Volume 58
Issue 4
Fall '21

Cruel and Unusual Non-Capital Punishments

Written By: William W. Berry III

Abstract

The Supreme Court has rendered the Eighth Amendment a dead letter with respect to non-capital, non-juvenile life-without-parole sentences. Its cases have erected a gross disproportionality standard that seems insurmountable in most cases, even for draconian and excessive sentences. State courts have adopted a similar approach in interpreting state constitutional Eighth Amendment analogues, often finding that they are no broader than the Supreme Court’s narrow interpretation of the Eighth Amendment, despite linguistic variations in many cases. 

Nonetheless, in a handful of state cases, state courts have found that state pun-ishments violate the Eighth Amendment or its state constitutional analogue. This Article examines those cases to identify which non-capital punishments have caused courts to limit state punishment practices even in the shadow of an over-whelming, albeit unfortunate, trend of according constitutional deference to state punishment practices. In light of these decisions, this Article advances a series of possible arguments by which to attack state and federal punishment practices in an effort to create more exceptions to the draconian status quo constitutional rule. 

In Part I, the Article begins by providing an overview of Eighth Amendment gross disproportionality doctrine and its use in state constitutional analogues to the Eighth Amendment. Part II examines the handful of state court cases that have found punishments unconstitutionally disproportionate. In Part III, the Article advances one set of arguments—both systemic and case-based—for use in attacking non-capital state punishments under state constitutions. Part IV then advances a second set of arguments—both systemic and case-based—for use in attacking non-capital state punishments under the Eighth Amendment. The Article concludes that such arguments can be successful in the future, even where they may have failed in the past. 

Read the Article Here

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