Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to Constitutional Discourse

Boston Univ. School of Law Working Paper No. 07-33

UC-Davis Law Review, Vol. 41, No. 1, p. 111, 2007

66 Pages Posted: 7 Dec 2007  

Eva S. Nilsen

Boston University School of Law

Abstract

American punishment today is degrading, indecent, and harsher than deserved despite a Constitution designed to protect people from cruel and unusual punishment. Unfortunately, the U.S. Supreme Court's response to the increasing inhumanity of contemporary punishment has been to reduce its Eighth Amendment jurisprudence to tidy categories, legal fictions, and hollow phrases. Absent from the discourse is any acknowledgement of the actual day-to-day experience facing the convicted person, or any suggestion that, although punishments can be degrading, they need not be. The case for treating a convicted person with respect for his human dignity, and for constitutional scrutiny of punishment as it is actually experienced, is rarely made.

This Article seeks to present that case. Part I demonstrates that sentences are longer and meaner, prison conditions are more degrading and dangerous, and post-release reintegration is severely hobbled by numerous barriers that guarantee a permanent underclass. The second part explains how the Court's narrow and formalistic reading of the Eighth Amendment has produced a profound legal and moral blindness to the constitutional infirmities these punishments present. In the third part, the Article suggests avenues to more robust conceptions of human dignity and decent treatment that may still be found in the Constitution and in emerging global norms.

Keywords: Humane punishment, cruel and unusual punishment, Eighth Amendment, Supreme Court, prison sentences, prison conditions, post-release reintegration from prison, global norms of punishment, racially disparate punishment, substantive and procedural due process

JEL Classification: K14, K40, K42, K49

Suggested Citation

Nilsen, Eva S., Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to Constitutional Discourse. Boston Univ. School of Law Working Paper No. 07-33; UC-Davis Law Review, Vol. 41, No. 1, p. 111, 2007. Available at SSRN: https://ssrn.com/abstract=1066662

Eva S. Nilsen (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-4255 (Phone)

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