Release as Remedy for Excessive Punishment

By Reinert, Alexander A. | William and Mary Law Review, April 2012 | Go to article overview

Release as Remedy for Excessive Punishment


Reinert, Alexander A., William and Mary Law Review


ABSTRACT

Although the Eighth Amendment's prohibition on "cruel and unusual" punishment means different things in different contexts, it plainly forecloses state and federal actors from choosing ex ante to impose a punishment that is either disproportionate or inconsistent with minimum standards of decency. In other words, the Eighth Amendment mandates that no punishment be imposed if the only other choice on the table is an unconstitutional punishment. Although this principle can be gleaned from the disparate strands of Eighth Amendment jurisprudence, its remedial consequence has not been fully implemented. In this Article, I propose that providing a remedy of release from custody, or a reduction in sentence, for certain kinds of Eighth Amendment violations is the best way to make fully operational this Eighth Amendment principle.

Put simply, the problem is this: there are three different remedial schemes for an Eighth Amendment violation, based on both the type of Eighth Amendment violation challenged and the timing of the violation. When a prisoner challenges a sentence prior to its imposition through proportionality analysis, courts have the power to strike the sentence down and order the release of an offender. When a prisoner challenges conditions of confinement that are ongoing in nature, the court has the power to order the cessation of those conditions or, in extreme cases, to order the release of prisoners. But when a prisoner challenges the infliction of past punishment, the prisoner may obtain only monetary damages.

This Article argues that if discrete instances of abuse are considered punishment and the Eighth Amendment prohibits the imposition of disproportionate or inhumane punishment, then there is no logical or doctrinal reason to limit the remedy for past violations to damages only. Some punishments, even if inflicted on only one occasion, can be so horrific so as to themselves amount to unconstitutional punishment. To continue to incarcerate an offender in that instance is to subject the prisoner to a total amount of punishment that is unconstitutional. When the State has no legitimate authority to impose additional punishment on the prisoner, the remedy of release, or a commensurate reduction in total length of imprisonment, should be considered.

TABLE OF CONTENTS

INTRODUCTION
  I. REVIEW OF CURRENT EIGHTH AMENDMENT DOCTRINE
     A. Early Sentencing Jurisprudence
     B. Modern Sentencing Jurisprudence
     C. Remedies for Sentencing Challenges
     D. Conditions of Confinement Litigation

 II. REMEDIAL CONSEQUENCES OF CURRENT EIGHTH AMENDMENT DOCTRINE

III. RELEASE AS REMEDY THROUGH THE LENS OF PUNISHMENT PHILOSOPHY
     A. Conditions of Confinement as "Punishment"
     B. Abusive Conditions as Unjust Punishment
     C. The "Subjectivist" Debate as Applied to Abusive Conditions
     D. Ramifications of Treating Abusive Conditions as
        Unjust Punishment

 IV. EFFECTUATING THE REMEDY OF RELEASE
     A. Accounting for the Law of Remedies
     B. The Commensurability Problem
     C. Practical Considerations

CONCLUSION

INTRODUCTION

The Eighth Amendment prohibits the infliction of "cruel and unusual punishment." (1) Unsurprisingly, the term means different things in different contexts. Thus, for challenges to conditions experienced within prison--a range of cases that encompasses claims such as overcrowding, excessive use of force, and failure to provide adequate medical care--a prisoner must show that a particular prison official acted with a sufficiently culpable state of mind to deprive the prisoner of an objectively serious need. (2) If an official has acted with that state of mind, he is thought to have violated minimum standards of civilized treatment. (3) But, for challenges to the imposition of criminal sentences, courts conduct a loose proportionality analysis that compares the severity of the sentence with the seriousness of the criminal offense of incarceration. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Release as Remedy for Excessive Punishment
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.