Gilbert & Sullivan and Scalia: Philosophy, Proportionality and the Eighth Amendment

Ian P. Farrell, University of Texas at Austin

Abstract

As the recent decision in Kennedy v. Louisiana demonstrates, the principle of proportionality – that the punishment should fit the crime – remains a vital component of the Supreme Court’s Eighth Amendment jurisprudence. Justice Scalia, however, holds the view that the Cruel and Unusual Punishment clause contains no requirement of proportionality. The keystone of Justice Scalia’s faint-hearted originalist argument in support of this position is a philosophical claim: that the proportionality principle is an inherently retributivist concept that is incompatible with consequentialist goals of punishment. An analysis of the various theories of punishment, and in particular retributivism and consequentialism, shows this claim to be false. In light of such an analysis, Justice Scalia’s position on to the meaning of the Eighth Amendment is unsupportable. More generally, this philosophical analysis demonstrates that the principle of proportionality is not an inherently retributivist concept, but rather a theoretically independent moral conviction to which we are tenaciously attached. Understanding proportionality in this way reaffirms that the Eighth Amendment should be construed as requiring punishment to be proportional to the crime for which it is imposed.