Since the Magna Carta, the proportionality principle has been deeply rooted in the common-law tradition of jurisprudence. Roughly put, the principle requires that punishment "fits" the crime for which it is assigned. It is unclear, however, what this actually means. Literal interpretations of the principle, such as an "eye for an eye", fail when applied to widely varied pragmatic criminal behavior. If this is not what the principle expresses, it must be further explored to provide applicable meaning in the context of punishment, if it is to guide us in prescribing just punishments.

In the following pages, I briefly summarize the historical and precedential basis for the proportionality principle. I outline the precidental basis for proportionality, as provided by the Supreme Court and analyze each of the necessary conditions of the principle as provided by the majority decision in Solem v Helm ((1983) 463 U.S. 277)¹. Next, I offer two restatements of proportionality, in an attempt to reconcile how proportionality may be achieved and which elements must be proportional. I argue that the principle of proportionality fails due to issues that arise in its application, as well as profound conceptual problems. The conceptual problems are associated with the fact that the degree of suffering involved with punishment is incommensurable with criminal activity, culpability, and harm caused.

Since its initial inception, the common law tradition in the United States has employed a system in which criminal offenses are punished through the infliction of suffering upon the perpetrator of a crime. In this context, punishment serves, among other things, to provide retribution for all possible victims of a criminal act or deter further criminal activity. However, the question of appropriate and applicable punishment has been controversial since colonial times. To ensure that punishment did not violate the intrinsic rights afforded to all citizens of the fledgling nation, the Framers of the Constitution saw fit to include among individual rights, the freedom from having "cruel and unusual punishment inflicted²." Although this principle was ratified into law, there was no colonial consensus as to how it should be applied. The colonies were plagued with conflicting views on suitable punishment and justifications for punishment. In Virginia, for example, the theft of fruits and vegetables was punishable by death. James Madison was among the proponents of such harsh penalties, claiming such punishment would serve as a deterrent to criminal actions. Others found justifications for harsh punishment to be contrary to the spirit of justice and fairness. Benjamin Franklin argued this precise point, claiming that a legal system "founded on the Eternal Principle of Justice and Equality" must reasonably concur that "the Punishments should be proportioned to the Offenses."

The judiciary has reflected this trend toward proportional punishment. In Weems v. U.S. ((1910) 217 U.S. 349) the Court ruled that "incarceration at hard labor with chains on the ankles, loss of all civil rights, and perpetual surveillance" should be considered "cruel and unusual punishment" for the crime of falsifying public documents. The Court found that cruel and unusual punishment "exhibits a difference between unrestrained power and [power] which is exercised under the spirit of constitutional limitations formed to establish justice." In Weems, the Court's invocation of proportionality lies in the restraint of governmental power; harsh penalties are a product of unchecked power. Weems echoes Franklin's sentiment that excessive punishment is contrary to the spirit of justice. Although this verdict served to usher a form of the proportionality principle into precedent, it provides an overly vague conception of the idea.

In Robinson v. California ((1962) 370 U.S. 660) the court further refined what may be considered proportional punishment by striking down a law that made it a crime to "be addicted to the use of narcotics." The Court found the statute unconstitutional, since a person could be criminally liable without performing a criminal act. Merely in virtue of a person's status as an addict, the person could be justifiably convicted under the statute. It did not require that the person consumed or purchased drugs, only that the person was in a physical state of addiction. For a person to be considered worthy of punishment, a criminal action must be performed. This case is also interpreted as conveying that punishing a person for behavior that is not under his control is cruel and unusual.

In Rummel v. Estelle ((1968) 392 U.S. 514), the Court found that recidivist statutes³ may not be deemed to be cruel and unusual punishment. The Court stated that no distinction, in terms of punishment, should be made between violent and non-violent offenders. However, the Court relinquished the task of evaluating the gravity of a criminal offense to the legislature. According to the Court, the legislature best reflects the societal norms and standards of its representative area, and these standards are those that must be taken into consideration when deciding the significance of a crime. The Court denied the relevance of comparing similar sentences from other jurisdictions. The fact that the legislature found it necessary to enact a recidivist statute made even localized comparisons superfluous. As long as the objective of the statute focused on recidivism and not on a specific act, it was constitutional. Through this decision, the Court denied that the length of a sentence may be deemed cruel and unusual, or disproportionate to the crime committed, if the sentence was mandated by legislature. In terms of proportionality, Rummel affirms that the Court holds the opinion that the duration of the infliction of punishment is not a concern of the Eighth Amendment, but that only the method of punishment is of importance.

Many of these sentiments were directly overturned in Solem v Helm ((1983) 463 U.S. 277), in which the Court stated that the cruel and unusual clause "prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed." The Court continued and ruled that, "there is no basis for the State's assertions that the general principle of proportionality does not apply to felony prison sentences." Finally, the Court clarified the "objective criteria" that are necessary to determine proportionality: "i) the gravity of the offense and the harshness of the penalty; ii) the sentences imposed on other criminals in the same jurisdiction; and iii) the sentences imposed for commission of the same crime in other jurisdictions."

The Solem statement reiterates the key issues brought forward in preceding cases, and strikes down those precedents that are contrary to its sentiments. The Solem statement of the proportionality principle also appears to embody all of the implicit claims made through invocation of the principle. I utilize this final precedent of proportionality in the following pages. In summary, the conception of the proportionality principle I will analyze is:

PP1: If a person (S) is to be punished for an offense A, then the punishment (inflicted upon S) must "fit" or be proportional to: i) the gravity of offense A, and the harshness of the penalty assigned to A; ii) the sentences imposed on other criminals who commit A-type offenses in the same jurisdiction as the jurisdiction in which S committed S's offense; and iii) the sentences imposed on other criminals who commit A-type offenses in jurisdictions other than the jurisdiction in which S committed S's offense.

The first condition required to ensure that punishment is proportional to the crime for which it is assigned requires that a correlation exist between the seriousness of the crime that has been committed, and the harshness of the penalty imposed for its commission. Unfortunately, this condition is merely a restatement of the proportionality principle. It calls for a correlation between offense and penalty, but does not explicitly state how this is to be ascertained. If we return to Weems, the case that introduced proportionality to precedent, some light may be cast on what may be considered excessive punishment. Justice McKenna stated, in Weems, that there is "a difference between unrestrained power and that which is exercised under the spirit of Constitutional limitations formed to establish justice." Implicit in Justice McKenna's claims, is the belief that the civil rights of criminals should not be violated during the administration of punishment. This being the case, it appears that some of the limitations which establish whether punishment may be considered just are the inalienable rights afforded each citizen by the Constitution. Punishment should not be an exhibition of unbridled power or a means of achieving an end. Human dignity must be upheld while a person is punished, and excessive punishment may not be exacted. Although the Court condemns punishments that fall into these categories, we are still left with the questions of when punishment may be considered excessive, how proportionality is precisely to be understood, and how crime is proportional to punishment. A curious thing about condition (i) of the proportionality principle is that it seems to completely ignore the proposition that the degree to which the perpetrator (S) suffers for performing offense A, should "fit" the degree to which S is culpable for doing A. I shall return to this omission below.

Conditions (ii) and (iii) of the proportionality principle, combined, indicate that sentencing must be similar to the punishment for the same type of offense in all jurisdictions. For example, if Tom is convicted of selling drugs, he should receive the same punishment as Jon, who was convicted of selling drugs under the same circumstances. Although these statements may appear intuitively clear and provide an idea of how proportionality is to be applied, they fail to establish which elements must be considered when defining what constitutes a punishable conviction, as well as what portion of the conviction may be considered equal to the punishment.

In criminal law, two elements are necessary to prove culpability for a crime: the actus reus and the mens rea. The former is the physical action constitutive of the crime, and the later pertains to the intentions of the criminal. If these two elements are all that are necessary for a conviction, and conditions (ii) and (iii) of the proportionality principle are true, then every person who commits criminal act A, with intention I, should receive punishment P, for some specified A, I and P. However, Solem, the case from which the present principle was derived, does not support this view. Solem upholds the constitutionality of recidivist statutes, which impose harsh penalties for third-time felons, generally life in prison. If recidivist statutes are subject to the proportionality principle, then it must be assumed that either a criminal act A of a certain type is fundamentally different than a criminal act of that type that is being performed for the third time, or that recidivist statutes are repugnant to the proportionality principle implied by the Eighth Amendment.

Let's imagine that Henry has robbed a gas station adjacent to his house on two previous occasions. On both occurrences, Henry walked into the shop, took a pistol from his pocket, and ordered the clerk to hand over the contents of the cash register. For the sake of analysis, suppose that the actions Henry performed in each incident were analogous. The act itself has not become more heinous, given that it occurs in a relevantly similar manner on each occasion. If Henry performs the analogous action for a third time, it would be averse to proportional punishment to impose a greater sanction upon the same crime. Were actions, or the actus reus, the only relevant information concerning a crime, then recidivist statutes would be unconstitutionally disproportionate. Therefore, the actus reus cannot be the sole quality of a criminal act that governs punishment.

Given that the other relevant component of a criminal act is the mens rea, it follows that punishable criminality lies in the intentions and motivations of the actor. In terms of mens rea, Henry may be considered to be performing a different crime the third time he robs the gas station, than he is the first time he robs the gas station. Recidivist proponents often claim that the intimate knowledge of punishment and the blatant disregard for the consequences of a criminal act separate the third offense from the first. The gravity of an offense increases upon repetition. But, for this to effect the mens rea of a crime, the criminal, himself, must be capable of appreciating the increased criminality of his repeat offense, or that he is acting in a manner that becomes increasingly more harmful, in terms of intentions, on each subsequent performance. If it cannot be proven that additional malice, of any sort, was attached to the commission of the repeat offenses, then it would be unjust to assume that the magnitude of the offense increases with each additional occurrence.

Let's return to Henry for a moment for elaboration. The first time Henry robbed the gas station, he intended to steal enough money to buy a new TV, and he had no intention of getting caught. On the second occasion, Henry had been released from prison and robbed the store to pay his rent. Henry was desperate; he acted completely out of impulse without consideration of the consequences of his actions. When the third robbery occurred, Henry had become addicted to drugs and held up the station, his only concern being that he needed to get a fix. None of the robberies that Henry performed involve any concern for consequence; none was committed with an increased malicious intent. The wrongdoing performed by Henry is no more heinous on the occasion of the third offense than it would be for someone else on the occasion of their first offense.

Consider another example; if Jane is a first time offender who robs the gas station under the influence of addiction, in precisely the same manner in which Henry committed his third offense, and both addicts had the same intent and lack of concern for the gravity of their offences, the punishments would not be similar under a recidivist statute. Jane would receive a far more lenient penalty than Henry, regardless of the fact that the elements of the crimes were type-identical. Henry would receive life in prison for the same crime for which Jane may only serve seven years. For this reason, recidivist statutes undermine conditions (ii) and (iii) of the proportionality principle. According to the principle, punishment must be proportional to "the sentences imposed on other criminals in the same jurisdiction" and "the sentences imposed for commission of the same crime in other jurisdictions." Since recidivist statutes require both an act with increasingly heinous intentions, and that the characteristics of many third-time offenses are no more heinous than crimes that receive lesser punishment, it follows that the application of a statute that mandates life sentences for a third felony conviction is contrary to the spirit of the Eighth Amendment, and must be stricken on constitutional grounds.

For the reasons I have advanced, the proportionality principle that I have been addressing is indefensible. This being the case, I will consider a revised version of the proportionality principle. The fundamental idea of this principle is that the degree to which the perpetrator is to suffer by being punished must "fit" the harm or suffering caused by the perpetrator. The principle may be stated as:

PP2: If S deserves (by virtue of being culpable for A) to suffer by being punished, then S should also be caused to suffer in just the way in which he caused another (the victim of his criminality) to suffer.

Although the PP2 version of proportionality seems to capture the sentiment behind the principle, it is as untenable as PP1. This statement of proportionality cannot be universally applied to criminal situations and, if adopted, would lead to a lack of punishment in situations based upon coincidence or luck on the part of the criminal. To illustrate, imagine Fritz, a rather peculiar fellow with a proclivity for walking down busy streets and lobbing off the right hand of people who happen to come too close to him. Fritz commits this crime as a means of personal misguided retribution for a farm accident in which his right hand was cut off. Fritz has carried out his gruesome pastime on three separate occasions when he is finally apprehended for his crimes. If Fritz is punished in accordance with PP2, it would be impossible to cause him to suffer the same type of harm that he caused to his victims. The harm that occurred in each situation was the removal of the right hand; however, it is impossible to cause the same harm to a person who is already without a right hand.

Although this example illustrates the pragmatic issues that plague PP2, there are conceptual problems with this principle as well. The chief difficulty of PP2 is the method in which harm and suffering are be "equated". To do so, we must somehow come up with an "overall value" of the harm the criminal causes and then figure out what sort of punishment would have this value. PP2 requires that the amount of suffering ascribed to a criminal through punishment is equal to the harm the criminal inflicted upon the victim. Unfortunately, there are serious problems with attempting to match the harm the criminal causes to the suffering inflicted on the criminal in this way.

Firstly, it is difficult to assess, exactly, the extent of the harm caused by a criminal offense. For instance, let's say that Frank shot Joe and killed him. Joe was the primary provider for his family, and after his death, his widow and five children were left destitute. If Joe had not been killed, his income would have been sufficient to provide college educations for each of his children. Without this income, none of his children will receive a higher education… etc. Frank's action may well cause a chain of harm, the effects of which may be felt for generations to come. At what point can the calculation of harm be considered complete? It would appear that the accrued harm is given its final tabulation at adjudication. However, this hardly gives us a credible method of ascertaining relevant harm or suffering in a just manner. If we are unable to get a grasp on how to calculate harm, we cannot begin to equate it with anything, let alone punishment.

Secondly, punishment is equally difficult to assess in the requisite manner. Punishment may be inflicted in many different ways. In each instance of punishment the objective is to make the criminal suffer. Even if the proportionality principle's other difficulties can be resolved, it is nearly impossible to ascertain the amount of suffering felt by another person. People suffer differently, and what may be deemed punishment to one person may be pleasurable to another. For most members of society that are above established poverty levels, a prison sentence would deprive them of the creature comforts available at home. But for indigent or homeless criminals, prison provides shelter and sustenance that freedom did not afford them, for any of a number of reasons. Certainly the level of suffering inflicted in these cases is not comparable to the sentence required. If suffering cannot be sufficiently measured or equated with the punishment intended to produce such suffering, then it would seem that punishment is often inflicted without causing the criminal to suffer, which undermines PP2.

Given that it is not possible to equate the harm caused by a criminal with suffering inflicted as a means of punishment, I will further revise the proportionality principle. Perhaps it is not directly the harm or degree of harm that is caused which must be proportional to punishment, but rather the culpability of the criminal that should be commensurable with punishment. Consider:

PP3: If S deserves (by virtue of being culpable for A) to suffer by being punished, then the degree to which S suffers should match or "fit" the degree to which S is culpable for A.

The chief difficulty with PP3 lies in its reliance upon public opinion as a means of deciding the prescribed "fit" required for this statement of proportionality. Rummel v. Estelle defers to the people just such judgment as to what constitutes proportionality. Rummel states that the legislature is the best guide of popular opinion as to what may be deemed appropriate punishment; from this, it may be deduced that popular opinion is the best judge of what may be considered proportional punishment. Yet, this opinion does little to clarify how to obtain a standard for proportional punishment.

To begin, it is difficult to precisely reiterate public opinion in law. For instance, as Rummel states, legislators are elected by each district to represent the opinions of that district at a state (and ultimately federal) level. Even though this is the case, there is no guarantee that the popular opinion will be represented in the vote of each legislator. There are many occasions in which legislators vote along the lines of lobby groups, or other powerful influences, rather than with the sentiments of the people. In these types of cases, the opinion of the people is not accurately represented.

It is also possible that public opinion is not the best method of attaining proportionality. There are times throughout history at which it may be said that the public was wrong in their opinion of what may be deemed appropriate punishment. The witch trials of Salem, Massachusetts are one such case. During the trials at least a score of men and women were accused of practicing witchcraft, many of whom were put to death for their alleged criminal actions. It is reasonable to believe that punishment of this nature was overly excessive for the "crimes" performed, yet deemed proportional at the time. The death sentence is also a point of contention in punishment. Some people argue that death is a disproportionate punishment under any definition of proportionality. In recent years, certain methods of administering the death penalty have been dismissed as cruel and unusual. Hanging was common practice less than a century ago; in the mid 18^th Century criminals were still subject to being drawn and quartered. Given that pubic consensus waxes and wanes with time, it cannot be an absolute authority on what may be deemed proportional punishment.

The recent trend in punishment has been to limit excessive penalties and to ensure that the punishment inflicted is not cruel or unusual. Unfortunately, this inclination, taken directly from the Eighth Amendment and popular intuitions, brings us no closer to a conception of proportionality. This intuition seems to appeal to some pre-existing idea of proportionality. If such an idea exists, perhaps it should be utilized to reconcile how proportionality should be addressed.

Even if the intuitive conception of proportionality is divined, there is another difficulty with PP3, namely the assumption that culpability and suffering are in some way commensurable. As previously stated, the two elements considered for culpability for a crime are the mens rea and the actus reus. If culpability is to be commensurable with punishment, all persons who perform crime A with intent I should receive punishment P, for some specified A, I, and P. To illustrate the importance of this, consider the case of Marge. Marge is a single woman who lives alone in an urban apartment building. Marge's upstairs neighbor is extremely loud and disruptive. Unfortunately for the neighbor, Marge has a short temper and will murder anyone who acts contrary to her wishes. Marge has asked her neighbor to quiet down on several occasions but to no avail. One evening, Marge decides to take care of the problem upstairs. She takes a loaded handgun out of her closet and starts up the stairs. Once she arrives at her neighbor's apartment, Marge picks the lock and enters unlawfully, in hopes of catching her neighbor during his afternoon nap. As Marge enters, her neighbor is seated in an armchair with his back to the door. Marge takes out her weapon and fires three shots into her neighbor, presumably killing him. However, contrary to Marge's knowledge her neighbor had already been shot and killed by a business companion earlier that morning. In this case, it is obvious that Marge did not commit murder; it is impossible to murder a corpse. Yet, the two elements which lead to culpability for a crime, the mens rea and the actus reus, are identical to those of a cold-blooded murderer. This being the case, Marge should be punished to the same degree as any other individual that carries out the same act with the same intent. Clearly, this would not be the case in our system of jurisprudence. Marge may be indicted on attempted murder charges, but she would not receive the same punishment as would another person who performed the same actions with the same intent and murderous results. This being the case, it becomes clear that culpability has the same difficulties as a basis for punishment as do harm and suffering; the two are incommensurable.

Defending a precise theory of punishment that reconciles views on punishment is a daunting task. According to Franklin and many of the justices of the Court, fairness and justice are essential elements of our system of jurisprudence. If it is not possible to devise a method of equating crime with punishment, justice and fairness cannot be secured through our legal system. The rights of the individual citizens must be protected, even in the face of public outrage. If we allow the government to claim its behavior is excusable, or worse—justifiable, then the Constitution, and the rights it upholds are totally abandoned. Proportional punishment requires one thing: proportionality. If we are to continue in the manner we are progressing, the only possible result is a system that is a mockery of the foundations of Justice.

¹Within the common law tradition, the doctrine of stare decisis (Lat. "let the decision stand") governs judicial decisions. It is a discretionary principle by which the court will not overturn its own precedents in the absence of a strong reason to do so.

²U.S. Constitution, Eighth Amendment.

³Also known as three-strike laws. Under recidivist statutes criminals receive stronger penalties with repeated criminal behavior. There is no consensus as to which elements of an offense qualify as recidivist. The Court leaves this decision up to the discretion of the states. (Ewing v. California (2003) 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108)