Law Commons^™

Mental Health In Prison: The Unintended But Catastrophic Effects Of Deinstitutionalization, Felicia Mulholland

Touro Law Review

Prisons and jails are not adequately equipped to manage the ever-growing population of mentally ill inmates. Despite deinstitutionalization efforts, prisons have steadily become the new psychiatric hospitals and unfortunately, because of the lack of treatment and the ability to properly supervise this population of inmates, these individuals are dying by their own hands at an alarming rate. This Note argues that the lack of proper care for mentally ill inmates is a violation of their constitutional right, despite their incarcerated status. The Department of Corrections and Community Supervision (DOCCS) should incorporate more concrete and universal rules and regulations for the …

Subjectively Speaking, The Applicable Standard For Deficient Medical Treatment Of Pretrial Detainees Should Be One Of Objective Reasonableness, Benjamin R. Black

Touro Law Review

There is no uniformity amongst the circuits when it comes to pretrial detainees claims for inadequate medical care. The circuits are currently grappling with this problem, applying two separate tests to pretrial detainees’ 42 U.S.C. § 1983 claims depending on the jurisdiction in which the incident arose. The test that should be applied across all circuits is one of objective reasonableness. However, some circuits do not see it that way, applying the deliberate indifference standard, also known as the subjective standard test. The circuits applying the subjective standard are relying on case law that does not properly analyze the rights …

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 …

Obstacles To Proving 24-Hour Lighting Is Cruel And Unusual Under Eighth Amendment Jurisprudence, Lauren Jaech

Washington Law Review

Twenty-four-hour lighting causes sleep deprivation, depression, and other serious disorders for incarcerated individuals, yet courts often do not consider it to be cruel and unusual. To decide if prison conditions violate the Eighth Amendment’s prohibition against cruel and unusual punishment, courts follow a two-part inquiry that requires examining the intent of prison officials (known as the subjective prong) as well as the degree of seriousness of the alleged cruel or unusual condition (the objective prong). Incarcerated individuals often file complaints challenging 24-hour lighting conditions. Whether they succeed on these claims may depend on the circuit in which they reside. Judges …

Property Law—Beyond Repair: The Persistent Unconstitutionality Of The Failure To Vacate Statute, Colin Boyd

University of Arkansas at Little Rock Law Review

No abstract provided.

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 …

Bucklew V. Precythe And The Resurgence Of The Method Of Execution Challenge, Hannah York

University of Colorado Law Review Forum

No abstract provided.

I Am Woman, Hear Me Roar: Denial Of Sexual Reassignment Surgery For Transgender Inmates And The Eighth Amendment’S Ban On Cruel And Unusual Punishment, Chiara Haueter

Touro Law Review

No abstract provided.

Evaluating The Classification Of Gender Confirmation Surgery As A Medical Necessity For Inmates, Alexis J. Watson

Brigham Young University Prelaw Review

In 2012, Mason Edmo pleaded guilty to the sexual abuse of a fifteenyear-

old boy and was sentenced to ten years in prison. While in

prison, Edmo announced that she identified as a female and changed

her name to Adree. Edmo went on to request gender confirmation

surgery (also known as “sex reassignment surgery”) while still in

prison. Initially, Edmo was not granted the surgery by the Idaho

Department of Corrections, and went on to self-harm and attempt

self-castration twice. In 2017, Edmo filed suit against the Idaho State

Department of Corrections (IDOC) and won. The IDOC disagreed

with the …

A Modest Proposal: The Federal Government Should Use Firing Squads To Execute Federal Death Row Inmates, Stephanie Moran

University of Miami Law Review

The Eighth Amendment prohibits cruel and unusual punishment in the criminal justice system. As the federal government looks to reinstate the death penalty, this Note argues that it should include firing squad as an option for carrying out executions. While firing squads may shock the senses, this Note argues that they are in fact the only way to comport with the requirements of the Eighth Amendment.

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 …

Lethal Injection Or Lethal Litigation: Florida's Amended Lethal Injection Protocol Opens The Door For Cries Of Cruel And Unusual Punishment, Cynthia Ventura

St. Thomas Law Review

In Florida, lethal injection has been the primary method of execution since the 1990s. The Florida Department of Corrections recently amended its protocol by replacing all three drugs previously used. The first administered lethal dose is now etomidate, an anesthetic that has never been used in the United States as a lethal injection drug. This Comment discusses the lack of empirical research available to support the state of Florida's use of etomidate as an appropriate method of rendering a prisoner unconscious prior to administering the second and third injections. First, this Comment will provide a brief background of the history …

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. …

Protecting America’S Children: Why An Executive Order Banning Juvenile Solitary Confinement Is Not Enough, Carina Muir

Pepperdine Law Review

Despite its devastating psychological, physical, and developmental effects on juveniles, solitary confinement is used in juvenile correctional facilities across the United States. This Comment posits that such treatment violates the Eighth Amendment’s Cruel and Unusual Punishment Clause, the United Nations’ Convention on the Rights of the Child, and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. It likewise argues that that President Obama’s recent Executive Order banning juvenile solitary confinement is simply not a powerful enough remedy and discusses why it must be paired with Congressional legislation or Supreme Court jurisprudence if it is to …

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 …

"Three Hots And A Cot And A Lot Of Talk": Discussing Federal Rights-Based Avenues For Prisoner Access To Vegan Meals, David B. Rosengard

Animal Law Review

Vegan prisoners face obstacles in accessing meals congruent with their beliefs, but it may be possible to assert the right to vegan meals while incarcerated via a number of constitutional and statutory provisions. Focusing specifically on the federal le­gal landscape, this Article acts as a road map to those options. First, this Article discusses the scope of relevant religious free exercise jurisprudence-and its utility for prisoners who are vegan for religious reasons. Second, this Article explores the extent to which an equal protection approach may provide vegan prisoners with a viable route to securing appropriate meals. Third, this Article discusses …

No Clean Hands In A Dirty Business: Firing Squads And The Euphemism Of "Evolving Standards Of Decency", Alexander Vey

Vanderbilt Law Review

"If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn't be carrying out executions at all." Judge Kozinski of the Ninth Circuit Court of Appeals laid down this challenge to reform the "inherently flawed" use of lethal injection in carrying out the death penalty. Justice Sotomayor recently voiced similar concerns, stating, "[W]e deserve to know the price of our collective comfort before we blindly allow a State to make condemned inmates pay it in our names." These judges' reasoning should underlie any discussion of the death penalty: can we, as …

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.

Corporal Punishment In Schools; Due Process; Cruel And Unusual Punishment; Ingraham V. Wright, Mary W. Altier

Akron Law Review

Corporal punishment as a means of disciplining school children has been used in this country since colonial days. There have been various constitutional attacks on the practice of inflicting corporal punishment, with varying results, and the issue was finally brought before the Supreme Court in Ingraham v. Wright. The Court decided on April 19, 1977 that the Cruel and Unusual Punishment Clause of the eighth amendment does not apply to disciplinary corporal punishment in public schools and that the Due Process Clause of the fourteenth amendment does not require notice and hearing prior to imposition of corporal punishment, as …

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.

"A Thug In Prison Cannot Shoot Your Sister": Ohio Appears Ready To Resurrect The Habitual Criminal Statute - Will It Withstand An Eighth Amendment Challenge?, Thomas R. Goots

Akron Law Review

The State of Ohio appears ready to pass a habitual offender statute. This Comment will take a closer look at habitual offender statutes in general and Ohio's past attempts at habitual offender statutes. The Comment will focus on the possible Eighth Amendment challenge to the proposed Ohio statute, by examining a hypothetical defendant.

The Admissibility Of Confessions Compelled By Foreign Coercion: A Compelling Question Of Values In An Era Of Increasing International Criminal Cooperation, Geoffrey S. Corn, Kevin Cieply

Pepperdine Law Review

This Article proceeds on a simple and clear premise: a confession extracted by torture or cruel, inhuman, or degrading treatment should never be admitted into evidence in a U.S. criminal trial. Whether accomplished through extending the Due Process or Self-Incrimination based exclusionary rules to foreign official coercion, or by legislative action, such exclusion is necessary to align evidentiary practice regarding confessions procured by foreign agents with our nation's fundamental values as reflected in the Fifth Amendment and our ratification of the CAT. This outcome is not incompatible with Connelly. Rather, this Article explores the limits of the Court's language in …

Human Rights Practices In The Arab States: The Modern Impact Of Sharī’A Values, James Dudley

Georgia Journal of International & Comparative Law

No abstract provided.

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.