Release as Remedy for Excessive Punishment

ABSTRACT Although the Eighth Amendment's prohibition on "cruel and unusual" punishment means different things in different contexts, it plainly forecloses state and federal actors from choosing ex ante to impose a punishment that is either disproportionate or inconsistent with minimum standards of decency. In other words, the Eighth Amendment mandates that no punishment be imposed if the only other choice on the table is an unconstitutional punishment. Although this principle can be gleaned from the disparate strands of Eighth Amendment jurisprudence, its remedial consequence has not been fully implemented. In this Article, I propose that providing a remedy of release from custody, or a reduction in sentence, for certain kinds of Eighth Amendment violations is the best way to make fully operational this Eighth Amendment principle. Put simply, the problem is this: there are three different remedial schemes for an Eighth Amendment violation, based on both the type of Eighth Amendment violation challenged and the timing of the violation. When a prisoner challenges a sentence prior to its imposition through proportionality analysis, courts have the power to strike the sentence down and order the release of an offender. When a prisoner challenges conditions of confinement that are ongoing in nature, the court has the power to order the cessation of those conditions or, in extreme cases, to order the release of prisoners. But when a prisoner challenges the infliction of past punishment, the prisoner may obtain only monetary damages. This Article argues that if discrete instances of abuse are considered punishment and the Eighth Amendment prohibits the imposition of disproportionate or inhumane punishment, then there is no logical or doctrinal reason to limit the remedy for past violations to damages only. Some punishments, even if inflicted on only one occasion, can be so horrific so as to themselves amount to unconstitutional punishment. To continue to incarcerate an offender in that instance is to subject the prisoner to a total amount of punishment that is unconstitutional. When the State has no legitimate authority to impose additional punishment on the prisoner, the remedy of release, or a commensurate reduction in total length of imprisonment, should be considered. TABLE OF CONTENTS INTRODUCTION I. REVIEW OF CURRENT EIGHTH AMENDMENT DOCTRINE A. Early Sentencing Jurisprudence B. Modern Sentencing Jurisprudence C. Remedies for Sentencing Challenges D. Conditions of Confinement Litigation II. REMEDIAL CONSEQUENCES OF CURRENT EIGHTH AMENDMENT DOCTRINE III. RELEASE AS REMEDY THROUGH THE LENS OF PUNISHMENT PHILOSOPHY A. Conditions of Confinement as "Punishment" B. Abusive Conditions as Unjust Punishment C. The "Subjectivist" Debate as Applied to Abusive Conditions D. Ramifications of Treating Abusive Conditions as Unjust Punishment IV. EFFECTUATING THE REMEDY OF RELEASE A. Accounting for the Law of Remedies B. The Commensurability Problem C. Practical Considerations CONCLUSION INTRODUCTION The Eighth Amendment prohibits the infliction of "cruel and unusual punishment." (1) Unsurprisingly, the term means different things in different contexts. Thus, for challenges to conditions experienced within prison--a range of cases that encompasses claims such as overcrowding, excessive use of force, and failure to provide adequate medical care--a prisoner must show that a particular prison official acted with a sufficiently culpable state of mind to deprive the prisoner of an objectively serious need. (2) If an official has acted with that state of mind, he is thought to have violated minimum standards of civilized treatment. (3) But, for challenges to the imposition of criminal sentences, courts conduct a loose proportionality analysis that compares the severity of the sentence with the seriousness of the criminal offense of incarceration. …