(University of Oregon School of Law, 2008) Balmer, Thomas A.
This Article reviews the ancient
concept of proportionality in punishment and turns to the more
systematic application of this concept in the mid-18th century by
Cesare Beccaria and William Blackstone and to current discussions of
“just deserts” as a theory of criminal punishment. The Article then
returns to the historical development of the constitutional requirement
that criminal punishments be proportional to the offense, both in the
explicit form in which the requirement is found in several state
constitutions and as some decisions have interpreted the prohibition
against cruel and unusual punishment found in the Eighth
Amendment and in many state constitutions. With this background,
the Article considers the Oregon cases interpreting the proportionality
provision of article I, section 16, and concludes with an attempt to
outline the approach these cases take in interpreting and applying
Oregon’s proportionality provision.
