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January 27, 2020

"(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People's 'Ruin'"

The title of this post is the title of this notable new piece now available via SSRN authored by Judith Resnik. Here is its abstract:

In 2019, all Justices on the U.S. Supreme Court agreed in Timbs v. Indiana that the Constitution’s prohibition on excessive fines applied to the states.  The Court’s opinion discussed the Excessive Fines Clause’s “venerable lineage” and termed its protections “fundamental.”  Justice Thomas, concurring, wrote that the English prohibition against excessive fines aimed to insulate citizens from what historians called “ruinous fines.”

This Essay puts Timbs into the context of the Court’s search for metrics to assess the legitimacy of governments’ choices about punishment.  In and after the 1960s, as convicted and incarcerated people asserted that constitutional law constrained sovereign powers, the Court repeatedly encountered challenges to punishment.  I bring together lines of cases that have sat in doctrinal silos to show the links between the concerns animating judicial limits on sentencing and judicial recognition of incarcerated people’s rights to safety, sanitation, food, medical care, access to courts, and religious observance.  I argue that this body of law, produced through convicted individuals’ insistence that they were entitled to constitutional protection, should be read to constitute a nascent anti-ruination principle that all branches of government need to implement.

January 27, 2020 at 11:25 PM | Permalink

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