Proportionality Outline

PROPORTIONALITY

8th amendment requires proportionality (majority view)

• Scalia/alito/thomas disagrees: 8A prohibits types of punishments, but no length of prison is too long

Individual challenge test (Ewing)

1. Compare crime and the sentence and must find gross disproportionality

2. See if there is a rational basis for believing sentence serves one of the four purposes of punishment, if so, not grossly disproportionate

3. Compare sentence with sentence of other crimes in the same jx, or sentence or same crimes in diff jx

• Difficult to satisfy:

  • Prosecutor can easily come up with a purpose in step two

Categorical challenge test (Graham)

1. Look at objective indicia of society's standards

   1. Legislation

   2. Actual sentences

1. Look at standards of precedents and court's understanding/interpretation of 8A

   1. Culpability of the offender class (juveniles)

   2. Seriousness of the offense (nonhomicide)

   3. Nature of punishment (LWOP)

   4. Whether punishment serves penological goals

   • Some also look to what other countries do

• This test has been used to eliminate categories -

  • Sentencing juvenile to LWOP for nonhomicide

    • Juveniles have lessened culpability

    • Courts cannot distinguish incorrigible juvenile offenders with those capable of change

    • Incentivizes juveniles to demonstrate maturity and reform

  • Sentencing juveniles to mandatory LWOP for homicides

Summary: 8A prohibits grossly disproportionate sentences compared to crime

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