Oregon Law Review : Vol. 87 No. 3, p.783-818 : Some Thoughts on Proportionality
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.