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May 30, 2012

Seeking advice on (and cites to) thoughtful state Eighth Amendment rulings

In all likelihood, we still have a few more weeks to wait for Supreme Court rulings in in Jackson v. Hobbs and Miller v. Alabama, the two big pending Eighth Amendment cases concerning the constitutionality of states sentencing 14-year-old killers to life without the possibility of parole.  In part because I hope the coming rulings in Jackson and Miller might spark and provide a foundation for a new round of interesting constitutional litigation over extreme prison sentences (and not just for young offenders), I am interested in gathering information about the most interesting and thoughtful Eighth Amendment rulings coming from state courts in recent years (particularly in the wake of the Graham ruling).

I am aware of some leading recent state court Eighth Amendment rulings in states like California and Florida and Iowa, all of which had to swiftly and directly confront the import and impact of the Graham ruling for a number of juvenile offenders serving very long prison terms for nonhomicide offenses.  But I know I have seen a few interesting and thoughtful post-Graham rulings concerning limits on adult sentences imposed by the Eighth Amendment (and/or similar state constitutional provisions) from state supreme courts in Ohio and South Dakota and others states.  And I suspect there are (lots of?) notable rulings from lower state appellate courts (both affirming and reversing long prison sentences) that I have not seen.

Ergo this "bleg" for help from readers:  Can and will folks via the comments to this post (or via an e-mail) suggest examples with cites/links to what they consider the most interesting and thoughtful Eighth Amendment rulings coming from state courts in recent years?

For purposes of this bleg, I am most interested in non-capital cases and especially those rulings involving challenges to adult sentences.  But I am happy to hear about just about any recent significant state court rulings (for or against a defendant) that thoughtfully engage with modern Eighth Amendment doctrines and/or with comparable state constitutional provisions.  Thanks!

May 30, 2012 at 10:08 AM | Permalink


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People v. Carmony, 127 Cal.App.4th 1066 (2005)

Posted by: Jack Straw | May 30, 2012 10:05:12 PM

Doug, I will send you some Eighth Amendment materials that I have been using in some postconviction motions seeking to vacate lengthy habitual felon sentences for minor offenses, like possession of residue cocaine.

The first issue I have to overcome is convincing a trial level judge that he or she has the power to vacate a sentence which is within the range allowed by the legislature. So, a few years ago, I asked the UNC Law School Pro Bono Project to put together research for me on how many states and federal circuits follow Justice Kennedy's three step test for analyzing as applied challenges to a sentence on cruel and unusual punishment grounds. (the vast majority do, and NC Sup Ct issued a decision three months ago, State v Whitehead, which suggests for the first time that NC does also. Whitehead cites Graham)

I will also send you a motion to vacate a sentence, grounded in the principles set forth by Kennedy in the historical section of his opinion in Graham, including the notion of evolving standards of decency which mark a maturing society. I used the fact that 165 out of 166 legislators voted to enact the Justice Reinvestment Act, which significantly reduces sentences for nonviolent, low level offenses enhanced by the Habitual Felon Act, as support for the argument that under the "evolving standards" test, NC policy has changed. (I stayed away from arguing "retroactivity" of the new statute, as you alluded to several weeks ago) In other words, a sentence which was constitutional when imposed can be unconstitutional now) I'll include a copy of the Order granting the motion.

I'll send you a packet of exhibits I have given to a judge who currently has a similar motion under consideration.

Just for the fun of it, I'll send a speech I gave in 2003 right after Ewing was decided on the impact of Ewing in NC. It is entitled, "Way Out of Line Punishment", named after Chief Justice Rhenquist's stumbling attempt to frame the issue in Ewing. He finally said the question is whether the sentence is "way out of line", to the laughter of most in the courtroom audience. I was there with FAMM at the time.


Posted by: bruce cunningham | May 30, 2012 10:54:55 PM

My son is in mason county jail in Washington state. He was sentenced to 348 days for a dui 215 days for dv assault 320 days consecutive for a total of 883 days in county jail this is a clear violation of the 8th amendment. He hasn't seen daylight in over 9 mths they are overcrowded understaffed. I've requested appeals only to be told it is to late I need help. My son is a victim of vindictive prejudice sentencing. Any help or suggestions would be greatly appreciated. Thank you

Posted by: rebeccca tucker | May 21, 2015 1:49:11 PM

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