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October 30, 2008

First Circuit talks through two Eighth Amendment issues

Thanks to AL&P, I see that the First Circuit today handed down these two opinions dealing with two different clauses of the Eighth Amendment:

October 30, 2008 at 07:59 PM | Permalink


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Doug, it seems to me that the Polk opinion misperceives the current three step analysis of eighth amendment challenges emanating from Justice Kennedy's opinion in Harmelin v Michigan and employed by Justice O'Connor's opinion in Ewing v California, and every other justice in Ewing except Scalia and Thomas.

The first step is whether there is an "inference" of gross disproportionality between the offense and the sentence. If so, then the intrajurisdictional and interjurisdictional comparisons are employed. The Court in Polk would do well to read Justice Breyer's discussion of the difference between a determinative test and a threshhold test in Ewing.

bruce cunningham

Posted by: | Oct 31, 2008 12:46:29 AM


I am surprised that you didn't blog more throughly on Polk given your concern regarding sentencing disparities for sex offenders, especially in light of the recent WSJ journal article you blogged about.

15 years for an on-line chat, not matter how risque, seems grossly disproportional to me.

Posted by: Daniel | Oct 31, 2008 12:07:15 PM

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