ORDINAL PROPORTIONALITY IN PUNISHMENT: A CASE AGAINST CAPITAL PUNISHMENT FOR CHILD RAPE UNDER THE EIGHTH AMENDMENT

Issa Kohler-Hausmann, Yale Law School

Abstract

This article argues that various theories of justice in punishment adhere to a principle of ordinal proportionality—relative grading of penalties in measure to the relative severity of the crimes for which they are imposed. Ordinal proportionality is a demand of both deterrence and retributive theories of justice; in addition it is a tenet well entrenched in the Supreme Court’s current Eighth Amendment jurisprudence. Under this principle the state cannot subject the crime of child rape to capital punishment because even a crime as horrendous as rape is not on par with murder in terms of harm and blameworthiness.