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August 20, 2018

Do constitutional limits on punishment reflect the embrace of one theory of punishment or the rejection of another or ... ?

The poorly articulated question in the title of this post stems from my effort to connect our coming exploration of (A) the US Supreme Court's modern Eighth Amendment jurisprudence and (B) a ballot initiative (Issue 1) aiming to amend the Ohio Constitution this fall, the 2018 Ohio Neighborhood Safety, Drug Treatment, and Rehabilitation Amendment

Though I am happy to talk about any and all Eighth Amendment cases decided by the Supreme Court, I will want to give particular attention to the concepts of proportionality as they relate to theories of punishment as articulated by the Supreme Court in cases like Graham v. Florida and Ewing v. California.   (If anyone wants more detail concerning how Terrance Jamar Graham received a life without parole sentence, I recommend reading this unedited version of the start of Justice Anthony Kennedy's opinion in Graham.  I always find interesting how the sentencing judge justified his LWOP decision.)

At the federal level it is very hard to amend the Constitution (which is one reason we fight so much about SCOTUS appointments).  But constitutional amendments are much more common at the state level.  This fall, voters in Ohio are being asked to approve a propose Ohio  constitutional amendment that would impact drug sentencing and prison time in various ways and which includes this notable limitation on punishment:

With respect to state laws that make possessing, obtaining, or using a drug or drug paraphernalia a criminal offense, in no case shall any offense be classified higher than a misdemeanor.  The misdemeanor classification may be a general classification or a special classification for the offense.  The sanctions authorized may not exceed those of a first-degree misdemeanor, and, for an individual’s first or second conviction within a twenty-four month period, the sanctions shall not exceed probation.  If an individual has more than two convictions within a twenty-four month period, then sanctions may include jail time or probation in lieu of jail time.

When a limit is placed on available punishments, do you think this usually reflects the embrace or the rejection of a particular theory of punishment?  More generally, do you think there are political and social issues influencing constitutional jurisprudence and ballot initiatives that are entirely distinct from classic theories of punishment?

August 20, 2018 in Course materials and schedule, Current Affairs | Permalink


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