Document Type
Article
Publication Date
10-2010
ISSN
1053-9867
Publisher
University of California Press
Language
en-US
Abstract
Graham v. Florida3 is a groundbreaking decision because it revives punishment doctrine on two issues that have lain dormant since Harmelin v. Michigan4: proportionality and individualized sentencing. Although it doesn't overrule Harmelin, by recognizing the continued vitality of Weems5 and Solem 6 the Graham decision appears to acknowledge that the Court's approach to proportionality since Harmelin may be too restrictive for the U.S. justice system today. In Solem, the Court affirmed its Constitutional role in ensuring just punishment; in Graham, the Court reaffirms that role.
Harmelin has had an enormous and regrettable impact on punishment in the United States, because it gave legislators, prosecutors, and judges effectively unreviewable power to impose as much punishment as they chose in noncapital cases. The only limits explicitly cited in the opinion were that defendants could neither be punished for their status as drug addicts7 nor imprisoned for inordinately long periods for something as minor as a traffic offense.8 Mandatory sentences that eliminated judicial consideration of both the circumstances of the offense and the character of the offender were held to conform to the Eighth Amendment, as were life sentences for drug possession, even though they excluded the possibility of parole.9
Justice Kennedy has long been aware of the injustices wrought by U.S. punishment policies and, despite his Harmelin opinion, has been an outspoken critic of mandatory sentencing. In his speech at the American Bar Association's annual meeting in 2003, he criticized the harshness and unfairness of U.S. sentencing policies and restated his judicial position that legislators, not courts, are the appropriate engines of change.
This essay argues that Graham, also written by Kennedy, may not only represent a bold step in the Court's long-overdue clarification of the proportionality doctrine but also foreshadow more scrutiny of other Eighth Amendment challenges to harsh sentencing practices.
Recommended Citation
Eva S. Nilsen,
From Harmelin to Graham - Justice Kennedy Stakes out a Path to Proportional Punishment
,
in
23
Federal Sentencing Reporter
67
(2010).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/3937
Included in
Constitutional Law Commons, Criminal Law Commons, Criminal Procedure Commons, Law Enforcement and Corrections Commons
