Sunday, September 25, 2011
William W. Berry III (University of Mississippi School of Law) has posted Separating Retribution from Proportionality: A Response to Stinneford (Virginia Law Review In Brief, Vol. 97, No. 61, 2011) on SSRN. Here is the abstract:
Professor John Stinneford follows his initial article concerning the original meaning of the Eighth Amendment with an excellent article in the Virginia Law Review, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause. In this latest piece, Stinneford argues that the original meaning of the Eighth Amendment’s Cruel and Unusual Punishments Clause includes not only a prohibition against barbaric punishments (defined as ones without “long usage”), but also against excessive or “disproportionate” punishments. Stinneford then advocates rethinking the Supreme Court’s Eighth Amendment evolving standards of decency jurisprudence to center the “cruel” inquiry on whether the punishment at issue is “proportionate,” in a retributive sense, in light of prior punishment practices.
In this brief Response, I raise two possible objections to Stinneford’s analysis. First, Stinneford insists that proportionality must be solely a retributive concept for Eighth Amendment purposes, both as a matter of original interpretation and sound application. While retribution is certainly part of the “proportionality” analysis, I believe that utilitarian justifications of punishment are also relevant to the concept of proportionality. As explained below, this is true both as a matter of original interpretation and perhaps more importantly as a reasonable basis for the Court’s current application of the Eighth Amendment.
Second, I question whether, if one adopts Stinneford’s model of Eighth Amendment retributive proportionality, application of the Eighth Amendment would achieve the purposes he advocates. Spe-cifically, I am not persuaded that limiting the application of the Eighth Amendment to the question of retributive proportionality would improve the much-criticized application of the Eighth Amendment in capital cases. Further, I am not convinced that the retributive model of proportionality Stinneford advocates would effectively bridge the gap between the two-tiered application of the Eighth Amendment in capital and non-capital cases.