Essay   |   Volume 160, Issue 6

On Competence, Legitimacy, and Proportionality

By
Nancy Gertner

May 2012










I asked Justice Aharon Barak, then president of the Israeli Supreme Court, why he considered himself competent to decide where the wall between Israel and the Palestinian territories should be located and further, why it was legitimate for him, a judge, to do so. The Israelis claimed that the wall was critical for the country’s security. The Palestinians insisted that the barrier violated international law by severely restricting the ability of Palestinians to travel freely and to access work in Israel. Justice Barak answered, “As a judge, I don’t pretend to know anything about security. But I know about proportionality. I know how to balance the security interests of the state against the rights of the Palestinians.” His response was not unusual for justices of

constitutional high courts in common law countries—except in the United States. No other common law judge is likely to doubt his competence to use proportionality analysis in any number of areas or the legitimacy of the approach. Indeed, proportionality analysis has become a critical part of international human rights adjudication. While the use of proportionality analysis is widespread in constitutional courts throughout the world, sentencing is an area in which it is perhaps the most critical and has the oldest pedigree. Retributive theories of punishment use the proportionality principle to assign criminal blame; no offender should be punished more harshly than the crime deserves. Prior to mandatory sentencing guidelines and mandatory minimum sentencing, proportionality analysis was part of the sentencing judge’s toolkit in an individual case. In most common law countries with appellate review of sentencing, it was also the means by which appellate courts reviewed lower court sentences. To be sure, it was not a perfect approach and was hardly capable of mathematical precision, but it was accepted.

Except in the United States. Let me make a preliminary observation: a common theme links the Supreme Court’s Eighth Amendment jurisprudence in which some Justices debate whether there is a constitutional proportionality principle in noncapital sentencing at all; the federal appeals courts’ inability to give meaning to substantive reasonableness sentencing review even after United States v. Booker freed them to do so; and the United States Sentencing Commission’s inability to rank offenses based on any coherent proportionality principle. The theme (which I find quite troubling) is that proportionality analysis is simply not within the competence of the American judiciary. Worse yet, it is not even within their legitimate role; it is somehow too policy-centered, too “activist.” It is a task best left to the legislature, or in the case of the federal sentencing guidelines, to an “independent” agency in the judicial branch the United States Sentencing Commission—but at all costs, not to the courts.

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