Practicing Proportionality

At the heart of the Eighth Amendment's Cruel and Unusual Punishments Clause are two concepts of proportionality—absolute and relative. Absolute proportionality ("cruel") asks whether the sentence is commensurate with the state's purposes of punishment. Relative proportionality ("unusual"), by contrast, asks whether the sentence is relatively similar to the outcomes of similar cases. Absolute proportionality sets limits on punishment based on the relationship between the punishment and the intended punitive goal; relative proportionality sets limits on punishment based on the sentencing outcomes in similar cases.

In recent years, the United States Supreme Court has used the concept of absolute proportionality to create categorical prohibitions for the use of the death penalty for minor offenders, intellectually disabled offenders, and for nonhomicide crimes. The concept of relative proportionality, however, has received little attention. Indeed, ignoring this concept has perpetuated disparity in state court sentencing of death-eligible crimes. This Article argues for the restoration of relative proportionality under the Eighth Amendment and proposes a theoretical model for its application.

Further, the Article addresses the central problem of relative proportionality—the inherent difficulty in applying it to individual cases—by offering a practical framework for determining the relative proportionality of a given case. Part I outlines the concept of relative proportionality and tracks its origins and jurisprudence. Part II explores the current applications of relative proportionality by various states and describes the unfortunate outcomes of these inadequate approaches. Part II offers a theoretical model for "practicing" the concept of relative proportionality and describes its application.

Lastly, Part IV illustrates the jurisprudential and sentencing benefits of practicing proportionality.