THE EXTRAVAGANCE OF EIGHTH AMENDMENT DEFERENCE

We live in an era of extremely long prison sentences, visibly excruciating executions, and violence-plagued prisons. We also live in an era of penological judicial restraint, which manifests through the practice of deference, wherein courts put a thumb on the scale in favor of finding laws and policies constitutional. On this basis, courts have been reluctant to use the Eighth Amendment's ban on cruel and usual punishments to invalidate even some of the most extreme features of our criminal legal system.