Death Is Different, Is Money Different? Criminal Punishments, Forefeitures, and Punitive Damages--Shifting Constitutional Paradigms for Assessing Proportionality




Van Cleave, Rachel A.

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Southern California Interdisciplinary Law Journal


Part I of this Article reviews the case law regarding judicial review of both terms of imprisonment and imposition of the death penalty. In this section, the author argues for consistency within this area of the law. Some jurisprudence suggests that, because "death is different," proportionality review is appropriate only in the death penalty context, and is either not required or only applies in an extremely narrow example, such as life imprisonment for a parking ticket. Part II examines Supreme Court precedent that analyzes the question of proportionality of forfeitures and punitive damages awards. In the context of forfeitures, the debate centers primarily on the question of how broadly a court should apply the Excessive Fines Clause. Nonetheless, the relevant cases provide insight about the appropriate criteria for proportionality review. The much shorter history of proportionality review of punitive damages awards also speaks to the question of how to evaluate punishments for excessiveness. Part III of this Article discusses Andrade, Ewing, and State Farm, all decided during the 2002-2003 term. Finally, the author argues that the Court should apply the same criteria to all these forms of punishment to achieve a greater degree of consistency.



Imprisonment, Death penalty, Judicial review


12 S. Cal. Interdisc. L.J. 217