New York University Public Law and Legal Theory Working Papers

Document Type



Virginia Law Review, Vol. 91, May 2005


When is a death sentence, a sentence of imprisonment, or a fine so excessive or disproportionate in relation to the crime for which it is imposed that it violates the Eighth Amendment? Despite the urgings of various commentators and the Supreme Court’s own repeated, albeit uncertain, gestures in the direction of proportionality regulation by the judiciary, the Court's answer to this question within the past few decades is a body of law that is messy and complex, yet largely meaningless as a constraint, except perhaps in a few instances in the death penalty context. In the core of this ineffectual and incoherent proportionality jurisprudence lies a conceptual confusion over the meaning of proportionality. This Article seeks to prepare the ground for a more coherent and potent jurisprudence of proportionality to develop by clarifying the concept of proportionality. First, this Article describes the way in which the Court's confusion over the meaning of proportionality has been the source of the problem by discussing four different ways in which the Court has understood the term. Second, this Article proposes retributivism as a side constraint as the organizing principle upon which to base a more coherent and effective constitutional doctrine. Third, this Article specifies the meaning of retributivism as a side constraint, emphasizing the distinction between comparative and noncomparative aspects of retributivism and the significance of comparative desert for understanding not only what it means for one to deserve a punishment, but also for devising a viable strategy of judicial enforcement of constitutional limitations on amounts of punishment.

Date of Authorship for this Version

March 2005


Proportionality, Punishment, Eighth Amendment, Cruel and Unusual Punishments, Roper v. Simmons, Ewing v. California, Capital Punishment