Two important (and very timely) Eighth Amendment pieces on SSRN

Just in time for this week's additional briefing in the Kennedy child rape case, two new pieces talking about the Eighth Amendment can now be accessed through SSRN.

One piece, by Corey Rayburn Yung, goes right to the heart of the rehearing debate Kennedy.  This piece is titled "Is Military Law Relevant to the 'Evolving Standards of Decency' Embodied in the Eighth Amendment?" and here is the abstract:

On June 25, 2008, the United States Supreme Court issued an opinion in Kennedy v. Louisiana holding that the application of the death penalty to the crime of aggravated child rape violated the Eighth Amendment of the United States Constitution. Three days after the opinion was issued, it was discovered that everyone involved in the case had overlooked a 2006 amendment to the Uniform Code of Military Justice ("UCMJ") that made child rape a death penalty offense. This seeming oversight by the majority led the state of Louisiana and Solicitor General to petition the Court for the case to be reheard. On September 8, the Supreme Court took the highly unusual step of asking for more briefing on whether the case should be reheard. This short article contends that for the Court to grant rehearing based upon the rationales embodied in the Louisiana and Solicitor General's briefs would represent a substantial departure from past Court practice and be contrary to the special treatment that military law has historically received. A careful review of the Court's prior opinions shows that the Court has never considered military law in evaluating the objective indicia of the "evolving standards of decency" even when the military had seemingly relevant provisions. This practice by the Court is almost surely due to its recognition that when Congress amends military law, it only represents a national consensus as to military policy and not civilian policy. As a result, the Supreme Court should not rehear the Kennedy case based upon the majority opinion's omission of the 2006 UCMJ amendment.

The other piece, by Rachel Barkow, discussed Eighth Amendment jurisprudence more generally.  This piece is titled "The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity," and here is the abstract:

The Supreme Court takes two very different approaches to sentencing law.  Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner. Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence.  The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from a capital sentence to avoid an unconstitutionally excessive punishment. The Court does not insist of any these requirements in noncapital cases.

This Article argues for the abandonment of this two-track approach to sentencing. It finds no support in the Constitution's text, history, or structure, and the functional arguments given by the Court to support its capital decisions apply with equal force to all other criminal punishments. But it is not just the Court's poor legal reasoning that makes its sentencing jurisprudence misguided.  It has also been a policy failure for capital and noncapital defendants alike. As long as the two tracks exist, significant sentencing reform is all but impossible. If death were no longer different as a matter of constitutional law, our criminal justice system would be * and almost certainly for the better.