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"Judging Cruelty"

By Douglas A. Berman

The title of this post is the title of this new and notable Eighth Amendment piece from Meghan Ryan that is now available via SSRN.  Here is te abstract: The wisdom of the death penalty has recently come under attack in a number of states.  This raises the question of whether states? retreat from the death penalty, or other punishments, will pressure other states ? either politically or constitutionally ? to similarly abandon the punishment. Politically, states may succumb to the trend of jettisoning a penalty. Constitutionally, states may be forced to surrender the penalty if the punishment is considered cruel, and, as a result of a large number of states renouncing the penalty, the punishment also becomes unusual.  If a punishment is thus found to be both cruel and unusual, it will be proscribed under the Eighth Amendment Punishments Clause of the U...continue to full post

Full post as published by Sentencing Law and Policy on March 12, 2010 (boomark / email).