Cruel and Unusual Punishment (Update 2)

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Three major trends in state and federal sentencing have dominated the punishment arena during the last two decades: first, the reduction of judicial discretion and the correlative enactment of fixed sentencing guidelines in non-capital punishment cases; second, the adoption of severe prison terms for habitual offenders and for designated crimes, also known as "three strikes, you're out" (or career criminal sentencing laws) and "mandatory minimum" statutes; and third, the implementation of new capital murder statutes after the Supreme Court's decision in Gregg v. Georgia (1976), as well as the more recent adoption of the death penalty by the federal government and by several states. These developments have presented a number of challenges to Eighth Amendment jurisprudence and have given rise to three important controversies: first, what proportionality test applies to noncapital sentences; second, whether the twin constitutional goals of consistency and individualized sentencing in capital cases can be reconciled; and third, whether the risk that racial discrimination may infect the imposition of the death penalty violates the Eighth Amendment.

The Court has been deeply divided over the proportionality test to apply in noncapital cases. In Harmelin v. Michigan (1991), a case involving a mandatory sentence of life imprisonment without the possibility of parole for the possession of 672 grams of cocaine, the Court severely narrowed the proportionality test that it had articulated in solem v. helm (1983). Justice antonin scalia, joined by Chief Justice william h. rehnquist, invited the Court to eliminate all proportionality review in noncapital cases. Scalia and Rehnquist interpreted the Eighth Amendment to prohibit only certain modes of punishment (like drawing and quartering) and unusual penalties not prescribed by law. In the controlling, concurring opinion of Justice anthony m. kennedy, joined by Justices sandra day o'connor and david h. souter, Kennedy preserved a narrow proportionality principle that "forbids only extreme sentences that are 'grossly disproportionate' to the crime," but nevertheless concluded that the sentence at issue was not grossly disproportionate. Kennedy relegated the analysis of the other two prongs of the earlier three-prong Solem proportionality test, namely intrajurisdictional and interjurisdictional comparative analyses, to cases where gross disproportionality is found.

In the capital context, the Court has articulated an intricate set of constitutional rules in an attempt to fulfill the mandate of Furman v. Georgia (1972) and Gregg to eliminate arbitrariness and ensure fairness in capital sentencing. The Court's opinions have pursued the twin Eighth Amendment objectives of consistency and individualized sentencing. In pursuit of consistency, the Court has narrowed the definition of permissible aggravating circumstances and required that the discretion of sentencing juries be channeled. In pursuit of individualized sentencing, the Court has required the admission of any mitigating evidence and the jury's consideration of that evidence. The increasing tension in recent years between these twin constitutional commands has led several members of the Court to conclude that they are simply incompatible. Former Justice harry a. blackmun, dissenting from the denial of certiorari in Callins v. Collins (1994), concluded that the Eighth Amendment's competing constitutional commands could not be reconciled and that the death penalty, as presently administered, violates the Eighth Amendment. Justices Scalia and clarence thomas have joined Blackmun in acknowledging the incompatibility of the goals of consistency and individualized sentencing, but have instead decided to discard the principle of individualized sentencing.

Racial discrimination has continued to plague capital sentencing schemes in a number of states. The Baldus study found that, in Georgia during the 1970s, the likelihood of being sentenced to death for killing white victims was 4.3 times greater than the likelihood of being sentenced to death for killing black victims, holding constant 39 other nonracial explanatory variables. The study raised the possibility that considerations of race were injecting arbitrariness in the imposition of the death penalty. The Court assumed the validity of the Baldus study in mccleskey v. kemp (1986), but nevertheless concluded that the risk that racial bias infected the Georgia capital sentencing system was not significant under the Eighth Amendment.

Bernard E. Harcourt


Kennedy, Randall 1988 McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court. Harvard Law Review 101:1388–1443.

Steiker, Carol and Steiker, Jordan 1995 Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment. Harvard Law Review 109: 355–438.

Sundby, Scott E. 1991 The Lockett Paradox: Reconciling Guided Discretion and Unguided Mitigation in Capital Sentencing. UCLA Law Review 38:1147–1208.

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Cruel and Unusual Punishment (Update 2)

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