Proportionality of Crime to Punishment: An Eighth Amendment and Due Process Approach

In 1991, Harmelin v. Michigan, the United States Supreme Court held that a sentence of life imprisonment without the possibility of parole for a serious felony is constitutional under the Eighth Amendment. During the case, the Supreme Court members heavily debated whether or to what extent the Eighth Amendment requires proportionality. Some justices argued that the Eighth Amendment has no proportionality requirement for the length of prison sentences, while others believed that it had some degree of proportionality.

The Eighth Amendment clearly states that “excessive fines” are prohibited. That implies that the Eighth Amendment requires a degree of proportionality between the nature of the crime and the fine issued. However, the Eighth Amendment allows says that “cruel and unusual punishments” may not be inflicted. The Amendment never states whether it is cruel and unusual to punish a less culpable class of persons, innocent people, or people who commit certain types of crimes. It simply states that the punishment cannot be “cruel and unusual.” Setting someone on fire as punishment is clearly both cruel and unusual. This punishment hasn’t been used in the United States in a long time and it is known to inflict a large amount of pain and suffering. Executing children can also be viewed as cruel and unusual since children are less developed than adults and children are not frequently executed. We often punish juveniles differently from the way we punish adults. However, there does not seem to be a clear proportionality argument stemming from the Eighth Amendment. The Eighth Amendment seems to provide more of a maximum allowed punishment for a particular class of people.

In pre-colonial England, many crimes were punishable by death or other severe punishments. States have previously introduced the death penalty for non-homicide crimes such as rape. Treason can also be punishable by death even if no deaths results from it.

In my opinion, the Eighth Amendment would prohibit the punishment of people who have not committed a crime or had no requisite state of mind to commit a crime. In addition, I believe that the Eighth Amendment limits the punishment toward certain groups of people such as the mentally ill and juveniles. However, I think that pure proportionality should stem from the Fourteenth Amendment.

In 1996, in BMW of North America, Inc. v. Gore, the United States Supreme Court relied on the Fourteenth Amendment and held that excessive punitive damage awards violate substantive due process. Likewise, the proportionality of the crime to the punishment should be examined under the Due Process clause. There are many goals to punishment and varying views on the harm of crimes to society so proportionality is subjective.

To solve this problem, I would recommend dividing crimes into categories: petty crimes punishable by a maximum of six months imprisonment, crimes punishable by a minimum of six months imprisonment and a maximum of life imprisonment, crimes punishable by mandatory life imprisonment, and crimes punishable by death. Each crime would have to be proportional to such category. Otherwise, it would violate substantive due process. Factors to evaluate in each crime may be: (1) the degree of reprehensibility of the defendant’s conduct; (2) the amount of harm the defendant caused to both the victim and society; and (3) the reversibility of the harm particularly through the defendant’s future actions such as restitution to the victim(s).

In other words, the punishment has to be “grossly disproportional” to the crime committed. Creating more categories has no legal basis and should be left to democratically elected legislatures to decide. Under this reasoning, the ban on “excessive fines” also stems not only from the Eighth Amendment also from the Due Process Clause.

The Eighth Amendment and Due Process Clause work together. For example, the Eighth Amendment may not forbid requiring someone to wear a shirt saying “I steal mail” as punishment for stealing his neighbor’s mail. However, requiring someone to wear that shirt every day for his whole life may violate substantive due process.