On Competence, Legitimacy, and Proportionality

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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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