Monday, October 19, 2009

Atkins MR death penalty related law review articles from Washington University Law Review

[Note...this is a revision to this post originally made 10-19-09.  At that time I was unaware that I could download a current draft of the law review article by Ryan.  I've now downloaded it and it is available, along with the abstract, below]

Thanks to Sentencing Law and Policy for FYI re: the forthcoming article in the Washington University Law Review--Does the Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel and Unusual? by Professor Meghan J. Ryan.  The SLP blog provides a link to the abstract of the article. 

Below is the abstract.  Click here for copy of current draft.

Abstract (Ryan)
  • There is a great struggle in the United States between proponents of the death penalty and death penalty abolitionists who believe that the practice is cruel and even unconstitutional.  Although the punishment of death is enshrined in the Fifth and Fourteenth Amendments of the Constitution, the Supreme Court seems to have followed its moral compass in chipping away at the death penalty because of the cruelty of the practice.  The Court’s struggle between the text of the Constitution and its moral inclinations in the death penalty context has resulted in an inconsistent and confusing Eighth Amendment Punishments Clause jurisprudence.  While attempting to maintain neutrality on the topic and thus relying almost exclusively on assessing the unusualness of a practice through a purportedly objective assessment of state legislative action, the Court seems to have covertly injected into the equation its subjective views as to what punishments are unconstitutionally cruel.  This tension between an objective measure of unusualness and a subjective assessment of cruelty has led the Court to make inconsistent statements about whether the Punishments Clause prohibits only punishments that are both cruel and unusual, or rather prohibits both cruel punishments and unusual punishments.  This Article goes where no other has, identifying and exploring this important question.  After tracing the history of the Eighth Amendment, analyzing the Court’s early interpretations of the prohibition on “cruel and unusual punishments,” and parsing the text of the Punishments Clause, the Article concludes that the Clause prohibits only punishments that are both cruel and unusual and that each of these components of the Clause should thus be independently assessed.  While this interpretation may narrow the scope of the Amendment, it allows for further innovations in humane methods of punishment and revives the federalist foundation of this nation that the Court’s current jurisprudence has stifled.

Will poking around the Washington University Law Review I located another recent relevant manuscript of interest--Cruel and unequal punishments by Nita Frahany (click to view).  The article discussesimplications of the original Atkins v Virginia decision re: potential interactions/conflicts between the Eight and Fourteen Amendments of the U. S. constitution.


This Article argues that Atkins v. Virginia and its progeny of categorical exemptions to the death penalty create a new and as of yet undiscovered interaction between the Eighth and the Fourteenth Amendments of the U.S. Constitution. When the United States Supreme Court adapted its proportionality analysis from categories of crime to categories of people, it abandoned intrajurisdictional analysis, a de facto equality consideration under the Cruel and Unusual Punishments Clause. The Court, the legal academy, and commentators have failed to consider the remarkable equal protection implications of this doctrinal shift. To see the point in practice, one need only consider two criminal defendants: the first was mentally retarded from birth; the second suffered a traumatic brain injury at the age of twenty-two; and both have identical cognitive, behavioral, and adaptive impairments. Under state statutes cited approvingly in Atkins and others enacted since, the first defendant cannot be executed, but the second one can. This seems wrong on its face, but to understand why, it is necessary to explore the interaction of the Eighth and Fourteenth Amendments. The doctrinal shift in Atkins has profoundly altered that interaction, putting the Cruel and Unusual Punishments Clause in tension with the Equal Protection Clause. This Article illustrates that conflict, and how legislative classifications adopted pursuant to categorical exemptions under the Eighth Amendment may now be subject to Fourteenth Amendment scrutiny.

Disclaimer:  I'm not a lawyer [although I did stay at a Holiday Inn Express last night---just attempt at a little TV commercial related humor  :)  ].  This information is posted as FYI "as is."
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