Qualitative and Quantitative Proportionality - A Specific Critique of Retributivism

John D. Castiglione, Latham & Watkins LLP

Abstract

Ohio State Law Journal (forthcoming 2010).

This article presents a normative model of proportionality review under the Cruel and Unusual Punishments Clause. I divide proportionality review into two organizing concepts: “quantitative proportionality,” which concerns the temporal length of the sentence imposed, and “qualitative proportionality,” which concerns the methods used to punish the individual and the conditions under which the individual serves his sentence. When viewed through this quantitative/qualitative lens, the Cruel and Unusual Punishments Clause is best understood to mandate review of the qualitative proportionality of the sentence, but not the quantitative proportionality of the punishment.

The key to this model is an appropriate appreciation for the role of human dignity as it relates to the Cruel and Unusual Punishments Clause. As the Supreme Court has recognized, the basic concept underlying the Eighth Amendment is “nothing less than the dignity of man.” A quantitative/qualitative proportionality model respects this pronouncement by insisting only upon invalidation of punishments that are violative of human dignity. Further, this model is consistent with the text of the Eighth Amendment, relieves the structural tensions inherent in judicial review of legislatively-determined sentence length, and gives courts an active, vigorous role in policing inhumane punishments. It also would end the slow-motion doctrinal train-wreck that is the determination of whether a given prison term is quantitatively “too long,” something courts and scholars have proved themselves unable to accomplish coherently.

Importantly, this model also functions as a specific critique of retributive punishment theory. Retributivists claim support for their position by pointing to the Cruel and Unusual Punishments Clause, which they claim mandates retributivism as a side constraint. However, if human dignity is considered to be the primary animating principle behind the Clause, and if mandatory quantitative proportionality review is rejected on that basis, it becomes far less clear that the Eighth Amendment mandates, or even suggests, punishment consistent with retributivism.