Purposes of Punishment Test, The Commentary on Graham v. Sullivan

Document Type


Publication Title

Federal Sentencing Reporter

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Death Penalty, Proportionality, Eighth Amendment, Cruel and Unusual Punishment


Until Graham v. Florida decided that the Eighth Amendment prohibits a sentence of life in prison without parole for a nonhomicide crime committed by a minor, the Supreme Court’s proportionality jurisprudence under the Eighth Amendment proceeded along two tracks – capital and noncapital, with the two tracks applying different tests and leading to different outcomes. Graham’s ruling changed all that. Without much fanfare, the Graham Court, considering a challenge to a prison sentence, announced that “the appropriate analysis” was not the one used in Harmelin v. Michigan and Ewing v. California, which dealt with prison sentences, but the one used in Atkins v. Virginia, Roper v. Simmons, and Kennedy v. Louisiana, all death penalty cases. The “death is different” idea, which was looking more and more like an excuse for the Court’s nonintervention in noncapital cases than a principle to justify aggressive interventions in capital cases, appears to have been finally, and rightly, recognized as little more than a meaningless mantra. The focus of this commentary is on another longstanding aspect of the proportionality jurisprudence that should be dismantled: the myth that the sentencing practices held to be unconstitutional advance none of the legitimate goals of punishment and that such a showing is what it takes for a proportionality challenge to succeed.