Cruel and Unusual Punishment

The bequest of early modern England is blemished with official acts of cruelty.  Tudor and Stuart England, the society which gave the world Shakespeare, contains as well a stark legacy of punitive violence.  Specifically, institutional violence prohibited since the adoption of the Magna Carta in 1215, including torture and cruel and unusual punishment, saw a resurgence in early modern England.  While research indicates that it was not exclusively true in every case, torture and cruel and unusual punishment were intended by those administering them to be viewed in the public sphere, both as a deterrent to crime and as a show of institutional strength.  A striking example of such harsh inquisitorial acts and draconian punishment occurred in 1605/1606 in the wake of the “Powder Treason,” aka, the Gunpowder Plot.  Why did government in early modern England seemingly forget the protections of the Magna Carta in punishing traitors?  How did the Crown and the courts justify the recrudescence of torture?  What exactly did the official punishment against reputed acts of treason, a form known as “hanging, drawing and quartering” involve?  My paper, “The Gunpowder Plot, Torture, Punishment and the Rule of Law in England,” explores early modern English concepts of justice, traditions of law and trial by jury, structures of power with regards to forms of punishment and execution, including imprisonment, inquisition and torture, and the legal limits, such as they had then been constituted, of authority.  It argues that under threats to the “safety of the state,” real or perceived, the Crown and its courts, despite Magna Carta, regularly resorted to such cruel and “unusual” methods to set a public example against the commission of further crimes against the state.

In the wake of numerous cruel and troubling execution methods, lethal injection seemed to be the answer to this country’s centuries-long search for a medically humane means of putting an inmate to death. However, lethal injection is currently being subjected to an unprecedented degree of scrutiny due to various factors, including botched executions, problematic protocols, and drug shortages and restrictions.  An historical overview puts these circumstances in context.  In 1977, a year after Gregg v. Georgia, Oklahoma became the first state to adopt lethal injection, despite the fact that the procedure had never been medically or scientifically studied on human beings. Even without proper medical justification, 38 more states adopted lethal injection between 1977 and 2009. As more states began utilizing lethal injection, the method faced more challenges, leading to a decrease in the number of executions being performed. The Supreme Court attempted to address these challenges in Baze v. Rees (2008), in which the Court upheld the constitutionality of Kentucky’s lethal injection protocol. Contrary to some commentators’ predictions, executions continued their downward trend post-Baze. In 2015, the Supreme Court faced another lethal injection challenge in Glossip v. Gross, which involved Oklahoma’s use of midazolam as a lethal injection drug. The Court held 5–4 that three death row inmates failed to establish that midazolam created "a substantial risk of severe pain" when used as the first of three drugs in state's lethal injection procedure. This chapter discusses the Glossip Court’s unwillingness to address key aspects of death penalty history and the blame the Court places on unidentified “anti-death-penalty advocates” for the factors driving lethal injection’s troubles – troubles which threaten the future of the death penalty.

Approximately three decades ago, two of us, Terrell Carter and Kempis Songster, were sentenced to life in prison without the possibility of parole. The U.S. Supreme Court has said that this sentence, effectively an order to die in prison, represented a legal determination that we were irredeemable. In this Article, with insights from our coauthor and friend, human rights scholar Rachel López, we ask: What does it mean for the law to judge some human beings as incapable of redemption? Isn't the capacity for change core to the human condition, and shouldn't that be reflected in the law? This Article marries human rights law with our lived experience to argue that the capacity for redemption is an innate human characteristic. By documenting the dehumanizing effect of codified condemnation and the struggle for humanity after a person has been found irredeemable in a court of law, we seek to show why all humans should have a legal right to redemption-a right embedded in the Eighth Amendment through the latent concept of human dignity. The reading of the Eighth Amendment we call for would require a dramatic reimagination of the U.S. criminal legal system into one that elevates humanity, not deprives it. One that creates the opportunity for healing and human development, not denies it. One that facilitates the human capacity for redemption, not forbids it. One, in other words, that recognizes that change is always possible. Redeeming justice thus requires that legal systems not make unalterable decisions about a human being's capacity for change. At a bare minimum, this means that all sentences should be reviewable, with release possible after someone redeems herself. No person should be permanently deprived of her hope for freedom.

This paper provides a thorough research about the life without parole sentences given to juveniles who commit violent and heinous crimes specifically murder. The paper further provides an analysis about the implications and legal consequences of using and adopting this type of sentences. Our primary focus in this paper is on the cruel and unusual punishment doctrine found in the Eighth Amendment and how it is related to the JLWOP sentences. Moreover, the paper explores both the arguments against and for the JLWOP; that is, weighing both the advantages and disadvantages of this practice to reach a conclusion of whether or not it is in the best interest of the criminal justice system and society. After exploring and shedding the light on both arguments –the pros and cons-we can raise the question of whether or not the life without parole sentences should be given to juveniles.

No court has addressed the constitutional significance of sentencing juvenile murder accomplices who play a minimal role in the underlying killing to life in prison without parole. Indeed, no precedent makes clear whether it is cruel and unusual to impose that sentence on juvenile offenders convicted of first-degree murder pursuant to either the felony-murder doctrine or an accomplice theory of liability, notwithstanding their minimal involvement in the victim's death. To investigate this unanswered question, Part I of this Article explores the imposition of life without parole sentences on juvenile non-killers convicted of murder via either the felony-murder doctrine or accomplice liability. In doing so, Part I attempts to illustrate the problematic nature of imposing these sentences on less culpable juvenile non-killers convicted of first-degree murder by offering examples at the state and federal levels of defendants who received identical sentences yet played different roles in the victim's death.

Part II begins by outlining the evolution of the Supreme Court's interpretation of the Eighth Amendment's 'cruel and unusual' clause and continues by examining its application of the clause to juveniles. Part II concludes by evaluating the application by lower courts of the Supreme Court's Eighth Amendment jurisprudence to juvenile punishment.

Finally, Part III asserts that automatically sentencing juvenile non-killers to life in prison without parole renders lower courts unable either to individualize the juvenile's sentence or exercise judicial discretion in an effort to do so. Part III then argues that the Supreme Court's Eighth Amendment jurisprudence provides no remedy because it is ill-equipped to handle a juvenile non-killer's Eighth Amendment challenge to a sentence of life imprisonment without parole following a murder conviction obtained pursuant to a charge of felony-murder or accomplice liability. Taken together, Part III concludes, these deficiencies allow for further erosion of the ideals underlying juvenile punishment.

When a serial killer goes on a rampage-killing innocent victims in multiple states, the initial conviction in one state will often be followed by prosecution in other states. If one state involved in prosecuting a multi-state serial killer is a death penalty state, often the death penalty state will request custody of the prisoner, thereby hoping to get a death penalty sentencing. To accomplish a transfer of custody by jurisdictions, two legal instruments are employed; the Interstate on Detainers Act ("IAD" or "Agreement") or a writ of habeas corpus ad prosequendum ("Writ"). This paper examines three cases of IAD and Writ controversy regarding death penalty sentencing. They are: State of Rhode Island and Unites States verses Jason Pleau; the D.C. Beltway Sniper case of 17 year old Lee Boyd Malvo, entailing a request for a juvenile to face prosecution in a death penalty state; and the case of Stephen Howard Oken who attempted to fight an IAD on the grounds that he was provided constitutionally deficient legal assistance when he plead guilty to murder charges. This paper looks at these controversial cases and questions if long incarceration periods-waiting as state's volley for jurisdictional prosecution-jeopardizes a prisoner's rights to a speedy trial under the Sixth Amendment, and if any concern exists violating the Eighth Amendment right from cruel and unusual punishment?

SOMMARIO: 1. Premessa: profilo del giudice Kennedy e Judicial Philosophy.-2. L'ambito penale: introduzione.-2.1. Limitazioni costituzionali contenutistico/sostanziali alle scelte legislative d'incriminazione (ovvero, dei controlli di ragionevolezza intrinseca o substantive due process review).-2.1.1. Premessa.-2.1.2. Il contributo in materia di Justice Kennedy.-2.2. Da Michael H. a Obergeffel, passando (soprattutto) per Lawrence: la giurisprudenza in materia di diritti fondamentali non-enumerati.-2.3. L'inespresso potenziale significato penalistico di Lawrence.-2.4. Ampliando lo sguardo: alcune ipotesi interlocutorie sulle ragioni della debole "constitutionalization of substantive criminal law" negli U.S.A.-2.5. Conclusioni sul contributo di Justice Kennedy in materia.-3. Sistema sanzionatorio: restrizioni sostanziali alla pena capitale.-3.1. Premessa: la cd. capital o categorical proportionality doctrine.-3.2. Il ruolo essenziale di Kennedy nell'espansione della cd. capital o categorical proportionality doctrine.-3.3. Le prospettive attuali della cd. capital o categorical proportionality doctrine.-3.4. Capital sentencing procedure.-4. Evoluzioni in materia di proporzionalità della pena detentiva (cd. non capital proportionality doctrine): da Harmelin v. Michigan a Graham v. Florida.-4.1. Premessa: la cd. non capital proportionality doctrine.-4.2. La Jurisprudence di Kennedy in materia di pene detentive: l'avallo dell'escalation punitiva in Harmelin v. Michigan e Ewing v. California.-4.3. (segue) La giurisprudenza più recente sulla proporzionalità delle pene detentive: un percorso di revisione critica determinato dalla consapevolezza del fallimento dello "Stato Carcerario"?-4.4. Prospettive attuali dello scrutinio di proporzionalità delle sanzioni penali carcerarie.-5. Censura alle condizioni inumane di detenzione causate dall'overcrowding: Brown v. Plata.-5.1. L'iter processuale e la decisione della Corte.-5.2. Riflessioni conclusive.-6. La denuncia dell'abuso del cd. solitary confinement: la concurring opinion in Davis v. Ayala.-6.1. Premessa.-6.2. Il caso Davis v. Ayala.-6.3. Attuali possibilità di censura della pratica del cd. solitary confinement.-7. Una prima ipotesi ricostruttiva: l'evoluzione delle posizioni di Kennedy sulla pena conferma la natura parzialmente majoritarian della istituzione-Corte suprema? (rectius: dei moderati che ne controllano ed equilibrano gli esiti).-8. Il judicial cosmopolitanism di Justice Kennedy: l'apertura all'utilizzo di fonti internazionali come fattore importante nell'evoluzione complessiva della sua jurisprudence in materia penale?-8.1.
L’utilizzo dell’argomento comparatistico. – 8.2. Il contributo di Kennedy. – 8.3. Gli effetti del cd. constitutional comparativism in materia penale. – 8.4. Gli scenari attuali. – 9. Boumediene v. Bush: il diritto di habeas corpus non può essere denegato agli enemy combatants stranieri detenuti a Guantanamo. – 9.1. I cd. Guantanamo cases. – 9.2. Boumediene v. Bush. – 9.3. L’attualità. – 10. Orientamenti espansivi in materia di I Emendamento e limitazioni all’incriminazione di condotte d’esercizio della libertà d’espressione: cenni. – 10.1. Premessa. – 10.2. Esemplificazioni giurisprudenziali: Texas v. Johnson. – 10.3. United States v. Alvarez. – 10.4. Packingham v. North Carolina. – 10.5. Rilievi conclusivi. – 11. Luci e ombre nella Constitutional law of criminal procedure: una sintesi. – 12. Valutazione complessiva: un “judicial suprematist” aperto, indipendente (nonpartisan) e libertarian. Il culto della Costituzione e l’importanza del civic discourse: decisioni redatte in una prosa che parla all’uomo comune. – 12.1. L’indipendenza. – 12.2. L’istanza di umanizzazione nell’ambito penale. – 12.3. Un Judicial suprematist? – 12.4. Lo stile redazionale delle sentenze e l’utilizzo “dinamico” delle judicial doctrines. – 13. Conclusioni: rinvio.

ABSTRACT. Few justices, in the history of the US Supreme Court, have wielded a power similar to that of Associate Justice Anthony Kennedy, who retired at the end of October Term 2017, after 30 years of service. Appointed by President Reagan in 1987, he has progressively become the so called swing justice, particularly in the last 15 years, determining with his votes the outcome of the most controversial constitutional issues, some times siding with the conservative wing of the Court, some others with the liberal one. The purpose of this essay, after a general introduction, is to examine in depth justice Kennedy's constitutional-criminal jurisprudence, from which emerges a broad and evolutionary reading of human rights as a limit to the gorvenment punitive action in the criminal law field. The main features of his jurisprudence are examined, through the analysis of the judgments concerning the substantive component of the due process clause of the XIV Amendment, the cruel and unusual punishment clause of the VIII Amendment, the so called constitutional comparativism, the freedom of speech safeguarded by the I Amendment and some developments in the consitutional law of criminal procedure. We will then draw some conclusions relating to his substantial jurisprudential legacy, focusing on some fundamental aspects: the independence of the Courts and their central role in the protection of fundamental rights; the centrality of the concept of human dignity; the "flexibility" in the development of judicial constitutional doctrines; the language of opinions, made intentionally accessible to the general public to stimulate the constitutional dialogue with pedagogical function. This essay constitutes the first part and should be read together with another essay, which focuses on the current ideological balance of the US Supreme court with specific reference to the constitutional-criminal matters, reflecting on the possible effects caused by justice Kennedy's replacement with justice Kavanaugh.

In “The Constitutional Right Against Excessive Punishment,” which was published in Virginia Law Review in 2005, I argued that the Eighth Amendment ban on excessive punishment should be understood as an implementation of the retributivist principle that the harshness of punishment should not exceed the gravity of the crime and that one should not be punished more harshly than one deserves.  This follow-up article addresses the question: what is the normative basis for adopting proportionality as a constraint and, furthermore, constitutionalizing it?

1. Introduzione. L’eccezionale asprezza delle pene comminate ai minori nel sistema penale statunitense: ragioni storiche e politico-criminali. – 1.1. In particolare: il “problema” delle juvenile life without parole sentences, c.d. JLWOP. – 2. L’elaborazione del principio “Youth Matters in Sentencing” nella giurisprudenza della Corte suprema federale: le decisioni Roper v. Simmons, Graham v. Florida, Miller v. Alabama, Montgomery v. Louisiana. – 2.1. La sentenza Roper v. Simmons. – 2.2. La sentenza Graham v. Florida. – 2.3. La sentenza Miller v. Alabama. – 2.4. La sentenza Montgomery v. Louisiana. – 3. Il caso Jones v. Mississippi. – 3.1. L’interpretazione restrittiva del precedente nella sentenza Jones v. Mississippi: l’opinione della Corte. – 3.2. La (meno ipocrita) opinione concorrente di Justice Thomas. – 3.3. L’opinione dissenziente del blocco liberal. – 4. Considerazioni critiche. – 4.1. Un overruling non dichiarato? Sul c.d. conservative judicial activism e la svalutazione dello stare decisis costituzionale. – 4.2. Il contradditorio impiego delle (neuro)scienze dello sviluppo ad opera della Corte. In particolare: la problematicità dei c.d. fattori Miller per scopi predittivi. – 4.3. Quali prospettive per garantire la tutela del diritto dei minori autori di omicidio a non subire pene eccessive? I possibili sviluppi del sindacato di proporzionalità as-applied-to the case. – 5. Le incoraggianti tendenze in sede di riforma legislativa: una sanzione crudele e disumana sempre più “unusual”. – 6. Rilievi conclusivi.

Drawing on several stunningly visual fifteenth-century burnings at the stake, I argue that medieval law made conscious use of mnemonic techniques not only to stage, pictorialize, and allegorize the death penalty but to "re-allegorize" the execution of criminals in such a way as to make images of justice unforgettable. Centuries before Michel Foucault ever spoke of the "spectacle of the scaffold," the Northern French city of Metz, for example, brought to the scaffold of an infanticidal mother a wooden doll which they placed in her charred arms along with "a painting of a child around her neck in order to signify the crime that she had committed." This unusual combination of a painting from the visual arts and a prop from the world of theater sheds new light on both the nature of any legal "exhibit" and on the symbolic systems of law itself. Just as one of the canonical functions of poetry is to “make new again” a tired old cliché or a metaphor, so too here do pictorialization, memory, theatricality, and staging reanimate and "re-allegorize" one of the great dead metaphors of the law: to "make an example of someone”—and do so in ways that lend new meaning to the term legal representation. Moreover, in a country like the U.S. where our own vernacular makes room for a term like "burned in effigy" and where the Bush administration emphasized what kind of spectacular dissemination of carnage the Iraqi people need to see in order to believe allegedly justifiable deaths (such as the deaths of the sons of Saddam Hussein), this process is not quite as medieval as one might suspect.

Kidnapping has a troubled history in the law. It was instituted, perpetuated, and expanded almost exclusively after publicized and sensationalized cases where the children of wealthy whites were taken. In the same periods, courts and legislatures largely ignored the cries of minorities, particularly slaves or free blacks, that they too had been kidnapped. In the public hysteria over the relatively few kidnappings of white children, legislatures expanded the offense’s definition to the point that it lost all meaning and became unconstitutionally vague. To remedy this problem, courts created kidnapping merger tests. But these tests have had little consistency or coherency, and troublingly, they have done little to solve the issues of discriminatory enforcement that have plagued kidnapping since its inception. Legislatures should reconsider kidnapping and narrow its definition in order to prevent the arbitrary use of police or prosecutorial discretion. If legislatures refuse to act, then courts should strike down their kidnapping statutes as vague and as violations of double jeopardy and equal protection, as well as a cruel and unusual punishment.

Il testo ripercorre le principali pronunce in materia costituzionale-penale dell'Associate Justice della Corte suprema statunitense Anthony Kennedy (in carica dal 1988 al 2018). Il peculiare ruolo di giudice "ago della bilancia" (Swing Justice) tra conservatori e progressisti ha fatto si che le sue posizioni dinamico-evolutive nell'interpretazione di alcune clausole costituzionali (cruel and unusual punishment clause dell'VIII em. e due process clauses del V e XIV em.) abbiano controllato le decisioni della Corte, irrobustendo lo statuto costituzionale di garanzia in determinati settori del diritto penale sostanziale (sanzionatorio e penitenziario, in particolare). Il suo avvicendamento con il giudice Kavanaugh, e il consolidamento di una maggioranza conservatrice-si conclude-potrebbe rimettere in discussione molti degli approdi raggiunti, nonché i fondamentali principi di dignità, umanità e civiltà ad essi sottesi

Forty-five years ago capital punishment was nearly eliminated in Furman v. Georgia, where the Supreme Court held that the imposition of the death penalty in the cases before it violated the Eighth and Fourteenth Amendments. The Furman Court’s abrogation was short-lived, however. The 1976 decision of Gregg v. Georgia ended the 1967–1976 moratorium that had existed on executions by ruling that the death penalty was not a per se violation of the Eighth Amendment and by upholding newly passed, guided-discretion statutes. As Professors Carol Steiker and Jordan Steiker contend in their book, Courting Death: The Supreme Court and Capital Punishment, the Supreme Court’s subsequent efforts to entrench capital punishment have involved the Court’s “top-down” regulation of states’ application of the death penalty by enforcing federal constitutional law, thereby attempting to establish a middle ground between completely abolishing capital punishment and allowing it to run amok. According to the Steikers, this “experiment” with the death penalty has failed due to the Court’s cumbersome and complex regulatory mechanisms. Courting Death, which builds on the authors’ prior work from their 1995 article, Sober Second Thoughts, as well as their report to the American Law Institute, is a markedly compelling book that captures the complicated story of the death penalty and explores the factors that would both shape and stymie capital punishment’s future. The book includes a detailed history of the death penalty in the United States, its deep connection with southern racial oppression and the factors that prompted national judicial regulation, as well as the shortcomings and issues created by that regulation. This Review of Courting Death offers a different take on two of the Steikers’ major themes: (1) the tension between effecting meaningful reform and legitimatizing legal façades, and (2) the future of the American death penalty. The Review argues several points, one being that the Model Penal Code may have had a larger pre-Furman impact than the Steikers acknowledge. In addition, the Review expands on some key contributors to the death penalty’s decline that may have been obscured by the all-encompassing nature of the Steikers’ regulation argument—for example, the emergence of unforeseeable exogenous variables (similar to the introduction of DNA evidence into criminal trials in the 1980s), as well as pressure points that exist largely outside of the constitutional regulatory framework, such as lethal injection litigation. Despite these influences, the Review finds the Steikers’ prediction – that, when abolition seems right, it will come by way of a “Furman II¬” Supreme Court decision – to readily comport with the death penalty’s trajectory over the last fifty years.