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clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found him eligible for the death penalty under applicable state law. 173 The Antiterrorism and Effective Death Penalty Act prohibits federal habeas relief based on claims that were adjudicated on the merits in state court unless the state decision ‘‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’’ 174 The Court’s decision in Bell v. Cone, 175 rejecting a claim that an attorney’s failure to present mitigating evidence during the capital sentencing phase of a trial and his waiver of a closing argument at sentencing should entitle a condemned prisoner to relief, illustrates how these restrictions can operate to defeat challenges to state-imposed death sentences. 176 VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00032 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 AMENDMENT 8—PUNISHMENT FOR CRIME 1597 phasized the word ‘‘entirely,’’ noting that the petitioner challenged the defense attorney’s performance only ‘‘at specific points’’ in the process. Nor was the second statutory test met. Strickland, a ‘‘highly deferential’’ test asking whether an attorney’s performance fell below an ‘‘objective standard of reasonableness,’’ was not ‘‘unreasonably applied.’’ The attorney could reasonably have concluded that evidence presented during the guilt phase of the trial was still ‘‘fresh’’ to the jury, and that repetition through the presentation of mitigating evidence and/or through a closing statement was unnecessary to counter the state’s presentation of aggravating circumstances justifying a death sentence. 177 Murray v. Giarratano, 492 U.S. 1 (1989) (‘‘unit attorneys’’ assigned to prisons were available for some advice prior to filing a claim). 178 144 U.S. 323, 339–40 (1892). See also Howard v. Fleming, 191 U.S. 126, 135– 36 (1903). 179 217 U.S. 349 (1910). The Court was here applying not the Eighth Amendment but a statutory bill of rights applying to the Philippines which it interpreted as having the same meaning. Id. at 367. 180 217 U.S. at 381. 181 ‘‘The Eighth Amendment succinctly prohibits ‘excessive’ sanctions.’’ Atkins v. Virginia, 122 S. Ct. 2242, 2247 (2002) (applying proportionality review to determine whether execution of the mentally retarded is cruel and unusual). Proportionality in the context of capital punishment is considered supra under ‘‘Limitations on Capital Punishment: Proportionality.’’ 182 370 U.S. 660 (1962). The Court has also ruled that a death row inmate has no constitutional right to an attorney to help prepare a petition for state collateral review. 177 Proportionality Justice Field in O’Neil v. Vermont 178 argued in dissent that in addition to prohibiting punishments deemed barbarous and inhumane the Eighth Amendment also condemned ‘‘all punishments which by their excessive length or severity are greatly disproportionate to the offenses charged.’’ In Weems v. United States, 179 this view was adopted by the Court in striking down a sentence in the Philippine Islands of 15 years incarceration at hard labor with chains on the ankles, loss of all civil rights, and perpetual surveillance, for the offense of falsifying public documents. The Court compared the sentence with those meted out for other offenses and concluded: ‘‘This contrast shows more than different exercises of legislative judgment. It is greater than that. It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice.’’ 180 Punishments as well as fines, therefore, can be condemned as excessive. 181 In Robinson v. California 182 the Court carried the principle to new heights, setting aside a conviction under a law making it a crime to ‘‘be addicted to the use of narcotics.’’ The statute was unconstitutional because it punished the ‘‘mere status’’ of being an ad- VerDate Apr<15>2004 13:31 Aug 18, 2004 Jkt 077500 PO 00000 Frm 00033 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 1598 AMENDMENT 8—PUNISHMENT FOR CRIME 183 A different approach to essentially the same problem was Thompson v. Louisville, 362 U.S. 199 (1960), in which a conviction for loitering and disorderly conduct was set aside as being supported by ‘‘no evidence whatever’’ that defendant had done anything. Cf. Johnson v. Florida, 391 U.S. 596 (1968) (no evidence that the defendant was ‘‘wandering or strolling around’’ in violation of vagrancy law). 184 Fully applied, the principle would raise to constitutional status the concept of mens rea, and it would thereby constitutionalize some form of insanity defense as well as other capacity defenses. For a somewhat different approach, see Lambert v. California, 355 U.S. 225 (1957) (due process denial for city to apply felon registration requirement to someone present in city but lacking knowledge of requirement). More recently, this controversy has become a due process matter, with the holding that the due process clause requires the prosecution to prove beyond a reasonable doubt the facts necessary to constitute the crime charged, Mullaney v. Wilbur, 421 U.S. 684 (1975), raising the issue of the insanity defense and other such questions. See Rivera v. Delaware, 429 U.S. 877 (1976), Patterson v. New York, 432 U.S. 197, 202–05 (1977). In Solem v. Helm, 463 U.S. 277, 297 n.22 (1983), an Eighth Amendment proportionality case, the Court suggested in dictum that life imprisonment without possibility of parole of a recidivist who was an alcoholic, and all of whose crimes had been influenced by his alcohol use, was ‘‘unlikely to advance the goals of our criminal justice system in any substantial way.’’ 185 392 U.S. 514 (1968). The plurality opinion by Justice Marshall, joined by Justices Black and Harlan and Chief Justice Warren, interpreted Robinson as proscribing only punishment of ‘‘status,’’ and not punishment for ‘‘acts,’’ and expressed a fear that a contrary holding would impel the Court into constitutional definitions of such matters as actus reus, mens rea, insanity, mistake, justification, and duress. Id. at 532–37. Justice White concurred, but only because the record did not show that the defendant was unable to stay out of public; like the dissent, Justice White was willing to hold that if addiction as a status may not be punished neither can the yielding to the compulsion of that addiction, whether to narcotics or to alcohol. Id. at 548. Dissenting Justices Fortas, Douglas, Brennan, and Stewart wished to adopt a rule that ‘‘[c]riminal penalties may not be inflicted upon a person for being in a condition he is powerless to change.’’ That is, one under an irresistible compulsion to drink or to take narcotics may not be punished for those acts. Id. at 554, 567. dict without any requirement of a showing that a defendant had ever used narcotics within the jurisdiction of the State or had committed any act at all within the State’s power to proscribe, and because addiction is an illness which—however it is acquired—physiologically compels the victim to continue using drugs. The case could stand for the principle, therefore, that one may not be punished for a status in the absence of some act, 183 or it could stand for the broader principle that it is cruel and unusual to punish someone for conduct he is unable to control, a holding of far-reaching importance. 184 In Powell v. Texas, 185 a majority of the Justices took the latter view of Robinson, but the result, because of a view of the facts held by one Justice, was a refusal to invalidate a conviction of an alcoholic for public drunkenness. Whether the Eighth Amendment or the due process clauses will govern the requirement of the recognition of capacity defenses to criminal charges, or whether either will, remains to be decided in future cases. The Court has gone back and forth in its acceptance of proportionality analysis in noncapital cases. It appeared that such anal- VerDate Apr<15>2004 13:31 Aug 18, 2004 Jkt 077500 PO 00000 Frm 00034 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 AMENDMENT 8—PUNISHMENT FOR CRIME 1599 186 445 U.S. 263 (1980). The opinion, by Justice Rehnquist, was concurred in by Chief Justice Burger and Justices Stewart, White, and Blackmun. Dissenting were Justices Powell, Brennan, Marshall, and Stevens. Id. at 285. 187 In Hutto v. Davis, 454 U.S. 370 (1982), on the authority of Rummel, the Court summarily reversed a decision holding disproportionate a prison term of 40 years and a fine of $20,000 for defendant’s possession and distribution of approximately nine ounces of marijuana said to have a street value of about $200. 188 Rummel, 445 U.S. at 275–82. The dissent deemed these three factors to be sufficiently objective to apply and thought they demonstrated the invalidity of the sentence imposed. Id. at 285, 295–303. 189 463 U.S. 277 (1983). The case, as Rummel, was decided by 5–4 vote, with the Rummel dissenters, joined by Justice Blackmun from the Rummel majority, composing the majority, and with Justice O’Connor taking Justice Stewart’s place in opposition to holding the sentence invalid. Justice Powell wrote the opinion of the Court in Helm, and Chief Justice Burger wrote the dissent. ysis had been closely cabined in Rummel v. Estelle, 186 upholding a mandatory life sentence under a recidivist statute following a third felony conviction, even though the defendant’s three nonviolent felonies had netted him a total of less than $230. The Court reasoned that the unique quality of the death penalty rendered capital cases of limited value, and Weems was distinguished on the basis that the length of the sentence was of considerably less concern to the Court than were the brutal prison conditions and the post-release denial of significant rights imposed under the peculiar Philippine penal code. Thus, in order to avoid improper judicial interference with state penal systems, Eighth Amendment judgments must be informed by objective factors to the maximum extent possible. But when the challenge to punishment goes to the length rather than the seriousness of the offense, the choice is necessarily subjective. Therefore, the Rummel rule appeared to be that States may punish any behavior properly classified as a felony with any length of imprisonment purely as a matter legislative grace. 187 The Court dismissed as unavailing the factors relied on by the defendant. First, the fact that the nature of the offense was nonviolent was found not necessarily relevant to the seriousness of a crime, and the determination of what is a ‘‘small’’ amount of money, being so subjective, was a legislative task. In any event, the State could focus on recidivism, not the specific acts. Second, the comparison of punishment imposed for the same offenses in other jurisdictions was found unhelpful, differences and similarities being more subtle than gross, and in any case in a federal system one jurisdiction would always be more severe than the rest. Third, the comparison of punishment imposed for other offenses in the same State ignored the recidivism aspect. 188 Rummel was distinguished in Solem v. Helm, 189 the Court stating unequivocally that the cruel and unusual punishments clause ‘‘prohibits not only barbaric punishments, but also sentences VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00035 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 1600 AMENDMENT 8—PUNISHMENT FOR CRIME 190 463 U.S. at 284, 288. 191 The final conviction was for uttering a no-account check in the amount of $100; previous felony convictions were also for nonviolent crimes described by the Court as ‘‘relatively minor.’’ 463 U.S. at 296–97. 192 463 U.S. at 297. 193 463 U.S. at 303. 194 463 U.S. at 292. 195 For a suggestion that Eighth Amendment proportionality analysis may limit the severity of punishment possible for prohibited private and consensual homosexual conduct, see Justice Powell’s concurring opinion in Bowers v. Hardwick, 478 U.S. 186, 197 (1986). 196 501 U.S. 957 (1991). 197 ‘‘Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense.’’ 501 U.S. at 994. The Court’s opinion, written by Justice Scalia, then elaborated an understanding of ‘‘unusual’’—set forth elsewhere in a part of his opinion subscribed to only by Chief Justice Rehnquist—that denies the possibility of proportionality review altogether. Mandatory penalties are not unusual that are disproportionate to the crime committed,’’ and that ‘‘[t]here is no basis for the State’s assertion that the general principle of proportionality does not apply to felony prison sentences.’’ 190 Helm, like Rummel, had been sentenced under a recidivist statute following conviction for a nonviolent felony involving a small amount of money. 191 The difference was that Helm’s sentence of life imprisonment without possibility of parole was viewed as ‘‘far more severe than the life sentence we described in Rummel.’’ 192 Rummel, the Court pointed out, had been eligible for parole after 12 years’ imprisonment, while Helm had only the possibility of executive clemency, characterized by the Court as ‘‘nothing more than a hope for ‘an ad hoc exercise of clemency.’’’ 193 In Helm the Court also spelled out the ‘‘objective criteria’’ by which proportionality issues should be judged: ‘‘(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.’’ 194 Measured by these criteria Helm’s sentence was cruel and unusual. His crime was relatively minor, yet life imprisonment without possibility for parole was the harshest penalty possible in South Dakota, reserved for such other offenses as murder, manslaughter, kidnapping, and arson. In only one other state could he have received so harsh a sentence, and in no other state was it mandated. 195 The Court remained closely divided in holding in Harmelin v. Michigan 196 that a mandatory term of life imprisonment without possibility of parole was not cruel and unusual as applied to the crime of possession of more than 650 grams of cocaine. There was an opinion of the Court only on the issue of the mandatory nature of the penalty, the Court rejecting an argument that sentencers in non-capital cases must be allowed to hear mitigating evidence. 197 VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00036 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 AMENDMENT 8—PUNISHMENT FOR CRIME 1601 in the constitutional sense because they have ‘‘been employed in various form throughout our Nation’s history.’’ This is an application of Justice Scalia’s belief that cruelty and unusualness are to be determined solely by reference to the punishment at issue, and without reference to the crime for which it is imposed. See id. at 975– 78 (not opinion of Court—only Chief Justice Rehnquist joined this portion of the opinion). Because a majority of other Justices indicated in the same case that they do recognize at least a narrow proportionality principle (see id. at 996 (Justices Kennedy, O’Connor, and Souter concurring); id. at 1009 (Justices White, Blackmun, and Stevens dissenting); id. at 1027 (Justice Marshall dissenting)), the fact that three of those Justices (Kennedy, O’Connor, and Souter) joined Justice Scalia’s opinion on mandatory penalties should probably not be read as representing agreement with Justice Scalia’s general approach to proportionality. 198 Because of the ‘‘serious nature’’ of the crime, the 3-Justice plurality asserted that there was no need to apply the other Solem factors comparing the sentence to sentences imposed for other crimes in Michigan, and to sentences imposed for the same crime in other jurisdictions. 501 U.S. at 1004. Dissenting Justice White, joined by Justices Blackmun and Stevens (Justice Marshall also expressed agreement on this and most other points, id. at 1027), asserted that Justice Kennedy’s approach would ‘‘eviscerate’’ Solem. Id. at 1018. 199 Rhodes v. Chapman, 452 U.S. 337, 345 (1981) (quoting Hutto v. Finney, 437 U.S. 678, 685 (1978)). 200 452 U.S. at 347. 201 E.g., Estelle v. Gamble, 429 U.S. 97 (1976) (deliberate medical neglect of a prisoner violates Eighth Amendment); Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) (beating prisoner with leather strap violates Amendment); Helling v. McKinney, 509 U.S. 25 (1993) (prisoner who alleged exposure to secondhand ‘‘environmental’’ tobacco smoke stated a cause of action under the Eighth Amendment). 202 E.g., Hutto v. Finney, 437 U.S. 678 (1978). As to the length of sentence, three majority Justices—Kennedy, O’Connor, and Souter—would recognize a narrow proportionality principle, but considered Harmelin’s crime severe and by no means grossly disproportionate to the penalty imposed. 198 Prisons and Punishment ‘‘It is unquestioned that ‘[c]onfinement’ in a prison . . . is a form of punishment subject to scrutiny under the Eighth Amendment standards.’’ 199 ‘‘Conditions in prison must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment. . . . Conditions . . . , alone or in combination, may deprive inmates of the minimal civilized measure of life’s necessities. . . . But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.’’ 200 These general principles apply both to the treatment of individuals 201 and to the creation or maintenance of prison conditions that are inhumane to inmates generally. 202 Ordinarily there is both a subjective and an objective inquiry. Before conditions of confinement not formally meted out as punishment by the statute or sentencing judge can qualify as ‘‘punishment,’’ there must be a VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00037 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 1602 AMENDMENT 8—PUNISHMENT FOR CRIME 203 Wilson v. Seiter, 501 U.S. 294 (1991). 204 501 U.S. at 303. Deliberate indifference in this context means something more than disregarding an unjustifiably high risk of harm that should have been known, as might apply in the civil context. Rather, it requires a finding that the responsible person acted in reckless disregard of a risk of which he or she was aware, as would generally be required for a criminal charge of recklessness. Farmer v. Brennan, 511 U.S. 825 (1994). 205 Whitley v. Albers, 475 U.S. 312 (1986) (arguably excessive force in suppressing prison uprising did not constitute cruel and unusual punishment). 206 Hudson v. McMillian, 503 U.S. 1, 9 (1992) (beating of a shackled prisoner resulted in bruises, swelling, loosened teeth, and a cracked dental plate). 207 309 F. Supp. 362 (E.D. Ark. 1970), aff’d, 442 F.2d 304 (8th Cir. 1971), district court ordered to retain jurisdiction until unconstitutional conditions corrected, 505 F.2d 194 (8th Cir. 1974). The Supreme Court ultimately sustained the decisions of the lower courts in Hutto v. Finney, 437 U.S. 678 (1978). 208 Rhodes v. Chapman, 452 U.S. 337, 353–54 n.1 (1981) (Justice Brennan concurring) (collecting cases). See Note, Complex Enforcement: Unconstitutional Prison Conditions, 94 HARV. L. REV. 626 (1981). 209 Bell v. Wolfish, 441 U.S. 520 (1979); Rhodes v. Chapman, 452 U.S. 337 (1981). 210 See, e.g., Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976) (describing conditions of ‘‘horrendous overcrowding,’’ inadequate sanitation, infested food, and ‘‘rampant violence’’); Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1981) (describing conditions ‘‘unfit for human habitation’’). The primary issue in both Wolfish and Chapman was that of ‘‘double-celling,’’ the confinement of two or more prisoners in a cell designed culpable, ‘‘wanton’’ state of mind on the part of prison officials. 203 In the context of general prison conditions, this culpable state of mind is ‘‘deliberate indifference’’; 204 in the context of emergency actions, e.g., actions required to suppress a disturbance by inmates, only a malicious and sadistic state of mind is culpable. 205 When excessive force is alleged, the objective standard varies depending upon whether that force was applied in a good-faith effort to maintain or restore discipline, or whether it was applied maliciously and sadistically to cause harm. In the good-faith context, there must be proof of significant injury. When, however, prison officials ‘‘maliciously and sadistically use force to cause harm, contemporary standards of decency are always violated,’’ and there is no need to prove that ‘‘significant injury’’ resulted. 206 Beginning with Holt v. Sarver, 207 federal courts found prisons or entire prison systems violative of the cruel and unusual punishments clause, and broad remedial orders directed to improving prison conditions and ameliorating prison life were imposed in more than two dozen States. 208 But while the Supreme Court expressed general agreement with the thrust of the lower court actions, it set aside two rather extensive decrees and cautioned the federal courts to proceed with deference to the decisions of state legislatures and prison administrators. 209 In both cases, the prisons involved were of fairly recent vintage and the conditions, while harsh, did not approach the conditions described in many of the lower court decisions that had been left undisturbed. 210 Thus, con- VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00038 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 AMENDMENT 8—PUNISHMENT FOR CRIME 1603 for one. In both cases, the Court found the record did not support orders ending the practice. 211 Rhodes v. Chapman, 452 U.S. 337, 347 (1981). See also Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1991) (allowing modification, based on a significant change in law or facts, of a 1979 consent decree that had ordered construction of a new jail with single-occupancy cells; modification was to depend upon whether the upsurge in jail population was anticipated when the decree was entered, and whether the decree was premised on the mistaken belief that single-celling is constitutionally mandated). 212 Pub. L. No. 96–247, 94 Stat. 349, 42 U.S.C. §§ 1997 et seq. 213 Pub. L. No. 104–134, title VIII, 110 Stat. 1321–66 et seq. 214 Miller v. French, 530 U.S. 327 (2000). See also Porter v. Nussle, 122 S. Ct. 983 (2002) (applying the Act’s requirement that prisoners exhaust administrative remedies). 215 Ingraham v. Wright, 430 U.S. 651, 667 (1977) (citations omitted). Constitutional restraint on school discipline, the Court ruled, is to be found in the due process clause if at all. cerns of federalism and of judicial restraint apparently actuated the Court to begin to curb the lower federal courts from ordering remedial action for systems in which the prevailing circumstances, given the resources States choose to devote to them, ‘‘cannot be said to be cruel and unusual under contemporary standards.’’ 211 Congress initially encouraged litigation over prison conditions by enactment in 1980 of the Civil Rights of Institutionalized Persons Act, 212 but then in 1996 added restrictions through enactment of the Prison Litigation Reform Act. 213 The Court upheld the latter law’s provision for an automatic stay of prospective relief upon the filing of a motion to modify or terminate that relief, ruling that separation of powers principles were not violated. 214 Limitation of the Clause to Criminal Punishments The Eighth Amendment deals only with criminal punishment, and has no application to civil processes. In holding the Amendment inapplicable to the infliction of corporal punishment upon schoolchildren for disciplinary purposes, the Court explained that the cruel and unusual punishments clause ‘‘circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes; second, it proscribes punishment grossly disproportionate to the severity of the crime; and third, it imposes substantive limits on what can be made criminal and punished as such.’’ 215 These limitations, the Court thought, should not be extended outside the criminal process. VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00039 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 VerDate Apr 14 2004 11:04 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00040 Fmt 8221 Sfmt 8221 C:\CONAN\CON036.XXX PRFM99 PsN: CON036 1623 ELEVENTH AMENDMENT SUITS AGAINST STATES CONTENTS Page State Immunity .......................................................................................................................... 1625 Purpose and Early Interpretation ..................................................................................... 1625 Expansion of the Immunity of the States ................................................................. 1629 The Nature of the States’ Immunity ................................................................................. 1633 Suits Against States ........................................................................................................... 1636 Consent to Suit and Waiver ....................................................................................... 1636 Congressional Withdrawal of Immunity ................................................................... 1639 Suits Against State Officials ..................................................................................................... 1643 Tort Actions Against State Officials ................................................................................. 1651 VerDate Apr 15 2004 14:50 May 11, 2004 Jkt 077500 PO 00000 Frm 00001 Fmt 8221 Sfmt 8221 C:\CONAN\CON040.XXX PRFM99

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