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February 28, 2017

"Unusual Deference"

The title of this post is the title of this notable new paper about the Supreme Court's Eighth Amendment jurisprudence authored by William Berry III and now available via SSRN.  Here is the abstract:

Three Eighth Amendment decisions — Harmelin v. Michigan, Pulley v. Harris, and McCleskey v. Kemp — have had enduring, and ultimately, cruel and unusual consequences on the administration of criminal justice in the United States.  What links these cases is the same fundamental analytical misstep — the decision to ignore core constitutional principles and instead defer to state punishment practices.  The confusion arises from the text of the Eighth Amendment where the Court has read the “cruel and unusual” punishment proscription to rest in part on majoritarian practices.  This is a classical analytical mistake — while the Amendment might prohibit rare punishments, it does not make the corollary true — that all commonly used punishments must be constitutional.

This “unusual deference” to state punishment practices in light of this misconstruction of the text has opened the door to a proliferation of punishments that are disproportionate, arbitrary, and discriminatory.  As such, this article argues for a restoration of the Eighth Amendment from its present impotence by reframing the concept of unusualness in terms of the Court’s stated Eighth Amendment values and unlinking it from its deferential subservience to state legislative schemes.

Part I of the article explains the genesis of the Court’s unusual deference.  Part II of the article explores the manifestations of unusual deference, examining the flaws in the evolving standards of decency, differentness deference, and three most far-reaching examples of unusual deference — Harmelin, Pulley, and McCleskey.  Finally, the article concludes in Part III by reimagining an Eighth Amendment free from the error of unusual deference and demonstrating how such an approach could begin to remedy the problem of mass incarceration.

February 28, 2017 at 10:28 AM | Permalink


There is no evolution of the standards of decency for crime victims in the world of the denier lawyer.

Posted by: David Behar | Feb 28, 2017 5:37:31 PM

This is the sort of essay where a constitutional provision with various possible meanings (each of limited reach for various reasons, including other provisions likely covering many of the possible scenarios not covered by a specific application; the same arises with the First Amendment, cases repeatedly with overlapping reasons like free speech and free exercise) is artificially suggested to mean a specific thing. It then is explained how this specific thing is wrongly denied by others and how originalism etc. warrants it. The journey/discussion often is still worth it.

A couple things. First, even if the Supreme Court gives too much deference, the clause very well can influence other actors, including legislators and executives, to have a broader view. And, overall, there are various ways to interpret the clause and applying it as a sort of term of art probably best takes them all in.

For instance, see, e.g., Douglas' opinion in Furman v. Georgia, "unusual" can mean "arbitrary" (by race etc.) in part because the term has a sense of "not authorized by law." The fact that due process or some other provision can be used too is of limited concern really. Ultimately, when "punishment" is at issue, the Eighth Amendment is underlined.

Posted by: Joe | Mar 1, 2017 12:40:36 PM

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