20 Pages Posted: 29 Mar 2021
Date Written: March 26, 2021
This Essay asserts that if Black lives matter, there needs to be a radical shift in our understanding of punishment. One necessary (but not sufficient) step must be a complete overhaul of current Eighth Amendment jurisprudence to make it reflect the notion that all people, particularly Black people, are redeemable. This requires giving teeth to the “grossly disproportional” standard for deciding whether punishment is excessive — particularly when reviewing harsh sentences imposed under habitual offender laws. It requires dispelling the idea that a child could be considered “permanently incorrigible” and thus worthy of being locked away for life. And it requires embracing the fact that stark racial disparities in the imposition of punishment, especially capital punishment, are enough to prove the punishment is arbitrary, or worse, purposefully discriminatory, and thus unconstitutional. This Essay concludes by calling for an anti-racist reading of the Eighth Amendment.
Keywords: criminal law, criminal procedure, race and the law
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