AuthorLoehr, Daniel

INTRODUCTION 308 I. THE CURRENT, SACROSANCT STATUS OF HABITUAL OFFENDER LAWS 314 A. The Patchy Eighth Amendment 314 B. The Force of Deference 317 n. THE UNFLATTERING LIGHT OF POLITICAL PROCESS THEORY 320 A. The Effect of Formal Disenfranchisement on Constitutional Review 321 B. Applying Political Process Theory to Habitual Offender Laws 326 III. A WAY FORWARD: IF DISENFRANCHISEMENT, NO DEFERENCE 333 A. Process-Sensitive Judicial Review 334 B. Process-Sensitive Eighth Amendment Law 335 C. Line Drawing 337 CONCLUSION 340 INTRODUCTION

Lee Carroll Brooker lived on a quiet road in Cottonwood, Alabama. (1) Behind his house was a wooded area, where he planted about three dozen marijuana plants. (2) At seventy-six-years old, and after a life that included combat tours in Lebanon and the Dominican Republic, Brooker found that marijuana was the best medicine for his anxiety and ailing body. (3) But before long, the police found the plants and arrested him. (4)

The county trial judge sentenced Brooker to life in prison without the possibility of parole in 2014. (5) As the judge lamented, he had no choice: because Brooker had a prior felony conviction, Alabama's "habitual offender" (6) law required such a sentence. (7) Brooker appealed the sentence and argued that it violated the Eighth Amendment's protection against cruel and unusual punishment. (8)

Brooker's appeal failed. The Eighth Amendment, as courts currently apply it, is extremely deferential to legislative decisions about sentence lengths. If the legislature decides a sentence length is appropriate, that decision is mostly unreviewable, and courts will not strike it down. (9) Thus, even though Brooker faced life in prison for marijuana charges, Alabama courts denied his Eighth Amendment claim and the United States Supreme Court declined to intervene. (10)

The judicial unwillingness to scrutinize sentencing laws rests on the premise that such laws are the result of a legitimate democratic process and therefore are entitled to deference. Part I of this Article explores the history of this premise and how courts have increasingly relied on it to deny Eighth Amendment claims in the last 50 years. According to the premise, if Brooker does not like his sentence, then he should raise that concern in the political arena, not the courts, and cast his vote accordingly.

The problem for Brooker, and the one that animates this Article, is that he cannot vote. Because of his prior felony and Alabama's felony disenfranchisement law, Brooker cannot vote now to respond to this harsh law, nor could he vote to prevent it, because he was disenfranchised in 1998 when Alabama elected the legislature that would go on to pass the habitual offender law. (11) For Brooker, there is no democratic process. And he is not alone. In 1998, the year that the habitual offender law passed, over 240,000 Alabamians were barred from voting because of prior felonies. (12) That means that Alabama excluded roughly seven percent of voting age individuals from the political process that produced the law. (13) And that is not a random subset of seven percent--it is seven percent of the population (people with felonies) that were likely to be affected by the new law (which penalizes multiple felonies).

As Part II explains, the interaction of felony disenfranchisement and habitual offender laws creates an acute political process problem. Habitual offender laws target a group--people with felonies--who can neither vote nor run for office. Habitual offender laws operate in all fifty states; felony disenfranchisement laws operate in forty-eight. As the least-controversial strain of political process theory teaches, laws that target formally disenfranchised groups deserve heightened judicial scrutiny. But instead, courts are applying no scrutiny at all out of deference to this defective democratic process. This approach, which I will call deference despite disenfranchisement, is deeply troubling.

Part III suggests a better way. Of course, states could end felony disenfranchisement. But this Article takes felony disenfranchisement laws as a given and asks how courts applying the Eighth Amendment should account for them when reviewing habitual offender laws. (14) The Article's proposal is that if a state has a felony disenfranchisement law, courts should not apply deference to that state's habitual offender law. If disenfranchisement, no deference.

This Article's particular claim is novel, but important and closely related work has been done. Erwin Chemerinsky, for example, has argued that political process theory supports increased Eighth Amendment scrutiny in prison law. (15) He does not extend his claim, however, to sentencing law broadly or to habitual offender laws specifically. (16) And he invokes political process theory on the ground that prisoners are a discrete and insular minority, whereas this Article does so on the more narrow ground that people with felonies are formally disenfranchised. (17)

In his book The Age of Culpability, Gideon Yaffe argues that "kids should be given a break" when it comes to criminal culpability "because they are disenfranchised, denied as much say over the law as adults, and so denied an equal role in authoring the law's demands." (18) He then extends this argument to incarcerated individuals, who also cannot vote. (19) The prescriptive upshot is that people who commit crimes while incarcerated should be treated more leniently. (20) The claim of this Article is consistent with Yaffe's, but brings particular attention to the Eighth Amendment and to habitual offender laws, and offers a prescription focused specifically on constitutional standards of review.

Finally, Eric Berger has proposed a system for determining the appropriate level of deference in Eighth Amendment cases. (21) Courts, he argues, should condition deference on each law's "democratic pedigree," which is determined by multiple factors, including whether the law targets an unpopular minority. (22) The argument in this Article could be thought of as a specific application of his approach--one which focuses on habitual offender laws and formal disenfranchisement. (23) There is also a rich and critical literature on Eighth Amendment law. Thus far, however, that literature has undertheorized Eighth Amendment law's failure to account for felony disenfranchisement. (24)

This Article has an intentionally narrow descriptive aim: to illuminate the interaction of felony disenfranchisement and habitual offender laws. What we have is a political majority formally removing democratic power from a group (people with felonies) and then allocating burdens to that group (extremely long sentences for people with felonies). Then, upon review, courts defer to those decisions as untouchable results of the democratic process. The outcome is that people with felonies get no vote and no judicial review--just long, unreviewable sentences. The prescriptive aim of the Article is also narrow: to encourage the adoption of an Eighth Amendment doctrine that rejects deference despite disenfranchisement.


    On its face, the Eighth Amendment--which prohibits "cruel and unusual punishments"--looks like a source of protection for people serving extremely long sentences. But the Supreme Court has rendered it mostly useless to them. (25) This Part tells the story of how that happened. What ideas, premises, or beliefs have guided the Court to hold that life in prison for a drug conviction is not cruel and unusual? If you read the body of Eighth Amendment sentencing cases, you start to see the word "deference" over and over. It becomes clear that the Court has not been guided by a consideration of the meaning of the words "cruel and unusual," nor by the historical context of the amendment, but rather by an abiding commitment to deference to legislative decision-making. Deference drives Eighth Amendment doctrine.


      The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (26) This Article focuses on the last part--the Cruel and Unusual Punishments Clause. That clause has produced distinct doctrines for evaluating challenges to prison conditions, methods of execution, and criminal sentences. This Article does not address the doctrines related to prison conditions and methods of execution. Instead, it covers how the Eighth Amendment is applied to criminal sentences, and in particular to non-capital, or term-of-years sentences. (27)

      Dating back to 1910, the Court has interpreted the concept of "cruel and unusual" punishment to include both punishment that is inherently cruel and unusual (like torture) (28) and punishment that becomes cruel and unusual by virtue of being disproportionate to the underlying crime (like fifteen years imprisonment for falsification of public documents). (29) This latter understanding of the phrase "cruel and unusual" is known as the Eighth Amendment's "proportionality principle." (30) The idea is that punishment should be proportionate to the crime, otherwise the punishment is cruel. Thus, the Court has held that "the concept of proportionality is central to the Eighth Amendment" and that "[e]mbodied in the Constitution's ban on cruel and unusual punishments is the 'precept of justice that punishment for crime should be graduated and proportioned to [the] offense.'" (31) There was some controversy about whether the clause truly contains such a proportionality requirement, but other than a spirited argument by Justice Scalia in 1991, the Court has consistently held that the proportionality principle exists in the Eighth Amendment. (32)

      The Court uses the proportionality principle to assess the constitutionality of sentences. There is a huge gap, however, in how the principle operates in theory and in practice. In theory, if a convicted...

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