Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to Constitutional Discourse

41 University of California, Davis Law Review 111 (2007)

Eva Nilsen


American punishment today is degrading, indecent, and harsher than deserved despite a Constitution designed to protect people from cruel and unusual punishment. Unfortunately, the U.S. Supreme Court's response to the increasing inhumanity of contemporary punishment has been to reduce its Eighth Amendment jurisprudence to tidy categories, legal fictions, and hollow phrases. Absent from the discourse is any acknowledgement of the actual day-to-day experience facing the convicted person, or any suggestion that, although punishments can be degrading, they need not be. The case for treating a convicted person with respect for his human dignity, and for constitutional scrutiny of punishment as it is actually experienced, is rarely made.

This Article seeks to present that case. Part I demonstrates that sentences are longer and meaner, prison conditions are more degrading and dangerous, and post-release reintegration is severely hobbled by numerous barriers that guarantee a permanent underclass. The second part explains how the Court's narrow and formalistic reading of the Eighth Amendment has produced a profound legal and moral blindness to the constitutional infirmities these punishments present. In the third part, the Article suggests avenues to more robust conceptions of human dignity and decent treatment that may still be found in the Constitution and in emerging global norms.

Keywords: Humane punishment, cruel and unusual punishment, Eighth Amendment, Supreme Court, prison sentences, prison conditions, post-release reintegration from prison, global norms of punishment, racially disparate punishment, substantive and procedural due process

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Eva Nilsen Contact Information
Boston University School of Law
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Phone: (617) 353-4255

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