibit disproportionately long prison sentences. (2) Yet Scalia seems to offer some consolation to those who worry about the "intensely undesirable" prospect of disproportionate punishments: He implies that the cost of incarceration acts as a check on the length of prison terms, a check loosely standing in for proportionality review. (3) Thus, Scalia tenders an economic rationale for his contested interpretation of the Eighth Amendment. Unfortunately, his rationale is faulty.

Fourteen years after Harmelin v. Michigan, Scalia's allusion to the costs of incarceration seems prescient: Grappling with budget deficits, state legislators across the country have indeed attempted to save money by curtailing the growth of their prison populations. (4) However, this wave of legislation does not support Scalia's further suggestion that the costs of imprisonment should allay concern about disproportionate sentences. (5) This Comment examines one typical response to rising prison costs, Connecticut's Act Concerning Prison Overcrowding. (6) The Act trimmed small amounts of time served for a large number of incarcerated people, without altering the statutory penalty for any particular crime. Such laws are common because they quickly reduce corrections costs without making legislators appear "soft on crime." But, written to control the aggregate time served in states' prisons, they neither purport to address nor in effect do significantly alter the proportionality of individual sentences. Thus, although Scalia correctly posited the existence of fiscal limits to incarceration, he erred in asserting that fiscal considerations might obviate the need for proportionality review.

This Comment does not attempt to resolve the debate among legal historians about the existence of a proportionality principle in the Cruel and Unusual Punishments Clause. But it does refute the hypothetical rationalization Scalia offers to support his interpretation of the Founders' intent over that of the dissenters. Part I sets forth the relevant portion of Scalia's argument in Harmelin. Part II discusses the Connecticut Act, a representative example of states' attempts to reduce prison costs. Part III debunks Scalia's reasoning in Harmelin and concludes that fiscal checks are not a substitute for proportionality review.

I

Justice Scalia proposes in Harmelin that the cost of incarceration relieves the judiciary from scrutinizing the proportionality of prison sentences. Part of his argument is that the difference in adjectives among the Excessive Fines, Excessive Bail, and Cruel and Unusual Punishments Clauses signifies that while excessive fines and bail are barred, excessive punishments are not; the Framers "chose, for whatever reason, not to include within [the Eighth Amendment] the guarantee against disproportionate sentences that some State Constitutions contained." (7) The scant legislative history of the Amendment (8) is silent on this "choice," and Scalia delves extensively into the history of the equivalent provision in the English Declaration of Rights to make his argument. (9) However, he acknowledges that some historians, cited by the dissenters, (10) disagree with his interpretation that both the English and American provisions exclude a proportionality principle for prison sentences. (11)

In the context of seeking "the most plausible meaning" (12) from this conflicted history, Scalia posits a reason of his own for why the Founders might have intentionally excluded a proportionality principle from the Cruel and Unusual Punishments Clause. He asks rhetorically, "[W]hy would any rational person be careful to forbid the disproportionality of fines but provide no protection against the disproportionality of more severe punishments?" (13) His response: "Imprisonment, corporal punishment, and even capital punishment cost a State money; fines are a source of revenue. As we have recognized in the context of other constitutional provisions, it makes sense to scrutinize governmental action more closely when the State stands to benefit." (14) Note the illogical gap between Scalia's common-sense notion and the use to which he puts it" Courts should scrutinize the government "more closely when the State stands to benefit"; therefore, it "makes sense" to give no scrutiny to the length of prison sentences. Although this reasoning is not crucial to Scalia's argument against proportionality review, it is his only explanation for why the Framers might rationally have chosen to impose a proportionality requirement for bail and fines, but not for punishments.

The idea that courts should scrutinize the government more closely when it stands to gain financially evidently appeals to jurists. Justices Kennedy and Souter have both since quoted Justice Scalia's footnote, (15) and lower courts frequently cite it when reviewing the proportionality of fines or when commenting more generally on the government's financial incentives. (16) But Scalia moves one step further in proposing that financial disincentives might justify the nonexistence of scrutiny of the length of prison sentences. A recent wave of fiscally driven legislation aiming to reduce prison populations refutes this notion that fiscal pressures can replace proportionality review by the courts.

II

State legislatures have indeed passed laws to reduce the size or growth of their prison populations in...