Ordinal proportionality in punishment: A case against capital punishment for child rape under the eighth amendment
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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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.
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