Proportionality and the Eighth Amendment
Article Abstract:
The Supreme Court in Harmelin v Michigan rejected an appeal that a life sentence without parole for possession of cocaine was 'cruel and unusual punishment.' Justice Scalia and Chief Justice Rehnquist held that the Eighth Amendment does not guarantee proportionality. Their opinion goes too far in rejecting modern precedents. Three other concurring justices recognized the principle of proportionality, but held that the sentence failed the test of 'gross disproportionality.' Their opinion, written by Justice Kennedy, offers a better approach, with a practical method for analyzing proportionality.
Publication Name: Harvard Journal of Law & Public Policy
Subject: Political science
ISSN: 0193-4872
Year: 1992
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Dolan and the 'rough proportionality' standard: taking its toll on Loretto's bright line
Article Abstract:
The Supreme Court's decision in Dolan unnecessarily complicates the issue of nexus in land use regulation. Though the court did clear up the question of the relationship between public interest and a project's approval established as a factor in the Nollan decision by adopting a rough proportionality standard, it should have used the bright line tests like the one established in Loretto. By choosing to create a new and vague standard rather than use an existing and less vague standard, the court has further complicated an already murky issue.
Publication Name: Harvard Journal of Law & Public Policy
Subject: Political science
ISSN: 0193-4872
Year: 1995
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The Eighth Amendment in Section 1983 cases
Article Abstract:
The US Supreme Court in Hudson v McMillian extended the Eighth Amendment prohibition of 'cruel and unusual punishment' to a prison guard's use of force 'maliciously and sadistically to cause harm' even when the prisoner is not seriously injured. However, alternative remedies for this type of injury already exist, making constitutional protection unnecessary. This expansion of the Eighth Amendment to protect prisoners from even minor injuries is unwarranted and will tend to foster frivolous suits by prisoners.
Publication Name: Harvard Journal of Law & Public Policy
Subject: Political science
ISSN: 0193-4872
Year: 1992
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