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61 Am. Crim. L. Rev. 1 (2024)

handle is hein.journals/amcrimlr61 and id is 1 raw text is: ARTICLES THE EXTRAVAGANCE OF EIGHTH AMENDMENT DEFERENCE Daniel Loehr* ABSTRACT We live in an era of extremely long prison sentences, visibly excruciating exe- cutions, and violence-plagued prisons. We also live in an era of penological judi- cial restraint, which manifests through the practice of deference, wherein courts put a thumb on the scale in favor of finding laws and policies constitutional. On this basis, courts have been reluctant to use the Eighth Amendment's ban on cruel and usual punishments to invalidate even some of the most extreme features of our criminal legal system. This Article traces the profound effect of deference on the construction and application of the Eighth Amendment. To do so, this Article also assesses the meanings of cruelty and unusualness, as well as the logic of deference. What we learn from these inquiries is that deference can corrode and confuse the meaning of our rights. In the Eighth Amendment context, deference has also undermined some of the Civil War's fundamental legal achievements, including the ability of individuals to seek protection under federal constitutional law against state- imposed forced labor and deprivations of freedom. But deference need not cor- rode the Eighth Amendment in this way. A better rendering of deference, and the Eighth Amendment, is possible. INTRODUCTION ............................................. 2 I. THE INFLUENCE OF DEFERENCE . . . . . .. . . . . . . . . . . . . . . . . . . . . .. 4 A. The Predecessors of Deference ....................... 4 B. General Sentence Review ........................... 6 C. General Death Penalty Review ....................... 10 D. Exception-Based Review ............................ 11 E. Prison Conditions ................................ 13 II. A TYPOLOGY OF DEFERENCE . . . . . . . .. . . . . . . . . . . . . . . . . . . . . .. 14 A. Modes of Deference ............................... 15 1. Absolute Deference ............................ 15 * Clinical Lecturer in Law, Yale Law School. Barry Friedman, Maria Ponomarenko, and Kenji Yoshino provided invaluable guidance during the early stages of this project. Balen Essak-Hernandez and Yixuan Liu offered critical feedback as it neared completion. The editors of the American Criminal Law Review worked quickly and carefully to make the writing more coherent and the citations more robust. For all of this support, I am deeply grateful. © 2024, Daniel Loehr. 1

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