The Eighth Amendment and Its Future in a New Age of Punishment Edited by Meghan J

Cambridge University Press 978-1-108-49857-9 — The Eighth Amendment and Its Future in a New Age of Punishment Edited by Meghan J. Ryan , William W. Berry III Frontmatter More Information

the eighth amendment and its future in a new age of punishment

This book provides a theoretical and practical exploration of the constitutional bar against cruel and unusual punishments, excessive bail, and excessive ﬁnes. It explores the history of this prohibition, the current legal doctrine, and future applications of the Eighth Amendment. With contributions from the leading academics and experts on the Eighth Amendment and the wide range of punishments and criminal justice actors it touches, this volume addresses constitutional theory, legal history, federalism, constitutional values, the applicable legal doctrine, punishment theory, prison conditions, bail, ﬁnes, the death penalty, juvenile life without parole, execution methods, prosecutorial misconduct, race discrimination, and law and science.

meghan j. ryan is the Associate Dean for Research and Altshuler Distinguished Teaching Professor at Southern Methodist University (SMU) Dedman School of Law in Dallas, TX. An award-winning scholar and teacher, her work spans the areas of criminal law and procedure, law and science, and torts. Her writing focuses primarily on the U.S. Supreme Court's Eighth Amendment jurisprudence, wrongful convictions and sentencing, and the roles of science and technology in the law. She is also engaged in interdisciplinary projects such as collaborating with engineers and statisticians to ﬁnd a scientiﬁc basis for various forms of forensic evidence. william w. berry iii is Professor of Law and Montague Professor at the University of Mississippi School of Law, where he teaches and writes about criminal law, focusing on issues related to criminal sentencing and the death penalty. He has published extensively on the Eighth Amendment, including articles in the Texas Law Review, Southern California Law Review, UCLA Law Review, and Washington University Law Review, among others. He is also co-author of several books, including Criminal Law (9th ed., 2020).

© in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-49857-9 — The Eighth Amendment and Its Future in a New Age of Punishment Edited by Meghan J. Ryan , William W. Berry III Frontmatter More Information

The Eighth Amendment and Its Future in a New Age of Punishment

Edited by MEGHAN J. RYAN Southern Methodist University, Dedman School of Law

WILLIAM W. BERRY III University of Mississippi School of Law

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www.cambridge.org Information on this title: www.cambridge.org/9781108498579 doi: 10.1017/9781108653732 © Cambridge University Press 2020 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2020 Printed in the United Kingdom by TJ International Ltd, Padstow Cornwall A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data names: Ryan, Meghan J, editor. | Berry, William W., III, 1974– editor. title: The Eighth Amendment and its future in a new age of punishment / edited by Meghan J. Ryan, Southern Methodist University, Texas [and] William W. Berry III, University of Mississippi description: Cambridge, United Kingdom ; New York, NY, USA : Cambridge University Press, 2020.| Includes bibliographical references and index. identiﬁers: lccn 2020009503 (print) | lccn 2020009504 (ebook) | isbn 9781108498579 (hardback) | isbn 9781108724210 (paperback) | isbn 9781108653732 (epub) subjects: lcsh: United States. Constitution. 8th Amendment. | Punishment–United States. | Criminal justice, Administration of–United States. | Law reform–United States. classiﬁcation: lcc kf4558 8th .e374 2020 (print) | lcc kf4558 8th (ebook) | ddc 345.73/0773–dc23 LC record available at https://lccn.loc.gov/2020009503 LC ebook record available at https://lccn.loc.gov/2020009504 isbn 978-1-108-49857-9 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

To Tré and Jack – MJR To Stephanie, Eleanor, William, and Caroline – WWB

Contents

List of Contributors page ix Preface xiii

Introduction 1

part i a history of the eighth amendment

1 From the Founding to the Present: An Overview of Legal Thought and the Eighth Amendment’s Evolution 11 John D. Bessler

2 Back to the Future: Originalism and the Eighth Amendment 28 John F. Stinneford

3 Eighth Amendment Federalism 42 Michael J. Zydney Mannheimer

part ii the landscape of eighth amendment doctrine

4 Eighth Amendment Values 61 William W. Berry III and Meghan J. Ryan

5 The Power, Problems, and Potential of “Evolving Standards of Decency” 76 Corinna Barrett Lain

6 Judicial Hesitancy and Majoritarianism 89 William W. Berry III

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7 Punishment Purposes and Eighth Amendment Disproportionality 101 Richard S. Frase

8 The Administrative Law of the Eighth (and Sixth) Amendment 118 Richard A. Bierschbach

9 Evading the Eighth Amendment: Prison Conditions and the Courts 133 Sharon Dolovich

10 Excessive Deference — The Eighth Amendment Bail Clause 161 Samuel R. Wiseman

11 Nor Excessive Fines Imposed 171 Beth A. Colgan

part iii the future of the eighth amendment

12 Judicial Abolition of the American Death Penalty under the Eighth Amendment: The Most Likely Path 189 Carol Steiker and Jordan Steiker

13 Back to the Future with Execution Methods 212 Deborah W. Denno

14 Evolving Standards of Lethal Injection 234 Eric Berger

15 The Future of Juvenile Life-Without-Parole Sentences 254 Cara H. Drinan

16 Metrics of Mayhem: Quantifying Capriciousness in Capital Cases 266 Sherod Thaxton

17 Race Discrimination in Punishment 283 Jeffrey L. Kirchmeier

18 Science and the Eighth Amendment 299 Meghan J. Ryan

Index 317

Contributors

William W. Berry III is Professor of Law and Montague Professor at the University of Mississippi School of Law, where he teaches and writes about criminal law, focusing on issues related to criminal sentencing and the death penalty. He has published extensively on the Eighth Amendment, including articles in the Texas Law Review, Southern California Law Review, UCLA Law Review, and Washington University Law Review, among others. He is also coauthor of several books, including Criminal Law (9th ed.) by Carolina Academic Press. Eric Berger is the Earl Dunlap Distinguished Professor of Law and Associate Dean for Faculty at the University of Nebraska College of Law, where he teaches and researches in the area of Constitutional Law. His article Individual Rights, Judicial Deference, and Administrative Law Norms in Constitutional Decision Making, 91 B.U. L. Rev. 2029 (2011) was named the 2011 winner of the American Constitution Society’s Richard D. Cudahy Writing Competition on Regulatory and Administrative Law. Professor Berger has also written extensively about lethal injection litigation. John D. Bessler is Associate Professor at the University of Baltimore School of Law and Adjunct Professor at the Georgetown University Law Center. He has also taught at the University of Minnesota Law School, The George Washington University Law School, the Rutgers School of Law, and the University of Aberdeen in Scotland. He has written multiple books on capital punishment, including Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment (2012) and The Death Penalty as Torture: From the Dark Ages to Abolition (2017). Richard A. Bierschbach is Dean and Professor of Law at Wayne State University Law School. He previously taught at Cardozo Law School in New York City, where he also served as Vice Dean, and, before entering academia, was a law clerk to United States Supreme Court Justice Sandra Day O’Connor. His teaching and research interests are in criminal law and procedure, administrative law, and

x List of Contributors

corporations (especially corporate, white collar, and regulatory crimes). His scholarship explores how the criminal justice system’s institutional and procedural structure intersects with its substantive and regulatory aims. Dean Bierschbach’s work has appeared in numerous leading law journals, including the Yale Law Journal, Mich- igan Law Review, Virginia Law Review, University of Pennsylvania Law Review, Northwestern University Law Review, and Georgetown Law Journal. Beth A. Colgan is Professor of Law at the UCLA School of Law. She is one of the country’s leading experts on constitutional and policy issues related to the use of economic sanctions as punishment and particularly on the Eighth Amendment’s Excessive Fines Clause. In addition to her interest in the intersection between criminal legal systems and poverty, Professor Colgan’s research and teaching also investigate the treatment of juveniles in juvenile and adult criminal legal systems and indigent defense representation. Deborah W. Denno is Arthur A. McGivney Professor of Law and Founding Director of the Neuroscience and Law Center at Fordham Law School. Seven of Professor Denno’s articles have been cited by the United States Supreme Court, some multiple times and/or in different cases, and primarily in conjunction with her scholarship on execution methods. In 2016, the Fordham Student Bar Association named Professor Denno Teacher of the Year. Her forthcoming book, Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively (Oxford University Press), focuses on her study of how criminal cases use neuroscientiﬁc evidence. Sharon Dolovich is Professor of Law at the UCLA School of Law, and Faculty Director of the UCLA Prison Law and Policy Program. Her scholarship focuses on the law, policy, and theory of prisons and punishment, with particular attention to prison conditions and the legal and moral implications of the way the state treats people in custody. Dolovich has been a visiting professor at New York University, Harvard University, and Georgetown University, and a fellow at the Radcliffe Institute for Advanced Study. She has written extensively on the Eighth Amendment and on prison law more generally and has conducted award-winning ethnographic research in the Los Angeles County Jail. Her book, The New Criminal Justice Thinking (NYU Press: coedited with Alexandra Natapoff ) appeared in paperback in December 2018. Cara H. Drinan is Professor of Law at The Catholic University of America, Colum- bus School of Law, in Washington, DC. She teaches criminal law, criminal procedure, and seminars related to criminal justice reform and constitutional law. Professor Drinan's research focuses on the ways in which the American criminal justice system is broken and possible avenues to reform at the state and federal levels. She is especially interested in the vulnerable group of minors in the criminal justice system. Richard S. Frase is Benjamin N. Berger Professor of Criminal Law at the University of Minnesota Law School and Co-Director of the Robina Institute of Criminal Law and Criminal Justice. His principal teaching and research interests are Minnesota

List of Contributors xi

and other state sentencing guidelines, punishment and proportionality theories, comparative criminal procedure, and comparative sentencing between the United States and other nations and within the United States (between states). His most recent books are Paying for the Past: The Case against Prior Record Sentence Enhancements (Oxford University Press, 2019), and Just Sentencing: Principles and Procedures for a Workable System (Oxford University Press, 2013). Jeffrey L. Kirchmeier is Professor of Law at City University of New York (CUNY) School of Law and the author of Imprisoned by the Past: Warren McCleskey, Race, and the American Death Penalty, which chronicles the death penalty’s history and its connection with race. His other writings include articles about criminal procedure, constitutional law, and the death penalty. Before joining CUNY, he taught at Tulane School of Law, worked as an associate at Arnold & Porter, and was a staff attorney at the Arizona Capital Representation Project. He received his B.A. and J.D. degrees from Case Western Reserve University. Corinna Barrett Lain is S. D. Roberts & Sandra Moore Professor of Law at the University of Richmond. A constitutional law scholar, Professor Lain writes about the influence of extralegal norms on Supreme Court decision making, with a particular focus on the field of capital punishment. Her scholarship, which often uses the lens of legal history, has appeared in the Stanford Law Review, University of Pennsylvania Law Review, Duke Law Journal, UCLA Law Review, and Georgetown Law Journal, among other venues. Professor Lain is an elected member of the American Law Institute and has received the University of Richmond’s Distin- guished Educator Award in 2006. She is a former prosecutor and an Army veteran. Michael Mannheimer is a Professor of Law at Northern Kentucky University, Salmon P. Chase College of Law, where he teaches Criminal Law, Criminal Procedure, and related courses. His scholarship has appeared or is forthcoming in such journals as the Columbia Law Review, Texas Law Review, Notre Dame Law Review, Emory Law Journal, Indiana Law Journal, and Iowa Law Review. He was recipient of the 2010 AALS Criminal Justice Section Junior Scholar Paper Award. His current research focuses on the under-appreciated federalism component of the Bill of Rights. He received his J. D. from Columbia Law School. Meghan J. Ryan is the Associate Dean for Research and Altshuler Distinguished Teaching Professor at Southern Methodist University Dedman School of Law in Dallas, Texas. An award-winning scholar and teacher, her work spans the areas of criminal law and procedure, law and science, and torts. Many of her publications focus on the U.S. Supreme Court’s Eighth Amendment jurisprudence, wrongful convictions and sentencing, and the roles of science and technology in the law. Carol Steiker is Henry J. Friendly Professor of Law and Director of the Criminal Justice Policy Program at Harvard Law School. She specializes in the broad field of criminal justice, where her work ranges from substantive criminal law to criminal

xii List of Contributors

procedure to institutional design, with a special focus on capital punishment. Her most recent books are Comparative Capital Punishment Law, coedited with her brother Jordan Steiker (Edward Elgar, 2019)andCourting Death: The Supreme Court and Capital Punishment, coauthored with Jordan Steiker (The Belknap Press of Harvard University Press, 2016). In addition to her scholarly work, Professor Steiker has done pro bono work for indigent criminal defendants, including death penalty cases in the United States Supreme Court. She also has served as a consultant and expert witness on issues of criminal justice for nonprofit organiza- tions and has testified before the United States Congress and state legislatures. Jordan Steiker is Judge Robert M. Parker Chair in Law and Director of the Capital Punishment Center at the University of Texas School of Law. His work focuses primarily on the administration of capital punishment in the United States (including Courting Death: The Supreme Court and Capital Punishment, coauthored with his sister Carol Steiker). With her, he produced the report that led the American Law Institute to withdraw the death penalty provision from the Model Penal Code. John F. Stinneford is Professor of Law at the University of Florida Levin College of Law. Professor Stinneford teaches and writes about criminal law, criminal procedure, constitutional law, and legal ethics. The primary focus of his scholarship has been the original meaning of the Cruel and Unusual Punishments Clause. His work has been cited by the United States Supreme Court, several state supreme courts and federal courts of appeal, and numerous scholars. Sherod Thaxton is Professor of Law at the UCLA School of Law. He also holds courtesy appointments in the Department of African American Studies and the Department of Sociology. Prior to joining the law faculty, he served as a staff attorney in the Capital Habeas Unit of the Office of the Federal Defender for the Eastern District of California. Before law school, he was the principal investigator of the Death Penalty Tracking Project for the Office of the Multi-County Public Defender in Atlanta, Georgia. His primary research and teaching interests are in the areas of criminal law and procedure, capital punishment, habeas corpus, the sociology of law, and empirical legal studies. Samuel R. Wiseman is McConnaughhay and Rissman Professor at Florida State University College of Law. Since graduating from Yale Law School in 2007,hehas written a number of articles on the Eighth Amendment’s Excessive Bail Clause and bail reform more generally. These include “Pretrial Detention and the Right to Be Monitored,” which appeared in the Yale Law Journal, “Fixing Bail,” which appeared in the George Washington Law Review,and“Bail and Mass Incarceration,” which appeared in the Georgia Law Review.

Preface

In 2002, the United States Supreme Court decided Atkins v. Virginia, opening the door to the Court’s application of the Eighth Amendment on an almost annual basis – Roper v. Simmons (2005), Kennedy v. Louisiana (2007), Baze v. Rees (2008), Graham v. Florida (2010), Brown v. Plata (2011), Miller v. Alabama (2012), Hall v. Florida (2014), Glossip v. Gross (2015), Moore v. Texas (2017), Bucklew v. Precythe (2019), Timbs v. Indiana (2019), Kahler v. Kansas (2019-2020 term), and Mathena v. Malvo (2019-2020 term). These decisions generated a number of interesting conversations and papers by many of the contributors to this book. Some particularly memorable conversations included a Southeastern Association of Law Schools panel in the summer of 2011 in Hilton Head, South Carolina, with John Stinneford and Corinna Lain; a Law & Society panel in Boston, Massachusetts, in 2013 with Rick Bierschbach and Beth Colgan; a Law & Society panel in Minne- apolis, Minnesota, in 2014 with Richard Frase; an Association of American Law Schools panel in 2016 in New York City with Corinna Lain, Debby Denno, and Eric Berger; and a Law & Society panel in Washington, DC, in 2019 with Corinna Lain and John Bessler. And of course, we should mention the SEALS panel we had in August 2018 in Fort Lauderdale, Florida, with many of the contributors in preparation for this volume: Rick Bierschbach, Mike Mannheimer, Debby Denno, John Bessler, Corinna Lain, John Stinneford, and Cara Drinan. Unaware of any collection of Eighth Amendment work by a variety of authors, we found it important to collect the many ideas that these stimulating conversations generated in one place. We wanted to share how constitutional doctrine connects to the hot-button issues of the day – mass incarceration, the death penalty, juvenile life- without-parole, and innocence – and offer our thoughts about how the Court will shape the Eighth Amendment in the future. We hope this volume of chapters on the Eighth Amendment will generate many future conversations exploring this often overlooked constitutional amendment, and its capacity to regulate the excessive punishment (and related) practices of federal and state governments. We are indebted

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xiv Preface

to this book’s many contributors for the sophistication and acumen of their contributions; we hope their insights will be of use to practitioners and academics alike. We also appreciate the willingness of Cambridge University Press to publish this manuscript and allow for the collection of the interwoven and interconnected ideas and theories contained within a single volume. To be sure, there is much to say about the Court’s Eighth Amendment jurisprudence, and we believe this volume is a good start to the conversation and a precursor to many fruitful conversations in the future. Meghan Ryan Will Berry Dallas, Texas Oxford, Mississippi