Cruel & Unusual Non-Capital Punishments

36 Pages Posted: 1 Dec 2020

See all articles by William W. Berry

William W. Berry

University of Mississippi School of Law

Date Written: October 20, 2020

Abstract

The Supreme Court has rendered the Eighth Amendment a dead letter with respect to non-capital, non-juvenile life-without-parole sentences. Its cases have erected a gross disproportionality standard that seems insurmountable in most cases, even for draconian and excessive sentences. State courts have adopted a similar approach in interpreting state constitutional Eighth Amendment analogues, often finding that they are no broader than the Court’s narrow interpretation of the Eighth Amendment, despite linguistic variations in many cases.

Nonetheless, in a handful of state cases, state courts have found that state punishments violate the Eighth Amendment or its state constitutional analogue. This article examines those cases to identify what non-capital punishments have caused courts to limit state punishment practices even in the shadow of an overwhelming, albeit unfortunate, trend of according constitutional deference to state punishment practices. In light of these decisions, this Article advances a series of possible arguments by which to attack state and federal punishment practices in an effort to create more exceptions to the draconian status quo constitutional rule.

In Part I, the Article begins by providing an overview of Eighth Amendment gross disproportionality doctrine and its use in state constitutional analogues to the Eighth Amendment. Part II examines the handful of state court cases that have found punishments unconstitutionally disproportionate. In Part III, the Article advances one set of arguments — both systemic and case-based—for use in attacking non-capital state punishments under state constitutions. Part IV, the Article advances a second set of arguments — both systemic and case-based — for use in attacking non-capital state punishments under the Eighth Amendment.

Suggested Citation

Berry, William W., Cruel & Unusual Non-Capital Punishments (October 20, 2020). American Criminal Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3715759

William W. Berry (Contact Author)

University of Mississippi School of Law ( email )

481 Chucky Mullins Drive
P.O. Box 1848
University, MS 38677
United States
6629156859 (Phone)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
139
Abstract Views
326
rank
246,682
PlumX Metrics