Citation metadata

Date: Mar. 2021
From: Fordham Urban Law Journal(Vol. 48, Issue 3)
Publisher: Fordham Urban Law Journal
Document Type: Article
Length: 8,078 words
Lexile Measure: 1990L

Document controls

Main content

Article Preview :
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


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...

Source Citation

Source Citation   

Gale Document Number: GALE|A659648078