The Supreme Court's Excessive Deference to Legislative Bodies under Eighth Amendment Sentencing Review

By Brennan, James J. | Journal of Criminal Law and Criminology, Spring 2004 | Go to article overview

The Supreme Court's Excessive Deference to Legislative Bodies under Eighth Amendment Sentencing Review


Brennan, James J., Journal of Criminal Law and Criminology


Ewing v. California, 538 U.S. 11 (2003)

I. INTRODUCTION

In Ewing v. California, (1) five Justices of the Supreme Court held that the Eighth Amendment does not prohibit the State of California from sentencing a repeat felon to life imprisonment without the possibility of parole for the first twenty-five years of the term for the theft of $1,200 worth of golf clubs under the State's "Three Strikes and You're Out Laws." (2) Nonetheless, seven Justices restated that the Eighth Amendment forbids prison sentences that are grossly disproportionate to the crime. (3) The Court's plurality opinion applied the analytical framework introduced in Justice Kennedy's concurring opinion in Harmelin v. Michigan, (4) which counsels judges to consider four principles when assessing disproportionate sentencing claims. (5) First, criminal punishment determinations are normally the province of legislative bodies. (6) Second, the Eighth Amendment allows a variety of legitimate penological theories beyond retribution. (7) Third, the nature of our federal system allows diverse sentencing determinations among the States. (8) Finally, proportionality review should be guided by objective factors. (9) The Court held that California's policy decision to incapacitate criminals who have already been convicted of at least one serious or violent crime was constitutional. (10)

This Note argues that the Supreme Court's decision was wrong because it gives too much deference to legislative bodies. The Court needs to assert a more active role in protecting an individual's Eighth Amendment protection from excessive prison sentence. In addition, the Court needs to define the elements it considers under prison sentence review. This Note will examine: (1) the legal history and Supreme Court case law on the issue of proportionality in criminal sentencing; (2) the background and procedural history of Ewing's disproportionate sentencing claim; (3) the positions taken by the Justices in their final determination of the case; (4) the effect the Court's decision will have on sentence proportionality claims; and (5) the Court's sentence proportionality jurisprudence.

II. BACKGROUND

A. THE EIGHTH AMENDMENT

The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (11) The language of the Eighth Amendment can be traced back to the English Declaration of Rights of 1689. (12) However, commentators dispute what punishments were barred under the English Declaration of Rights. (13) In addition, commentators dispute how Americans interpreted the text of the Eighth Amendment when they adopted it in 1791. (14)

The English common law prohibited excessive punishments when the English Declaration of Rights was adopted in 1689. (15) Originally, English law punished criminal activity not with imprisonment but with financial fines called amercements. (16) The Magna Carta required that the amercement imposed on a criminal not to exceed the severity of his crime. (17) When prison sentences began replacing amercements during the 1400s as the common mode of criminal punishment in England, English courts extended the protection from excessive punishments to prison sentences. (18)

The English Declaration of Rights was adopted after the turbulent regime of King James II ended in 1688. (19) James II provoked the anger of Anglicans with his sympathy to English Catholics. (20) In 1685, the King's Anglican nephew attempted an unsuccessful overthrow of the King. (21) Afterwards, the King established a special commission to prosecute those who aided the rebellion. (22) Many of the rebels were executed by brutal means, such as disemboweling. (23) Thus, many commentators argue that the "Cruel and Unusual Punishments" Clause was meant to prohibit cruel modes of punishments like those imposed by the special commission. (24) Other commentators disagree, observing that the special commission was only mentioned once during the adoption of the Declaration of Rights. …

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