Volume 55, Issue 4

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Decency Comes Full Circle: The Constitutional Demand to End Permanent Solitary Confinement on Death Row

Issues Volume 55, Issue 4

By Brandon Vines

Many of the two thousand Americans living under a sentence of death spend twenty-three hours a day in a concrete box the size of a parking space. Often the only human touch they feel is being handcuffed and the only natural light comes from a small grill at the top of an exercise cell. However, change is at hand. The Supreme Court has emphasized that the Eighth Amendment’s prohibition of cruel and unusual punishments draws its meaning from the evolving standards of decency that mark the progress of a maturing society. To date, there has been a dearth of information available regarding the historical and modern conditions on death row.

This Note addresses this gap. Part I provides, for the first time, a complete historical narrative of the development of the American death row from the Colonial Era to the Twenty-First Century. Part II reviews the findings of a survey of every jurisdiction with capital punishment to capture a national snapshot of conditions on America’s death rows. The findings in both Parts suggest that the system of permanent solitary confinement on death row has neither the weight of history nor the support of the majority in either contemporary practice or social values. Indeed, there is an accelerating trend away from the practice. Part III places this evidence in constitutional context and argues that the twelve states that retain permanent solitary death rows are out of pace with America’s evolving standards of decency and violate the Eighth Amendment.

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Racialized Self-Defense: Effects of Race Salience on Perceptions of Fear and Reasonableness

Issues Volume 55, Issue 4

By Suzy J. Park

Through a controlled experiment, this Note investigates the hypothesis that implicit references to racial stereotypes, such as subtle racial imagery, trigger mock jurors’ implicit biases to a greater degree than explicit invocations of racial stereotypes. Across six conditions, 270 participants read facts resembling those of People v. Goetz, in which a White defendant shot four young men in a subway train, allegedly in self-defense. Half of the participants viewed photos depicting the victims as White; the other half viewed photos depicting the victims as Black. Participants were further randomly assigned to read the defense attorney’s statement to the jury layered with implicit, explicit, or no racial cues. Following the experimental manipulation, participants indicated to what degree they believe that the defendant subjectively and reasonably believed that he was faced with a physical threat at the time of the shooting. Contrary to the hypothesis, the experiment found no statistically significant difference between explicit and implicit appeals to race in triggering individuals’ racial biases regardless of the race of the victims. This Note contributes to the existing literature by providing experimental data on exactly how powerful the use of implicit racial imagery may be in the courtroom and by probing the mechanism through which racially coded language affects jurors’ decision-making. The results further suggest that, since courts cannot easily make people “turn off” their prejudices through the use of race salience, choosing jurors during voir dire who are internally and genuinely motivated to be unprejudiced is all the more important.

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The Role of the Excessive Fines Clause in Ending the Criminalization of Homelessness

Issues Volume 55, Issue 4

By Siobhan Allen

Over the last decade, the United States has seen a dramatic increase in both homelessness and the laws that criminalize it. This Note contends that the Eighth Amendment’s Excessive Fines Clause is a powerful but underutilized tool available to end the criminalization of homelessness.

Part I reviews the history of civil and criminal punishment of homelessness in the United States and of the Excessive Fines Clause. Part II explores the weaknesses of other Eighth Amendment doctrines in their application to people experiencing homelessness. Part III explores the Excessive Fines Clause as a constitutional protection against civil punishment for people experiencing homelessness. This Part also evaluates what constitutes “excessive” and “fine” within the meaning of the Clause, and how proportionality between perpetrator, action, and the amount of a fine factors into the “excessiveness” analysis. Finally, Part IV discusses the benefits and drawbacks of applying the Excessive Fines Clause in conjunction with other Eighth Amendment doctrines as a constitutional framework for people experiencing homelessness. The Note concludes by arguing that the Excessive Fines Clause should be used as a tool to stop the criminalization of homelessness.

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