Unusual Punishment Research Articles

From Gross Disproportionality to Human Dignity: Redefining Section 12 in the Context of Mandatory Minimum Sentences

In this short paper, we contend that human dignity must remain at the heart of the section 12 analysis, and should be strengthened in future cases that will be tackling the remaining mandatory minimums. In so doing, we critically examine the Supreme Court’s recent development of the section 12 framework, particularly in light of the 2023 mandatory minimum jurisprudence, with a specific emphasis on the concept of human dignity. The analysis centers on the role of reasonable hypotheticals in advancing the primary objective of section 12 — safeguarding human dignity — by scrutinizing the three pivotal components of the gross disproportionality analysis. We suggest that the section 12 analysis focuses on proportionality and human dignity rather than the current “gross disproportionality” standard in assessing what constitutes cruel and unusual punishment. These suggestions are underpinned by an approach that considers proportionality a principle rooted in human dignity. Nevertheless, proportionality has its limits and therefore section 12 should be complemented by an approach that takes into account prison conditions and the effects of imprisonment on marginalized groups, which are rooted in inequalities. Finally, the analysis questions the third component of the gross disproportionality analysis, which calls for deference to the legislature in order to prioritize objectives that instrumentalize the individual and are contrary to human dignity. These objectives are problematic, we suggest, and best addressed within section 1 of the Charter.

A Promising Piece of the Puzzle: Human Dignity and the Role of Section 1 of the Charter

In this brief piece, I want to take up Major’s invitation to think about the “puzzle” and the “promise” of human dignity, but from a different perspective. In particular, I want to consider whether any negative implications of adopting a conception of human dignity that encompasses the elderly offender who is sentenced to die in prison can be rationalized within the broader constitutional framework. My suggestion is that the tension relating to the “young” and “elderly” offenders may be better addressed by focusing on the role of section 1 of the Charter. While that provision received negligible mention in Bissonnette, it may be used to justify sentencing elderly offenders to effectively die in prison for heinous crimes like murder because any other approach would fail to adequately deter others, who are similarly situated, from committing such crimes. As I explain, this framework falls back on early recognition by the Supreme Court that utilitarian arguments for increasing punishment are properly considered as justifications, under section 1, for imposing what are otherwise “cruel and unusual treatments or punishments.”

“Because we’re dying in here”: A study of environmental vulnerability and climate risks in incarceration infrastructure

This article draws on the stories of formerly incarcerated people to examine the ways in which the physical and social infrastructures of carceral facilities increase incarcerated people's vulnerability to environmental hazards exacerbated by climate change. We present qualitative data from interviews and focus groups with people who have been incarcerated in prisons and/or jails in Colorado regarding their experiences with incarceration infrastructure, amplifying the voices of formerly incarcerated people to identify vulnerabilities which have been deliberately hidden by carceral social and institutional processes, and adding them to the academic dialogue around incarceration and climate change. By providing testimony on the ways in which incarceration infrastructure—how they are designed, built, and maintained—amplify environmental harm, we identify how incarceration infrastructures create environmental vulnerability along axes of temperature, air quality, and water supply even before incarcerated people are exposed to climate hazards. Then, we illustrate ways incarcerated people encounter limits to their agency to mitigate this vulnerability, suggesting the need for structural change. Finally, we provide evidence that climate-related extreme temperatures, wildfires, and flood events experienced by our participants exploited the axes of vulnerability laid out above, affecting the majority (65%) of our 35 study participants. Overall, we argue current carceral infrastructure creates material realities that regularly cross the threshold of cruel and unusual punishment, and our argument supports decarceration as a necessary public policy intervention for robust, just, and humane climate resilience.

Sleep Is a Human Right, and Its Deprivation Is Torture.

Sleep is integral to human health and well-being; it is recognized as a fundamental right by international bodies. Nevertheless, deliberate sleep deprivation is frequently employed as a form of torture, violating the right to health. Legal cases such as LeMaire v Maass, Ireland v UK, and Huertas v Secretary Pennsylvania Dept of Corrections illustrate the varying interpretations of sleep deprivation as torture or cruel and unusual punishment. Ambiguity in domestic and international legal definitions underscores the need for collaboration between health and legal professionals. Clinicians can offer expertise about physiological and psychological consequences of sleep deprivation, which informs what legally counts as torture. This commentary explores the intersection of sleep deprivation, human rights, and the role of medical professionals in addressing, identifying, and preventing sleep deprivation as a means of coercion and abuse.

Cruel and Unusual Punishments as Legislative Gross Negligence

Cruel and Unusual Punishments as Legislative Gross Negligence

(339) Malpractice Litigation Related to Management of Varicocele: A Legal Database Review

Abstract Introduction Varicocele may be associated with pain and subfertility which comes with a range of treatment options, from observation to pain management to surgical correction. Urologists are defendants in more malpractice suits than the average physician and litigation may be a concern when determining their management strategy. Objective The purpose of the study was to investigate the factors associated with malpractice litigation surrounding the management of varicoceles. Methods Using the Casetext online legal database, we searched for cases with the query “(Malpractice and (Varicocele or Varicocelectomy)).” Cases were only included if they were related to varicocele management. We documented the following variables: date of case, whether the plaintiff was incarcerated, alleged breaches of duty, alleged damages, and legal outcome. Data were analyzed using descriptive characteristics. Results Our database search yielded a total of 26 cases. Of these, 10 were related to the management of varicocele and included in our analysis. The cases occurred between the years 1931 and 2022, with 60% (6/10) having happened since 2013. 60% (6/10) of the cases involved an inmate as the plaintiff. The alleged breaches of duty included violation of the 8th Amendment (50%, 5/10), with all those cases involving inmates; negligence (40%, 4/10); and disability discrimination (10%, 1/10). The most common alleged damages included pain (80%, 8/10), infertility (30%, 3/10), and loss of testicle (30%, 3/10). A urologist was included among the defendants in half the cases. Other defendants included prison wardens, healthcare institutions, prison complexes, and other physicians. The verdict in 90% (9/10) of these cases favored the defendant. The lone case which favored the plaintiff occurred in 1951, included a urologist in the defense, and involved a retained drain inside the scrotum which led to infection and ultimately orchiectomy. 100% (6/6) of the cases involving inmates favored the defendant. Conclusions There have been relatively few legal cases on varicoceles, and most of them involved inmates. This may reflect differences in approach or treatment of urologic issues in inmates amongst medical care facilities. Violation of the 8th Amendment, which prohibits cruel and unusual punishment, was a common breach of duty alleged by incarcerated plaintiffs. However, all those cases favored the defense, with the explanation of these decisions often stating that the act of treating the varicocele, even if not successful, was proof that sufficient efforts were made. Most of the alleged damages involved pain because of insufficient or negligent treatment. Infertility as well as loss of testicle were less common claims. A major limitation of this study is that it does not capture cases which settled prior to trial. Nonetheless, providers should be reassured that malpractice claims regarding varicoceles are uncommon and that most cases are ruled in favor of the defense. Disclosure No.

Abortion Access for Incarcerated People Post-Dobbs

Dobbs v. Jackson Women’s Health Organization has fundamentally altered the legal landscape regarding abortion access. Though abortion rights for all people across the United States have now been eliminated or are in jeopardy, incarcerated people are a particularly vulnerable group, given the way carceral institutions restrict autonomy and the drastic health implications of an unwanted pregnancy while confined. Before Dobbs, detained people retained the constitutional right to an elective abortion while incarcerated. To remedy violations of this right, women brought claims under the Fourteenth Amendment and the Eighth Amendment. In a post-Roe world, however, incarcerated folks denied abortion access are no longer able to seek legal recourse under the Fourteenth Amendment. To challenge court policies that restrict abortion access, incarcerated plaintiffs must rely solely on an Eighth Amendment claim. This note explores the ways that Dobbs both strengthens and exacerbates the need for an Eighth Amendment claim. I argue that depriving someone of an elective abortion procedure violates the Eighth Amendment’s protection against cruel and unusual punishment, irrespective of whether abortion is constitutionally protected as an implied fundamental right. I also acknowledge the inherent limitations of pursuing an Eighth Amendment claim in this realm and discuss possible ways forward. Ultimately, by illustrating how offensive to human dignity it is to deny people elective abortions, a robust Eighth Amendment claim provides an avenue to rebuild constitutional protections, both for incarcerated women and women everywhere.

The Eighth Amendment's Paper Tiger: Pain, Executions, and the Cruel and Unusual Punishments Clause

The Eighth Amendment's Paper Tiger: Pain, Executions, and the Cruel and Unusual Punishments Clause

Technically Not Life: HowDe FactoLife Sentences Condemn Juveniles to Die in Prison

The U.S. Supreme Court's decision in Jones v. Mississippi reignited interest in the constitutionality of lengthy prison sentences for juveniles. A substantial proportion of juveniles convicted of homicide and nonhomicide are currently serving “virtual life” or “ de facto life” sentences. De facto life sentences are lengthy sentences that may be considered the equivalent of a life sentence. This article investigates how states’ statutory schemes and appellate court decisions have allowed for the use of de facto life sentences for juveniles convicted of homicide as well as nonhomicide offenses. By employing content analytical techniques, this article identifies the variation in how de facto life sentences are defined and applied across the states. Nearly every state imposes some type of de facto life sentence on juveniles, suggesting that the time is ripe for courts to determine whether these “virtual life” terms adhere to the Court's Eighth Amendment's prohibition against cruel and unusual punishment.

Pregnant Prisoners in Shackles

Pregnant Prisoners in Shackles

Gender-Affirming Care, Incarceration, and the Eighth Amendment.

As outlined in Estelle v Gamble (1976), the 8th Amendment to the US Constitution requires that states provide adequate care for people who are incarcerated-but what constitutes "acceptable" care under professional guidelines is frequently at odds with the standard of care used by clinicians outside of carceral facilities. Outright denial of standard care runs afoul of the Constitutional prohibition on cruel and unusual punishment. As the evidence base that undergirds standards of care in transgender health has evolved, people who are incarcerated have sued to expand access to mental health and general health care, including hormonal and surgical interventions. Carceral institutions must transition from lay administrative to licensed professional oversight of patient-centered, gender-affirming care.

Indeterminate Sentences and Section 12 of the Charter

Indeterminate sentences are uniquely reserved for two classes of offenders, dangerous offenders and individuals designated not criminally responsible on account of mental disorder. These sentences effectively keep individuals in constant jeopardy before a Parole or Review Board. This paper reviews the constitutionality of these regulatory schemes under Section 12 of the Charter; its prohibition against “cruel and unusual treatment or punishment.” In this paper, I examine the legislative and jurisprudential development of the regimes, and their impact on individuals given these designations. The paper argues that the regimes result in a gross and systemic violation of the rights of individuals who have been given indeterminate sentences. It finally argues that there is also a moral imperative to reject any indefinite detention that is not subject to judicial review. This paper discusses and seeks to bring attention to the unfair and unconstitutional treatment of two vulnerable groups in our judicial system. Through greater visibility, the author hopes to put pressure on our legal system and the government to review these types of sentences and their true impact on individual rights and freedoms.

The “Cruel and Unusual” Legacy of the Star Chamber

Supreme Court justices have read the “cruel and unusual pun-ishments” clause as prohibiting torturous methods of punishment, prohibiting grossly disproportionate punishments, and/or prohibit-ing arbitrary discretion over the infliction of the death penalty. All three accounts face familiar and formidable historical challenges. There is general agreement that the founders took the clause from Article 10 of the English Bill of Rights, and that Article 10 repudi-ated the sentence passed on Titus Oates by the infamous Judge Jef-freys in 1685. Yet, although the methods of punishment inflicted on Oates—two days of horrific flogging, recurring stands in the pillory, and life imprisonment—were horrific, they were not capi-tal, were not unusual in 1685, and were all included in the Crimes Act passed by the First U.S. Congress in 1790. None of the major interpretations of “cruel and unusual punishment” accounts for this puzzling aspect of the aftermath of the Oates case. Nor do they ex-plain the adoption of the Eighth Amendment, which primarily re-sponded to Anti-Federalist fears that Congress might adopt tor-turous methods of capital punishment. Prevailing theories fail to account for the disconnect between what the English provision did and what the American provision meant to do. This Article argues that prevailing accounts are breathtakingly incomplete. The full story begins not with the flogging of Titus Oates in 1685, but with the abolition of the Star Chamber in 1641. Sen-tencing Oates, Jeffreys claimed for King’s Bench all the Star Chamber’s lawless power to determine punishments less than capi-tal. The English Article 10 repudiated this attempt to resurrect the Star Chamber. Then Congress, responding to Anti-Federalist fears about Congress adopting European-style executions by torture, freighted the “cruel and unusual” language with two additional meanings. The clause now applied to capital, as well as noncapital, penalties. It now also restricted legislative as well as judicial discre-tion. Synthesizing the English original and the later concerns of the American founders, the Eighth Amendment forbids lawless dis-cretion in both capital and noncapital cases, and torturous methods of punishment. Proportionality was left to the legislature, subject to the powerful check provided by a constitutional requirement of even-handed enforcement. At a time when the Court is reconsidering longstanding prece-dents from originalist premises, this account is not only a major advance in the academic literature. It may also be, practically speaking, a matter of life and death.

Crime and punishment in Saudi Arabia: Lashing, imprisonment, and other unusual punishments

ObjectiveIn this paper, we examine the antecedents of the sanctions of lashing and imprisonment for juveniles in Saudi Arabia. Participants and settingThe current study examined 437 court cases and files across several court systems in Saudi Arabia to determine the extent to which justice-involved youth are punished. The data were drawn from hundreds of court files and records received from several court systems in Saudi Arabia spanning 2010 to 2015. MethodsWe tested several predictor variables on sentence type, number of lashes, and prison length. We employed binary logistic regression to examine sentence type, while we employed negative binomial analysis to examine the second and third dependent variables, number of lashes and length of prison sentence, respectively. ResultsWe found that juveniles processed in juvenile court were more likely to receive more lenient sentences than juveniles tried in the general court system. In addition, older juveniles received harsher sentences (flogging and imprisonment) than younger juveniles (flogging or imprisonment), those who committed multiple offenses received more lashes than those who committed a single offense, and those who had both juvenile and adult criminal associates received more lashes than those who had only juvenile criminal associates. Moreover, the number of presiding judges influenced the severity of punishment: justice-involved youth who were tried by a single judge received fewer lashes than justice-involved youth who were tried by three or more judges. Lastly, justice-involved youth tried by a lone judge were less likely to be sentenced to a longer prison term than those tried by three or more judges. However, justice-involved youth tried by two judges received an even longer prison term than those tried by three or more judges. ConclusionAbout one-half of all rulings examined in the current study were presided over by a lone judge. While punishments imposed by lone judges were not as severe as those imposed by two judges or three or more judges, Saudi judges wield tremendous power over their fellow citizens, more so because there are no jury trials in the Kingdom. We therefore recommend that judicial training emphasize a “do no harm” principle in sentencing. Because a two-judge panel generally imposes a harsher sentence than a panel with three or more judges, we recommend an extensive examination of the country's prior judicial rulings presided over by two judges to understand why they are more likely to issue harsher sentences than lone judges or three- or four-judge panels. The findings would lead to the development of sentencing guidelines to curb arbitrary sentencing and reverse the generally unpredictable sentence lengths imposed on justice-involved youth.

MCCLESKEY ACCUSED Justice Powell and The Moral Price of Institutional Pride

<i>MCCLESKEY</i> ACCUSED Justice Powell and The Moral Price of Institutional Pride

THE MANY LIVES OF CONSTANCE BAKER MOTLEY

THE MANY LIVES OF CONSTANCE BAKER MOTLEY

Prisoners’ Rights, Resistance, and the Law in Postwar Texas Prisons

Prisoners’ Rights, Resistance, and the Law in Postwar Texas Prisons

Author Response

Author Response

Prison Policy from the “Bottom Up”

Prison Policy from the “Bottom Up”

Cruel and Unusual Punishment: The Eighth Amendment and ICE Detainees in the COVID-19 Crisis

Cruel and Unusual Punishment: The Eighth Amendment and ICE Detainees in the COVID-19 Crisis