'Death is Different' – is Money Different? Criminal Punishments, Forfeitures, and Punitive Damages - Shifting Constitutional Paradigms for Assessing Proportionality

63 Pages Posted: 14 Jun 2012

Date Written: January 1, 2003

Abstract

This Article reviews the case law regarding judicial review of both terms of imprisonment and imposition of the death penalty and 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. This article also 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. The article focuses specifically on the Andrade, Ewing, and State Farm cases, all decided during the 2002-2003 term, and asserts that the Court should apply the same criteria to all these forms of punishment to achieve a greater degree of consistency.

Keywords: Proportionality review, death penalty, forfeiture, punitive damages, life imprisonment, Excessive Fines, Eighth Amendment, Andrade, Ewing, State Farm, US Supreme Court

Suggested Citation

Van Cleave, Rachel A., 'Death is Different' – is Money Different? Criminal Punishments, Forfeitures, and Punitive Damages - Shifting Constitutional Paradigms for Assessing Proportionality (January 1, 2003). Southern California Interdisciplinary Law Journal, Vol. 12, No. 217, 2003, Available at SSRN: https://ssrn.com/abstract=2083778

Rachel A. Van Cleave (Contact Author)

Golden Gate University School of Law ( email )

536 Mission St.
San Francisco, CA 94105
United States
510-672-4906 (Phone)

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