Limiting Excessive Prison Sentences Under Federal & State Constitutions

Penn Journal of Constitutional Law (2008)

Full Citation

Limiting Excessive Prison Sentences Under Federal & State Constitutions


Richard S. Frase


Penn Journal of Constitutional Law


The Supreme Court’s disappointing holdings in the California Three Strikes cases have probably led many observers to conclude that there are no effective constitutional limits on excessively long prison sentences. This Article argues the contrary, and makes three main points.

First, any judgment of excessiveness (or disproportionality) requires a normative framework—“excessive” relative to what? The Court’s opinions have been very unhelpful in this regard, but three distinct proportionality principles are implicit in Eighth Amendment cases (and in many other areas of American, foreign, and international law). Litigators, courts, and scholars need to clearly state and make explicit use of these principles. As summarized below, and more fully discussed in my previous writings,1 three of the most important and widespread examples of such principles are what I have called the limiting retributive, ends-benefits, and alternative-means proportionality principles. The second and third principles are grounded in utilitarian philosophy; thus, they apply even if a jurisdiction (with the Court’s apparent blessing) rejects retributive limits on lengthy prison terms designed to achieve crime control and other practical goals.

Second, excessiveness, in one or more of the three senses discussed in Part I, is the common theme which underlies all three clauses of the Eighth Amendment.2 Litigators, courts, and scholars should explicitly recognize and apply this theme in prison-duration cases applying the Cruel and Unusual Punishments Clause, drawing on standards and practice under the other two clauses so that the Amendment achieves its essential goal—the protection of citizens from excessive government power.

Third, the Eighth Amendment is not the only source of constitutional limits on excessive prison terms. Litigators in state court (as well as the judges of those courts and scholars) must consider the broader protections which may apply under the state constitution, particularly when (as is true in well over half of the states) state and federal constitutional sentencing provisions are worded differently. Indeed, even when these provisions are worded identically, many state courts have recognized their power to interpret state constitutional law more favorably to offenders.