Why proportionality matters.

• Author: Lee, Youngjae

INTRODUCTION I. WHY PROPORTIONALITY? II. PROPORTIONALITY IN THE SUPREME COURT A. The Relative Culpability Test B. The Absolute Culpability Test C. The Pointless Suffering Test D. The Disjunctive Test CONCLUSION INTRODUCTION

The Supreme Court decided recently in Graham v. Florida that the Eighth Amendment prohibits a sentence of life in prison without parole for a nonhomicide crime committed by a minor. In its decision, the Court stated that "[t]he concept of proportionality is central to the Eighth Amendment" (1) and that it is the "precept of justice that punishment for crime should be graduated and proportioned to [the] offense." (2) What about proportionality makes it a matter of justice? And how does proportionality cohere with our constitutional values? This Article addresses these questions.

1. WHY PROPORTIONALITY?

   Why does proportionality matter for the Constitution? The principle of proportionality is commonly associated with the retributivist--or just deserts--theory of punishment, or the idea that people should receive the punishment that they deserve and no more. (3) However, simply saying that some people deserve to be punished does not explain why the State must be the one to mete out the punishment people deserve. As a general matter, the State is not in the business of ensuring just deserts. Bad things may happen to good people, just as some people may achieve far more success than they deserve. But it is not the State's job to intervene and take from those who have more than they deserve and give to those who have less. (4) We need to move beyond the simple assertion that some people deserve certain things when attempting to justify the State's role in doling out punishment.

   To make some headway into the question of why proportionality matters, we must first explore the rationales for criminal law. I highlight two in particular here. First, criminal law plays an important role in preserving physical security through its system of prohibitions and punishments. (5) That is, harm reduction is an important goal of criminal law. Second, criminal law functions to displace feelings of resentment and desires for personal vengeance by punishing wrongdoing. (6) As John Gardner put it, "The blood feud, the vendetta, the duel, the revenge, the lynching: for the elimination of these modes of retaliation, more than anything else, the criminal law as we know it today came into existence." (7)

   These two aspects of criminal law explain several key features of our criminal justice system, namely that it is coercive, judgmental, and preemptive. First, its coercive aspect reveals itself most dramatically and obviously through the process of apprehending and punishing offenders. The coercive aspect is essential for ensuring order and physical security--a key function of criminal law. (8)

   Second, the criminal justice system is judgmental in the sense that when we punish, we also blame, condemn, and stigmatize the offenders. (9) By stigmatizing offenders, punishment gets "personal" and sends the message that their acts reflect badly on them. (10) This judgmental aspect derives at least partially from the displacement function of criminal law. A core purpose of criminal law and punishment is to manage the punitive and retaliatory emotions of those who have been victims of wrongdoers (as well as others in the community who feel indirectly victimized) (11) and to sublimate, displace, and provide an outlet for feelings of resentment toward the wrongdoers. The success or failure of a society's criminal law system thus depends on how well it responds to the punitive emotions of its citizens. (12)

   Finally, the criminal justice system is preemptive in that the State is the exclusive agent licensed to punish criminal wrongdoing. (13) Although the basic idea of retribution--that people should receive what they deserve--appears facially neutral on the question of who should be the one giving wrongdoers what they deserve, the government is the only legitimate punisher, and the law prohibits private individuals from taking the law into their own hands. (14) This preemptive aspect is essential to both the harm prevention and the displacement functions of criminal law.

   How does all this relate to our Constitution's requirement of proportionality? We cannot understand the various substantive and procedural safeguards rooted in our criminal justice system without reference to the overarching role that criminal law plays in our society. The government enjoys an enormous amount of power, not only to interfere forcefully with people's lives and to brand individuals with the stigma of blameworthiness, but also to prohibit others from doing the same. In order for the government to maintain its status as the exclusive legitimate wielder of this power, it must use its force in certain specified ways.

   That is, the displacement function begets the judgmental aspect of punishment, and as the State metes out this punishment and blame, it must do so under the constraints of fairness. To achieve fairness, the State must punish in a manner that is consistent with principles of proportionality: it must treat its citizens equally. (15) To be more precise, proportionality principles ensure that the State treats the equals equally and the unequals unequally.

   The fundamental legal protection that people be punished no more than they deserve is thus a requirement that flows neither from the laws of morality nor from some general principle that people ought to receive only what they deserve. Rather, it is one of many conditions that attach to the government's exclusive control of the power to criminalize and punish, and only by respecting such constraints can the State maintain the legitimacy of its exclusive control.

   These three central aspects of criminal law not only establish the proportionality-based limitation as an important restriction on the State's power to punish, but they also suggest that that limitation should take the form of a constitutional right that is resistant to tradeoffs. The harm prevention and displacement functions of criminal law demonstrate how the power to punish can be abused* Punitive passions, while frequently and correctly based on the belief that a moral wrong has occurred, can be excessive and driven by other less desirable sentiments such as cruelty, sadism, inhumanity, and racial hatred or prejudice. (16) Such sentiments may drive punishments well beyond what offenders deserve. In addition, the pressures the State faces to reduce crime could lead it to use excessive and unwarranted violence. (17)

   Therefore, as the exclusive agent of punishment, the government has dual commitments. On the one hand, because citizens are generally prohibited from defending themselves with violence or retaliating against wrongdoers, (18) the government has an obligation to provide physical security to its citizens and respond adequately to any wrongdoing. On the other hand, the government cannot preserve its legitimacy as the sole rightful holder of the power to punish unless it respects the restrictions on its use of force, including proportionality.

   These two commitments can pull the government in different directions. The State can sometimes provide physical security more efficiently and effectively by ignoring various substantive and procedural safeguards placed on its power. But if the State starts to abuse its power in this way, its status as the legitimate holder of the power to criminalize and punish will be threatened. (19) Yet there will be times when respecting these safeguards may seem downright irresponsible--a dereliction of duty--because the safeguards may get in the way of convicting and punishing wrongdoers. (20) This reality means that unless we treat the constraints against disproportionate punishment as near inviolable, proportionality-based restrictions on punishment will yield too often and will not meaningfully limit the government's power to punish.

2. PROPORTIONALITY IN THE SUPREME COURT

   How well are the justifications for proportionality presented in Part I reflected in our constitutional jurisprudence? In order to answer this question, we first have to be clear on various analytic devices the Supreme Court employs in its proportionality analysis. The Court uses at least four different tests.

   First, sometimes the nature of the Court's proportionality analysis is essentially comparative. The questions are not whether, say, robbery is a serious crime, but whether it is as serious as other crimes, (21) and not whether a mentally retarded killer is culpable, but whether he is as culpable as an adult of normal intelligence who kills on purpose. (22) I will refer to the analysis the Court applies here as "relative culpability."

   Second, the Court has also understood proportionality in noncomparative terms. As the Graham Court explained, proportionality calls for courts to compare "the gravity of the offense and the severity of the sentence." (23) This kind of proportionality analysis, which I will call the "absolute culpability" test, is about matching. It requires the court to take a particular crime and a particular punishment and set them against each other, without regard to how other crimes are punished. The absolute and relative culpability tests are closely related, and I will refer to them collectively as the "culpability test."

   The third kind of proportionality analysis, which I will call the "pointless suffering" test, asks whether the punishment advances one of the goals of punishment or whether it is "nothing more than the purposeless and needless imposition of pain and suffering." (24) According to the Graham Court, "[a] sentence lacking any legitimate penological justification is by its nature disproportionate to the offense." (25) Under this test, if the punishment does not advance a legitimate purpose, then it is not proportionate.

   Fourth and finally, there is the proportionality analysis...