From Volume 89, Number 1 (November 2015)
The Supreme Court’s conceptualization of the Eighth Amendment over the past decade has focused on narrow exceptions to the ability of the states to punish criminal offenders, excising particular punishments based on characteristics of the offender or crime. What is missing, however, is a set of broader guiding principles delineating the line between acceptable and impermissible punishments. The Court itself, in Kennedy v. Louisiana, acknowledged as much, describing the case law as “still in search of a unifying principle.” In light of this vacuum, this Article proposes a new approach to the application of the Eighth Amendment.
The absence of regulation of excessive and disproportionate punishments by state legislatures over the past two decades has resulted in the largest prison population in the history of the human race. Instead of merely being a tool that removes a few types of offenses and offenders from the purview of state legislatures, the Eighth Amendment should also serve as a more robust guide to shape state and federal penal practices.
To that end, this Article argues for the development of a series of Eighth Amendment presumptions—guiding principles that would govern the punishment practices of legislatures without excluding them from the conversation. Currently, the Eighth Amendment serves to identify the constitutional “exceptions” to the “rules” promulgated by legislatures. This Article’s approach would reverse that status quo, with the Court articulating general rules and legislatures then developing (and justifying through careful study) the exceptions to those rules. Indeed, a careful examination of the Court’s Eighth Amendment cases suggests that this “presumptive” sentiment is already implicit in much of the thinking of the Court.