The 8th Amendment’s cruel and unusual punishment clause is the constitutional provision that limits what the state can do to convicted criminal offenders as punishment. Substantive challenges to the death penalty, claims of excessively long prison sentences, and a host of claims regarding prison conditions are all dealt with by the courts under this clause. For those interested in criminal justice policy and penal policy in particular, therefore, understanding the 8th Amendment is a must. In this seminar, we will focus on the 8th Amendment ban on cruel and unusual punishment, both its doctrine and a range of theoretical issues that arise from its interpretation. Although we will touch on the death penalty, our main focus will be on the relatively under-explored areas of prison sentences and prison conditions. Doctrinal topics will include disproportionately challenges to prison sentences as well as claims of medical neglect, unduly harsh conditions of confinement, failure to protect from rape or violent assault, and the use of excessive force by guards. Theoretical issues to be covered will include: the meaning of “evolving standards of decency” and deliberate indifference,” the role of history in constitutional interpretation, the appropriate place of prisoners and prisoners’ rights in the Constitutional scheme, and the relationship between prisoners’ rights and minority protection. Materials will include cases, law review articles and some non-law materials. Students will be expected to produce short (1000 words) weekly response papers.
The weekly response papers will not automatically satisfy the Substantial Analytic Writing requirement but students would be welcome to write papers in affiliation with the seminar that Professor Dolovich would supervise.
The use of laptops is not permitted during class instruction.