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Proportionality Can the legislature set any penalty it wants for a drug crime or is its severity capped by the Eighth Amendment's prohibition of excessive punishments? Should the law enforcement employ the same methods in trying to catch a murder suspect as in apprehending a marijuana smoker? The excerpts from opinions written by our top judges are illustrative in making out the courts' approach to these issues. Pages: ‹1› ‹2› ‹3› ‹4› ‹5› ‹6› ‹7›
The Honorable Justice SCALIA concedes that the language of the Amendment bears such a construction [allowing an implicit requirement of proportionality]. His reasons for claiming that it should not be so construed are weak. [...] [H]e asserts that if proportionality was an aspect of the restraint, it could have been said more clearly -- as plain-talking Americans would have expressed themselves (as for instance, I suppose, in the Fifth Amendment's Due Process Clause or the Fourth Amendment's prohibition against unreasonable searches and seizures).
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The death penalty is appropriate in some cases and not in others. The same should be true of punishment by imprisonment.
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Drugs are without doubt a serious societal problem. To justify such a harsh mandatory penalty as that imposed here, however, the offense should be one which will always warrant that punishment. Mere possession of drugs -- even in such a large quantity [672 grams of cocaine] -- is not so serious an offense that it will always warrant, much less mandate, life imprisonment without possibility of parole. Unlike crimes directed against the persons and property of others, possession of drugs affects the criminal who uses the drugs most directly. The ripple effect on society caused by possession of drugs, through related crimes, lost productivity, health problems, and the like, is often not the direct consequence of possession, but of the resulting addiction, something which this Court held in Robinson v. California, 370 U.S., at 660-667, cannot be made a crime.
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To be constitutionally proportionate, punishment must be tailored to a defendant's personal responsibility and moral guilt. See Enmund v. Florida, 458 U.S., at 801. JUSTICE KENNEDY attempts to justify the harsh mandatory sentence imposed on petitioner by focusing on the subsidiary effects of drug use, and thereby ignores this aspect of our Eighth Amendment jurisprudence. While the collateral consequences of drugs such as cocaine are indisputably severe, they are not unlike those which flow from the misuse of other, legal, substances. [...]
...[I]t is inconceivable that a State could rationally choose to penalize one who possesses large quantities of alcohol in a manner similar to that in which Michigan has chosen to punish petitioner for cocaine possession, because of the tangential effects which might ultimately be traced to the alcohol at issue. "Unfortunately, grave evils such as the narcotics traffic can too easily cause threats to our basic liberties by making attractive the adoption of constitutionally forbidden shortcuts that might suppress and blot out more quickly the unpopular and dangerous conduct." Turner v. United States, 396 U.S. 398, 427 (1970) (Black, J., dissenting). [...]
The New Hampshire proportionality provision, by far the most detailed of the genre, read: "All penalties ought to be proportioned to the nature of the offence. No wise legislature will affix the same punishment to the crimes of theft, forgery and the like, which they do to those of murder and treason; where the same undistinguishing severity is exerted against all offenses; the people are led to forget the real distinction in the crimes themselves, and to commit the most flagrant with as little compunction as they do those of the lightest dye: For the same reason a multitude of sanguinary laws is both impolitic and unjust. The true design of all punishments being to reform, not to exterminate, mankind." N. H. Const., Art. I, § 18 (1784).
The Ohio provision copied that of New Hampshire. [...]
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