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March 16, 2016

"The Emerging Eighth Amendment Consensus Against Life Without Parole Sentences for Nonviolent Offenses"

The title of this post is the title of this article authored by Bidish Sarma and Sophie Cull recently posted on SSRN. Here is the abstract:

As the nation moves away from the policies that built a criminal justice system bent on mass incarceration, it is an appropriate time to reassess a sentencing regime that has doomed thousands of individuals convicted of nonviolent offenses to die in prison.  Over the last thirty years, those policies have resulted in more than 3,000 offenders across the country receiving life sentences without the possibility of parole when they were convicted of a nonviolent crime. While it seems clear to many today that this harsh punishment is inappropriate for offenses that involved no physical harm to other people, the individuals serving these sentences continue to face life and death in prison.  The Eighth Amendment offers these offenders an opportunity to demonstrate the unconstitutionality of their punishment to the Supreme Court — the institution in the best position to redress these excessive sentences of a bygone era.

This Article analyzes the claim that there is a national consensus against life without parole sentences for individuals convicted of non-violent offenses.  First, it defines the problem, exploring how and why some offenders received life without parole sentences for nonviolent crime.  This entails a look at the historical development of a series of harsh sentencing policies that made nonviolent offenses punishable by life without the possibility of parole.  The historical developments are then traced through to current times to explain the seismic shift in how leaders in all three branches of government approach punishing low-level and nonviolent crimes.

This Article situates the punishment in the Eighth Amendment context.  How have the Supreme Court's previous Eighth Amendment rulings framed the relevant constitutional questions?  And how can a change in the way the Court considers the link between the nature of the offense and the challenged punishment create new possibilities?  This Article explores how treating individuals sentenced to life without parole for nonviolent offenses as a discrete category based on the nature of the crimes can alter the Eighth Amendment framework that the Court will use to determine the punishment's constitutionality.  The unfavorable "gross disproportionality" cases that have previously been considered by the Court do not need to govern the claim and, therefore, do not foreclose the possibility that the Constitution itself prohibits these sentences.

After exploring how to understand the constitutional claim in a way that brings the Supreme Court's categorical approach to bear (rather than the gross disproportionality approach), this Article assesses the factors the Court considers in its consensus-based categorical test.  It sets out, and then evaluates, the various indicators of consensus upon which the Court relies: the number of jurisdictions that legislatively authorize a punishment; the number of sentences actually imposed; and the degree of geographic isolation.  It also evaluates the various considerations that assist the Court in making an independent judgment of the punishment.  Ultimately, based on binding Eighth Amendment precedent, sufficient evidence is available now to enable the Court to strike down life without parole sentences for nonviolent offenses.  In other words, there is an emerging consensus that the Court should recognize.

March 16, 2016 at 10:13 PM | Permalink

Comments

I have enough problems with basing the 8th amendment upon actual consensus to pretty much laugh at emerging consensus as being a valid basis for determining 8th amendment norms.

Posted by: Soronel Haetir | Mar 16, 2016 11:46:17 PM

The Benefit of Prisons
Dudley Sharp
===
Note: Read Death of Punishment by Robert Blecker (Macmillan, 2014)
===

The US doubled their prison population to 400,000 by 1983, from the 200,000 of 1948-1976, and then, with an additional increase from about 700,000 in 1990 to 1.8 million in 2008.

Crime rates plummeted to 40-60 year lows (1).

The murder rate dropped by:

48% between 1976 (8.7 murder rate) and 2013 (4.5 murder rate)

54% between 1991 (9.8 murder rate) and 2013

Violent crimes rates dropped by:

19% between 1976 (468 crime rate) and 2013 (379 crime rate)

50% between 1991 (758 crime rate) and 2013

Property crimes rates dropped by:

43% between 1976 (4819 crime rate) and 2013 (2733 crime rate)

54% between 1991 (5898 crime rate) and 2013

Was this only due to increased incarceration? Of course not.

Recidivism

Within 5 years of release (2005-2010), 82.1% of property offenders were arrested for a new crime, compared to 76.9% of drug offenders, 73.6% of public order offenders, and 71.3% of violent offenders (2).

94% percent of state prisoners in 1991 had committed a violent crime or been incarcerated or on probation before. Of these prisoners, 45 percent had committed their latest crimes while free on probation or parole. When "supervised" on the streets, they inflicted at least 218,000 violent crimes, including 13,200 murders and 11,600 rapes (more than half of the rapes against children) (3).

Patrick A. Langan, senior statistician at the Justice Department's Bureau of Justice Statistics, calculated that tripling the prison population from 1975 to 1989 may have reduced "violent crime by 10 to 15 percent below what it would have been," thereby preventing a "conservatively estimated 390,000 murders, rapes, robberies and aggravated assaults in 1989 alone." (3).

======

1) The exception is rape, which may be due to chronic underreporting, from previous decades.
source http://www.disastercenter.com/crime/uscrime.htm
using FBI data

2) Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010, Bureau of Justice Statistics, http://www.bjs.gov/index.cfm?ty=pbdetail&iid=4986

3) "Prisons are a Bargain, by Any Measure", John J. DiIulio, Jr., Opinion, New York Times, 1/16/1996

Posted by: Dudley Sharp | Mar 17, 2016 6:37:27 AM

The Benefit of Prisons
Dudley Sharp
===
Note: Read Death of Punishment by Robert Blecker (Macmillan, 2014)
===

The US doubled their prison population to 400,000 by 1983, from the 200,000 of 1948-1976, and then, with an additional increase from about 700,000 in 1990 to 1.8 million in 2008.

Crime rates plummeted to 40-60 year lows (1).

The murder rate dropped by:

48% between 1976 (8.7 murder rate) and 2013 (4.5 murder rate)

54% between 1991 (9.8 murder rate) and 2013

Violent crimes rates dropped by:

19% between 1976 (468 crime rate) and 2013 (379 crime rate)

50% between 1991 (758 crime rate) and 2013

Property crimes rates dropped by:

43% between 1976 (4819 crime rate) and 2013 (2733 crime rate)

54% between 1991 (5898 crime rate) and 2013

Was this only due to increased incarceration? Of course not.

Recidivism

Within 5 years of release (2005-2010), 82.1% of property offenders were arrested for a new crime, compared to 76.9% of drug offenders, 73.6% of public order offenders, and 71.3% of violent offenders (2).

94% percent of state prisoners in 1991 had committed a violent crime or been incarcerated or on probation before. Of these prisoners, 45 percent had committed their latest crimes while free on probation or parole. When "supervised" on the streets, they inflicted at least 218,000 violent crimes, including 13,200 murders and 11,600 rapes (more than half of the rapes against children) (3).

Patrick A. Langan, senior statistician at the Justice Department's Bureau of Justice Statistics, calculated that tripling the prison population from 1975 to 1989 may have reduced "violent crime by 10 to 15 percent below what it would have been," thereby preventing a "conservatively estimated 390,000 murders, rapes, robberies and aggravated assaults in 1989 alone." (3).

======

1) The exception is rape, which may be due to chronic underreporting, from previous decades.
source http://www.disastercenter.com/crime/uscrime.htm
using FBI data

2) Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010, Bureau of Justice Statistics, http://www.bjs.gov/index.cfm?ty=pbdetail&iid=4986

3) "Prisons are a Bargain, by Any Measure", John J. DiIulio, Jr., Opinion, New York Times, 1/16/1996

Posted by: Dudley Sharp | Mar 17, 2016 6:38:12 AM

Violation of the 8th Amendment - let's see, when and how will that be determined. Just to paraphrase, Desperation Snatched from the Jaws of Hope - and I must add many years hence.

Since most life without parole sentences result from conspiracy charges and going to trial, I'd "explore" the 6th Amendment, but again - too long to wait.

Thanks for calling attention to this paper.

Posted by: beth | Mar 17, 2016 8:05:02 PM

3 strikes and your out, federal drug offenses. Have to have several of the prongs, massive qty, within a 1000 ft, maybe a viloent crime in hidtory, not sure on the others.

Its not common, but 4-5 in our little area have got life, with 3 strikes.

Posted by: MidWestGuy | Mar 18, 2016 11:05:43 AM

It's part of 8th Amendment jurisprudence that what is "cruel and unusual" changes based on the evolving standards of decency that mark the progress of a maturing society. That's why we no longer have trial by ordeal, hangings in the public square, capital punishment for non-homicide offenses, etc. Also, in the federal system there are only two requirements for a mandatory life sentence under 21 USC 841(b)(1)(A): two prior drug felonies (can be mere possession), and a threshold quantity of drugs. No prior violence required, no proximity to any particular place required, and the quantities are not particularly massive.

Posted by: M | Mar 18, 2016 2:23:15 PM

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