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
Ezio Di Nucci
Jonathan Jenkins Ichikawa
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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