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Cruel and Unequal Punishments

Nita A. Farahany

Duke University School of Law


Washington University Law Review, Vol. 86, 2009
Vanderbilt Public Law Research Paper No. 08-40

This article argues Atkins and its progeny of categorical exemptions to the death penalty create and new and as of yet undiscovered interaction between the Eighth and the Fourteenth Amendment of the U.S. Constitution. The United States Supreme Court, the legal academy and commentators have failed to consider the relationship between the Cruel and Unusual Punishments Clause and the Equal Protection Clause that the Court's new Eighth Amendment jurisprudence demands. This article puts forth a new synthesis of these two clauses, and demonstrates how the Court's new Eighth Amendment jurisprudence has remarkable Fourteenth Amendment implications. To see the point in practice, one need only consider two criminal defendants: the first was mentally retarded from birth; the second suffered a traumatic brain injury at the age of 22; and both have identical cognitive, behavioral, and adaptive impairments. Under state statutes cited approvingly in Atkins and others enacted since, the first defendant cannot be executed, but the second one can. This seems wrong on its face, but to understand why, it is necessary to explore the interaction of the Eighth and Fourteenth Amendments. The doctrinal shift in Atkins has profoundly altered that interaction, and a new synthesis is required.

Part I analyzes the Supreme Court's Eighth Amendment proportionality analysis from its inception in punishment-to-crime cases through its more recent punishment-to-culpability cases, revealing the abandonment of critical elements of earlier proportionality analysis in its new punishment-to-culpability cases. Part II reviews the legislative enactments promulgated and sustained in response to Atkins, and demonstrates a dual failure in Atkins, which paved the pathway for a new Eighth and Fourteenth Amendment interaction. Part III demonstrates, by example, medical conditions with nearly identical clinical manifestations as the medically defined category mentally retarded, but that are excluded from legal definitions of mental retardation adopted pursuant to Atkins. The striking similarity between the conditions discussed in Part III and the medically defined category mentally retarded make plain the arbitrariness of an Eighth Amendment fundamental right that turns on categorical exemptions. Finally, Part IV explains how the legislative schemes at issue violate the Equal Protection Clause of the Fourteenth Amendment, and how categorical exemptions to the Eighth Amendment create this new interaction.

Number of Pages in PDF File: 57

Keywords: Atkins, death penalty, Eighth Amendment, equal protection, brain injury, neuroscience, categorical exemptions, cruel and unusual punishment

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Date posted: August 2, 2008 ; Last revised: December 24, 2014

Suggested Citation

Farahany, Nita A., Cruel and Unequal Punishments (2009). Washington University Law Review, Vol. 86, 2009; Vanderbilt Public Law Research Paper No. 08-40. Available at SSRN: https://ssrn.com/abstract=1194691

Contact Information

Nita A. Farahany (Contact Author)
Duke University School of Law ( email )
210 Science Drive
Box 90362
Durham, NC 27708
United States
HOME PAGE: http://www.law.duke.edu/fac/farahany

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