scholarly journals Constitutional Liberty and the Progression of Punishment

2018 ◽  
Author(s):  
Robert J. Smith ◽  
Zoe Robinson
Keyword(s):  
Death Penalty ◽  
Due Process ◽  
Same Sex ◽  
Individual Liberty ◽  
Life Without Parole ◽  
The Past ◽  
Eighth Amendment ◽  
The Supreme Court ◽  
Marriage Decision

102 Cornell L. Rev. 413 (2017)The Eighth Amendment’s prohibition on cruel and unusual punishment has long been interpreted by scholars and judges to provide very limited protections for criminal defendants. This understanding of the Eighth Amendment claims that the prohibition is operationalized mostly to prevent torturous methods of punishment or halt the isolated use of a punishment practice that has fallen into long-term disuse. This Article challenges these assumptions. It argues that while this limited view of the Eighth Amendment may be accurate as a historical matter, over the past two decades, the Supreme Court has incrementally broadened the scope of the cruel and unusual punishment clause. The Court’s contemporary Eighth Amendment jurisprudence—with its focus on categorical exemptions and increasingly nuanced measures of determining constitutionally excessive punishments—reflects an overt recognition that the fundamental purpose of the Eighth Amendment is to protect vulnerable citizens uniquely subject to majoritarian retributive excess. Animating these developments is a conception of constitutional liberty that transcends the prohibition on cruel and unusual punishment. Indeed, 2015’s same-sex marriage decision, Obergefell v. Hodges, reflects a similar trajectory in the Court’s substantive due process jurisprudence. Taken together, these doctrinal developments illustrate a concerted move to insert the Court as the independent arbiter of legislative excesses that undermine the basic right to human dignity by virtue of unnecessarily impinging upon individual liberty. Ultimately, these liberty-driven developments signal new possibilities for the protection of defendant rights in a variety of contemporary contexts, including juvenile life without parole for homicide offenses, life without parole for non-violent drug offenses, the death penalty, certain mandatory minimum sentences, and the prolonged use of solitary confinement.

scholarly journals The Constitutional Law of Incarceration, Reconfigured

2018 ◽  
Author(s):  
Margo Schlanger
Keyword(s):  
Due Process ◽  
Use Of Force ◽  
Mass Incarceration ◽  
Federal Court ◽  
Pretrial Detention ◽  
Legal Standards ◽  
Eighth Amendment ◽  
The Supreme Court ◽  
Incarcerated Populations ◽  
Lower Courts

103 Cornell L. Rev. 357 (2018)As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank. This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment of prisoners — the Cruel and Unusual Punishments Clause and the Due Process Clause, which regulate, respectively, post-conviction imprisonment and pretrial detention. The Court’s interpretation of the Eighth Amendment’s ban of cruel and unusual punishment, in particular, radically undermined prison officials’ accountability for tragedies behind bars — allowing, even encouraging, them to avoid constitutional accountability. And lower courts compounded the error by importing that reading into Due Process doctrine as well. In 2015, in Kingsley v. Hendrickson, a jail use of force case, the Court relied on 1970s precedent, not subsequent caselaw that had placed undue emphasis on the subjective culpability of prison and jail officials as the crucial source of constitutional concern. The Kingsley Court returned to a more appropriate objective analysis. In finding for the plaintiff, the Supreme Court unsettled the law far past Kingsley’s direct factual setting of pretrial detention, expressly inviting post-conviction challenges to restrictive — and incoherent — Eighth Amendment caselaw. The Court rejected not only the defendants’ position, but the logic that underlies 25 years of pro-government outcomes in prisoners’ rights cases. But commentary and developing caselaw since Kingsley has not fully recognized its implications. I argue that both doctrinal logic and justice dictate that constitutional litigation should center on the experience of incarcerated prisoners, rather than the culpability of their keepers. The takeaway of my analysis is that the Constitution is best read to impose governmental liability for harm caused to prisoners — whether pretrial or post-conviction — by unreasonably dangerous conditions of confinement and unjustified uses of force. In this era of mass incarceration, our jails and prisons should not be shielded from accountability by legal standards that lack both doctrinal and normative warrant.

Exploring the Polysemy of Voice and Silence

2018 ◽  
pp. 402-421
Author(s):  
Gust A. Yep ◽  
Rebecca N. Gigi ◽  
Briana E. Avila
Keyword(s):  
Supreme Court ◽  
Gay Marriage ◽  
Court Ruling ◽  
Same Sex ◽  
Supreme Court Ruling ◽  
The Supreme Court ◽  
Before And After ◽  
Multiple Meanings ◽  
Voice And Silence

This chapter addresses the complex interplay between voice and silence in US LGBT communities. In terms of voice, the chapter focuses on Evan Wolfson, founder of Freedom to Marry and colloquially known as “Mr. Gay Marriage,” whose public comments on same-sex divorce before and after the Supreme Court ruling on marriage equality focused on two central themes: (1) fairness and (2) protection. In terms of silence, the chapter focuses on the largely absent discourse about same-sex divorce in mainstream LGBT online media to explore its multiple meanings. The analysis explores three major themes: (1) that same-sex divorce is a recent phenomenon, (2) that same-sex divorce may not be relevant to unconventional long-term relationships, and (3) that creation of a pseudo charmed circle suppresses the visibility of same-sex divorce. The chapter concludes by exploring the implications of the multiple meanings of voice and silence surrounding same-sex relational dissolution.

scholarly journals Forty Years of Death: The Past, Present, and Future of the Death Penalty in South Carolina (Still Arbitrary after All These Years)

2018 ◽  
Author(s):  
John H. Blume ◽  
Lyndsey S. Vann
Keyword(s):  
South Carolina ◽  
Supreme Court ◽  
Gender Bias ◽  
Death Penalty ◽  
Capital Punishment ◽  
The United States ◽  
The Past ◽  
The Supreme Court ◽  
And Gender ◽  
Looking Back

11 Duke Journal of Constitutional Law & Public Policy 183 (2016)Forty years ago, the Supreme Court of the United States deemed constitutional new death penalty laws intended to minimize the arbitrariness which led the Court to invalidate all capital sentencing statutes four years earlier in Furman v. Georgia. Over the last four decades the Court has — time and again — attempted to regulate the “machinery of death.” Looking back over the Court’s work, many observers, including two current Supreme Court justices, have questioned whether the modern death penalty has lived up to expectations set by the Court in the 1970s or if, despite 40 years of labor, the American death penalty continues to be administered in an unconstitutionally arbitrary manner. This Article presents data from South Carolina’s forty-year experiment with capital punishment and concludes that the administration of the death penalty in that state is still riddled with error and infected with racial and gender bias. It is — in short — still arbitrary after all these years. The authors maintain that the only true cure it to abolish South Carolina’s death penalty, although they do argue that lesser steps including additional safeguards and procedure may limit, but will not eliminate, some of the arbitrariness and bias which are present in the current imposition of South Carolina’s most extreme punishment.

Decades in Death’s Twilight

2019 ◽  
Vol 22 (2) ◽  
pp. 140-163
Author(s):  
Emily Gray
Keyword(s):  
The United States ◽  
Solitary Confinement ◽  
Death Sentence ◽  
Death Row ◽  
Entire Duration ◽  
Eighth Amendment ◽  
The Supreme Court ◽  
Death Row Inmates ◽  
History Of

The average amount of time that death row inmates spend on death row has ballooned over the past decade, and for death row inmates in the state of Texas, the entire duration of that increased time will be spent in solitary confinement. This raises the following question: Is solitary confinement now considered to be part of the punishment, one that may be worse than the death penalty itself? This article discusses the history of solitary confinement in U.S. prisons and cites scientific literature which posits that long-term solitary confinement can cause serious psychological damage. It examines “death row syndrome,” a term that refers to the psychological illness or disorder exhibited by an inmate who has spent a prolonged period of time in harsh conditions on death row. The article reviews the Polunsky Unit, which currently houses Texas’s death row and has been described as one of the worst prisons in the United States. The article also discusses the long history of Lackey claims, which allege that prolonged confinements under a death sentence breach the Eighth Amendment’s prohibition against cruel and unusual punishment. The unresolved dissent within the Supreme Court regarding this subject is presented and discussed. This article contends that the prolonged solitary confinement of a Texas inmate on death row is a violation of the Eighth Amendment, and concludes that the only solution is to end the practice of automatic and permanent solitary confinement.

scholarly journals Revisiting Death's Difference: The Philosophical Anthropology of the U.S. Death Penalty and the Impossibility of Capital Due Process

2020 ◽  
Vol 9 (1) ◽  
pp. 181-208
Author(s):  
G.P. Marcar
Keyword(s):  
United States ◽  
Supreme Court ◽  
Death Penalty ◽  
Due Process ◽  
Philosophical Anthropology ◽  
The United States ◽  
Human Beings ◽  
Eighth Amendment ◽  
Legal Challenges ◽  
The U.S

AbstractWithin the United States, legal challenges to the death penalty have held it to be a “cruel and unusual” punishment (contrary to the Eighth Amendment) or arbitrarily and unfairly enacted (contrary to the Fifth and Fourteenth Amendments). The Eighth Amendment requires that punishments not be disproportionate or purposeless. In recent rulings, the U.S. Supreme Court has adopted a piecemeal approach to this matter. In regard to particular classes of defendant, the Court has sought to rule on whether death is likely to be a proportional and purposeful punishment, as well as whether—given the condition of these defendants—such a determination can be reliably and accurately gauged. This article will suggest a different approach. Instead of asking whether, given the nature of certain categories of human defendant, the death penalty is constitutional in their case, I will begin by asking what—given the nature of the U.S. death penalty—one must believe about human beings for death to be a proportionate punishment. From this, I will argue that to believe that these penal goals are capable of fulfilment by the death penalty entails commitment to an empirically unconfirmable philosophical anthropology. On this basis, it will be further argued that the beliefs required for the U.S. death penalty's proportional and purposeful instigation (pursuant to the Eighth Amendment) are not congruent with the demands of legal due process.

Physician Participation in Executions: Care Giver or Executioner?

2006 ◽  
Vol 34 (1) ◽  
pp. 95-104 ◽  
Author(s):  
Peter A. Clark
Keyword(s):  
United States ◽  
Death Penalty ◽  
Medical Profession ◽  
The United States ◽  
Physician Participation ◽  
Public Acceptability ◽  
Eighth Amendment ◽  
The Supreme Court ◽  
Lethal Injection ◽  
Negative Perceptions

To circumvent objections that the death penalty was “cruel and unusual punishment” and therefore a violation of the Eighth Amendment to the Constitution, advocates proposed lethal injection and the involvement of physicians to overcome the negative perceptions associated with the death penalty, and to increase public acceptability of the practice. Initiated in 1982, lethal injection is now the primary method of execution in 37 of the 38 states with the death penalty. “To be exact, this method has been used to kill 788 of the 956 men and women who have been executed in the United States since 1976, when the death penalty was reinstated by the Supreme Court.” More recently, of the 191 executions performed in the United States since 2001, 189 have been by lethal injection.This “medicalization” of the death penalty has ignited a debate, by those within the medical profession and by others outside it, about the appropriateness of physicians participating in executions.

scholarly journals Liberty, Equality and the Right to Marry under the Fourteenth Amendment

2017 ◽  
Vol 6 (2) ◽  
pp. 241-262
Author(s):  
Ian Loveland
Keyword(s):  
Due Process ◽  
Fourteenth Amendment ◽  
Federal Courts ◽  
State Courts ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
The Supreme Court ◽  
The Usa ◽  
The Right

Abstract The legitimacy of recent judgments in the Supreme Court, lower federal courts and State courts which have extended the scope of the Due Process and/or Equal Protection clauses of the Fourteenth Amendment has been a fiercely contested controversy in legal and political circles in the USA. The controversy has been especially sharp in relation to the question of same sex marriage, and specifically whether it is within State competence to refuse to allow same sex couples to marry under State law. This paper explores that legitimation controversy through a multi-contextual analysis of the Supreme Court’s starkly divided judgment in Obergefell v Hodges (2015), in which a bare majority of the Court concluded that a State ban on same sex marriage was incompatible with the Due Process clause of the Fourteenth Amendment. This paper critiques both the majority and dissenting opinions, and suggests that while one might applaud the substantive conclusion the Court has reached, the reasoning offered by the majority suffers from several obvious weaknesses both in narrow doctrinal terms and from the broader perspective of safeguarding the Court from well-founded criticism that it is overstepping the bounds of its legitimate constitutional role.

scholarly journals For Cause: Rethinking Racial Exclusion and the American Jury

2020 ◽  
pp. 785
Author(s):  
Thomas Ward Frampton
Keyword(s):  
Racial Disparities ◽  
Cross Section ◽  
Due Process ◽  
Equal Protection ◽  
Jury Selection ◽  
The Past ◽  
The Supreme Court ◽  
Racial Exclusion ◽  
The Individual ◽  
Racial Hierarchies

Peremptory strikes, and criticism of the permissive constitutional framework regulating them, have dominated the scholarship on race and the jury for the past several decades. But we have overlooked another important way in which the American jury reflects and reproduces racial hierarchies: massive racial disparities also pervade the use of challenges for cause. This Article examines challenges for cause and race in nearly 400 trials and, based on original archival research, presents a revisionist account of the Supreme Court’s three most recent Batson cases. It establishes that challenges for cause, no less than peremptory strikes, are an important—and unrecognized—vehicle of racial exclusion in criminal adjudication. Challenges for cause are racially skewed, in part, because the Supreme Court has insulated the challenge-for-cause process from meaningful review. Scholars frequently write that jury selection was “constitutionalized” in the 1970s and 1980s, but this doctrinal account is incomplete. In the interstices of the Court’s fair-cross-section, equal protection, and due process jurisprudence, there is a “missing” law of challenges for cause. By overlooking challenges for cause, scholars have failed to notice the important ways in which jury selection remains free from constitutional regulation. Challenges for cause as they exist today—effectively standardless, insulated from meaningful review, and racially skewed—do more harm than good. They hinder, more than help, the jury in its central roles: (1) protecting the individual against governmental overreach; (2) allowing the community a democratic voice in articulating public values; (3) finding facts; (4) bolstering the perceived legitimacy and fairness of criminal verdicts; and (5) educating jurors as citizens. We need to rethink who is qualified to serve as a juror and how we select them.

The Decline of the Judicial Override

2019 ◽  
Vol 15 (1) ◽  
pp. 539-557
Author(s):  
Michael L. Radelet ◽  
G. Ben Cohen
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
State Courts ◽  
Death Sentence ◽  
Death Sentences ◽  
Eighth Amendment ◽  
The Supreme Court ◽  
National Consensus ◽  
Key Questions

Since 1972, the Supreme Court has experimented with regulation of the death penalty, seeking the illusive goals of consistency, reliability, and fairness. In this century, the court held that the Sixth Amendment prohibited judges from making findings necessary to impose a death sentence. Separately, the court held that the Eighth Amendment safeguarded evolving standards of decency as measured by national consensus. In this article, we discuss the role of judges in death determinations, identifying jurisdictions that initially (post 1972) allowed judge sentencing and naming the individuals who today remain under judge-imposed death sentences. The decisions guaranteeing a jury determination have so far been applied only to cases that have not undergone initial review in state courts. Key questions remain unresolved, including whether the evolving standards of decency permit the execution of more than 100 individuals who were condemned to death by judges without a jury's death verdict before implementation of the rules that now require unanimous jury votes.

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