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Release As Remedy For Excessive Punishment, Alexander A. Reinert

William & Mary Law Review

Although the Eighth Amendment’s prohibition on “cruel and unusual” punishment means different things in different contexts, it plainly forecloses state and federal actors from choosing ex ante to impose a punishment that is either disproportionate or inconsistent with minimum standards of decency. In other words, the Eighth Amendment mandates that no punishment be imposed if the only other choice on the table is an unconstitutional punishment. Although this principle can be gleaned from the disparate strands of Eighth Amendment jurisprudence, its remedial consequence has not been fully implemented. In this Article, I propose that providing a remedy of release from …