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December 7, 2007

Weekend reading on "Restoring Ideals of Humane Punishment"

This week included new prison statistics, a new report on racial disparities in incarceration, and Hillary Clinton's stunningly disappointing opposition to greater sentencing justice (details here and here).  Against that backdrop, I am pleased to take home to read this new piece by Eva Nilson just appearing on SSRN, entitled "Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to Constitutional Discourse."  Here's the abstract:

American punishment today is degrading, indecent, and harsher than deserved despite a Constitution designed to protect people from cruel and unusual punishment.  Unfortunately, the U.S. Supreme Court's response to the increasing inhumanity of contemporary punishment has been to reduce its Eighth Amendment jurisprudence to tidy categories, legal fictions, and hollow phrases.  Absent from the discourse is any acknowledgment of the actual day-to-day experience facing the convicted person, or any suggestion that, although punishments can be degrading, they need not be.  The case for treating a convicted person with respect for his human dignity, and for constitutional scrutiny of punishment as it is actually experienced, is rarely made.

This Article seeks to present that case.  Part I demonstrates that sentences are longer and meaner, prison conditions are more degrading and dangerous, and post-release reintegration is severely hobbled by numerous barriers that guarantee a permanent underclass.  The second part explains how the Court's narrow and formalistic reading of the Eighth Amendment has produced a profound legal and moral blindness to the constitutional infirmities these punishments present. In the third part, the Article suggests avenues to more robust conceptions of human dignity and decent treatment that may still be found in the Constitution and in emerging global norms.

December 7, 2007 at 06:06 PM | Permalink


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Eva Nilson has done a great job here. Hope it gets a wide readership.

Posted by: peter | Dec 8, 2007 6:44:32 AM

I wonder how the family of Zach Sowers feels about charges of racial disparities in sentencing. The disparities in incarceration, on a macro-level, are caused by the differing rates of criminality among different ethnic and racial groups. I have a hard time believing that in areas with high concentrations of minorities (i.e., urban areas) where a disproportionate number of minorities are sentenced that minorities are treated, on a macro level, that badly, particularly where the specter of jury nullification impacts each and every plea deal and where more liberal judges reign.

Posted by: federalist | Dec 8, 2007 11:20:01 AM

I agree she did a great job but I am afraid she is arguing with a field of stones.

Posted by: John Neff | Dec 9, 2007 4:20:42 PM

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