Unusual Deference

Abstract

Three Eighth Amendment decisions—Harmelin v. Michigan, Pulley v. Harris, and McCleskey v. Kemp—have had enduring, and ultimately, cruel and unusual consequences on the administration of criminal justice in the United States. What links these cases is the same fundamental analytical misstep—the decision to ignore core constitutional principles and instead defer to state punishment practices. The confusion arises from the text of the Eighth Amendment where the Court has read the “cruel and unusual” punishment proscription to rest in part on majoritarian practices. This is a classical analytical mistake—while the Amendment might prohibit rare punishments, it does not make the corollary true—that all commonly used punishments must be constitutional.

This “unusual deference” to state punishment practices in light of this misconstruction of the text has opened the door to a proliferation of punishments that are disproportionate, arbitrary, and discriminatory. As such, this article argues for a restoration of the Eighth Amendment from its present impotence by reframing the concept of unusualness in terms of the Court’s stated Eighth Amendment values and unlinking it from its deferential subservience to state legislative schemes.

Part I of the article explains the genesis of the Court’s unusual deference. Part II of the article explores the manifestations of unusual deference, examining the flaws in the evolving standards of decency, differentness deference, and three most far-reaching examples of unusual deference—Harmelin, Pulley, and McCleskey. Finally, the article concludes in Part III by reimagining an Eighth Amendment free from the error of unusual deference and demonstrating how such an approach could begin to remedy the problem of mass incarceration.

Keywords: Eighth Amendment, cruel and unusual, deference, McCleskey, Pulley, Harmelin, mass incarceration, death penalty, LWOP