Law Commons^™

Children Are Different: Jones V. Mississippi, Juvenile Life Without Parole, And Why Youthfulness Matters In Sentencing, Giulia Hintz Mcquirter

Mississippi College Law Review

“We are a country of mercy, and we are a country of vengeance, and we live with both at the same time.” This is how Robert Dunham, death penalty expert and Executive Director of the Death Penalty Information Center, describes the United States sentencing system. Battling inside each of us is the desire for people to pay for their wrongdoings, warring against the empathy of our human nature that wants to see the good in people, even criminals.

This internal conflict is rarely on better display than in cases involving child criminals. It is impossible to forget that these children …

Prisoner Exposure To A Pandemic: Measuring When Institutional Response Rises To Punishment, Josh Slovin

Mercer Law Review

The Constitution prohibits the cruel and unusual punishment of inmates and detainees. Accordingly, when prison conditions fall below a humane level due to acts or omissions by prison officials, the prison may be found in violation of the Eighth Amendment, the Cruel and Unusual Punishment Clause, against an inmate or the Fourteenth Amendment, the Due Process Clause, against a pre-trial detainee (hereinafter detainee).

Specifically, the assertion of such claims regarding poor prison conditions raises the question of how prisons, and thus the courts, are approaching the novel health risks and administrative challenges posed by a global Coronavirus (COVID-19) pandemic in …

Recent Developments, Raelynn J. Hillhouse

Arkansas Law Review

No abstract provided.

The Concept Of “Unusual Punishments” In Anglo-American Law: The Death Penalty As Arbitrary, Discriminatory, And Cruel And Unusual, John D. Bessler

Northwestern Journal of Law & Social Policy

The Eighth Amendment of the U.S. Constitution, like the English Bill of Rights before it, safeguards against the infliction of “cruel and unusual punishments.” To better understand the meaning of that provision, this Article explores the concept of “unusual punishments” and its opposite, “usual punishments.” In particular, this Article traces the use of the “usual” and “unusual” punishments terminology in Anglo-American sources to shed new light on the Eighth Amendment’s Cruel and Unusual Punishments Clause. The Article surveys historical references to “usual” and “unusual” punishments in early English and American texts, then analyzes the development of American constitutional law as …

Department Of Corrections V. Superior Court: Hear No Evil, Aaron T. Morel

Maine Law Review

On December 9, 1991, professional ethical and moral considerations prompted heated litigation in Department of Corrections v. Superior Court. Justice Donald G. Alexander of Maine's Superior Court displayed considerable foresight while sentencing two borderline mentally retarded child sex offenders. Although both defendants had committed repugnant crimes, Justice Alexander anticipated that they would be subjected to impermissible abuse if incarcerated in the Department of Corrections. He believed that preventive measures were necessary to ensure the safety of the defendants being sentenced and to avoid the potential that conditions of their incarceration would amount to cruel and unusual punishment. Justice Alexander subsequently …

Parsing Personal Predilections: A Fresh Look At The Supreme Court's Cruel And Unusual Death Penalty Jurisprudence, Susan M. Raeker-Jordan

Maine Law Review

The now well-known case of Atkins v. Virginia decided that the execution of those with mental retardation constituted cruel and unusual punishment under the Eighth Amendment. The more recent case of Roper v. Simmons decided that execution of those who were under the age of eighteen when they committed their crimes also constituted cruel and unusual punishment. Both decisions changed the law that had existed since 1989, when the Court held in Penry v. Lynaugh and Stanford v. Kentucky that executions of members of both classes were not unconstitutional. Writing for the Court in Atkins v. Virginia, Justice Stevens was …

Originalism And The Criminal Law: Vindicating Justice Scalia's Jurisprudence - And The Constitution, Adam Lamparello, Charles E. Maclean

Akron Law Review

Justice Scalia was not perfect—no one is—but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective—namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution—that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.” Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. …

Cruel And Unusual Punishment: Denying Ex-Felons The Right To Vote, Amy Heath

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Comments: When Psychology Answers Constitutional Questions: The Eighth Amendment And Juvenile Sentencing, Emily M. Steiner

University of Baltimore Law Review

While weighing whether or not to turn himself in for murder and surrender to prison, a 23-year-old law student questions the high premium placed on imprisonment as a rehabilitative measure. After finally submitting to imprisonment, however, Rodion Raskolnikov comes to understand the value of atoning for his crimes and how his punishment correlates with societal justice. The balance struck between an appropriate amount of suffering and society’s need for justice is at the heart of Raskolnikov’s character development.

Despite Raskolnikov’s imprisonment and accompanying character transformation, one important question remains unanswered by Fyodor Dostoevsky’s novel: at what point does a punishment …

Rights Of State Prisoners - Federal Court Intervention In State Prison Administration; Jones V. Wittenberg, Ronald L. Collins

Akron Law Review

The path to federal court intervention into state prison administration has been a tortuous and rocky one.... Jones v. Wittenberg carries federal court intervention into state prison administration to new lengths. Until more basic and lasting changes are made on the part of society and the states, such intervention seems to be the best chance for ameliorating conditions in our state penal systems.

Death Penalty; Cruel And Unusual Punishment; Individualized Sentencing Determination; Lockett V. Ohio; Bell V. Ohio, James C. Ellerhorst

Akron Law Review

“In Bell v. Ohio and Lockett v. Ohio the United States Supreme Court found the sentencing provisions of the Ohio capital punishment statute to be incompatible with the eighth and fourteenth amendments which prohibit cruel and unusual punishment. These two opinions represent the most recent attempt by the Supreme Court to explain what elements must be included in a constitutionally valid capital punishment statute.”

Death Row Conditions: Progression Toward Constitutional Protections, Nancy Holland

Akron Law Review

Beginning with recapitulation of the quest for the meaning and scope of the eighth amendment, this comment will review both the evolution of judicial scrutiny and the constitutional limitations of criminal incarceration and will also analyze the narrow body of case law affecting the quality of life on America's death rows.

Judge Levine: A Survey Of His Most Influential Court Of Appeals Decisions - 1993-2002, Jean D'Alessandro

Touro Law Review

No abstract provided.

Roper V. Simmons - Supreme Court's Reliance On International Law In Constitutional Decision-Making, Jessica Mishali

Touro Law Review

No abstract provided.

Death Penalty And The Right To Counsel Decisions In The October 2005 Term, Richard Klein

Touro Law Review

No abstract provided.

An Analysis Of The Death Penalty Jurisprudence Of The October 2007 Supreme Court Term, Richard Klein

Touro Law Review

No abstract provided.

Criminal Procedure Decisions From The October 2007 Term, Susan N. Herman

Touro Law Review

No abstract provided.

"Off With His __": Analyzing The Sex Disparity In Chemical Castration Sentences, Zachary Edmonds Oswald

Michigan Journal of Gender & Law

Societies around the world have performed castration, in its various forms, on their male and female members for thousands of years, for numerous reasons. Even within the United States, prisoners have been sentenced to castration (as a form of punishment or crime prevention) since the early twentieth century. In recent years, legislatures have perpetuated this practice but with a modern twist. Now, states use chemical injections to castrate their inmates. It turns out, however, that systemic problems plague the chemical castration sentencing regime. These problems arise from the nature of the crimes eligible for chemical castration sentences, the manner of …

Certainty In A World Of Uncertainty: Proposing Statutory Guidance In Sentencing Juveniles To Life Without Parole., Sonia Mardarewich

The Scholar: St. Mary's Law Review on Race and Social Justice

In Miller v. Alabama, the United States Supreme Court held that mandatory life sentences without parole imposed upon juveniles was unconstitutional. The Court reasoned that the sentence was cruel and unusual punishment in violation of the Eighth Amendment. The Court, however, did not hold it was unconstitutional to sentence a juvenile to life without parole if there was “transferred intent” or “reckless disregard.” Nonetheless, the Court effectively abolished state discretion and required sentencing courts to consider an offender’s youth and attendant characteristics as mitigating circumstances. The Court, however, did not specify what sentencing guidelines should dictate. Thus, states are now …

Supreme Court Criminal Law Jurisprudence - October 2008 Term, Richard Klein

Touro Law Review

The last Term of the Supreme Court addressed the constitutionally protected rights of criminal defendants not only at trial but at the post-conviction stage as well. The Court dealt with the defendant's rights to a speedy trial and effective assistance of counsel in Vermont v. Brillon; the claim was that these constitutional protections were substantially frustrated by underfunded public defender offices, thereby leaving the defendant improperly incarcerated for three years. The Court also considered a case wherein the State had utilized a jailhouse snitch to elicit inculpatory statements from a defendant in violation of his Sixth Amendment right to counsel. …

Lost Souls: Constitutional Implications For The Deficiencies In Treatment For Persons With Mental Illness In Custody, Katherine L. Smith

Golden Gate University Law Review

This Comment explores systemic deficiencies of access to mental health care in prison systems and the Eighth Amendment implications of those deficiencies. Because the Eighth Amendment prohibits, among other things, infliction of cruel and unusual punishments, when denial of adequate mental health care results in undue suffering, the conditions of confinement may violate the Constitution. Therefore, there must be mechanisms in place to ensure necessary treatment is provided while protecting individual rights.

Part I of this Comment addresses the duty a state owes to those it incarcerates (e.g., to provide food, clothing, recreation, education, medical care) and what standards exist …

Jumping On The Bandwagon: The United States Supreme Court Prohibits The Execution Of Mentally Retarded Persons In Atkins V. Virginia, Lisa Odom

Pepperdine Law Review

No abstract provided.

Ewing V. California: Upholding California's Three Strikes Law, Robert Clinton Peck

Pepperdine Law Review

No abstract provided.

A Criminal Quartet: The Supreme Court's Resolution Of Four Critical Issues In The Criminal Justice System, Richard Klein

Touro Law Review

No abstract provided.

Atkins V. Virginia: National Consensus Or Six-Person Opinion?, Joanna Hall

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Just Desserts, Or A Rotten Apple? Will The Ninth Circuit's Decision In Doe V. Otte Stand To Ensure That Convicted Sex Offenders Are Not Excessively Punished?, Colleen Miles

Golden Gate University Law Review

In Doe v. Otte, the Ninth Circuit addressed the constitutionality of Alaska's sex offender registration and notification statute. In finding that Alaska's statute violated the Ex Post Facto Clause, the Ninth Circuit focused on the legislature's intent and the statute's punitive effect in deciding how far a state, and more specifically Alaska, can go to inform its citizens of the whereabouts of released sex offenders.

Mckenzie V. Day: Is Twenty Years On Death Row Cruel And Unusual Punishment?, Amber A. Bell

Golden Gate University Law Review

In 1976, the United States Supreme Court decided that capital punishment does not violate the Eighth Amendment's protection against cruel and unusual punishment. This note raises the question whether extended incarceration on death row invokes the protections of the Eighth Amendment. This note examines four aspects of this issue. First, it traces the facts and procedural history of McKenzie. Second, the history of cruel and unusual punishment jurisprudence is discussed. Third, it details and analyzes the majority and dissenting opinions. Finally, it demonstrates that McKenzie is a poorly reasoned opinion.

Lost In The Gender Maze: Placement Of Transgender Inmates In The Prison System, Benish A. Shah

Journal of Race, Gender, and Ethnicity

No abstract provided.

Contemplating Cruel And Unusual: A Critical Analysis Of Baze V. Rees In The Context Of The Supreme Court's Eighth Amendment Proportionality Jurisprudence, Katie Roth Heilman

American University Law Review

This Comment argues that, while the Court’s modern Eighth Amendment jurisprudence has gradually reduced the circumstances under which the death penalty may be imposed, this trend is inconsistent with the Court’s unwillingness to critically examine the specific procedures states use to execute, even in the face of growing concerns over the humaneness of such procedures. Part I gives a historic overview of the Court’s limited method-of-execution jurisprudence, followed by a review of the Court’s recent line of rulings on challenges to the death penalty’s proportionality. Part II analyzes Baze within the broader context of the Court’s Eight Amendment proportionality jurisprudence. …

Death By Incarceration As A Cruel And Unusual Punishment When Applied To Juveniles: Extending Roper To Life Without Parole, Our Other Death Penalty, Robert Johnson, Sonia Tabriz

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.