We live in an era of extremely long prison sentences, visibly excruciating executions, and violence-plagued prisons. We also live in an era of penological judicial restraint, which manifests through the practice of deference, wherein courts put a thumb on the scale in favor of finding laws and policies constitutional. On this basis, courts have been reluctant to use the Eighth Amendment’s ban on
cruel and usual punishments to invalidate even some of the most extreme features
of our criminal legal system.
This Article traces the profound effect of deference on the construction and application of the Eighth Amendment. To do so, this Article also assesses the meanings of cruelty and unusualness, as well as the logic of deference. What we learn from these inquiries is that deference can corrode and confuse the meaning of our rights. In the Eighth Amendment context, deference has also undermined
some of the Civil War’s fundamental legal achievements, including the ability of individuals to seek protection under federal constitutional law against state-imposed forced labor and deprivations of freedom. But deference need not corrode the Eighth Amendment in this way. A better rendering of deference, and the Eighth Amendment, is possible.

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