AuthorHarawa, Daniel S.

Introduction 701 I. Revamping the Gross Disproportionality Standard for Excessive Punishment 703 II. Rethinking Juvenile Life Without Parole 710 III. Revisiting Racial Disparities in Capital Punishment 714 Conclusion: The Anti-Racist Eighth Amendment 718 INTRODUCTION

If Black lives matter, why does the criminal legal system treat Black people as if they are disposable? It more often deems Black people habitual offenders and locks them up for life for minor offenses. (1) Black children are disproportionately sentenced to life in prison. (2) The race of the defendant--Black--and the victim's race--white--is also salient to deciding who ends up on death row. (3) The criminal legal system's harsh treatment of Black people proves it does not value Black lives.

Rehabilitation is supposed to be a core tenet of our criminal legal system. (4) With the concept of rehabilitation comes the notion that people are redeemable. In the words of Bryan Stevenson, "[e]ach of us is more than the worst things we've ever done." (5) Yet our system would rather spend the time and money to cage and kill Black people rather than provide them with the long-deprived resources they need to thrive. (6) When it comes to Black people's involvement in the criminal legal system, retribution has always been the driving focus.

This Essay asserts that if Black lives matter, there needs to be a radical shift in our understanding of punishment. One necessary (but not sufficient) step must be a complete overhaul of current Eighth Amendment jurisprudence to make it reflect the notion that all people. particularly Black people, are redeemable. This requires giving teeth to the "grossly disproportional" standard for deciding whether punishment is excessive--especially when reviewing harsh sentences imposed under habitual offender laws. (7) It requires dispelling the idea that a child could be considered "permanently incorrigible" and thus worthy of being locked away for life. (8) And it requires embracing the fact that stark racial disparities in the imposition of punishment, especially capital punishment, are enough to prove the punishment is arbitrary, or worse, purposefully discriminatory and thus unconstitutional. (9)

Part I of this Essay looks at the grossly disproportional standard for excessive punishment. Part II tackles juvenile life without parole. Part III examines the racialized imposition of the death penalty. This Essay concludes by calling for an anti-racist reading of the Eighth Amendment. In this moment of racial reckoning, as we interrogate the way race invidiously influences our institutions, particularly our penal system, the Constitution can prove a powerful ally in the fight for racial justice. (10)

Black people matter. Even those, especially those, who may have committed a criminal offense. Our criminal legal system must embody this truth. This Essay proposes a necessary step toward realizing this truth by beginning to reimagine current Eighth Amendment jurisprudence. (11)


    In 1997, police arrested 38-year-old Fair Wayne Bryant in Shreveport, Louisiana, for trying to steal a pair of used hedge clippers. (12) A prosecutor charged him with simple burglary--a crime for which the maximum penalty is a $2,000 fine or a 12-year prison sentence. (13) After a jury found him guilty, a judge sentenced Mr. Bryant to spend the rest of his life in Angola penitentiary, a former plantation. (14) Mr. Bryant received a life sentence for such a minor crime because he had committed other minor offenses in the past. (15) Louisiana's "habitual offender" law allows for sentences up to life in prison after a fourth criminal conviction. (16) Fortunately, the Louisiana Parole Board unanimously granted Mr. Bryant, now over 60 years old, parole in October 2020. (17)

    Not everyone is as lucky as Mr. Bryant. While his case was headline grabbing, it is not unique. (18) Every day, courts across the country sentence people to life in prison for minor crimes, as a majority of states have habitual offender or three strikes laws. (19) Habitual offender laws generally provide that persons with a certain number of eligible prior felony convictions (usually two) are subject to enhanced sentences--up to life in prison--for a subsequent conviction (the third strike). (20) A bulk of these laws were passed in the early to mid-1990s (21) when the country adopted a "tough on crime" law enforcement approach (22) and the war on drugs was in full swing. (23) Given the focal point of the war on drugs and tough on crime law enforcement was the Black community, (24) it is no surprise that courts disproportionately sentence Black people to the harshest of prison terms under habitual offender laws. Indeed, in her dissent from the Louisiana Supreme Court's refusal to hear Mr. Bryant's case, Chief Justice Bernette Joshua Johnson--the only Black justice on the court--likened Louisiana's habitual offender statute to "Pig Laws" southern states enacted post Reconstruction as a tool to re-enslave African Americans by imposing extreme sentences for petty offenses and then "using forced-labor... as punishment for a crime." (25)

    Chief Justice Johnson's analogy was apt when considering the racial disparities in sentencing under habitual offender laws, which have given states license to lock Black people up and throw away the key. (26) For instance, in Florida, a study found that, compared to non-Black defendants, following prosecutors' charging decisions, judges were 2.3 times more likely to sentence Black defendants as habitual offenders for property crimes and 3.6 times more likely to sentence Black defendants as habitual offenders for drug crimes. (27) A study showed that in Georgia, prosecutors charged only 1% of eligible white defendants under the State's two strikes law for drug offenses, yet charged 16% of eligible Black defendants. (28) As a result, 98.4% of those serving life sentences under Georgia's law are Black. (29) Similarly, in California, Black defendants were sentenced to "'third-strike life sentences' at a rate thirteen times that of whites." (30) To be sure, much like Georgia and Florida, California does not reserve these life sentences for those who committed horrendous crimes--75% of second and third strikes imposed in California were for non-violent offenses. (31) Moreover, states and the federal government are willing to impose these most severe sentences despite the incredible financial cost. (32) For instance, California's corrections budget tripled between 1995--the year after the State passed its three strikes law--and 2009, jumping from $3.6 billion to $9.6 billion annually. (33)

    The Eighth Amendment theoretically protects defendants against sentences that are "grossly disproportionate to the severity of the crime." (34) In deciding whether a sentence is unconstitutional, courts must consider the "gravity of the offense and the harshness of the penalty," which requires an inquiry into "the harm caused or threatened to the victim or society, and the culpability of the offender." (35) While such an inquiry could be robust, the Supreme Court has made clear that a finding of gross disproportionality should be "exceedingly rare" and that courts should accord "substantial deference" to legislatures in prescribing appropriate punishment. (36)

    According to the Supreme Court, the Eighth Amendment tolerates extreme sentences imposed for minor crimes under habitual offender laws. The Court's narrow interpretation of gross disproportionality has effectively rendered the Eighth Amendment's protection against excessive sentences toothless. (37) For example, the Supreme Court has rejected constitutional challenges to a life without parole sentence imposed under Texas's recidivist statute against a person accused of writing a bad check, (38) a 25-years-to-life sentence imposed under California's three strikes law against a person accused of stealing three golf clubs, (39) and a 25-years-to-life sentence also imposed under California's three strikes law against a person accused of stealing videotapes. (40)

    It does not have to be this way. Other scholars have explained that the grossly disproportionate test could provide a meaningful check against exorbitant prison sentences if courts, including the Supreme Court, were willing to take it seriously. (41) Here are a few ways courts could breathe life into the grossly disproportional test.

    First, before imbuing a sentence with a presumption of legitimacy, courts should consider the context within which a law was enacted. Given that many three strikes provisions were passed as a tool to wage the war on drugs, and most can now agree how wrongheaded and racist this so-called war was, (42) there is no weighty reason to presume the legitimacy of habitual offender laws. This is especially true in light of the evidence showing how habitual offender laws have targeted Black people, and our evolving recognition that the laws never worked to curb crime effectively. (43) This context undermines any presumption of legitimacy (44) and should be relevant when considering the excessiveness of punishment.

    Second, when considering the culpability of the offender, courts should contemplate the social and historical inequities the offender faced. (45) Crime, especially non-violent crime, usually stems from deep underlying root causes, which are directly traceable to a persistent lack of investment in Black communities and a dearth of opportunities for African American advancement. (46) This should be relevant to culpability. Moreover, what about if, when weighing the culpability of the offender, we also consider how white people--who are not policed at the same rate, prosecuted with the same vigor, or sentenced with the same harshness--are treated. (47) The lackadaisical treatment of similarly situated white offenders undercuts the notion that the crime is so severe...

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