Disproportionate Sentences as Human Rights Violations
| Author | Dirk Van Zyl Smit,Andrew Ashworth |
| DOI | http://doi.org/10.1111/j.1468-2230.2004.00499.x |
| Published date | 01 July 2004 |
| Date | 01 July 2004 |
THE
MODERN LAW REVIEW
Volume 67 July 2004 No 4
Disproportionate Sentences as Human RightsViolations
Dirk van Zyl Smit
n
and AndrewAshworth
nn
The article explores the concepts of disproportionality and gross disproportionality in se nten-
cing. Several constitutions or human rights documents prohibit grossly disproportionate
sentences, either expressly or impliedly.The draft constitution of the European Union has a
Charter of Fundamental Rights that includes the right not to be subjectedto a disproportionate
sentence.The possible meaning and application of this are discussed by reference to the develop-
ment of related constitutional jurisprudence in other jurisdictions.
‘The concept of proportionality goes to the heart of the inquiry as to whether
punishment is cruel, inhuman or degrading, particularly where, as here, it is
almost exclusively the length of time for which an o¡ender is sentenced that is
in issue.’ SvDodo 2001 (3) SA 382 (CC) 303 per Ackermann J speaking for the
unanimous Constitutional Court of South Africa.
‘In my view, the Cruel and Unusual Punishments Clause of the Eighth
Amendment conta ins no proportional ity principle.’ Ewing vCalifornia 538 US 11
(2003) 31,123 S Ct 1179 (2003) 1191 per Thomas J concurring in the judgment of
the United States Supreme Court.
INTRODUCTION
In various jurisdictions around the world it is a constitutional principle that no
person should be subjected to a grossly disproportionate sentence.The principle
already has some support in European human rights law, as we will show. Of
particular interest is the movement towards a new constitutional treaty for the
EuropeanUnion. Part II of the DraftTreaty establishinga Constitution for Europe
1
con-
sists of ‘The Charter of Fundamental Rights of theUnion,’ following the charter
proclaimed at the Nice summit in December 2000 and attached to theTreaty of
Nice,in force since February2003.The Constitution envisages thatthe Articles of
the Charter will be applied to all EU legislation. In respectof criminal justice,that
n
Professor of Criminology, University of Cape Town; Professor of Comparative and International
Penal Law, University of Nottingham.
nn
V|nerian Professor of English Law, University of Oxford.The authors are grateful to Estella Baker
and to Andrew von H irsch for their commentson previous drafts.
1 As submitted to the Presidentof the European Council i n Rome,18 July 2003 (CONV 950/03).
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means that the Charter will impinge upon all o¡ences against Community law,
and also laws made under Chapter IV of Part III of the proposed Constitution,
which deals with the‘Area of Freedom, Security and Justice.’ It may be expected
that the standards set by the Charter will also be accorded a wider in£uence.
We support the fundamental principle that no person should be subjected to a
disproportionate se ntence, on the ground that the principle recognizes ¢rstly that
punishment, particularly imprisonment, constitutes a prima facie violation of an
individual’s right to liberty; secondly that in principle such a measure can be jus -
ti¢ed only where a person has been convicted of a serious o¡ence; thirdly that
respect for rights, and limitation on the arbitrary use of state power, requires that
substantial deprivations of an o¡ender’s liberty should only be permissible if the
o¡ender has committed a very serious o¡ence; and ¢nally that to allow states to
impose substantial restrictions or deprivations of liberty where the o¡ence was
not serious would be to condone the use of individuals merely as a means to an
end, which is inconsistent with fundamental respect for the dignity of each
human being.
Our aim in this article is notto write an essay on penal theory,
2
nor to attempt a
discussion of existing or prospective EU law. It is rather to explore the implica-
tions of the human rights principle that no person should be subjected to a
(grossly) disproportionate sentence and to relate it to one particular right in the
Charter of Fundamental Rights which applies in the sphere of criminal justice:
Article II 49(3) declares that‘the severityof penalties must not bedisproportionate
to the criminalo¡ence’.This formulation is of particular interest since, as we shall
show, the constitutional principles elsewhere are usually expressed in terms
of grossl y disproportionate sentences. Article II 49(3) of the EU Charter appears
to proclaim a broaderand therefore more demanding standard,which raises ques-
tions about how it might be interpreted and what impact it may have.
THE CONSTITUTIONAL AND HUMAN RIGHTS CONTEXT
The English Bill of Rights of 1689, which outlawed ‘cruel and unusual punish-
ments’, is oneof the earliest constitutionaldocuments thatrestricted punishment.
3
The Eighth Amendment to the Constitution of the United States adopted this
form of words, and for the last hundred years it has been widely accepted that
the application of the clause extends to‘all punishments which, by their excessive
length or severity, are greatly disproportioned to the o¡ence s charged’.
4
Since the
Second World War there has been a proliferation of human rights instruments,
and it has been the norm to follow the Universal Declaration of Human Rights
of 1948, includinga provisionon punishments. Article5 of the Universal Declara-
tion states that ‘no one shall be subjected to torture or to cruel, inhuman or
2 For further analysis, see A. von Hirsch, Censure and Sanctions (Oxford: Oxford University Press,
199 3) .
3 A. F. Granucci, ‘‘‘Nor cruel and unusual punishments in£icted’’: the original meaning’ (1969) 57
California LR 860;W. A.Schabas, TheDeath Penalty as CruelTreatment andTorture (Boston: North-
eastern University Press,1996) 16.
4Weems vUnited States 217 US 349 (1909)at 371, following O’Neil vVermont144 US 323 (1891).
Disproportionate Sentences as Human RightsViolations
542 rThe ModernLaw Review Limited 2004
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