Sugarcoating the Eighth Amendment

Christopher J. DeClue, Southwesterm Law School

Abstract

This Article demonstrates that Eighth Amendment gross disproportionality review is virtually identical to the Fourteenth Amendment rational basis test. Under the Fourteenth Amendment rational basis test, a law is upheld so long as it furthers a conceivable government purpose. Case law illustrates a similar standard is applied in the face of an Eighth Amendment challenge to the length of a prison sentence. Under gross disproportionality review, the length of a sentence is upheld so long as the sentence furthers a conceivable penological purpose. Following this reasoning, the length of a sentence violates the Eighth Amendment only on the rare occasion that the court concludes the length of the sentence furthers no conceivable penological purpose. As a result, the Eighth Amendment, like the Fourteenth Amendment, is merely a safeguard against arbitrary or irrational sentencing. Unfortunately, courts and commentators have never articulated gross disproportionality review in such a precise manner, at least with respect to rational basis language traditionally applied to challenges under the Fourteenth Amendment. Notwithstanding, this Article demonstrates that the standards set by the Supreme Court, and the lower courts’ application of those standards, creates a simple rational basis test, one which happens to have a fancy name. The purpose of this Article is only to identify how a court actually reviews a sentence in the face of an Eighth Amendment challenge, not to promote or oppose the principles applied. Only upon recognition that gross disproportionality review is merely a safeguard against arbitrariness can courts and scholars address whether such a lenient standard properly aligns itself with the Eighth Amendment’s prohibition of cruel and unusual punishment.