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The Inadequacy of Fiscal Constraints as a Substitute for Proportionality Review |
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Elizabeth Napier Dewar [View as PDF]
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114 Yale L.J. 1177 (2005)
The Constitution does not prohibit "everything that is intensely undesirable." In particular, Justice Scalia argues, the Eighth Amendment does not prohibit disproportionately long prison sentences. Yet Scalia seems to offer some consolation to those who worry about the "intensely undesirable" prospect of disproportionate punishments: He implies that the cost of incarceration acts as a check on the length of prison terms, a check loosely standing in for proportionality review. Thus, Scalia tenders an economic rationale for his contested interpretation of the Eighth Amendment. Unfortunately, his rationale is faulty.
Fourteen years after Harmelin v. Michigan, Scalia's allusion to the costs of incarceration seems prescient: Grappling with budget deficits, state legislators across the country have indeed attempted to save money by curtailing the growth of their prison populations. However, this wave of legislation does not support Scalia's further suggestion that the costs of imprisonment should allay concern about disproportionate sentences. This Comment examines one typical response to rising prison costs, Connecticut's Act Concerning Prison Overcrowding. The Act trimmed small amounts of time served for a large number of incarcerated people, without altering the statutory penalty for any particular crime. Such laws are common because they quickly reduce corrections costs without making legislators appear "soft on crime." But, written to control the aggregate time served in states' prisons, they neither purport to address nor in effect do significantly alter the proportionality of individual sentences. Thus, although Scalia correctly posited the existence of fiscal limits to incarceration, he erred in asserting that fiscal considerations might obviate the need for proportionality review.
This Comment does not attempt to resolve the debate among legal historians about the existence of a proportionality principle in the Cruel and Unusual Punishments Clause. But it does refute the hypothetical rationalization Scalia offers to support his interpretation of the Founders' intent over that of the dissenters. Part I sets forth the relevant portion of Scalia's argument in Harmelin. Part II discusses the Connecticut Act, a representative example of states' attempts to reduce prison costs. Part III debunks Scalia's reasoning in Harmelin and concludes that fiscal checks are not a substitute for proportionality review.
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