Eighth Amendment Gaps: Can Conditions of Confinement Litigation Benefit from Proportionality Theory?

37 Pages Posted: 30 Jan 2010

See all articles by Alex Reinert

Alex Reinert

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: January 30, 2010


The Eighth Amendment’s prohibition of “cruel and unusual punishments” conveys different meanings in different contexts. When challenges are brought to prison conditions, a range of cases that encompasses claims such as overcrowding, excessive uses of force, and failure to provide adequate medical care, a prisoner must show that a particular prison official acted with a sufficiently culpable state of mind to deprive the prisoner of an objectively serious need. When challenges are brought to the proportionality of criminal sentences, the Court compares the severity of the sentence with the seriousness of the criminal offense of incarceration. In both sets of cases, although courts purport to review a “punishment” for its conformity with the Eighth Amendment, different standards contribute to the ultimate resolution. This paper questions whether these differences are justified and whether there are ways to bridge the gap between proportionality review and conditions of confinement review.

In particular, I argue here that there are two ways in which elements of proportionality litigation could invigorate conditions of confinement review. First, I suggest that the focus on subjective state of mind in conditions of confinement litigation is called into doubt by proportionality jurisprudence. Second, I propose that the deference to legislators which is assumed in proportionality litigation is not as easily translated into conditions of confinement cases, where the delegation which such deference implies may not be present or appropriate. I conclude by examining three specific areas of conditions jurisprudence in which proportionality principles could be usefully applied.

Keywords: Cruel and Unusual, Disproportionate, Weems, Penology, Prisons, Supermax, Special Housing Unit, PLRA

Suggested Citation

Reinert, Alexander A., Eighth Amendment Gaps: Can Conditions of Confinement Litigation Benefit from Proportionality Theory? (January 30, 2010). Fordham Urban Law Journal, Vol. 36, p. 53, 2009; Cardozo Legal Studies Research Paper No. 285. Available at SSRN: https://ssrn.com/abstract=1544864

Alexander A. Reinert (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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New York, NY 10003
United States

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