POWER POINT

 

Understanding due process in the trial process is very complex and extends not only through the process of investigation and prosecution of the accused, but also to the sentencing and punishment phase of the system.

For this assignment, you will be required to select one of the three subsections of sentencing safeguards (bifurcation, proportionality, or cruel and unusual punishment) and create a PowerPoint presentation that outlines the evolution of this protection starting with the Constitution and tracking the case law that shapes the modern application of the safeguards in criminal procedure.

Imagine that you will be presenting this to an audience in a room with the presentation projected on the wall. Make sure that all your fonts are at least 28 points, and that you have reduced the amount of reading to a minimum. The notes section of the PowerPoint should contain your narrative that is essentially a script for the presentation.

Graphics should be used as needed and be professional. Use the availability on the slide wisely, and remember that you have someone in the third row trying to see what you have created, so choose a background that will provide a high contrast with the text.

It should be a minimum of 10 slides, but no more than 15 slides, not counting the title and references slides. The case law should be restricted only to US Supreme Court cases with rulings that deal with the sentencing safeguards from the lecture material.

Each slide must contain at least four bulleted items of information.

You must follow APA guidelines for the citation of your sources, both in-text and on your reference slide.

· ProportionalityRule.pptx

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Citations (13/13)

1. 1Another student’s paper

2

. 2

https://kb.osu.edu/bitstream/handle/1811/71403/OSLJ_V71N1_0071

3. 3Another student’s paper

4. 4

https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2355&context=flr

5. 5Another student’s paper

6

. 6

https://law.bepress.com/cgi/viewcontent.cgi?article=2791&context=expresso

7. 7

http://www.iapsych.com/iqmr/ryan2009

8. 8

https://wikimili.com/en/Eighth_Amendment_to_the_United_States_Constitution

9. 9

https://supreme.justia.com/cases/federal/us/217/349/

10

. 10

ProQuest Document

11. 11Another student’s paper

12. 12Another student’s paper

2 The cruel and unusual Clause.

The proportionality rule.

The proportionality principle and the test.

The presentation review the history of the proportionality principle and the test developed to apply in criminal procedure. 

3 The eighth amendment to the United States Constitution “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The constitutional limitation is the legislative judicial branches of the federal government and through the fourteenth amendment is applicable to the states as well (Lajoie & Quillinan, 2015). 

The presentation primarily highlights the cruel and unusual clause, known as proportionality principle. 

4 The principle states that a punishment which is grossly or excessively severe in relation to the gravity of the crime charged must be struck down by the courts as violative of the eighth amendment.

2

5 https://www.rollingstone.com/politics/politics-news/cruel-and-unusual-punishment-the-shame-of-three-strikes-laws-92042/

4 Cruel and unusual punishment: 

an evolving concept.

6 The English Bill of Rights of 1689.

4 The treason trials of 1685-the “Bloody Assize”

Titus Oates for perjury in 1685.

Numerous law reviews and expansive judicial opinions have highlighted the history of the cruel and unusual punishment clause. 

4 The phrase “cruel and unusual punishments,” 

first appeared in the English Bill of Rights of 1689 which prohibited such sanctions. 

The prohibition is generally perceived to be a reaction to the treason trials of 1685-the “Bloody Assize” 

caused by the abortive rebellion of the Duke of Monmouth. 

The phrase “cruel and unusual punishments” 

was inserted in the English Bill of Rights not as an interdiction of barbarous methods of punishment, but also to outlaw sentences which were disproportionate to the gravity of the crime committed (Perry, 2015). 

One theory is that the conviction of the infamous Titus Oates for perjury in 1685 and his subsequent sentence support the proposition that a sentence disproportionate to the crime was cruel and unusual within the meaning of the Bill of Rights.

3

https://englishhistoryauthors.blogspot.com/2012/09/the-bloody-assizes-and-demon-judge.html

The Granucci theory of American misinterpretation.

Granucci’s case against the “bloody assize” theory.

Granucci’s thesis as to the original meaning of the clause.

The long standing principle of English Law.

In an imperative article in the California Law Review, Anthony Granucci had an opinion that the cruel and unusual punishment clause in the English Bill of Rights of 1689 did not have intentions to outlaw barbarous methods of punishment (Miller, 2019). Granucci also argues that there is no evidence to connect the cruel and unusual punishments clause with the ‘Bloody Assize.’ First, Granucci notes that the method of punishment employed during the Bloody Assize continued to be acceptable long after passage of the Bill of Rights of 1689. Granucci finds evidence as to the original meaning of the clause in (a) the trial of Titus Oates and his “Popish Plot” and (b) the traditional English rule against disproportionate punishments. 

7 Granucci concluded that by the year 1400, there should be expression of the long standing principle of English Law that the punishment should fit the crime.

4

The American misinterpretation theory.

Early Massachusetts law known as the Body of Liberties.

Criticisms of the Granucci theories.

Causal connection between belief in the proportionality principle and the adoption of the English Bill of Rights.

Granucci contends that the American founders intended that the eighth amendment prohibit cruel methods of punishment. Granucci argues that this anomaly was a result of American misinterpretation of English law. Granucci contends that the prohibition against barbarous punishment is an American development largely invented by Nathaniel Ward. Ward drafted an early Massachusetts law known as the Body of Liberties. First, since Granucci admits that the American framers originally intended to prohibit cruel methods of punishment, one must question the relevance of his two proposed English meanings, even assuming they are correct (Bendor & Sela, 2015). Also, there is no causal connection between belief in the proportionality principle and the adoption of the English Bill of Rights. Granucci discounts the Bloody Assize explanation of the Bill of Rights because the assize was mentioned only once during the debates in Parliament. Conversely, Granucci is unable to point to even one mention of a proportionality concept during parliamentary debate.

5

https://www.lawenforcementtoday.com/reexamine-cruel-unusual-punishment/

4 Phrase cruel and unusual punishments debate.

8 The first eighth amendment cases.

Term of imprisonment and term of imprisonment.

9 The Supreme Court decides on Weems v. 

United States.

4 In 1791, the same phrase “cruel and unusual punishments” 

was adopted with little debate as part of the eighth amendment of the United States Constitution. 

The first eighth amendment cases to come before the Supreme Court established that punishments involving lingering death or torture, were cruel and unusual under the interdiction of the eighth amendment. 

The concern whether a term of imprisonment could be so excessively disproportionate to the offense so as to be within the term of imprisonment was not addressed in the Supreme Court until 1892 (Miller, 2019). 

In 1910, the Supreme Court decided Weems v. 

United States, which is now regarded as the seminal case with respect to the proportionality principle.

6

https://prezi.com/m9azxjuevvoi/weems-v-united-states/?frame=96be1d05bd38d5af6b54efb1daff54f4c591e964

Importance of Weems decision.

The significance of Weems decision in 1910.

The Supreme Court Struggle.

The proportionality concept within the clause of the Bill of Rights of 1689.

4 Weems is an important decision in any event because of its affirmation of two principles of jurisprudence, the first of which is indeed basic and the second almost obvious. 

The second is that the eighth amendment prohibition is evolutionary in nature. 

What is significant is that since Weems was decided in 1910, there has been no opinion in the Supreme Court which has struck down a noncapital punishment on proportionality grounds. 

Throughout the present decade the Supreme Court has struggled with the apparently intractable problem of capital punishment (Clark, 2014). 

Whether the proportionality concept was within the “cruel and unusual punishments” 

clause of the Bill of Rights of 1689 or in the minds of the founding fathers when the eighth amendment was adopted is academic. 

It has now been espoused in principle by the Supreme Court.

7

10 The proportionality principle test.

4 Judgment by the court of the gravity of the offense.

Comparison of the sentence under review.

Comparison of the challenged sentence.

4 The cases have developed a generally accepted three-pronged test to determine whether a sentence is so excessively disproportionate to the crime that it violates the eighth amendment. 

The three steps are: 

first, a judgment by the court of the gravity of the offense; 

second, a comparison of the sentence under review with that imposed in the same jurisdiction for other crimes which the court considers to be more serious; 

and third, a comparison of the challenged sentence with those imposed in other jurisdictions for the same crime.

8

11 https://www.ceeol.com/search/article-detail?id=458653

The aim of the proportionality test.

The first prong of the test requirement.

Constitutional and practical concerns.

The legislature acting through commissions and committees.

4 The aim of the test is to reduce the input of judicial subjectivity in eighth amendment jurisprudence. 

The first prong of the test requires the court to make a judgment as to the seriousness of the crime charged and this of course invites the substitution of the subjective views of the judge for those of the legislature (Perry, 2015). 

The concern here is both constitutional and practical. 

4 There must be observation of the doctrine of separation of powers as well as federalism. 

A practical consideration, of course, is the institutional limitation on judicial fact finding. 

The legislature, acting through commissions and committees with funds for counsel, staff and public hearings, is patently better equipped than the judiciary to make the factual and social determinations which underlie any decision as to the gravity of a crime.

9

12 https://www.law.com/newyorklawjournal/2020/04/21/legal-and-constitutional-considerations-in-the-time-of-the-coronavirus-pandemic/?slreturn=20200917002223

Vulnerability of the second prong of the test.

The problem of determining the gravity of a crime.

The third step of the proportionality test requirement.

The judicial policy views.

4 The second prong of the test is even more vulnerable since it calls for a comparison by the judicial branch of the statutory sentence imposed for the crime committed with those imposed for more serious offenses in the same jurisdiction. 

The problem of determining the gravity of a particular crime is difficult enough without having to make judgments about other crimes. 

The third step of the proportionality test requires the court to compare the sentence under review with those imposed in other jurisdictions for the same crime (Clark, 2014). 

This is the least susceptible to misuse as a tool facilitating the substitution of individual judicial policy views for those of the legislature.

10

https://www.gopopro.com/vocab/2017/2/25/libertarianism-x9ae3-x7gbh-atrxw-9b36r-wbj9j

The use of the standards of foreign nations.

Latitude in determining a strategy to combat crime.

Penal law approach.

The courts to determine the effectiveness of the program.

4 The use of the standards of foreign nations to determine the constitutionality of punishment seems to be generally of little or no help. 

In any event, a state may be faced with a particularly virulent type of criminal activity and it should have some latitude in determining a strategy to combat that crime; 

one means may be the imposition of a longer sentence. 

In Carmona v. 

Ward, the most recent case in our circuit to challenge a prison term as unconstitutional because of its length. 

4 The state legislature in 1967 had embarked upon a penal law approach which emphasized treatment of the addict and not incarceration (Perry, 2015). 

Six years and over one billion dollars later, the legislature determined that the program was not successful and adopted admittedly stern measures with lifetime maximum prison terms. 

It is not for the courts to determine the wisdom or effectiveness of the program.