Proportionality in Punishment

Example 1

A woman is caught shoplifting casual attire from a local clothing store. She has no prior criminal history. The local prosecutor, who is determined to shore up her image as a “tough on crime” politician, takes the case to trial. The prosecutor demands that the judge sentence the woman to five years in prison. Although the woman is convicted, the judge hands down a sentence of a fine and six months of community service, stating that a sentence of five years’ imprisonment is disproportionate to the crime.

Example 2

A sixteen-year-old robber holds up a local diner. Thinking the cashier is about to go for a gun, the robber shoots the cashier in the abdomen, thinking the wound will be non-lethal. Yet by the time an ambulance arrives on the scene, the cashier has died of blood loss. The robber is caught the next day and charged with felony murder. The jurisdiction has the death penalty. Although felony murder could result in a death sentence for an adult in a jurisdiction where the death penalty is used, the death penalty may not be used in this case because the robber was a minor at the time of the crime.

Case Examples

• In Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), the Plaintiff, Herman Solem, sued South Dakota, the jurisdiction where he was held, stating that his sentence of life imprisonment without the possibility of parole for check fraud was cruel and unusual punishment even in light of his previous felony convictions. The Court agreed with him and found that proportionality under the Eighth Amendment should be determined by objective facts. Id. Factors that courts should consider include “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction, that is, whether more serious crimes are subject to the same penalty or to less serious penalties; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Id. The Court also pointed out that under the Constitution, courts have the power and are considered competent to judge the gravity of an offense at issue. Id.