“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. (For a short description of this piece in the (now defunct) magazine Legal Affairs, see here.)
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 the recently published article, "Why Proportionality Matters" (University of Pennsylvania Law Review, 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.