Digital Commons Network^™

Kids, Cognition, And Confinement: Evaluating Claims Of Inadequate Access To Mental Health Care In Juvenile Detention Facilities, Lydia G. Mrowiec

William & Mary Journal of Race, Gender, and Social Justice

In the United States, almost 60,000 juveniles are incarcerated in juvenile jails and prisons every day, and, as of March 2021, at least seventy percent of juveniles in the juvenile justice system have a mental health condition. For many young adults, prison and detention centers have “become the avenue of last resort” for treatment of those mental health conditions. However, juvenile detention facilities lack the support and resources to provide adequate care, which has led to high recidivism in the juvenile population. Juveniles, and individuals on their behalf, can challenge inadequate access to mental health resources by bringing claims under …

Beating Justice: Corporal Punishment In American Schools And The Evolving Moral Constitution, Timothy D. Intelisano

William & Mary Journal of Race, Gender, and Social Justice

This Note will discuss the Supreme Court’s holding in Ingraham v. Wright, and the subsequent developments in public school corporal punishment practices. Rather than focus exclusively on the case law, this Note will dive into the statistical data outlining which students are most often subjected to corporal punishment. Often, it is Black students and Autistic students who are subject to the harshest treatment.

This Note will outline the different avenues that courts could and should take to overrule Ingraham. Because a circuit split exists—on the issue of how to resolve these claims—overturning Ingraham and declaring corporal punishment per …

The Price Of Democracy: Evaluating The Excessing Fines Clause In Light Of Florida Felon Disenfranchisement, Raven Peters

William & Mary Bill of Rights Journal

This Note aims to show how the current test of proportionality is insufficient in combatting excessive fines, especially considering the racist and discriminatory practices of felon disenfranchisement. In Part I, this Note evaluates the background of the Eighth Amendment’s Excessive Fines Clause and its recent incorporation against the states. Part II will provide insight into the history of felon disenfranchisement in Florida and the fight for voter restoration through the passage of Florida Amendment 4. This section will then tell of the subsequent implementation of Florida Statutes section 98.0751 requiring ex-felons to pay all fines and fees associated with their …

Not So Objective Indicia: Why Public Polling And Ballot Referenda Could Create A More Concrete Standard For Eighth Amendment Objective Indicia Analysis, Jonathan Marchuk

William & Mary Bill of Rights Journal

The Eighth Amendment states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Through the Fourteenth Amendment, these restrictions on punishment are applicable to the states. Over the years, the interpretation of what constitutes cruel and unusual punishment has changed. Cruel and unusual punishments include those punishments that are greatly disproportionate to the committed offense, but what is considered a disproportionate punishment is not a static judgment. Instead, part of the proportionality analysis of the punishment to the crime looks to “the evolving standards of decency that mark the progress of a …

Adree Edmo, The Eighth Amendment, And Abolition: Evaluating The Fight For Gender-Affirming Care In Prisons, Mike Greene

William & Mary Journal of Race, Gender, and Social Justice

This Comment argues that the Eighth Amendment litigation strategy to secure gender confirmation surgery for incarcerated transgender people is a non-abolitionist “reformist” reform that expands the criminal punishment system that perpetuates state violence against transgender people. This Comment proposes an abolitionist framework as a transformative approach to evaluating criminal punishment system reforms and securing gender-affirming care for transgender people, incarcerated or otherwise. This Comment then proposes two abolitionist steps towards trans justice, health, and liberation.

This Comment will first provide background on gender-affirming medical care, current medical standards for assessing gender-affirming care, and the standards that courts use to evaluate …

Kidnapping Reconsidered: Courts Merger Tests Inadequately Remedy The Inequities Which Developed From Kidnapping's Sensationalized And Racialized History, Samuel P. Newton

William & Mary Bill of Rights Journal

No abstract provided.

Steps Toward Abolishing Capital Punishment: Incrementalism In The American Death Penalty, Melanie Kalmanson

William & Mary Bill of Rights Journal

While scholars seem united on the sentiment that abolition is the ultimate resting place for capital sentencing in the United States, their arguments vary as to how the system will reach that point. For example, Carol and Jordan Steiker argue that the systemic disarray of capital sentencing in the United States is a result of the U.S. Supreme Court’s attempt to constitutionalize capital sentencing. This Article contends that the U.S. Supreme Court’s constitutional jurisprudence that has developed since 1972, when the Court reset capital sentencing in Furman v. Georgia, has aided the Court in gradually narrowing capital punishment, as a …

A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John D. Bessler

William & Mary Bill of Rights Journal

The sixteen words in the U.S. Constitution’s Eighth Amendment have their roots in England’s Glorious Revolution of 1688–89. This Article traces the historical events that initially gave rise to the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments. Those three proscriptions can be found in the English Declaration of Rights and in its statutory counterpart, the English Bill of Rights. In particular, the Article describes the legal cases and draconian punishments during the Stuart dynasty that led English and Scottish parliamentarians to insist on protections against cruelty and excessive governmental actions. In describing the grotesque punishments of …

Excessively Unconstitutional: Civil Asset Forfeiture And The Excessive Fines Clause In Virginia, Rachel Jones

William & Mary Bill of Rights Journal

No abstract provided.

The Eighth Amendment And Tax Evasion: Whether Fatca Non-Compliance Fines And Fbar Penalties Are Excessive, Tyler R. Murray

William & Mary Bill of Rights Journal

No abstract provided.

A Tale Of Two (And Possibly Three) Atkins: Intellectual Disability And Capital Punishment Twelve Years After The Supreme Court’S Creation Of A Categorical Bar, John H. Blume, Sheri Lynn Johnson, Paul Marcus, Emily Paavola

William & Mary Bill of Rights Journal

No abstract provided.

The True Legacy Of Atkins And Roper: The Unreliability Principle, Mentally Ill Defendants, And The Death Penalty’S Unraveling, Scott E. Sundby

William & Mary Bill of Rights Journal

In striking down the death penalty for intellectually disabled and juvenile defendants, Atkins v. Virginia and Roper v. Simmons have been understandably heralded as important holdings under the Court’s Eighth Amendment jurisprudence that has found the death penalty “disproportional” for certain types of defendants and crimes. This Article argues, however, that the cases have a far more revolutionary reach than their conventional understanding. In both cases the Court went one step beyond its usual two-step analysis of assessing whether imposing the death penalty violated “evolving standards of decency.” This extra step looked at why even though intellectual disability and youth …

Hall V. Florida: The Supreme Court’S Guidance In Implementing Atkins, James W. Ellis

William & Mary Bill of Rights Journal

No abstract provided.

Scientizing Culpability: The Implications Of Hall V. Florida And The Possibility Of A “Scientific Stare Decisis”, Christopher Slobogin

William & Mary Bill of Rights Journal

The Supreme Court’s decision in Hall v. Florida held that “clinical definitions” control the meaning of intellectual disability in the death penalty context. In other words, Hall “scientized” the definition of a legal concept. This Article discusses the implications of this unprecedented move. It also introduces the idea of scientific stare decisis—a requirement that groups that are scientifically alike be treated similarly for culpability purposes—as a means of implementing the scientization process.

Challenges Of Conveying Intellectual Disabilities To Judge And Jury, Caroline Everington

William & Mary Bill of Rights Journal

No abstract provided.

The Daryl Atkins Story, Mark E. Olive

William & Mary Bill of Rights Journal

No abstract provided.

Does Atkins Make A Difference In Non-Capital Cases? Should It?, Paul Marcus

William & Mary Bill of Rights Journal

No abstract provided.

Death, Desuetude, And Original Meaning, John F. Stinneford

William & Mary Law Review

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to …

The Eighth Amendment As A Warrant Against Undeserved Punishment, Scott W. Howe

William & Mary Bill of Rights Journal

Should the Eighth Amendment prohibit all undeserved criminal convictions and punishments? There are grounds to argue that it must. Correlation between the level of deserts of the accused and the severity of the sanction imposed represents the very idea of justice to most of us. We want to believe that those branded as criminals deserve blame for their conduct and that they deserve all of the punishment they receive. A deserts limitation is also key to explaining the decisions in which the Supreme Court has rejected convictions or punishments as disproportional, including several major rulings in the new millennium. Yet, …

A Promise The Nation Cannot Keep: What Prevents The Application Of The Thirteenth Amendment In Prison?, Raja Raghunath

William & Mary Bill of Rights Journal

The walls of the prison are not solely physical. The doctrine of judicial deference to prison officials, which compels courts to defer to the discretion of those officials in almost all instances, obstructs the effective scrutiny of modern practices of punishment. Since its ratification, the Thirteenth Amendment—which prohibits slavery or involuntary servitude anywhere within the United States or its jurisdiction, except where imposed “as a punishment for crime whereof the party shall have been duly convicted”1—has been seen by courts as one brick in this wall. This Article makes the novel argument that, properly read, the amendment should function instead …

Lest We Regress To The Dark Ages: Holding Voluntary Surgical Castration Cruel And Unusual, Even For Child Molesters, Catherine Rylyk

William & Mary Bill of Rights Journal

No abstract provided.

Cleaning Up The Eighth Amendment Mess, Tom Stacy

William & Mary Bill of Rights Journal

This article criticizes the Court's interpretation of the Eighth Amendment's Cruel and Unusual Punishment Clause and offers its own understanding. The Court's jurisprudence is plagued by deep inconsistencies concerning the Amendment's text, the Court's own role, and a constitutional requirement of proportionate punishment. In search of ways to redress these fundamental shortcomings, the article explores three alternative interpretations of the Clause: (1) a textualist approach; (2) Justice Scalia's understanding that the Clause forbids only punishments unacceptable for all offenses; and (3) a majoritarian approach that would consistently define cruel and unusual punishment in terms of legislative judgments and penal custom. …

The Futile Quest For Racial Neutrality In Capital Selection And The Eight Amendment Argument For Abolition Based On Unconscious Racial Discrimination, Scott W. Howe

William & Mary Law Review

No abstract provided.

The "Dirty Little Secret": Why Class Actions Have Emerged As The Only Viable Option For Women Inmates Attempting To Satisfy The Subjective Prong Of The Eighth Amendment In Suits For Custodial Sexual Abuse, Amy Laderberg

William & Mary Law Review

No abstract provided.

Aggravating And Mitigating Factors: The Paradox Of Today's Arbitrary And Mandatory Capital Punishment Scheme, Jeffrey L. Kirchmeier

William & Mary Bill of Rights Journal

Over twenty years ago, the United States Supreme Court held that both mandatory capital sentencing schemes and total discretionary capital sentencing schemes violate the Eighth Amendment. According to Jeffrey Kirchmeier, the "guided discretion" capital sentencing scheme of sentencing factors that has developed, however, has the constitutional problems of both mandatory death penalties and unlimited discretion death penalties.

Justices Scalia, Blackmun, and Thomas have noted that the mandate of unlimited mitigating circumstances has resulted in an arbitrary system. Kirchmeier argues that today's sentencing scheme is arbitrary also because of undefined aggravating factors, unlimited nonstatutory aggravating factors, and victim impact evidence. According …

Cruel And Unusual?: Virginia's New Sex Offender Registration Statute, Elizabeth P. Bruns

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.