Unusual Punishment Research Articles

A Tale of Two Countries: Constitutionalizing the Mandatory Minimum Sentence

Mandatory minimum sentences have always played a role in Canadian criminal law, and indeed, in the common law of the United Kingdom (UK). Parliament, especially in recent years, drastically expanded the use of mandatory minimum sentencing, calling for higher sentences to be imposed on offenders. This has resulted in a corresponding increase in challenges to the constitutionality of that legislation, specifically alleging that the impugned mandatory sentences infringe an individual’s right to be free from cruel and unusual treatment or punishment. However, these challenges are often based on an imagined offender, or a reasonable hypothetical, rather than the offender before the court. The UK also imposes mandatory minimum sentences, including for firearms offences. Moreover, the mandatory sentences in the UK call for significantly more severe sentences than the sentences that Canadian courts struck down as being cruel and unusual punishment. This article, therefore, looks at the firearms laws of the UK and how they have structured the mandatory minimum sentence for firearm offences. The provisions in the UK mandating minimum sentences for particular offences contain an “escape clause” which permits judges to deviate from the mandatory minimum sentence in “exceptional circumstances.” As a result, judges in the UK must deal with the offender and the facts of the case before them, rather than a reasonable hypothetical scenario. This article argues that Parliament’s incorporation of similar language in Canadian sentencing provisions would have two salutary effects: (1) placing the emphasis on the offender before the court, thereby eliminating the reasonable hypothetical and (2) restoring the role of Parliament in providing guidance on sentences while preserving the role of the judiciary to craft a sentence for each offender which does not violate our constitutional principles.

The Constitutionality of Excluding Duress as a Defence to Murder

The Supreme Court’s decision in R v Ruzic constitutionalized moral involuntariness as a principle of fundamental justice under s. 7 of the Charter. Although the Court used this principle to strike down the imminence and presence requirements in the statutory duress defence, it left open the possibility that the lengthy list of excluded offences might also violate the moral involuntariness principle. The author maintains that various doctrinal and philosophical reasons support interpreting the moral involuntariness principle in a manner that allows duress to be pleaded for the offence of murder. Although it is possible that exclusion of murder could be justified under s. 1 of the Charter, such a finding would inevitably result in a separate challenge to the mandatory minimum punishment provisions for violating the prohibition against cruel and unusual punishment found in s. 12 of the Charter.

O ochronie przed maltretowaniem na podstawie VIII Poprawki do Konstytucji Stanów Zjednoczonych w odniesieniu do art. 3 Europejskiej konwencji praw człowieka

The article focuses on the protection against ill-treatment, as stipulated in the Amendment VIII to the United States Constitution in relation to the similar guarantee provided by Article 3 of the European Convention on Human Rights. Using the case-law of the U.S. courts, the author analyses the meaning of words used in the Amendment VIII („cruel and unusual punishment”) in relation to their counterpart in the Convention („torture” and „inhuman or degrading treatment or punishment”). The use of particular words in the Amendment VIII causes a limitation of the protection against ill-treatment in the U.S. to criminal proceedings. In the subsequent part the author discusses two typical instances of use of the Amendment VIII: disproportional punishment and overstepping limits of criminalisation. The problem of compensation for ill-treatment is also described. The analysis of the aforementioned issues leads to the conclusion that the U.S. legal system offers a lower standard of protection against ill-treatment than its European counterpart.

The Legacy of Atkins v. Virginia and Its Impact on Fuston v. State.

In Atkins v. Virginia, the U.S. Supreme Court ruled that the execution of defendants with an intellectual disability is "cruel and unusual punishment" prohibited by the Eighth Amendment. In a 6 to 3 decision, the Court noted the increasing number of states that blocked the executions of persons with an intellectual disability, reflecting the country's growing consensus that defendants with an intellectual disability are less culpable for their crimes than those without such a disability. Since this milestone decision, several subsequent cases have referenced this opinion. This article reviews other cases in which the execution of persons with an intellectual disability has been called into question, concluding with the Atkins-related appeal in Fuston v. State In that case, the Oklahoma Court of Criminal Appeals considered Oklahoma statutes regarding the bright-line cutoff by which defendants meet criteria for intellectual disability, as applied to the multiple intelligence measures that were administered to Mr. Fuston. The Oklahoma Court of Criminal Appeals determined that Mr. Fuston did not meet the criteria for intellectual disability because of his performance on a single IQ measure administered when he was 12 years old, instead of the totality of his performance on subsequent intelligence measures. Mr. Fuston was also denied 14 other, unrelated propositions on appeal, and the state reaffirmed his death sentence. Implications and recommendations for forensic practice are discussed.

Lack of Adequate Mental Health Treatment for Prisoners Constitutes Cruel and Unusual Punishment

In Disability Rights Montana, Inc. v. Batista , 93 F.3d 1090 (9th Cir. 2019), the U.S. Court of Appeals for the Ninth Circuit reversed the district court's dismissal of a 42 U.S.C. § 1983 claim by Disability Rights Montana, Inc., that alleged the Montana Department of Corrections defendants

Do Prisoners' Lives Matter? Examining the Intersection of Punitive Policies, Racial Disparities and COVID-19 as State Organized Race Crime

Numerous Michigan prisons emerged as national hotspots early in the coronavirus crisis. Once the virus entered the prisons, key actions and inaction by Michigan Department of Corrections and Governor Gretchen Whitmer allowed COVID-19 to flourish unabated, resulting in unnecessary infection and death; a form of cruel and unusual punishment. The callous neglect of the human rights of prisoners during the pandemic is not new, but rather the result of decades of punitive sentencing policies that disproportionately target people of colour. Through a case study examination of early coronavirus outbreaks in Michigan prisons, this paper will consider how Truth in Sentencing legislation, increasingly long prison sentences and declining parole rates, helped set the stage for coronavirus to spread, disproportionately harming Black and elderly prisoners. As the intersecting crises of coronavirus and mass incarceration exemplify, state crime scholars can no longer ignore the state-organized race crime occurring behind prison walls.

The 2020 I·CONnect-Clough Center Global Review of Constitutional Law: Canada Report

In March 2020, Canada entered the pandemic with the only national minority government under a Westminster parliamentary system. As the government is heading past the average length of a federal minority government, which is less than two years, it appears that the pandemic has afforded the country an unusual degree of political stability under these circumstances and is helping the government go on with its business largely unconcerned by the threat of a non-confidence vote. A different sort of ‘business as usual’ could also be observed at the Supreme Court. There, the heightened divisiveness between the justices in recent years seems to have continued in the notable constitutional cases of 2020, three of which are discussed in this report. 9147-0732 Quebec inc examined the applicability to corporations of the guarantee against cruel and unusual punishment, and unfolded into an unexpected lengthy debate on the judicial use of international and comparative legal sources. In Re Genetic Non-Discrimination Act, the Court grappled with the important issue of the scope of federal legislative authority over criminal law, but, unfortunately, it did not come to a majority decision. Probably the most constitutionally significant case of the year was G, in which the Court sought to restate the principles governing the use of remedies in the face of unconstitutional laws.

A Legal Right to Clozapine Therapy for Incarcerated Individuals With Treatment-Resistant Schizophrenia.

People with serious mental illnesses increasingly are being treated in jails and prisons, and during incarceration are afforded a constitutional right to medical care. This right pertains to both general medical and mental illnesses and both acute and chronic conditions. However, incarcerated patients with treatment-resistant schizophrenia (TRS) often are not offered clozapine, the only medication for this debilitating illness approved by the U.S. Food and Drug Administration. In this column, the authors argue that incarcerated individuals with TRS have a statutory and constitutional right to treatment with clozapine.

Challenging Solitary Confinement Through State Constitutions

Eighth Amendment jurisprudence has resulted in limited scrutiny of solitary confinement despite the known harms associated with the practice. Due to the two-part test established by the federal courts and the limitations imposed on challenging prison conditions as a result of the Prison Litigation Reform Act, it can be difficult to establish that solitary confinement is cruel and unusual punishment. State constitutional challenges to solitary confinement are underexplored. Nearly all state constitutions contain an equivalent provision to the Eighth Amendment’s prohibition on cruel and unusual punishment. State courts need not be bound by federal jurisprudence in interpreting the scope of the state provision. Some state constitutions also contain additional provisions such as requiring safe and comfortable prisons, recognizing the principles of reformation and reformation, prohibiting unnecessary rigor, or recognizing individual dignity, which might enable even greater judicial scrutiny of solitary confinement. This Article explores those provisions and the justifications for developing independent state court jurisprudence relating to solitary confinement.

The War on Drugs: Moral Panic and Excessive Sentences

The United States’ War on Drugs has not been pretty. Moral panic has repeatedly driven policy when states and the federal government have regulated drugs. Responding to that panic, legislators have authorized severe sentences for drug offenses. By design, Article III gives federal judges independence, in part, to protect fundamental rights against mob rule. Unfortunately, the Supreme Court has often failed to protect fundamental rights in times of moral panic. For example, it eroded Fourth Amendment protections during the War on Drugs. Similarly, it failed to protect drug offenders from excessive prison sentences during the War on Drugs. This article examines whether it is time for the Supreme Court to rethink its precedent upholding extremely long sentences for drug crimes. In 1983, in Solem v. Helm, the Supreme Court held that the Eighth Amendment’s Cruel and Unusual Punishment Clause applies to terms of imprisonment. There, it found the imposition of a true-life sentence imposed on a repeat offender to be grossly disproportionate to the gravity of the defendant’s offense. Whatever hope Solem created that courts might limit excessive sentences proved to be false. Two Supreme Court cases dealing with drug sentences, bracketing Solem, demonstrate the Court’s unwillingness to override legislatures’ discretion in imposing sentences. In 1982, the Court upheld a 40-year term of imprisonment imposed on an offender who possessed less than nine ounces of marijuana. In 1991, the Court upheld a true-life sentence imposed on an offender who possessed 672 grams of cocaine. The Court’s refusal to curtail such extreme sentences reflects its willingness to accede to the nation’s moral panic over drug usage. Since the height of the War on Drugs, Americans have changed their views about drugs. Significant majorities of Americans favor legalization of marijuana for medical and recreational use. Many Americans favor a wholesale rethinking of drug policy. Despite studies in the 1950s and 1960s, demonstrating beneficial use of drugs like LSD and psilocybin, Congress yielded to moral panic and included them in Schedule I when it enacted the Controlled Substances Act of 1970. Efforts are afoot at the state level to legalize the study of and to decriminalize the use of those and other drugs. This article argues that the Court should rethink its Eighth Amendment caselaw upholding severe drug sentences. The Court’s Eighth Amendment caselaw balances the severity of punishment against the gravity of an offense. In turn, the gravity of an offense turns on its social harm and the culpability of the offender. The Court upheld extreme drug sentences based on the view that drugs were a national scourge. Moral panic led it to overstate the social harm and the culpability of drug offenders. Scientifically based examination of drugs and drug policy should compel the Court to rethink its excessive punishment caselaw because the balance between severity of punishment and the gravity of drug offenses looks different when one has a better understanding of true costs and benefits of drug use.

Money and Punishment, Circa 2020

Money and Punishment, Circa 2020

Legal, Ethical, and Developmental Considerations Concerning Children in Prison Nursery Programs

Prison nurseries are contentious both ethically and legally in the U.S. because of the tension between supporting the child's best interest and putting an innocent child in prison with their incarcerated parent. The majority of the research advocating for prison nurseries focuses primarily on justifying such programs through a utilitarian perspective of maximizing well‐being for society. Research has not focused on justifying prison nurseries as ethical from the perspective of the child. This research expands the purview of the Eighth amendment and argues that separating a child from his or her incarcerated parents represents a cruel and unusual punishment because of the multitude of adverse effects on the child. This paper builds off of the existing utilitarian narrative, while also advancing the argument that prison nurseries are ethical because of children's inherent and fundamental rights to have a relationship with his or her parent, prison nurseries limitation of the negative effects of parental incarceration and child because of society's duty to protect the best interest of the child. This paper argues that separating children from their incarcerated parents is unethical and that prison nurseries are just based on a mixture of a utilitarian framework and the inherent and fundamental rights of the child.

Cruel and Unusual Confinement on Virginia's Death Row

In Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019), Virginia death row inmates claimed that the conditions of their confinement on death row constituted cruel and unusual punishment. The district court granted summary judgment to the plaintiffs. The U.S. Court of Appeals for the Fourth Circuit

Review: Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism, by Marc Morjé Howard

Review: Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism, by Marc Morjé Howard

Cruel and Unusual Punishment: Donald E. Klingner

The United States puts more people behind bars than any other country. Viewed as an example of “American exceptionalism,” this means either that Americans are the worst people in the world or that ...

Cruel and Unusual Punishment in the USA

It’s coming to America first. The cradle of the best and the worst. It’s here they got the range, and the machinery for change, and it’s here they got the spiritual thirst.It’s here the family’s br...

The Unusual Cruelty of Nursing Homes Behind Bars

The elderly prison population continues to rise along with higher rates of dementia behind bars. To maintain the detention of this elderly population, federal and state prisons are creating long-term care units, which in turn carry a heavy financial burden. Prisons are thus gearing up to become nursing homes, but without the proper trained staff and adequate financial support. The costs both to taxpayers and to human dignity are only now becoming clear. This article squarely addresses the second dimension of this carceral practice, that is the cost to human dignity. Namely, it sets out why indefinitely incarcerating someone with dementia or other neurocognitive disorders violates the Eighth Amendment of the United States Constitution’s prohibition on cruel and unusual punishment. This conclusion derives from the confluence of two lines of U.S. Supreme Court precedent. First, in Madison v. Alabama, the Court recently held that executing someone (in Madison’s case someone with dementia) who cannot rationally understand their sentence amounts to cruel and unusual punishment. Second, in line with Miller v. Alabama, which puts life without parole (LWOP) sentences in the same class as death sentences due to their irrevocability, this holding should be extended to LWOP sentences. Put another way, this article explains why being condemned to life is equivalent to death for someone whose neurodegenerative disease is so severe that they cannot rationally understand their punishment.

Kidnapping Reconsidered: Courts' Merger Tests Do Not Remedy the Inequities Which Developed from Kidnapping's Sensationalized and Racialized History

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 kidnapping statutes as vague and as violations of double jeopardy and equal protection, as well as a cruel and unusual punishment.

A Divinity That Shapes Our Ends

The Commonwealth of Pennsylvania is in the middle of a tremendous reform of criminal justice policy: for the first time in forty years, there is momentum behind commutations of life sentences. People who have served decades behind prison walls are being granted clemency and released back into society. Simultaneously, a new interpretation of the U.S. Constitution’s protections against cruel and unusual punishment is allowing hundreds of juvenile “lifers” to be resentenced and often released. We argue that it is in the state’s interest to capitalize on these lifers’ hard-won wisdom and experience. Years of isolation, deprivation, brokenness, and self-reflection—while living outside the law and while incarcerated—have put these citizens in a unique position to understand and intervene in cycles of violence that still afflict our communities. For that matter, those rehabilitated lifers who remain in prison also have important contributions to make. This article offers a blueprint for a role the formerly or currently incarcerated can play in decarceration and public safety by helping to create and operate a reintegration hub in Pittsburgh.

Abstract Clauses and the Descriptive Limits of Originalism: Embracing Legal Realism

There seems to be an intuitive distinction between the concrete and abstract clauses of the U.S. Constitution: If concrete clauses–such as the Article II’s requirement that the U.S. President be at least thirty-five years of age–appear fairly uncontroversial as to their meaning and reference, abstract clauses–such as the Eighth Amendment’s prohibition of “cruel and unusual punishments”–show a more vague and debatable content. In the Article, I argue that the peculiar modality of legal change abstract clauses undergo thwarts a complete understanding of the U.S. Constitution in originalist terms. I take up Dworkin’s “moral reading” originalism and Bork’s “orthodox” one as two archetypal reconstructions of the framers’ intent in regard to abstract clauses. Despite substantial differences, both a Borkean and Dworkinian originalism share a commitment to a formal understanding of abstract clauses. For different reasons, however, they both fail in providing a sound account of abstract clauses’ change over time: If Dworkin’s account seems at variance with the rationale of a rigid constitution, a Borkean conception of abstract clauses, although interpretatively sound, appears at odds with reality. From the failure of the two reconstructions, I deduce several conclusions. First, that the best way to make sense of the abstract clauses’ change is to give up any formalist account thereof: Abstract clauses give rise to a plain instance of informal legal change, the reason for that possibly being that formalism is in competition with other human values–namely, the desirability of the outcomes. In that abstract clauses do not comport with formalism, an originalist account thereof is not descriptively accurate. But if abstract clauses do not abide by formal legal reasoning, the lawyer might wonder how to deal with them–especially, when faced in court. I contend that philosophy of language could hardly be of any help, despite the fact that abstract clauses recall the vagaries in reference “indexicals” bring about in analytic philosophy. Conversely, the employment of disciplines that study human behavior in different normative domains might prove decisive. If these reflections wound up agreeable, the validity of the insights of American legal realism would be reaffirmed. On the one hand, constitutional law is, to some extent, “legally indeterminate”; on the other, empirical social sciences–not armchair philosophy–are our best ally in addressing the indeterminacy.