Immigration Law and the Proportionality Requirement

Abstract

Proportionality is the notion that the severity of a sanction should not be excessive in relation to the gravity of an offense. The principle is ancient and nearly uncontestable, and its vitality is well established in numerous areas of criminal and civil law, in the United States and abroad. Doctrinal and theoretical debates concerning proportionality review of criminal sentences, civil punitive damages awards, and other sanctions tend to focus on four distinct questions: the justification for taking account of proportionality, which sanctions are sufficiently punitive to require review, which of those are so disproportionate as to be impermissible, and whether a court or legislature should decide the maximum punishment the state may impose.