YOUNGJAE LEE

“The Constitutional Right Against Excessive Punishment,” which was published in Virginia Law Review in 2005, addresses the following question: When are otherwise constitutionally permitted modes of punishment, such as death, imprisonment, or fines, so excessive or disproportionate in relation to the crime for which they are imposed that they become unconstitutional? The Article was written shortly after the Supreme Court decided in 2003 Ewing v. California, which held that a prison term of twenty-five years to life under California’s three-strikes law was not excessive for shoplifting by a repeat offender. I argue in the Article that the Ewing Court’s decision rests on a mistaken theory of the Eighth Amendment that a sentence is not unconstitutionally excessive as long as it can be justified under any one of the traditional justifications for punishment, such as incapacitation, deterrence, retribution, and rehabilitation. Rather, I argue, the Eighth Amendment ban on excessive punishment is a constraint that prohibits the government from imposing certain punishments even if the overall purposes of punishment would be advanced through such punishments.

I also argue in the same piece that the Eighth Amendment ban on excessive punishment should be understood as an implementation of the retributivist principle that the harshness of punishment should not exceed the gravity of the crime and that one should not be punished more harshly than one deserves. This thesis raises a number of questions.

First, what is the normative basis for adopting proportionality as a constraint and, furthermore, constitutionalizing it?  I give an answer to this question in "Why Proportionality Matters" (University of Pennsylvania Law Review, forthcoming 2012).

Second, what does a constitutional constraint based on the idea of desert look like? If “the people” believe that, say, child rapists should receive the death penalty, on what basis can one make an Eighth Amendment argument that says that “the people” got the desert question wrong? If a federal judge disagrees with what “the people” believe on a question of desert, then so much the worse for the judge — is it not? I address this question in “Desert and the Eighth Amendment” (University of Pennsylvania Journal of Constitutional Law, 2008).

Third, what is the relationship between the question of constitutionality of punishments and international opinions? If, as the Supreme Court stated in Roper v. Simmons in 2005 that “the United States is the only country in the world that continues to give official sanction to the juvenile death penalty,” should such an international consensus carry any persuasive weight in judging whether the juvenile death penalty is unconstitutional? In “International Consensus as Persuasive Authority in the Eighth Amendment” (University of Pennsylvania Law Review, 2007), I argue that the answer to this question is no.

Fourth, the idea that one should not be punished more harshly than one deserves seems too vague to be successfully implemented by courts as a doctrinal matter. I argue that this worry is overstated and make some doctrinal suggestions in “Judicial Regulation of Excessive Punishments through the Eighth Amendment” (Federal Sentencing Reporter, 2006).

One very important recent development in this area of law is Graham v. Florida, which is a 2010 Supreme Court case holding that the Eighth Amendment prohibits a sentence of life in prison without parole for a nonhomicide crime committed by a minor. My comments on the Graham case can be found in “The Purposes of Punishment Test” (Federal Sentencing Reporter, October 2010) and in a series of guest blog posts I did for the blog Concurring Opinions.

In the United States, the most important determinant of punishment for a crime, other than the seriousness of the crime itself, is the offender’s criminal history. Despite the popularity of the view that repeat offenders deserve to be treated more harshly than first-time offenders, there is no satisfactory retributivist account of the “recidivist premium.” In “Recidivism as Omission: A Relational Account,” which was published in Texas Law Review in 2009, I argue that the recidivist premium is for the repeat offender’s failure to arrange his life in a way that ensures a life free of further criminality after his conviction and punishment. This account does not rely on unwarranted inferences from repeat offenders’ criminal histories that they are “bad people” or that they are “defiant of authority.” Rather, this account focuses on the moral significance of conviction and punishment and the ways in which they alter an offender’s relationship to the state. In addition, I argue that obligations between the state and offenders run in both directions and that we should recognize the ways in which the state may be a responsible actor that should share the blame for recidivists’ reoffending.

A shorter, revised version of this Article was published as a chapter in Previous Convictions at Sentencing: Theoretical and Applied Perspectives, edited by Julian Roberts and Andrew von Hirsch (Hart Publishing, 2010), which contains, among other things, several (some sympathetic, others less so) discussions of my proposal by Andrew von Hirsch, Julian Roberts, Chris Bennett, Michael Tonry, and Richard Frase. The idea has also been discussed in Andrew Ashworth’s Sentencing and Criminal Justice (Cambridge, 5th ed., 2010), in Stephen Morse's recent work, and is the subject of extensive commentary in chapters by Richard Dagger (sympathetic) and Jesper Ryberg and Thomas Petersen (less so) in Recidivism and Punishment: The Philosopher’s View, edited by Jesper Ryberg and Claudio Tamburrini (Lexington Books, 2011). You can also read a response to the Article by Guha Krishnamurthi here (Texas Law Review’s online companion site).

An earlier version of these pieces was presented at the Conference on the Evolution of Criminal Law Theory at the Rutgers Institute for Law and Philosophy in 2008.

The debate over the relevance of comparative and international legal materials to constitutional interpretation intensified in recent years after the Supreme Court’s citation of foreign sources in several high-profile cases. In “International Consensus as Persuasive Authority in the Eighth Amendment,” published in University of Pennsylvania Law Review in 2007, I contribute to this debate by focusing on the significance of international consensus as persuasive authority in the Eighth Amendment. If, as the Court stated in Roper v. Simmons, “the United States is the only country in the world that continues to give official sanction to the juvenile death penalty,” should such an international consensus carry any persuasive weight in judging whether the juvenile death penalty is unconstitutional under the Eighth Amendment? This Article argues that, contrary to conventional wisdom held by several Supreme Court Justices and many legal scholars, the answer to this question is no.

In understanding this claim, however, it is important to be clear that the key concept here is that of persuasiveness or instructiveness. One of the reasons why much of the current debate over the question of judicial borrowing of foreign laws has the flavor of people talking past each other is that there is no agreement on what is to be justified or criticized. For instance, foreign authorities may be thought to be binding, the way Supreme Court precedent is binding on lower courts. Almost nobody defends this view. Or, foreign authorities may be thought to be relevant. But “relevance” is a concept that confuses more than illuminates, as it occupies the large area between “dispositive” and “worth mentioning.” Much time is wasted in the judicial borrowing debate because opponents attack the view that almost nobody defends (“binding”), and proponents respond by defending the view that nobody attacks (“relevant”).

In this Article, I focus instead on the question of whether international consensus should be treated as persuasive in the Eighth Amendment context and argue that an international consensus should not carry any persuasive weight, not because international consensus is not binding (it isn’t), not because it is not relevant (it is), but because it is not persuasive.

If one of the lessons of the ubiquitous and highly problematic “ticking bomb” scenario is that torture may be justified under certain narrowly specified situations, why would we not want it made available as a weapon in the government’s anti-terrorist activities? This is not a new question. It has been hotly debated, and a number of arguments have been made against the idea of formulating the torture policy on the basis of the ticking-bomb hypothetical. In ”The Defense of Necessity and Powers of the Government,” which was published in Criminal Law and Philosophy in 2009, I address a related, if narrower, question: if one starts from the proposition that the ticking bomb scenario demonstrates that a government official facing prosecution for torture may have available the necessity defense, what implications, if any, should the government be able to draw from the existence of the defense as it formulates its torture policy? Very little, I argue in this Article.  

More specifically, I argue that the necessity defense effects a division of power between the state and citizens, with the state reserving itself the power to harm individuals’ interests as a general matter but letting individuals have such powers in situations of emergency. I further argue that if the necessity defense is about allocating power between individuals and the state and is a way of sustaining the state monopoly on violence, then it is mistaken to go from the premise that the necessity defense may be available against prosecution for torture to the conclusion that the government can determine when torture is or is not allowed. The necessity defense is an exception to the general rule that only the state may act in certain ways; it creates a space in which citizens are empowered to act as if the state has disappeared from the scene, and it is improper for the state to refer to the existence of that space to expand the scope of its own power. The necessity defense, in other words, exists to empower individuals where individuals are supposed to be powerless; it cannot be used to confer powers on the state as well.

An earlier version of this piece was presented at the Conference on Criminal Law in Times of Emergency at the Hebrew University of Jerusalem in 2008.