Lindsey Webb (University of Denver Sturm College of Law) has posted Incarceration as Death Sentence on SSRN. Here is the abstract:
The Eighth Amendment of the United States Constitution prohibits the imposition of cruel and unusual punishment, including punishment that is disproportionate to the crime of conviction. The Supreme Court has held that the death penalty is an unconstitutionally disproportionate sentence in all but a limited number of exceptionally serious crimes, because the death penalty is unique in its finality, pain, and scale. But prisons and jails themselves serve as shadow systems of capital punishment, killing people through lethal conditions of confinement in larger numbers than the death penalty has ever done.
Despite this reality, under current Eighth Amendment jurisprudence incarceration sentences are only unconstitutionally disproportionate when the length of the sentence is grossly disproportionate to the gravity of the offense. This analysis does not consider prison conditions as punishment, and courts so rarely find the length of a carceral sentence to be unconstitutionally disproportionate that proportionality review in non-capital cases has been described as ‘dead letter’ law. The Eighth Amendment thus provides no meaningful pre-sentence limitations on the imposition of cruel and unusual punishment outside of the death penalty, and forces incarcerated people to be embedded in lethal conditions of confinement before they can begin the lengthy and complex process of raising Eighth Amendment claims.
This Article draws on the reasoning and principles of death penalty proportionality analysis to argue that courts must consider lethal prison conditions as punishment when conducting proportionality review in non-capital cases. Deadly conditions of confinement share the finality and severity of capital punishment, they are contrary to legislative intent regarding punishment in non-capital cases, and they are grossly disproportionate under the categorical exclusions established by the Supreme Court in the context of the death penalty. Treating lethal prison conditions as punishment can thus breathe new life into the ‘dead letter’ of non-capital proportionality review.