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"Rethinking Proportionality Under the Cruel and Unusual Punishments Clause"

By Douglas A. Berman

The title of this post is the title of this terrific-looking new article by John Stinneford that is now available via SSRN. Here is the abstract: Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic.  The Court has never answered doubts about the legitimacy of proportionality review, leading a controlling plurality of the Court to insist that such review be limited to a narrow class of cases.  The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent . Finally, the Court?s method of measuring proportionality is unreliable and self-contradictory...continue to full post

Full post as published by Sentencing Law and Policy on August 24, 2010 (boomark / email).