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Unpublished Paper
ExpressO (2010)
  • Christopher J DeClue

This Article demonstrates that the Eighth Amendment "gross disproportionality" test 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 the gross disproportionality test, the length of a sentence is upheld so long as the sentence furthers a conceivable penological purpose. Moreover, under this standard, 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, gross disproportionality review has never been articulated in such a precise manner, especially with respect to rational-basis language traditionally applied under the Fourteenth Amendment. However, 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 standard properly aligns itself with the Eighth Amendment’s prohibition of cruel and unusual punishment.

Publication Date
July 6, 2010
Citation Information
Christopher J DeClue. "SUGARCOATING THE EIGHTH AMENDMENT" ExpressO (2010)
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